[Congressional Record Volume 143, Number 94 (Monday, July 7, 1997)]
[Senate]
[Pages S6912-S6918]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (by request):
  S. 988. A bill to amend chapter 72 of title 38, United States Code, 
to reform the retirement provisions relating to the Court's judicial 
component, to provide for a staggered judicial retirement option to 
avoid the large case backlog increase that would arise in the event of 
simultaneous judicial vacancies, to rename the United States Court of 
Veterans Appeals as the United States Court of Appeals for Veterans 
Claims, and for other purposes; to the Committee on Veterans' Affairs.


            the court of veterans appeals amendments of 1997

  Mr. SPECTER. Mr. President, as chairman of the Committee on Veterans' 
Affairs, I have today introduced, at the request of the chief judge, 
U.S. Court of Veterans Appeals, S. 988, the proposed Court of Veterans 
Appeals Amendments of 1997. The chief judge submitted this proposed 
legislation to me, as chairman of the Committee on Veterans' Affairs, 
by letter dated June 16, 1997.
  My introduction of this measure is in keeping with the policy which I 
have adopted of generally introducing--so that there will be specific 
bills to which my colleagues and others may direct their attention and 
comments--proposed draft legislation referred to the Committee on 
Veterans' Affairs by the chief judge, Court of Veterans Appeals. Thus, 
I reserve the right to support or oppose the provisions of, as well as 
any amendment to, this legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record, together with the transmittal letter and the 
enclosed summary and explanation of the draft legislation which 
accompanied it.
  There being no obligation, the material was ordered to be printed in 
the Record, as follows:

                                 S. 988

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

     SEC. 1. SHORT TITLE.

       This Act may be cited as the ``Court of Veterans Appeals 
     Amendments of 1997''.

                         TITLE I--COMPARABILITY

     SEC. 101. AUTHORITY TO PRESCRIBE RULES AND REGULATIONS.

       Section 7254 of title 38, United States Code, in amended by 
     adding at the end thereof the following new subsection:
       ``(f) The Court shall have the authority to prescribe rules 
     and regulations that are necessary or appropriate to carry 
     out the provisions of subchapters III and V of chapter 72 of 
     this title and that are consistent with such chapter and any 
     other applicable provision of law.''.

     SEC. 102. CALCULATION OF YEARS OF SERVICE AS A JUDGE.

       Section 7296(b) of title 38, United States code, is amended 
     by adding at the end thereof the following new paragraph:
       ``(4) For purposes of calculating the years of service of 
     an individual under this subsection and subsection (c), only 
     those years of service as a judge of the Court shall be 
     credited, and that portion of the aggregate number of years 
     of such service that is a fractional part of 1 year shall not 
     be credited if it is less than 6 months, and shall be 
     credited if it is 6 months or more.''.

     SEC. 103. LIMITATION ON COST-OF-LIVING ADJUSTMENT TO RETIRED 
                   PAY.

       Section 7296 of title 38, United States Code, is amended by 
     adding at the end thereof the following new subsection:
       ``(l) Notwithstanding any other provision of law, cost-of-
     living adjustments made or accruing to any retired pay that 
     is paid under this section shall not result in such retired 
     pay exceeding the rate of pay in effect under section 7253(e) 
     of this title for a judge performing active service.''.

     SEC. 104. SURVIVOR ANNUITIES.

       (a) Election To Participate.--Section 7297(b) of title 38, 
     United States Code, is amended in the first sentence by 
     inserting before the period ``or within 6 months after the 
     date on which the judge marries if the judge has retired 
     under section 7296 of this title''.
       (b) Reduction of Contributions of Active Judges.--(1) 
     Section 7297(c) of title 38, United States Code, is amended 
     by striking out ``3.5 percent of the judge's pay'' and 
     inserting in lieu thereof ``2.2 percent of the judge's salary 
     received under section 7253(e) of this title, 3.5 percent of 
     the judge's retired pay received under section 7296 of this 
     title when the judge is not serving in recall status under 
     section 7257 of this title, and 2.2 percent of the judge's 
     retired pay received under such section 7296 when the judge 
     is serving in recall status under such section 7257''.
       (2) The amendment made by this subsection shall take effect 
     on the first day of the first pay period beginning on or 
     after January 1, 1995.
       (c) Interest Payments.--Section 7297(d) of title 38, United 
     States Code, is amended--
       (1) by inserting ``(1)'' after ``(d)''; and
       (2) by adding at the end thereof the following new 
     paragraph:
       ``(2) If a judge has previously performed a period of 
     service as a judge, or has performed service as a judicial 
     official as defined under section 376(a)(1) of title 28, a 
     Member of Congress, or a congressional employee, 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 all such 
     service; and
       ``(B) during which the judge was not receiving retired pay 
     or a retirement annuity based on service as a judge or as a 
     judicial official.''.
       (d) Service Eligibility.--(1) Section 7297(f) of title 38, 
     United States Code, is amended--
       (A) in paragraph (1) in the matter preceding subparagraph 
     (A)--
       (i) by striking out ``at least 5 years'' and inserting in 
     lieu thereof ``at least 18 months''; and
       (ii) by striking out ``last 5 years'' and inserting in lieu 
     thereof ``last 18 months''; and
       (B) by adding at the end thereof the following new 
     paragraph:
       ``(5) If a judge dies as a result of an assassination and 
     leaves a survivor or survivors who are entitled to receive 
     annuity benefits under this section, the matter in paragraph 
     (1) preceding subparagraph (A) shall not apply.''.
       (2) Section 7297(a) of title 38, United States Code, is 
     amended--
       (A) by inserting ``who is in active service or who has 
     retired under section 7296 of this title'' after ``Court'' in 
     paragraph (2);
       (B) by striking ``(c)'' in paragraph (3);
       (C) by redesignating paragraphs (1) through (3) as 
     paragraphs (2) through (4), respectively; and
       (D) by inserting before paragraph (2) (as redesignated by 
     clause (C) of this paragraph) the following new paragraph:
       ``(1) The term `assassination' means the killing of a judge 
     that is motivated by the performance by that judge of the 
     judge's official duties.''.
       (3) Age Requirement of Surviving Spouse.--Section 
     7297(f)(1)(A) of title 38, United States Code, is further 
     amended by

[[Page S6913]]

     striking out ``or following the surviving spouse's attainment 
     of the age of 50 years, whichever is later''.
       (f) COLA for Survivors Annuities.--Section 7297(o) of title 
     38, United States Code, is amended to read as follows:
       ``(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.''.

     SEC. 105. EXEMPTION OF RETIREMENT FUND FROM SEQUESTRATION 
                   ORDERS

       Section 7298 of title 38, United States Code, is amended by 
     adding at the end the following new subsection:
       ``(g) For purpose of section 255(g)(1)(B) of the Balanced 
     Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 
     Sec. 905(g)(1)(B)), the retirement fund shall be treated in 
     the same manner as the Court of Federal Claims Judges' 
     Retirement Fund.''.

     SEC. 106. LIMITATION ON ACTIVITIES OF RETIRED JUDGES.

       (a) In General.--Chapter 72 of title 38, United States Code 
     (as amended by this Act), is further amended by adding at the 
     end thereof the following new section:

     ``Sec. 7299. Limitation on activities of retired judges

       ``Any judge of the Court of Appeals for Veterans Claims who 
     retires from the Court under section 7296 of this title or 
     under chapter 83 or 84 of title 5 and who thereafter in the 
     practice of law represents (or supervises or directs the 
     representation of) a client in making any civil claim 
     relating to veterans' benefits against the United States or 
     any agency thereof shall forfeit all rights to retired pay 
     under such provisions for any period during which the judge 
     engages in any such activity and for one year immediately 
     following the cessation of such activity.''
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 72 of title 38, United States Code, is 
     amended by adding at the end thereof the following:

``7299. Limitation on activities of retired judges.''.

          TITLE II--STAGGERED RETIREMENT AND RECALL PROVISIONS

     SEC. 201. STAGGERED RETIREMENT.

       (A) Eligibility.--One individual each year shall be 
     eligible to retire under this section starting in the year 
     1999 and ending in the year 2003. An individual is eligible 
     to retire under this section, if the individual, at the 
     time of retirement,
       (1) is an associate judge of the United States Court of 
     Appeals for Veterans Claims (as renamed by Title III of this 
     Act) who 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 allowable under 
     section 7297(l) of such title;
       (4) is at least fifty-five years of age;
       (5) has years of age, years of service creditable under 
     section 7296 of such title, and years of service allowable 
     under section 7297(l) of such title not creditable under 
     section 7296 of such title, that total at least 80; and
       (6) has the greatest seniority as a judge of the United 
     States Court of Appeals for Veterans Claims (as renamed by 
     Title III of this Act) of the judges who provide notification 
     in accordance with subsection (b).
       (b) Notification.--A judge who desires to retire under 
     subsection (c) shall provide the President of the United 
     States and the chief judge of the United States Court of 
     Appeals for Veterans Claims (as renamed by Title III of this 
     Act) with written notification to that effect not later than 
     April 1 of any year specified in subsection (a). Such 
     notification shall specify the retirement date in accordance 
     with subsection (c). Notification provided under this 
     subsection shall be irrevocable.
       (c) Retirement.--A judge who is eligible to retire under 
     subsection (a) shall retire during the fiscal year in which 
     notification is provided pursuant to subsection (b), but, in 
     no event, earlier than 90 days after such notification is 
     provided. Notwithstanding any other provision of law, such 
     judge shall be deemed, for all purposes, to be retiring under 
     section 7296(b)(1) of title 38, United States Code, except 
     that, the rate of retired pay for a judge retiring under this 
     section shall, on the date of such judge's separation from 
     service, be equal to the rate described in section 7296(c)(1) 
     of such title multiplied by the percentage represented by the 
     fraction in which the numerator is the sum of the number 
     represented by years of service as a judge of the United 
     States Court of Appeals for Veterans Claims (as renamed by 
     Title III of this Act) creditable under section 7296 of such 
     title and the age of such judge, and the denominator is 80.
       (d) Duty of Actuary.--Section 7298(e)(2) of title 38, 
     United States Code, is amended--
       (1) by redesignating subparagraph (C) as subparagraph (D); 
     and
       (2) by adding the following new subparagraph:
       ``(C) For purposes of subparagraph (B) of this paragraph, 
     notwithstanding any other provision of law, `present value' 
     includes a value determined by an actuary with respect to a 
     payment that may be made under subsection (b) from the 
     retirement fund within the contemplation of law.''

     SEC. 202. RECALL OF RETIRED JUDGES.

       (a) In General.--Chapter 72 of title 38, United States Code 
     (as amended by section 102 of this Act), is further amended 
     by inserting after section 7256 the following new section:

     ``Sec. 7257. Recall of retired judges of the Court of Appeals 
       for Veterans Claims

       ``(a) A judge of the United States Court of Appeals for 
     Veterans Claims who has retired from the Court under the 
     provisions of section 7296 of this title or the provisions of 
     chapter 83 or 84 of title 5 shall be eligible for recall upon 
     providing the chief judge of the Court of Appeals for 
     Veterans Claims with written notification to that effect. In 
     the event of a vacancy in the position of associate judge of 
     the Court or otherwise as necessary to meet anticipated 
     case workload, the chief judge may recall such a judge 
     upon written certification by the chief judge that 
     substantial service is expected to be performed by the 
     eligible judge for such period as determined by the chief 
     judge to be necessary to meet the needs of the Court, and 
     to which certification the eligible judge agrees in 
     writing.
       ``(b) A judge recalled under this section may exercise all 
     of the powers and duties of the office of a judge in active 
     service.
       ``(c) A judge recalled under this section shall be paid 
     pay, during the period for which the judge serves in recall 
     status, at the rate of pay in effect under section 7253(e) of 
     this title for a judge performing active service, less the 
     amount the judge is paid in retired pay under section 7296 of 
     this title or an annuity under the applicable provisions in 
     chapter 83 or 84 of title 5.
       ``(d) Except as provided in subsection (c), a judge 
     recalled under this section who retired under the applicable 
     provisions of title 5 shall be considered to be a reemployed 
     annuitant under chapter 83 or chapter 84, as applicable, of 
     title 5.
       ``(e) Nothing in this section shall affect the right of a 
     judge who retired under the provisions of chapter 83 or 84 of 
     title 5 to serve otherwise as a reemployed annuitant in 
     accordance with the provisions of title 5.''
       (b) Technical and Conforming Amendments.--The table of 
     sections for chapter 72 of title 38, United States Code (as 
     amended by section 106(b) of this Act), is further amended by 
     inserting after the item relating to section 7256 the 
     following:

``7257. Recall of retired judges of the Court of Veterans Appeals.''.

                     TITLE III--RENAMING PROVISIONS

     SEC. 300. REFERENCES TO TITLE 38, UNITED STATES CODE.

       Except as otherwise expressly provided, whenever in section 
     301 an amendment or repeal is expressed in terms of an 
     amendment, or repeal of, a section or other provision, the 
     reference shall be considered to be made to a section or 
     other provision of title 38, United States Code.

     SEC. 301. RENAMING OF THE COURT OF VETERANS APPEALS.

       (a) In General.--(1) The United States Court of Veterans 
     Appeals shall hereafter be known and designated as the United 
     States Court of Appeals for Veterans Claims.
       (2) Section 7251 is amended by striking out ``United States 
     Court of Veterans Appeals'' and inserting in lieu thereof 
     ``United States Court of Appeals for Veterans Claims''.
       (b) Conforming Amendments.--
       (1) The following sections are amended by striking out 
     ``Court of Veterans Appeals'' each place it appears and 
     inserting in lieu thereof ``Court of Appeals for Veterans 
     Claims'': sections 5904, 7101(b), 7252(a), 7253, 7254, 7255, 
     7256, 7261, 7262, 7263, 7264, 7266(a)(1), 7267(a), 7268(a), 
     7269, 7281(a), 7282(a), 7283, 7284, 7285(a), 7286, 7291, 
     7292, 7296, 7297, and 7298.
       (2)(A)(i) The heading of section 7286 is amended to read as 
     follows:

     ``Sec. 7286. Judicial Conference of the Court of Appeals for 
       Veterans Claims''.

       (ii) The item relating to section 7286 in the table of 
     sections at the beginning of chapter 72 (as amended by 
     sections 106(b) and 202(b) of this Act) is further amended to 
     read as follows:

``7286. Judicial Conference of the Court of Appeals for Veterans 
              Claims.''.

       (B)(i) The heading of section 7291 is amended to read as 
     follows:

     ``Sec. 7291. Date when Court of Appeals for Veterans Claims 
       decision becomes final''.

       (ii) The item relating to section 7291 in the table of 
     sections at the beginning of chapter 72 (as amended by 
     sections 106(b), 202(b), and subsection (b)(2)A)(ii) of this 
     section) is further amended to read as follows:

``7291. Date when Court of Appeals for Veterans Claims decision becomes 
              final.''.

       (C)(i) The heading of section 7298 is amended to read as 
     follows:

     ``Sec.  7298. Court of Appeals for Veterans Claims Retirement 
       Fund''.

       (ii) The item relating to section 7298 in the table of 
     sections at the beginning of chapter 72 (as amended by 
     sections 106(b), 202(b), and subsection (b)(2)(A)(ii) and 
     (B)(ii) of this section) is further amended to read as 
     follows:

``7298. Court of Appeals for Veterans Claims Retirement Fund.''.

       (3) The item relating to chapter 72 in the table of 
     chapters at the beginning of title 38 and the item relating 
     to such chapter in the table of chapters at the beginning of 
     part V are amended to read as follows:

``72. United States Court of Appeals for Veterans Claims....7251.''....

       (c) Conforming Amendments to Other Laws.--

[[Page S6914]]

       (1) The following provisions of law are amended by striking 
     out ``Court of Veterans Appeals'' each place it appears and 
     inserting in lieu thereof ``Court of Appeals for Veterans 
     Claims'':
       (A) Section 8440d of title 5, United States Code.
       (B) Section 2412 of title 28, United States Code.
       (C) Section 906 of title 44, United States Code.
       (D) Section 109 of the Ethics in Government Act of 1978 (5 
     U.S.C. App.).
       (2)(A) The heading of section 8440d of title 5, United 
     States Code, is amended to read as follows:

     ``Sec. 8440d. Judges of the United States Court of Appeals 
       for Veterans Claims''.

       (B) The item relating to such section in the table of 
     sections at the beginning of chapter 84 of such title is 
     amended to read as follows:

``8440d. Judges of the United States Court of Appeals for Veterans 
              Claims.''.

       (d) Other Legal References.--Any reference in a law, 
     regulation, document, paper, or other record of the United 
     States to the United States Court of Veterans Appeals shall 
     be deemed to be a reference to the United States Court of 
     Appeals for Veterans Claims.
                                                                    ____


Summary and Explanation of Court of Veterans Appeals Amendments of 1997

     Section 1: Short title
       Summary: Section 1 would provide that the short title of 
     the proposed legislation [hereinafter `the Proposal''] is the 
     ``Court of Veterans Appeals Amendments of 1997''.
       Explanation: Self-explanatory.


                         Title I--Comparability

       Title I contains provisions designed to provide 
     comparability in a number of respects between the retirement/
     survivor program applicable to judges of the U.S. Court of 
     Veterans Appeals (to be renamed by section 301 of the 
     Proposal as the U.S. Court of Appeals for Veterans Claims) 
     [hereinafter ``this Court'' or ``the Court''] and the program 
     applicable to judges of other Article I courts. The 
     explanation that follows each section in this title sets 
     forth the comparable provisions that form the basis for the 
     provision in the Proposal. Full comparability is not being 
     proposed with other federal courts because the Court is not 
     requesting elimination of the judge's contribution for 
     participation in the Court retirement program.

                      Section-by-Section Analysis

     Section 101: Authority to prescribe rules and regulations
       Summary: Section 101 would provide to the Court the express 
     authority to prescribe rules and regulations necessary or 
     appropriate to carry out the provisions of subchapters III 
     and V of chapter 72 of title 38, pertaining to the Court's 
     administration and retirement/survivor system. Any rules and 
     regulations prescribed would be required to be consistent 
     with chapter 72 and all other applicable provisions of law.
       Explanation: The Director of the Administrative Office of 
     the United States Courts (Director) has express authority, 
     subject to the supervision of the Judicial Conference of the 
     United States, to regulate a wide range of activities that 
     pertain to Article III, U.S. Court of Federal Claims 
     (Claims), and U.S. Bankruptcy and Magistrate (B&M) Judges.\1\ 
     The Judicial Conference of the United States also has express 
     authority to promulgate rules and regulations.\2\ The U.S. 
     Court of Appeals for the Armed Forces, formerly the U.S. 
     Court of Military Appeals (COMA) [hereinafter so referenced 
     to coordinate with references to ``COMA'' in Dennis W. Snook 
     & Jennifer A. Neisner, Congressional Research Service Report 
     for Congress, Income Protection for Judges of Selected 
     Federal Courts, dated December 29, 1993, (CRS Report)] is 
     located for administrative purposes in the Department of 
     Defense.\3\ Unlike these courts, this Court is a freestanding 
     court in the judicial branch that is independently 
     responsible for its own administration but that presently has 
     no express statutory authority to prescribe rules and 
     regulations.
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     \1\ Footnotes at end of article.
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     Section 102: Calculation of years of service as a judge
       Summry: Section 102 would provide that a fractional year of 
     judicial service of less than 6 months would not be credited 
     toward judicial service and that a fractional year of 6 
     months or more of judicial service would be calculated as a 
     full year of service.
       Explanation: This proposal would bring this Court's Judges 
     in lien with Claims and U.S. Tax Court (Tax) Judges and is 
     similar to how fractional years are credited for COMA 
     Judges.\4\
     Section 103: Limitation on cost-of-living adjustment to 
         retired pay
       Summary: Section 103 would provide for a cap on a cost-of-
     living adjustment (COLA) to this Court's judicial retired pay 
     so that it may not exceed active pay.
       Explanation: Article III and Article I Judges who have 
     retired, as well as other federal retirees, have provisions 
     for postretirement increases in their annuities.\5\ The B & M 
     provision is the only existing provision that specifically 
     prohibits an adjusted annuity from exceeding active pay. 
     Section 103 adopts this restriction.\6\ Although section 103 
     would permit COLA to accrue, the accrued COLA could not be 
     paid unless the level of active pay permitted it.\7\
     Section 104: Survivor annuities
       Summary: Section 104 would revise this Court's survivor 
     annuity system to incorporate certain provisions applicable 
     under the Joint Survivors' Annuity System (JSAS), the system 
     applicable to Article III, Claims, and B & M Judges, as 
     follows:
       a. Expand the period to elect participation while in office 
     (38 U.S.C. Sec. 7297(b)) to permit a retired judge who 
     marries to elect participation within 6 months after 
     marriage, as provided for by JSAS.\8\
       b. Reduce, effective the first day of the first pay period 
     beginning on or after January 1, 1995, the contributions of 
     judges in active service and on recall from 3.5 percent (38 
     U.S.C. Sec. 7297(c)) to 2.2 percent of salary and retired 
     pay, respectively, the JSAS levels.\9\
       c. Exclude from the 3-percent per annum interest payment 
     requirement (38 U.S.C. Sec. 7297(d)) any period during which 
     a judge was separated from certain previous service (as a 
     judge, a judicial official under section 376(a)(1) of title 
     28, a Member of Congress, or a congressional employee) and 
     was not receiving a retirement annuity based on service as a 
     judge or judicial official, since such interest payment is 
     not required by JSAS.\10\
       d. Reduce the minimum period of civilian service needed for 
     purposes of eligibility for a survivor annuity from 5 years 
     (38 U.S.C. Sec. 7297(f)(1), (h)(1)) to 18 months,\11\ and 
     provide for an exemption from the 18-month requirement where 
     the judge has been assassinated,\12\ both as provided for in 
     JSAS.
       e. Eliminate the requirement that the surviving spouse be 
     at least 50 years of age in order to receive a survivor 
     annuity (38 U.S.C. Sec. 7297(f)(1)A)) since no minimum age is 
     provided for in JSAS.\13\
       f. Substitute the same COLA as provided under JSAS for the 
     COLA presently in place (38 U.S.C. Sec. 7297(o) provides for 
     a fractional COLA only when the cost of living rises by 5 
     percent or more in any 1 year).\14\
       Explanation: These changes would bring the supervisors' 
     annuity program for this Court into line with that for 
     Article III, Claims, and B&M Judges, all of whom are covered 
     by JSAS.
     Section 105: Gramm-Rudman exemption
       Summary: Section 105 would exempt this Court's Retirement 
     Fund from possible Gramm-Rudman sequestration.
       Explanation: This proposal would bring this Court's 
     judicial retirement program into line with the retirement 
     programs for Article III, Claims, Tax, COMA, and B&M 
     Judges.\15\
     Seciton 106: Limitation on activities or retired judges
       Summary: Section 106 would provide that a Judge retired 
     from this Court would forfeit that judge's retirement 
     annuity, upon practicing law involving representation of any 
     client in a federal claim for veterans' benefits, during the 
     period in which the judge engages in the proscribed activity 
     and for one year immediately following the cessation of such 
     activity.
       Explanation: Claims, Tax, and B&M Judges who have retired 
     from active service are subject to statutory provisions that 
     significantly restrict such judges from the practice of law 
     in the representation of clients in the subject areas that 
     came before their respective courts.\16\ In addition to the 
     proposed section 106, this Court's judges in active service 
     are presently subject to the Code of Conduct for United 
     States Judges \17\ and, upon enactment of section 202, also 
     will be subject to that Code under certain circumstances 
     during retirement, including when in recall status. The Code 
     of Conduct imposes prohibitions and restrictions on the 
     activities of judges subject to that Code beyond those 
     imposed by statute.


               title ii--staggered retirement and recall

       Title II contains a provision to address the looming 
     problem of having as many as four simultaneous associate 
     judgeship vacancies on the Court in 2005 by creating a 
     staggered retirement option designed to encourage the 
     sequencing of associate judge retirements starting in 1999. 
     It also contains a provision to provide for recall of retired 
     judges in the event of judicial vacancies or increased 
     workload.
     Section 201: Staggered retirement
       Summary: Section 201 would provide a mechanism, in a 
     transitional provision, to permit the early retirement of one 
     associate judge per year starting in the year 1999 and ending 
     in the year 2003. In order to be eligible, each retiring 
     judge would need at least ten years of service on this Court; 
     be a participant in this Court's retirement system; have at 
     least 20 years of federal service allowable under 38 U.S.C. 
     Sec. 7297(l); be at least 55 years of age; have years of age, 
     years of service creditable under 38 U.S.C. Sec. 7296, and 
     years of service allowable under 38 U.S.C. Sec. 7297(l) not 
     creditable under section 7296, that total at least 80; and 
     have the greatest seniority as a judge of this Court among 
     this Court's judges who provide notification of intent to 
     seek early retirement in the fiscal year in question. (The 
     combination of 10 years of service on this Court and the 
     ending year of 2003 would restrict this provision's 
     availability to the Court's original associate judges.) 
     Written notification will be provided to the President and 
     Chief Judge not later than April 1 of years 1999 through 
     2003, specifying a retirement date not earlier than 90 
     days thereafter nor later than the end (September 30) of 
     the fiscal year in which notification is provided. 
     Notification shall be irrevocable once provided. Retired 
     pay of an

[[Page S6915]]

     early retiring judge will be based upon a modified rule of 
     80 in which the rate described in 38 U.S.C. 
     Sec. 7296(c)(1) is reduced proportionally in accordance 
     with the extent to which the retiring judge's combined 
     years of service as a CVA judge and age do not reach 80.
       Section 201 would further provide that 38 U.S.C. 
     Sec. 7298(e)(2), which can presently be used with respect to 
     funding actuarily determined present value of all benefits 
     payable from the Court's Retirement Fund, be amended to 
     permit the Court to use that provision also with respect to 
     benefits that may be paid from the Retirement Fund within the 
     contemplation of existing law.
       Explanation: Section 201 would provide a mechanism to deal 
     with a serious problem of judge turnover, the magnitude of 
     which the Court has not previously appreciated. The Court was 
     created in 1988 without any antecedent structure and with no 
     judges in place (Veterans' Judicial Review Act, Pub. L. 100-
     687, Div. A., 102 Stat. 4105 (Nov. 18, 1988)). All 6 of the 
     Court's original associate judges assumed office within a 
     period of approximately 1 year of each other. The 15-year 
     terms of the court's remaining 5 original associate judges 
     will expire within a period of approximately 1 year of each 
     other. Even assuming the application of the Rule of 80 under 
     38 U.S.C. Sec. 7296(b)(1) (and assuming no reappointments 
     under 38 U.S.C. Sec. 7296(2)), 4 of 5 of the court's original 
     associate judges will retire within 11 months of each other, 
     beginning in September 2004 (two in September 2004, one in 
     January 2005, and one in August 2005; the fifth associate 
     judge would be eligible for retirement under the Rule of 80 
     in November 2002).
       Given the length of time likely to be involved in the 
     nomination and confirmation process, especially considering 
     the election of a President in November 2004, 3 of the 
     Court's judgeships are very likely to be simultaneously 
     vacant during a substantial part of 2005, and it is quite 
     possible that a majority of the judgeships could be 
     simultaneously vacant during part of that year and possibly 
     thereafter. Then, even after the judgeships are filled, there 
     could well be considerable lack of experience among the 
     majority of the Court's judges. This situation would almost 
     certainly dramatically increase the Court's backlog--
     initially during the vacancies and continuing during the 
     startup period for the replacement judges. As well, during 
     the vacancy period the Court could be in a situation where 
     two or three judges might be able to overrule prior Court 
     precedent.
       In order to preclude such problems, section 201 creates a 
     staggered-retirement option designed to encourage the 
     sequencing of associate judge retirements starting in 1999. 
     It is important to bear in mind when considering the 
     staggered-retirement provision that the formula for an early-
     retirement annuity must provide sufficient financial 
     incentive for an associate judge to elect to forego the full 
     retirement benefit that would be available upon completion of 
     the 15-year term or satisfaction of the Rule of 80. There is 
     no sense whatsoever in legislating a formula that will not 
     produce the early retirements that are essential to avoid the 
     serious adverse consequences that would result for the Court 
     from having 3-4 simultaneous judicial vacancies in 2005 and 
     possibly beyond.
       Implementation of section 201 may be achievable without 
     seeking additional appropriations for this purpose. In this 
     regard, subsection (d)(2) of the proposed section 201 would 
     add a subparagraph (C) to permit the Court to utilize 38 
     U.S.C. Sec. 7298(2)(A) in anticipation of a payment that may 
     have to be made from the Court's Retirement Fund. It should 
     be noted that, even absent staggered retirement, the proposed 
     subparagraph (C) would allow the Court to provide for much 
     better management of a judge's anticipated entry, under 38 
     U.S.C. Sec. 7296(d)(1)(A), into the Court's retirement 
     system.
       Precedent exists in 3 other Article I courts for fractional 
     retirement based on completion of less than a full statutory 
     term of service. In 2 of these 3 courts, as described below, 
     the fractional retirement annuity may be enhanced by either a 
     CSRS/Federal Employees Retirement System (FERS) annuity or by 
     an additional component of court retirement calculated under 
     CSRS, respectively.
       When COMA was enlarged in 1989 from 3 to 5 active judges, 
     one of the new judgeships was for a term of 13 years and the 
     other for a term of 7 years.\18\ The COMA Judges appointed to 
     7- and 13-year terms are eligible, upon completion of those 
     terms, for immediate special annuities calculated by 
     multiplying the last salary prior to retirement by a fraction 
     based on a numerator of years of service and a denominator of 
     15.\19\
       B & M Judges who have served at least 8 years are each 
     entitled to a Judicial Retirement System (JRS) annuity, upon 
     reaching age 65, calculated by multiplying the last salary 
     prior to retirement by a fraction based on a numerator of 
     years of service and a denominator of 14 (the number of years 
     of a full term). This annuity is reduced by 2 percent for 
     each year the annuitant was under age 65 at the time the 
     annuitant left office not to exceed a 20-percent 
     reduction.\20\ The reduction is not applicable if a B & M 
     Judge fails to be reappointed after serving a full term.\21\ 
     An alternative hybrid JRS annuity is available, in a 
     transitional provision, to each full-time B & M Judge who was 
     in office on November 15, 1988, regardless of the number of 
     years of judicial service, calculated in the same manner as a 
     regular IRS annuity for those years of judicial service 
     designated by such judge for the period on or after October 
     1, 1979, plus a CSRS or FERS annuity for federal service 
     prior to the designation.\22\
       District of Columbia courts (D.C.) Judges are eligible for 
     retirement upon completion of 10 years of judicial service, 
     with retirement salary beginning at age 50, if they have 20 
     or more years of judicial service, or at age 60 if they have 
     less than 20 years of such service, or at a reduced salary if 
     they are between ages 55 and 60.\23\ The retirement salary is 
     the amount determined by multiplying the last judicial salary 
     by that fraction where the numerator is total years of 
     judicial service and the denominator is 30.\24\ Provision is 
     also made for an add-on to retirement salary, based on 
     qualifying federal civilian and military service, generally 
     computed on the basis of CSRS law. Two unique features of the 
     add-on are that the deposit by the retiring judge in the D.C. 
     Judges' Retirement Fund \25\ is 3.5 percent of the salary 
     earned for civilian service plus interest and that average 
     pay for purposes of CSRS service is the last pre-retirement 
     salary of the judge.\26\ The total retirement salary, upon 
     retirement, may not exceed 80 percent of the last judicial 
     salary.\27\ A judge who retires between ages 55 and 60 who 
     has less than 20 years of judicial service and elects a 
     reduced retirement salary shall have that salary reduced by 
     1/12th of 1 percent for each month the judge is under the age 
     of 60 at the time of retirement.\28\ In the case of a judge 
     described in the preceding sentence whose calculation of 
     retirement salary benefits, based on both fractional judicial 
     service and CSRS law, results in an amount exceeding the 80% 
     cap, the reduction based on age will be made to such 
     calculation to the extent of the difference between such 
     calculation and such cap.
       In addition to the fractional retirement provisions noted 
     above with respect to COMA, B & M, and D.C. Judges, there are 
     a number of other provisions that permit full retirement 
     where less than a full judicial term has been completed. A 
     disabled Article III Judge, Claims Judge, or Tax Judge, with 
     10 years of judicial service on such judge's court, is 
     entitled to the salary of an active judge.\29\ A disabled 
     Judge on this Court with 10 years of judicial service is 
     entitled to the retired pay that he or she would have 
     received had he or she completed his or her term.\30\ In 
     certain cases involving misconduct or disability, length-of-
     service requirements can be waived for Article III, Claims, 
     and this Court's Judges.\31\
       Finally, three other provisions should be noted. Claims and 
     B & M Judges may retire under CSRS at age 60 with 10 years of 
     judicial service. COMA Judges may retire under CSRS at any 
     time without regard to age-and-service requirements, with a 
     reduction in the annuity of a judge retiring under age 60. 
     Retired Article III Judges are permitted separate annuities, 
     without offset, one for judicial service, and one for 
     nonjudicial service that qualifies for a CSRS/FERS 
     annuity.\32\
     Section 202: Recall of retired judges
       Summary: Section 202 would provide that a retired judge of 
     the Court would be eligible for recall, by providing the 
     chief judge with written notification to that effect. Recall 
     of such a judge, in the event of judicial vacancy or 
     otherwise to meet case workload, would occur when the chief 
     judge certifies that substantial service is expected to be 
     performed by such retired judge, for such period as the chief 
     judge determines to be necessary, and such retired judge 
     agrees to such certification. During the period of recall 
     service, the retired judge would receive, in addition to the 
     judge's retired pay, the difference between that pay and pay 
     of an active judge of the Court.
       Explanation: All Article III and Article I Judges, except B 
     & M and this Court's Judges, have specific provision for both 
     senior status and post retirement judicial service.\33\ B & M 
     Judges have specific provision for postretirement judicial 
     service.\34\ Only this Court's Judges have no specific 
     provision for either.
       Article III, Claims, Tax, and COMA Judges automatically 
     receive senior status upon retirement, and D.C. Judges may be 
     appointed to such status subsequent to retirement and upon 
     favorable recommendation of the District of Columbia 
     Commission on Judicial Disabilities and Tenure.\35\ Retired 
     Article III Judges who perform the equivalent of the average 
     2-month workload of an active judge, and retired Claims and 
     Tax Judges who make themselves available for work not to 
     exceed 90 days per year receive pay of the office.\36\ Those 
     retired Article III Judges who perform service only upon 
     their consent, and all retired COMA and B & M Judges, who may 
     be recalled only upon their consent, receive their respective 
     retirement annuities plus a cost-of-living adjustment 
     (COLA).\37\
       Retired senior D.C. Judges may be recalled only upon their 
     consent.\38\ Both retired senior and nonsenior D.C. Judges 
     receive their annuities plus COLA.\39\ Recalled COMA Judges 
     receive pay of the office in lieu of retirement 
     annuities.\40\ Recalled B & M Judges and D.C. Judges receive, 
     in addition to retirement annuities, an amount equal to the 
     difference between annuity and pay of the office.\41\
       As is the case with B & M Judges, section 202 would provide 
     only for recall service, but would not provide for senior 
     status. The latter generally involves substantially higher 
     costs for judicial pay, space for chambers, and support 
     staff.

[[Page S6916]]

                     title iii--renaming provision

     Section 301: Renaming of the Court of Veterans Appeals
       Summary: Section 301 renames the United States Court of 
     Veterans Appeals as the United States Court of Appeals for 
     Veterans Claims.
       Explanation: Section 301 is virtually identical to section 
     201 of H.R. 1092, 105th Cong., 1st Sess., which was passed by 
     the House on April 16, 1997, and provides for the renaming of 
     the Court. House Report No. 105-97, which accompanied the 
     House-passed bill, states on page 3:
       The bill would amend section 7251 of title 38, United 
     States Code, to rename the United States Court of Veterans 
     Appeals (``the Court'') as the United States Court of Appeals 
     for Veterans Claims. According to Chief Judge Frank Q. 
     Nebeker, many veterans and attorneys believe that the Court 
     is an administrative tribunal of the Department of Veterans 
     Affairs rather than an independent judicial entity.
       Moreover, the Court's common acronym ``CVA'' is not readily 
     distinguishable from ``BVA'', and acronym for the Board of 
     Veterans' Appeals which is an administrative tribunal of the 
     Department of Veterans Affairs. Adoption of the name ``United 
     States Court of Appeals for Veterans Claims'' would also be 
     consistent with recent name changes in other courts 
     established by Congress under Article I of the United States 
     Constitution. In 1994, the United States Court of Military 
     Appeals was renamed the United States Court of Appeals for 
     the Armed Forces. In 1992, the United States Court of Claims 
     was renamed the United States Court of Federal Claims.


                               footnotes

     \1\ See 28 U.S.C. Sec. 604.
     \2\ See, e.g., infra note 41.
     \3\ See 10 U.S.C. Sec. 941.
     \4\ For Claims Judges, see 28 U.S.C. Sec. 178(g); see also 
     *Pub. L. No. 101-650, Sec. 306(a)(1), 104 Stat. 5107; for Tax 
     Judges, see 26 U.S.C. Sec. 7447(d)(2)(B); for COMA Judges, 
     see 10 U.S.C. Sec. 942(b)(2); see also National Defense 
     Authorization Act for Fiscal Years 1990 and 1991, *Pub. L. 
     101-189, Sec. 1301 (c), (g), 103 Stat. 1352, 1570, 1575-76 
     (Nov. 29, 1989). [Note: Starred references (*) were enacted 
     in the same year as, or subsequent to, enactment of the 
     Veterans' Judicial Review Act, Pub. L. No. 100-687, Div. A., 
     102 Stat. 4105 (1988).].
     \5\ For CSRS/FERS retirees, see 5 U.S.C. Sec. Sec. 8340, 
     8462; for Article III Judges, see CRS Report at 17; 28 U.S.C. 
     Sec. 371(b); for Claims Judges, see CRS Report at 17; 28 
     U.S.C. Sec. 178(a), (b); see also *Pub. L. 101-650, Sec. 306, 
     104 Stat. at 5105-12; for Tax Judges, see CRS Report at 17; 
     26 U.S.C. Sec. 7447(d)(1); for COMA Judges, see CRS Report at 
     17; 10 U.S.C. Sec. 945(e); see also *Pub. L. No. 101-189, 
     Sec. 1301(c), 103 Stat. at 1577; for B & M Judges, see CRS 
     Report at 8, 17; Memorandum, CVA Committee on Legislative 
     Matters, Nov. 14, 1994, item 6; 28 U.S.C. Sec. 377(e); see 
     also Retirement and Survivors' Annuities for Bankruptcy 
     Judges and Magistrates Act of 1988, *Pub. L. No. 100-659, 
     Sec. 2(a), 102 Stat. 3910, 3911 (Nov. 15, 1988); for D.C. 
     Judges, see 11 D.C. Code Ann. Sec. 1571(a)(1981).
     \6\ Ibid.
     \7\ Ibid.
     \8\ For JSAS, see CRS Report at 22; 28 U.S.C. 
     Sec. 376(a)(1)(ii); for Claims Judges, see also *Pub. L. No. 
     101-650, Sec. 306(b), 104 Stat. at 5109-10; for B & M Judges, 
     see also *Pub. L. No. 100-659, Sec. 3(a), 102 Stat. at 3917-
     18.
     \9\ For JSAS, see 28 U.S.C. Sec. 376(b)(1); see also *Pub. L. 
     No. 102-572, Sec. 201(b), 106 Stat. at 4508-09.
     \10\ For JSAS, see 28 U.S.C. Sec. 376(d); for Claims Judges, 
     see also *Pub. L. No. 101-650, Sec. 306(b), 104 Stat. at 
     5109-10; for B & M Judges, see also *Pub. L. No. 100-659, 
     Sec. 3(a), 102 Stat. at 3917-3918.
     \11\ For JSAS, see CRS Report at 12; 28 U.S.C. 
     Sec. 376(o)(1)(A), (B); for Claims Judges, see also *Pub. L. 
     No. 101-650, Sec. 306(b), 104 Stat. at 5109-10; for B & M 
     Judges, see also *Pub. L. No. 100-659, Sec. 3(a), 102 Stat. 
     at 3917-18.
     \12\ For JSAS, see 28 U.S.C. Sec. 376(o)(2); see also *Pub. 
     L. No. 101-650, Sec. 322(e)(4), 104 Stat. 5119.
     \13\ For JSAS, see CRS Report at 12; 28 U.S.C. 
     Sec. 376(h)(1)(i); for Claims Judges, see also *Pub. L. No. 
     101-650, Sec. 306(b), 104 Stat. at 5109-10; for B & M Judges, 
     see also *Pub. L. No. 100-659, Sec. 3(a), 102 Stat. at 3917-
     18.
     \14\ For JSAS, see CRS Report at 12, 26; 28 U.S.C. 
     Sec. 376(m); see also Judicial Improvements and Access to 
     Justice Act, *Pub. L. No. 100-702, Sec. 1017(a), 102 Stat. 
     4642, 4670 (Nov. 19, 1988).
     \15\ For Article III, Claims, Tax, COMA, and B & M Judges, 
     see 2 U.S.C. Sec. 905(g)(1)(B); for Claims and B & M Judges, 
     see also Federal Courts Administration Act of 1992, *Pub. L. 
     No. 102-572, Sec. 601(a), 106 Stat. 4506, 4514 (Oct. 29, 
     1992).
     \16\ For Claims Judges, see CRS Report at 20; 28 U.S.C. 
     Sec. 178(j)(1), (4)); see also *Pub. L. No. 101-650, 
     Sec. 306(a), 104 Stat. at 5107; for Tax Judges, see CRS 
     Report at 20; 26 U.S.C. Sec. 7447(f)(2), (4); for B & M 
     Judges, see CRS Report at 20; 28 U.S.C. Sec. 377(m)(1)); see 
     also *Pub. L. No. 100-659, Sec. 2, 102 Stat. at 3913.
     \17\ See Guide to Judiciary Policies and Procedures, vol. 2, 
     ch. 1, I-46, Sec. C (1994).
     \18\ See *Pub. L. No. 101-189, Sec. 1301(d), 103 Stat. at 
     1574 (found at 10 U.S.C. Sec. 942 note).
     \19\ See *Pub. L. No. 101-189, Sec. 1301(e)(3), 103 Stat. at 
     1575 (found at 10 U.S.C. Sec. 942 note).
     \20\ See CRS Report at 16; 28 U.S.C. Sec. 377(c); see also 
     *Pub. L. No. 100-659, Sec. 2(a), 102 Stat. at 3910-11.
     \21\ See CRS Report at 16; 28 U.S.C. Sec. 377(b); see also 
     *Pub. L. No. 100-659, Sec. 2(a), 102 Stat. at 3910.
     \22\ See CRS Report at 7, Eligibility and Choices; see also 
     *Pub. L. No. 100-59, Sec. 2(c)(1), 102 Stat. at 3916-17.
     \23\ See 11 D.C. Code Ann. Sec. 1562 (1981). D.C. Judges have 
     a term of 15 years. See 11 D.C. Code Ann. Sec. 1502 (1981).
     \24\ See 11 D.C. Code Ann. Sec. 1564(a) (1981).
     \25\ See 11 D.C. Code Ann. Sec. 1564(c), (d)(1) (1981).
     \26\ See 11 D.C. Code Ann. Sec. 1564(c) (1981).
     \27\ See 11 D.C. Code Ann. Sec. 1564(a) (1981).
     \28\ Ibid.
     \29\ For disabled Article III, Claims, and Tax Judges, see 
     CRS Report at 20; 28 U.S.C. Sec. 178(c)(2) (Article III); 28 
     U.S.C. Sec. 372(a) (Claims); 26 U.S.C. Sec. 7447(d)(2)(A) 
     (Tax); for Claims Judges, see also *Pub. L. No. 101-650, 
     Sec. 306(a)(1), 104 Stat. at 5105-09.
     \30\ See CRS Report at 11, 38 U.S.C. Sec. 7296(b)(3), (c)(2).
     \31\ For Article III Judges, see 28 U.S.C. 
     Sec. 372(c)(6)(B)(iii); for Claims Judges, see 28 U.S.C. 
     Sec. 372(c)(18); for CVA Judges, see 38 U.S.C. 
     Sec. 7253(g)(1).
     \32\ For Claims and B&M Judges, see CRS Report at 9, Special 
     Early Retirement; 5 U.S.C. Sec. 8336(k); see also *Pub. L. 
     101-650, Sec. 306(c)(3), 104 Stat. at 5110; for COMA Judges, 
     see CRS Report at 11, Special Early Retirement; 5 U.S.C. 
     Sec. 8336(b); for Article III Judges, see CRS Report at 6, 
     Contributions; 28 U.S.C. Sec. 371.
     \33\ For Article III and Article I Judges, see CRS Report at 
     16-17, 19; 11 D.C. Code Ann. Sec. 1504(a), (b); for Claims 
     Judges, see also *Pub. L. No. 101-650, Sec. 306(a), 104 Stat. 
     at 5106.
     \34\ See CRS Report at 19; 28 U.S.C. Sec. 155(b), 375(b), 
     636(h); see also *Pub. L. No. 100-659, Sec. 4, 102 Stat. at 
     3918.
     \35\ For Article III, Claims, Tax, and COMA Judges, see CRS 
     Report at 16, 17, 19; for Claims Judges, see also *Pub. L. 
     No. 100-659, Sec. 4, 102 Stat. at 3918; for D.C. Judges, see 
     11 D.C. Code Ann. Sec. 1504 (1981).
     \36\ For Article III, Claims, and Tax Judges, see CRS Report 
     at 17, 19; for Claims Judges, see also *Pub. L. No. 101-650, 
     Sec. 306(a), 104 Stat. at 5106.
     \37\ See infra note 41.
     \38\ See 11 D.C. Code Ann. Sec. 1504(a)(1) (1981).
     \39\ See 11 D.C. Code Sec. 1571.
     \40\ See CRS Report at 19; 10 U.S.C. Sec. 942(e)(1), (2).
     \41\ For B & M Judges, see CRS Report at 19; 28 U.S.C. 
     Sec. 155(b) (generic recall for Bankruptcy Judges); 
     Regulations of the Judicial Conference of the United States 
     Governing the Recall of Retired Bankruptcy Judges, sec. 5, 
     Period of Service (1987) (appearing in Administrative Office 
     of the U.S. Courts, Retirement Benefits for Bankruptcy Judges 
     and Magistrate Judges (1995) [hereinafter B & M Retirement 
     Benefits], App. E) (providing for 1-year renewable recall 
     terms); *Regulations of the Judicial Conference of the United 
     States Governing the Extended Recall Service of Retired 
     Bankruptcy Judges, sec. 7, Period of Service (1987) 
     (appearing in B & M Retirement Benefits, App. F) (providing 
     for 3-year renewable recall terms); 28 U.S.C. Sec. 636(h) 
     (generic recall for Magistrate Judges); Regulations of the 
     Judicial Conference of the United States Establishing 
     Standards and Procedures for the Recall of United States 
     Magistrate Judges, sec. 5, Period of Service (1987) 
     (appearing in B & M Retirement Benefits App. D) (providing 
     for 1-year renewable recall terms); see CRS Report at 19; 28 
     U.S.C. Sec. 375(a)(1) (providing for 5-year renewable recall 
     terms for B & M Judges); not implemented by regulation (B & M 
     Retirement Benefits, sec. 8.a.); for D.C. Judges, see 11 D.C. 
     Code Ann. Sec. 1565 (1981); for B & M Judges, see also *Pub. 
     L. No. 101-659, Sec. 4, 102 Stat. at 3918.
                                                                    ____



                               U.S. Court of Veterans Appeals,

                                    Washington, DC, June 16, 1997.
     Hon. Arlen Specter,
     Chairman, Committee on Veterans' Affairs, 412 Senate Russell 
         Office Building, U.S. Senate, Washington, DC.
       Dear Mr. Chairman: I am writing to submit to you a 
     legislative proposal that replaces the one I sent you in June 
     1996. As I indicated in my letter of February 4, 1997, the 
     Court had experienced a substantial change in case filings 
     for the prior 10 months. With a monthly average of new case 
     filings of over 160 during the past year, I am convinced that 
     the downsizing proposal transmitted last June is no longer 
     advisable.
       For the reasons stated in my February 4, 1997, letter, and 
     as set forth in my budget testimony in the last several 
     months, the Court now anticipates that case filings in fiscal 
     year 1997 will be over 1900--a figure that could increase 
     further if the Board of Veterans' Appeals continues to 
     increase its output of final, appealable decisions. Moreover, 
     the workload in each of the judge's chambers will increase if 
     the long delays in case processing, due to numerous filing 
     extensions granted to the Secretary, occasioned by the 
     staffing difficulties in Group VII of the Department's 
     General Counsel's office, are reduced; this matter has 
     recently received considerable attention by the Court and the 
     General Counsel herself. In that regard, I am enclosing an 
     April 8, 1997, letter (with attachment) to me from the 
     General Counsel that addresses this problem.
       Against this background of a substantial caseload increase, 
     I am submitting a new, single legislative proposal that 
     incorporates as Title I the provisions of Title II from last 
     year's proposal. These provisions are designed to provide 
     comparability in a number of respects between the retirement/
     survivor annuity programs available for this Court's judges 
     and those applicable to judges of other Article I Courts. 
     Enactment of section 104 will be of particular benefit to the 
     widow of Judge Hart Mankin, who died last year, because 
     section 104 would rectify the disparity between her survivor 
     annuity and the annuities of survivors of deceased Article I 
     Judges under the Joint Survivors' Annuity System.
       The Court's new legislative proposal adds a new Title II to 
     deal with a serious problem of judge turnover, the magnitude 
     of which the Court had not previously appreciated. As I 
     indicated in my February 4, 1997, letter, the Court was 
     created in 1988 without any antecedent structure and with no 
     judges in place (Veterans' Judicial Review Act, Pub. L. No. 
     100-687, Div. A., 102 Stat. 4105 (Nov. 18, 1988)). All 6 of 
     the Court's original associate judges assumed office within a 
     period of approximately 1 year of each other. The 15-year 
     terms of the Court's remaining 5 original associate judges 
     will expire within a period of approximately 1 year of each. 
     Even assuming the application of the Rule of 80 under 38 
     U.S.C. Sec. 7296(b)(1) (and assuming no reappointments under 
     38 U.S.C. Sec. 7296(2)), 4 of 5 of the court's original 
     associate judges will retire within 11 months of each other, 
     beginning in September 2004.
       Given the length of time likely to be involved in the 
     nomination and confirmation process, especially considering 
     the election of a President in November 2004, 3 of the 
     Court's judgeships are very likely to be simultaneously 
     vacant during a substantial part of 2005, and it is quite 
     possible that a majority of the judgeships could be 
     simultaneously vacant during part of that year and possibly 
     thereafter. Then, even after the judgeships are filled, there 
     could well be considerable lack of experience among the 
     majority of the Court's judges. This situation would almost 
     certainly dramatically increase the Court's backlog--
     initially during

[[Page S6917]]

     the vacancies and continuing during the startup period for 
     the replacement judges. As well, during the vacancy period 
     the Court could be in a situation where two or three judges 
     might be able to overrule prior Court precedent. In order to 
     preclude such problems, the enclosed legislative proposal 
     includes, as section 201, a provision to create a staggered-
     retirement option designed to encourage the sequencing of 
     associate judge retirements starting in 1999. It is important 
     to bear in mind, when considering the staggered-retirement 
     provision, that the formula for an early retirement annuity 
     must provide sufficient financial incentive for an associate 
     judge to elect to forego the full retirement benefit that 
     would be available upon completion of the 15-year term or 
     satisfaction of the Rule of 80. There is no sense whatsoever 
     in legislating a formula that will not produce the early 
     retirements that are essential to avoid the serious adverse 
     consequences that would result for the Court from having 3-4 
     simultaneous judicial vacancies for an extended period of 
     time.
       Moreover, as I also indicated in my February 4, 1997, 
     letter, implementation of this proposed Title II may be 
     achievable without seeking additional appropriations for this 
     purpose. In this regard, subsection (d) of the proposed 
     section 201 would permit the Court to utilize 38 U.S.C. 
     Sec. 7298(e)(2)(A) in anticipation of a payment that may have 
     to be made from the Court's retirement fund. It should be 
     noted that, even absent staggered retirement, the proposed 
     subsection (d) would allow the Court to provide for much 
     better management of a judge's anticipated entry, under 38 
     U.S.C. Sec. 7296(d)(1)(A), into the Court's retirement 
     system.
       In addition, in order to provide for recall of retired 
     judges in the event of judicial vacancies or increased 
     workload, included in the legislative proposal as section 202 
     is the same basic provision that was included in last year's 
     proposal as section 102. In order to help with the 
     simultaneous vacancy problem described above, the provision 
     has been revised to make specific reference to a voluntary 
     recall in the event of a vacancy in an associate judge 
     position. However, this recall provision could not itself 
     prevent the simultaneous vacancies that section 201 is 
     designed to forestall.
       Finally, for completeness sake, the proposal includes, as 
     Title III, a provision to change the Court's name to the 
     United States Court of Appeals for Veterans Claims, which I 
     proposed in my February 4, 1997, letter and which passed the 
     House on April 16, 1997, in section 201 of H.R. 1092. Title 
     III differs from section 201 only so as to accommodate the 
     former to the style of the rest of the proposal.
       Enclosed, for your information, is an overview, a cost 
     estimate, a draft bill, and a detailed section-by-section 
     summary and explanation.
       Thank you for your assistance. I urge that you and the 
     Committee give favorable consideration to the enclosed 
     legislative proposal to reform the Court's judicial 
     retirement provisions and provide for a staggered-retirement 
     option designed to avoid the impact of simultaneous judicial 
     vacancies. I am sending the same letter and enclosures to 
     Chairman Stump, and Ranking Minority Members Rockefeller and 
     Evans.
           Sincerely,
                                                 Frank Q. Nebeker,
                                                      Chief Judge.

      By Mr. DORGAN (for himself and Mrs. Feinstein):

  S. 989. A bill entitled the ``Safer Schools Act of 1997''; to the 
Committee on Labor and Human Resources.


                     The Safer Schools Act of 1997

  Mr. DORGAN. Mr. President, I am going to introduce a piece of 
legislation today that I will describe briefly.
  In the Senate a couple of years ago, I authored, with Senator 
Feinstein from California, and several others, a piece of legislation 
that says we ought to have zero tolerance in this country for guns in 
schools, zero tolerance for guns in schools. We said in the legislation 
that school districts in this country should have in place a policy 
that says if a student is caught bringing a gun to school, the student 
will be expelled for a year. Mr. President, over 6,000 students have 
now suffered expulsion as a result of bringing weapons to school.
  Weapons in school are serious. You cannot learn unless a school is a 
safe place for learning. Yet, even today we see the news stories. On 
February 17, this year, a 16-year-old Miami Edison Senior High School 
student shot a 9th grade girl at school. In Memphis, TN, on March 28, 
this year, a 16-year-old student was shot on the campus of Chicksaw 
Junior High by a 15-year-old student. On February 11, two students were 
shot and wounded in Bronx high schools. On March 29, Detroit, MI, a 16-
year-old student was shot seven times while standing in the back 
hallways of a high school. On February 18 this year, a 13-year-old 
middle school student was charged with attempting to murder his 
teacher.
  I was at a school not too many blocks from this building a couple of 
years ago. You go through metal detectors; there are security guards 
seated at the front of the school. The school is a lock-down school. 
When the students get in, they lock the door. You have to go through 
metal detectors to get in. About a month after I was there, a student 
bumped another one at the water fountain and the other student pulled a 
gun and shot him four times. That is a school within blocks of this 
U.S. Capitol building.
  We passed a piece of legislation that says there shall be zero 
tolerance for guns in schools, and students bringing guns to school 
shall be expelled from school for a year. That has worked in the sense 
that it has taken those who brought guns to school out of school to 
make sure other students are safe. But something has happened in the 
meantime. After we passed that legislation and it became law, a court 
in New York issued a ruling that was about as goofy a court ruling as 
any I have ever heard. In New York, in a school, a young boy came in 
one day wearing a leather jacket and went through the front door of the 
school and began walking down a hallway. The security guard noticed a 
bulge under the leather jacket near the waistline, so he apprehended 
the student and reached under this jacket and took from the student a 
loaded pistol--a loaded pistol was in the possession of this 16-year-
old boy walking down the hallway. The 16-year-old boy was obviously 
taken from school that day and put in a disciplinary proceeding and 
expelled, and a number of things happened. The boy appealed it, and a 
court in New York decided that the evidence of a gun on a 16-year-old 
boy in school had to be discarded because the security guard did not 
have probable cause to search the student in the hallway of the school.
  Now, when I saw the decision by the New York court, it occurred to me 
to be so nonsensical as to require nothing from any of us. Then I 
decided that if we do nothing, it means that somehow someone believes 
that court was thinking straight. Well, it was not, and I introduced in 
the last session, and will reintroduce today on behalf of myself and 
Senator Feinstein, a piece of legislation that makes it clear that 
evidence of a gun seized in school cannot be dismissed as evidence. 
Evidence of a gun can be used in a school disciplinary proceeding.
  There is no right to carry a gun in school. If that 16-year-old boy 
had gone to National Airport to try to board a plane, they would have 
forced him to go through a metal detector and they would have said you 
cannot get on a commercial airplane if you are carrying a pistol. But 
the judge's decision seems to say somehow that the security guard was 
at fault. The security guard noticed a gun on this young student, or at 
least a bulge in the leather jacket, and took a loaded pistol from this 
boy in a public school, and the security guard is at fault for 
obtaining evidence inappropriately? I do not think so. That is not the 
way this country should work. If we say you cannot take a loaded gun on 
an airplane, we ought to be able to say a 16-year-old boy cannot take a 
loaded pistol into a school. If we do not have the opportunity and 
ability to say that and make it stick, there is precious little hope 
for education in this country.

  This legislation will make sure that no judge ever again is able to 
say that a security guard erred in taking away a loaded pistol from a 
16-year-old boy walking in the hallways of our public schools. When we 
passed the Gun Free Schools Act and said that there shall be expulsion 
all across this country for kids bringing guns to schools, we wanted to 
send a national message to every student in this country, ``Don't even 
think about bringing a gun to school, because there will be certain and 
immediate results. The results will be you will be expelled, no ifs, 
ands, or buts.''
  It has been successful. Have we prevented every act of violence in 
school? No, but thousands of children who brought guns to school are 
now not in the classroom threatening other students. They are expelled 
from those classrooms, many of them probably in some alternative 
setting, but they are not in the classroom terrorizing other students.
  I am so appalled by the decision of the court in New York that I want 
a Federal law to complete the Gun Free Schools Act with the legislation 
we introduce today called the Safer Schools

[[Page S6918]]

Act. Any young person who brings a gun to school should expect that a 
security guard at the front door can remove that gun from them and that 
it will later be used as evidence in a school disciplinary proceeding.
  Mr. President, I appreciate the courtesy of the Senator from South 
Carolina. I know that the piece of legislation that he brings to the 
floor of the Senate, called the defense authorization bill, is one of 
the largest pieces of legislation that we deal with at any time during 
the year here in Congress. It contains important matters dealing with 
America's preparedness. I am anxious to debate parts of that bill and I 
wanted to compliment the Senator from South Carolina, Senator Thurmond, 
for his leadership and Senator Levin from Michigan for his leadership. 
I hope we can make significant progress this week on the legislation. I 
hope my speaking in morning business has not impeded that in any way. I 
appreciate the Senator's courtesy.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 989

       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 ``Safer Schools Act of 1997''.

     SEC. 2. SAFER SCHOOLS.

       (a) In General.--Section 14601(b)(1) of the Gun-Free 
     Schools Act of 1994 (20 U.S.C. 8921(b)(1)) is amended--
       (1) by striking ``under this Act shall have'' and inserting 
     the following: ``under this Act--
       ``(A) shall have'';
       (2) by striking the period at the end and inserting ``; 
     and''; and
       (3) by adding at the end the following:
       ``(B) beginning not later than 2 years after the date of 
     enactment of the Safer Schools Act of 1997, shall have in 
     effect a State law or regulation providing that evidence that 
     a student brought a weapon to a school under the jurisdiction 
     of the local educational agencies in that State, that is 
     obtained as a result of a search or seizure conducted on 
     school premises, shall not be excluded in any school 
     disciplinary proceeding on the ground that the search or 
     seizure was in violation of the fourth amendment to the 
     Constitution of the United States.''.
       (b) Report to State.--Section 14601(d) of the Gun-Free 
     Schools Act of 1994 (20 U.S.C. 8921(d)) is amended--
       (1) in paragraph (1), by striking ``the State law required 
     by'' and inserting ``each State law or regulation''; and
       (2) in paragraph (2), by striking ``subsection (b)'' and 
     inserting ``subsection (b)(1)(A)''.
       (c) Report to Congress.--Section 14601(f) of the Gun-Free 
     Schools Act of 1994 (20 U.S.C. 8921(f)) is amended by 
     inserting ``of subsection (b)(1)(A)'' before ``of this''.
                                 ______