[Congressional Record Volume 153, Number 72 (Thursday, May 3, 2007)]
[Senate]
[Pages S5581-S5583]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CRAIG:
  S. 1289. A bill to amend title 38, United States Code, to modify the 
salary and terms of judges of the United States Court of Appeals for 
Veterans Claims, to modify authorities for the recall of retired judges 
of such court, and for other purposes; to the Committee on Veterans' 
Affairs.
  Mr. CRAIG. Mr. President, I have sought recognition today to comment 
on a bill I am introducing to help ensure the long-term ability of the 
United States Court of Appeals for Veterans Claims to promptly dispense 
justice in all veterans cases.
  In 1988, Congress created this court to hear appeals from decisions 
of the Department of Veterans Affairs, most commonly on veterans' 
claims for disability compensation based on injuries or diseases they 
suffered during service. As was discussed at a hearing I called last 
year while serving as chairman of the Committee on Veterans' Affairs, 
the CAVC is facing some serious challenges, which may impede its 
ability to consistently provide timely decisions to our Nation's 
veterans.
  In fact, between 2004 and 2006 the court experienced something akin 
to a ``perfect storm.'' The last four of the original judges, who were 
appointed when the court was created, all retired, taking 60 years of 
experience with them; the court's incoming caseload experienced a 
dramatic 67-percent increase; and the court was left with a single 
judge who had at least 2 years of experience deciding these often 
complex cases. As a consequence, the court received 30 percent more 
cases than it decided during that time and the number of pending cases 
doubled in less than 2 years. With over 6,000 cases still pending, 
almost 4,000 more than a decade ago, and with the court continuing to 
receive record levels of incoming cases, veterans seeking justice from 
the court may feel the effects of this ``perfect storm'' for many years 
to come, as the court struggles to eliminate the existing backlog and 
to keep up with new appeals.
  For the men and women who have served, sacrificed, and suffered for 
our Nation, I believe we must take steps to ensure that they will 
receive timely decisions on their appeals, not just today but for many 
years to come. That is why I am introducing this bill to help the court 
deal with its existing caseload and to help ensure that, in the long 
term, the court will not face such a devastating combination of events.
  As one means of helping with the current caseload, the bill would 
modify the rules that govern the recall of retired judges. Under 
current law, a retiring judge may opt to be recall eligible, which 
means the judge may be involuntarily called back to work for up to 90 
days per year when needed and may voluntarily serve up to 180 days per 
year. For this court, like other Federal courts, the option of 
receiving help from retired judges can be an extremely important 
resource. In fact, last year, after the court began recalling retired 
judges to help with its caseload, the court's productivity rose over 19 
percent in 3 months.
  In view of the obvious value of having experienced retired judges 
continue to decide veterans' cases and the fact that they currently 
receive the same salary as active judges regardless of how much, if 
any, service they provide in a year, it would be a win-win situation 
for veterans, the court, and taxpayers if a retired judge opted to 
return to the bench more frequently or for longer periods than current 
law permits. To allow for that possibility, the bill would eliminate 
the 180-day cap and permit a retired judge to voluntarily serve in 
recall status as many days during a year as he or she wishes.
  Also, because the court may need an unprecedented level of service 
from retired judges in the next several years to help deal with its 
caseload, the bill would provide an incentive for the current 
complement of recall-eligible judges to provide as much service as 
practical during that time. Specifically, the bill would provide that, 
once a recall-eligible judge has served an aggregate of 5 years of 
recall service, the judge will no longer be subject to involuntarily 
recall and will continue to receive the same salary, that of an active 
judge.
  To put that into perspective, if a retired judge were to be recalled 
for 90 days each year, as current law permits, it would take 20 years 
to provide the equivalent of 5 years of recall service. In addition to 
allowing judges to accelerate their service into fewer years, at a time 
when it may be most beneficial to veterans, this change may also 
encourage retired judges to serve in recall status for longer periods 
of time. This should help minimize concerns expressed by the Chief 
Judge in recent years about how much retired judges would be able to 
accomplish in the limited 90 day recall period. With these changes, the 
court should have the judicial resources it needs to handle its 
caseload in the near term.
  In addition, this bill would take steps to ensure that the court, in 
the long run, is not faced with a difficult transition like the one it 
experienced in recent years. By way of background, the original judges, 
except for one who died, all retired between 2000 and 2005, with four 
of those retirements occurring within a single 12-month period. Given 
the delays inherent in the appointment and confirmation process, this 
left the CAVC without a full complement of active judges for much of 
that 5-year period. As the Chief Judge testified in 2006, functioning 
with less than seven judges ``led to a backlog'' of cases at the court.
  Perhaps more significantly, this cluster of retirements meant that, 
as of August 2005, the court had only one judge, the new Chief Judge, 
who had at least 2 years of experience on the bench. In the words of 
that Chief Judge, ``no other Federal court would be faced with the 
transition that we were faced with as of August 2005. Where else in the 
Federal judiciary system could I, the junior judge . . . suddenly 
become the senior judge, and have all of the experience of the court 
departing?'' The Chief Judge also opined that ``[t]his turnover on the 
Court has had great significance, particularly in the short term, on 
the Court's case management.''
  The effects of this turnover may have been magnified by the fact that 
this court deals with a very specialized area of law, which by all 
accounts has become increasingly complex in recent years. In fact, the 
Veterans of Foreign Wars of the United States recently described 
veterans' law as ``a complex thicket of court decisions and statutory 
requirements.''
  To further complicate the situation, the court experienced a dramatic 
rise in the number of incoming cases in recent years. In fact, in 2005 
the court received 37 percent more cases than it had received in any 
prior year and, then, in 2006 the court received an even higher level 
of incoming cases. As I indicated earlier, the combined effect of these 
factors led the court to be ``in the red'' for several years, taking in 
almost 3,000 more cases than it decided.
  Although some factors that have contributed to the court's challenges 
cannot be controlled, it seems clear that multiple retirements of 
experienced judges within a relatively short period of time can have a 
profound impact on the court's ability to decide veterans' cases. It is 
worth noting that Congress previously attempted to stagger the 
retirement dates of the judges by temporarily expanding the size of the 
court and by shortening the length of two judges' terms. Despite those 
efforts, it is possible that 6 of the 7 judges now on the bench will 
retire within a 4-year window, an even shorter period than the 
disruptive turnover between 2000 and 2005.
  That is why I believe we need to try a completely new approach to 
help ensure that experienced judges will stay

[[Page S5582]]

on the bench for as long as practicable and will not retire in 
clusters as their terms expire. To that end, this bill would eliminate 
the term limits for any new judges appointed to the court and would 
provide those judges with full pay-of-the-office only when serving as 
an active judge or when providing service as a recalled retired judge. 
The combined effect of those provisions should encourage judges to stay 
on the bench longer before they retire and to regularly volunteer for 
recall service after they retire.

  Yes, this represents a significant departure from the traditional 
model for article I courts. But as experience has shown, the current 
model is not adequate to consistently provide veterans with timely 
decisions on their claims and we simply cannot allow further 
disruptions in service to our Nation's heroes each time the court turns 
over. Once judges gain years of valuable experience in this complex, 
specialized area of law, we should not force them, and their 
experience, into retirement. Rather, we should take steps, as this bill 
would do, to permit veterans and the court to receive the maximum 
possible benefit from their years on the bench.
  To avoid ``changing the rules'' on those judges who have already been 
appointed and confirmed, these changes would be prospective, applying 
only to judges appointed to the court on or after the date of enactment 
of this bill. In the meantime, I hope the changes to the current recall 
provisions that I mentioned earlier will help avoid a difficult 
transition when the current sitting judges retire.
  In addition to these changes to the term limits and recall rules, the 
bill would require the Chief Judge, in conjunction with the court's 
stakeholders, to set guidelines for when recall would be appropriate, 
taking into account such factors as the number of active judges, 
temporary or prolonged increases or decreases in caseload, and the 
complexity of the caseload. It would also require the court to submit 
annual performance reports to Congress including information on the 
court's workload during the prior year, as well as an analysis of 
whether the standards for recalling judges were met and what service, 
if any, was performed by retired judges. Such guidelines should aid the 
court, retired judges, and Congress in planning for periods when recall 
will likely be used and when it will not.
  More importantly, the number of recall-eligible judges and their 
level of activity are important factors that must be considered in 
determining whether the court has sufficient judicial resources. If 
current caseload trends continue and the court, even fully utilizing 
the services of recalled judges, is unable to provide veterans with the 
level of service they deserve, the addition of judgeships may need to 
be considered. These guidelines and reports will allow Congress to 
closely monitor that situation to ensure that the court has the 
necessary capacity.
  Finally, the bill would recognize the critical and increasingly 
demanding role of the Chief Judge by allowing the salary of the Chief 
Judge to be increased by $7,000 per year, and the bill would direct the 
General Services Administration to provide Congress with a report as to 
the feasibility and desirability of converting the court's current 
location into a dedicated Veterans Courthouse and Justice Center.
  It is my sincere hope that the fundamental changes in this bill will 
help ensure that the Court of Appeals for Veterans Claims is able to 
consistently provide veterans with timely decisions, now and for many 
years to come. I ask my colleagues to support this legislation.
  I also ask unanimous consent that the text of the bill be printed in 
the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1289

       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 ``Veterans' Justice Assurance 
     Act of 2007''.

     SEC. 2. REPEAL OF TERM LIMITS FOR JUDGES OF THE UNITED STATES 
                   COURT OF APPEALS FOR VETERANS CLAIMS.

       (a) In General.--Section 7253(c) of title 38, United States 
     Code, is amended to read as follows:
       ``(c) Term of Office.--(1) Except as provided in paragraph 
     (2), judges of the Court shall hold office during good 
     behavior.
       ``(2) In the case of an individual who is serving a term of 
     office as a judge of the Court on the date of the enactment 
     of the Veterans' Justice Assurance Act of 2007, such term 
     shall be 15 years. A judge who is nominated by the President 
     for appointment to an additional term on the Court without a 
     break in service and whose term of office expires while that 
     nomination is pending before the Senate may continue in 
     office for up to 1 year while that nomination is pending.''.
       (b) Conforming Amendment.--Section 7296(b)(2) of such title 
     is amended by striking ``A judge who'' and inserting ``A 
     judge who was appointed before the date of the enactment of 
     the Veterans' Justice Assurance Act of 2007 and who''.

     SEC. 3. INCREASED SALARY FOR CHIEF JUDGE OF UNITED STATES 
                   COURT OF APPEALS FOR VETERANS CLAIMS.

       Section 7253(e) of title 38, United States Code, is 
     amended--
       (1) by inserting ``(1)'' before ``Each judge''; and
       (2) by adding at the end the following new paragraph:
       ``(2) The annual salary rate under paragraph (1) for a 
     judge shall be increased by $7,000 during any period that 
     such judge is serving as chief judge of the Court.''.

     SEC. 4. PROVISIONS RELATING TO RECALL OF RETIRED JUDGES OF 
                   THE UNITED STATES COURT OF APPEALS FOR VETERANS 
                   CLAIMS.

       (a) Elimination of Limit on Service of Retired Judges Who 
     Voluntarily Serve More Than 90 Days.--Section 7257(b)(2) of 
     title 38, United States Code, is amended by striking ``or for 
     more than a total of 180 days (or the equivalent) during any 
     calendar year''.
       (b) New Judges Recalled After Retirement Receive Pay of 
     Current Judges Only During Periods of Recall.--
       (1) In general.--Section 7296(c) of such title is amended 
     by striking paragraph (1) and inserting the following:
       ``(1)(A) Except as provided in subparagraph (B), in the 
     case of a judge who retires under subsection (b) of this 
     section and elects under subsection (d) of this section to 
     receive retired pay under this subsection, the retired pay of 
     the judge shall (except as provided in paragraph (2) of this 
     subsection and section 7257(d)(2) of this title) be the rate 
     of pay applicable to that judge at the time of retirement 
     (disregarding any increase in salary provided in accordance 
     with section 7253(e)(2) of this title).
       ``(B) A judge who was appointed before the date of the 
     enactment of the Veterans' Justice Assurance Act of 2007 and 
     who retires under subsection (b) of this section and elects 
     under subsection (d) of this section to receive retired pay 
     under this subsection shall (except as provided in paragraph 
     (2) of this subsection) receive retired pay as follows:
       ``(i) In the case of a judge who is a recall-eligible 
     retired judge under section 7257 of this title or who was a 
     recall-eligible retired judge under that section and was 
     removed from recall status under subsection (b)(4) of that 
     section by reason of disability, the retired pay of the judge 
     shall be the pay of a judge of the court.
       ``(ii) In the case of a judge who at the time of retirement 
     did not provide notice under section 7257 of this title of 
     availability for service in a recalled status, the retired 
     pay of the judge shall be the rate of pay applicable to that 
     judge at the time of retirement.
       ``(iii) In the case of a judge who was a recall-eligible 
     retired judge under section 7257 of this title and was 
     removed from recall status under subsection (b)(3) of that 
     section, the retired pay of the judge shall be the pay of the 
     judge at the time of the removal from recall status.''.
       (2) Pay during period of recall.--Section 7257(d) of such 
     title is amended to read as follows:
       ``(d)(1) The pay of a recall-eligible retired judge to whom 
     section 7296(c)(1)(B) of this title applies is the pay 
     specified in that section.
       ``(2) A judge who is recalled under this section who 
     retired under chapter 83 or 84 of title 5 or to whom section 
     7296(c)(1)(A) of this title applies shall be paid, during the 
     period for which the judge serves in recall status, pay at 
     the rate of pay in effect under section 7253(e) of this title 
     for a judge performing active service, less the amount of the 
     judge's annuity under the applicable provisions of chapter 83 
     or 84 of title 5 or the judge's annuity under section 
     7296(c)(1)(A) of this title, whichever is applicable.''.
       (3) Notice.--The last sentence of section 7257(a)(1) of 
     such title is amended to read as follows: ``Such a notice 
     provided by a retired judge to whom section 7296(c)(1)(B) of 
     this title applies is irrevocable.''.
       (c) Limitation on Involuntary Recalls.--Section 7257(b)(3) 
     of such title is amended by adding at the end the following 
     new sentence: ``This paragraph shall not apply to--
       ``(A) a judge to whom section 7296(c)(1)(A) of this title 
     applies; or
       ``(B) a judge to whom section 7296(c)(1)(B) of this title 
     applies and who has, in the aggregate, served at least five 
     years (or the equivalent) of recalled service on the Court 
     under this section.''.
       (d) Establishment of Caseload Thresholds for Determining 
     When to Recall Retired Judges.--Section 7257(b) of such title 
     is amended by adding at the end the following new paragraph:

[[Page S5583]]

       ``(5) For purposes of paragraph (1), the chief judge shall 
     establish guidelines for determining whether recall-eligible 
     retired judges should be recalled on either a voluntary or 
     involuntary basis, taking into account such factors as the 
     number of active judges, temporary or prolonged increases or 
     decreases in caseload, and the complexity of the caseload. In 
     establishing such guidelines, the chief judge shall, to the 
     extent practicable, consult with the following:
       ``(A) Organizations recognized by the Secretary for the 
     representation of veterans under section 5902 of this title.
       ``(B) The bar association of the Court.
       ``(C) The Secretary.
       ``(D) Such persons or entities the chief judge considers 
     appropriate.''.

     SEC. 5. ADDITIONAL DISCRETION IN IMPOSITION OF PRACTICE AND 
                   REGISTRATION FEES.

       Section 7285(a) of title 38, United States Code, is 
     amended--
       (1) in the first sentence, by inserting ``reasonable'' 
     after ``impose a'';
       (2) in the second sentence, by striking ``, except that 
     such amount may not exceed $30 per year''; and
       (3) in the third sentence, by inserting ``reasonable'' 
     after ``impose a''.

     SEC. 6. ANNUAL REPORTS ON WORKLOAD OF UNITED STATES COURT OF 
                   APPEALS FOR VETERANS CLAIMS.

       (a) In General.--Subchapter III of chapter 72 of title 38, 
     United States Code, is amended by adding at the end the 
     following new section:

     ``Sec. 7288. Annual report

       ``(a) In General.--The chief judge of the Court shall 
     submit annually to the appropriate committees of Congress a 
     report summarizing the workload of the Court for the last 
     fiscal year that ended before the submission of such report. 
     Such report shall include, with respect to such fiscal year, 
     the following information:
       ``(1) The number of appeals filed.
       ``(2) The number of petitions filed.
       ``(3) The number of applications filed under section 2412 
     of title 28.
       ``(4) The number and type of dispositions.
       ``(5) The median time from filing to disposition.
       ``(6) The number of oral arguments.
       ``(7) The number and status of pending appeals and 
     petitions and of applications described in paragraph (3).
       ``(8) A summary of any service performed by recalled 
     retired judges during the fiscal year and an analysis of 
     whether any of the caseload guidelines established under 
     section 7257(b)(5) of this title were met during the fiscal 
     year.
       ``(b) Appropriate Committees of Congress Defined.--In this 
     section, the term `appropriate committees of Congress' means 
     the Committee on Veterans' Affairs of the Senate and the 
     Committee on Veterans' Affairs of the House of 
     Representatives.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of chapter 72 of such title is amended by inserting 
     after the item related to section 7287, the following new 
     item:

``7288. Annual report.''.

     SEC. 7. REPORT ON EXPANSION OF FACILITIES FOR UNITED STATES 
                   COURT OF APPEALS FOR VETERANS CLAIMS.

       (a) Findings.--Congress finds the following:
       (1) The United States Court of Appeals for Veterans Claims 
     is currently located in the District of Columbia in a 
     commercial office building that is also occupied by other 
     Federal tenants.
       (2) In February 2006, the General Services Administration 
     provided Congress with a preliminary feasibility analysis of 
     a dedicated Veterans Courthouse and Justice Center that would 
     house the Court and other entities that work with the Court.
       (3) In February 2007, the Court notified Congress that the 
     ``most cost-effective alternative appears to be leasing 
     substantial additional space in the current location'', which 
     would ``require relocating other current government tenants'' 
     from that building.
       (4) The February 2006 feasibility report of the General 
     Services Administration does not include an analysis of 
     whether it would be feasible or desirable to locate a 
     Veterans Courthouse and Justice Center at the current 
     location of the Court.
       (b) Sense of Congress.--It is the sense of Congress that--
       (1) the United States Court of Appeals for Veterans Claims 
     should be provided with appropriate office space to meet its 
     needs, as well as to provide the image, security, and stature 
     befitting a court that provides justice to the veterans of 
     the United States; and
       (2) in providing that space, Congress should avoid undue 
     disruption, inconvenience, or cost to other Federal entities.
       (c) Report.--
       (1) In general.--Not later than 180 days after the date of 
     the enactment of this Act, the Administrator of General 
     Services shall submit to the Committee on Veterans' Affairs 
     of the Senate and the Committee on Veterans' Affairs of the 
     House of Representatives a report on the feasibility of--
       (A) leasing additional space for the United States Court of 
     Appeals for Veterans Claims within the building where the 
     Court was located on the date of the enactment of this Act; 
     and
       (B) using the entirety of such building as a Veterans 
     Courthouse and Justice Center.
       (2) Contents.--The report required by paragraph (1) shall 
     include a detailed analysis of the following:
       (A) The impact that the matter analyzed in accordance with 
     paragraph (1) would have on Federal tenants of the building 
     used by the Court.
       (B) Whether it would be feasible to relocate such Federal 
     tenants into office space that offers similar or preferable 
     cost, convenience, and usable square footage.
       (C) If relocation of such Federal tenants is found to be 
     feasible and desirable, an analysis of what steps should 
     taken to convert the building into a Veterans Courthouse and 
     Justice Center and a time line for such conversion.
       (3) Comment period.--The Administrator shall provide an 
     opportunity to such Federal tenants--
       (A) before the completion of the report required by 
     paragraph (1), to comment on the subject of the report 
     required by such paragraph; and
       (B) before the Administrator submits the report required by 
     paragraph (1) to the congressional committees specified in 
     such paragraph, to comment on a draft of such report.
                                 ______