38 USC Sec. 7292 01/03/2012 (112-90)

38 USC Sec. 7292 01/03/2012 (112-90)

-EXPCITE-

TITLE 38 – VETERANS’ BENEFITS

PART V – BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 72 – UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

SUBCHAPTER IV – DECISIONS AND REVIEW

-HEAD-

Sec. 7292. Review by United States Court of Appeals for the Federal

Circuit

-STATUTE-

(a) After a decision of the United States Court of Appeals for

Veterans Claims is entered in a case, any party to the case may

obtain a review of the decision with respect to the validity of a

decision of the Court on a rule of law or of any statute or

regulation (other than a refusal to review the schedule of ratings

for disabilities adopted under section 1155 of this title) or any

interpretation thereof (other than a determination as to a factual

matter) that was relied on by the Court in making the decision.

Such a review shall be obtained by filing a notice of appeal with

the Court of Appeals for Veterans Claims within the time and in the

manner prescribed for appeal to United States courts of appeals

from United States district courts.

(b)(1) When a judge or panel of the Court of Appeals for Veterans

Claims, in making an order not otherwise appealable under this

section, determines that a controlling question of law is involved

with respect to which there is a substantial ground for difference

of opinion and that there is in fact a disagreement between the

appellant and the Secretary with respect to that question of law

and that the ultimate termination of the case may be materially

advanced by the immediate consideration of that question, the judge

or panel shall notify the chief judge of that determination. Upon

receiving such a notification, the chief judge shall certify that

such a question is presented, and any party to the case may then

petition the Court of Appeals for the Federal Circuit to decide the

question. That court may permit an interlocutory appeal to be taken

on that question if such a petition is filed with it within 10 days

after the certification by the chief judge of the Court of Appeals

for Veterans Claims. Neither the application for, nor the granting

of, an appeal under this paragraph shall stay proceedings in the

Court of Appeals for Veterans Claims, unless a stay is ordered by a

judge of the Court of Appeals for Veterans Claims or by the Court

of Appeals for the Federal Circuit.

(2) For purposes of subsections (d) and (e) of this section, an

order described in this paragraph shall be treated as a decision of

the Court of Appeals for Veterans Claims.

(c) The United States Court of Appeals for the Federal Circuit

shall have exclusive jurisdiction to review and decide any

challenge to the validity of any statute or regulation or any

interpretation thereof brought under this section, and to interpret

constitutional and statutory provisions, to the extent presented

and necessary to a decision. The judgment of such court shall be

final subject to review by the Supreme Court upon certiorari, in

the manner provided in section 1254 of title 28.

(d)(1) The Court of Appeals for the Federal Circuit shall decide

all relevant questions of law, including interpreting

constitutional and statutory provisions. The court shall hold

unlawful and set aside any regulation or any interpretation thereof

(other than a determination as to a factual matter) that was relied

upon in the decision of the Court of Appeals for Veterans Claims

that the Court of Appeals for the Federal Circuit finds to be –

(A) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law;

(B) contrary to constitutional right, power, privilege, or

immunity;

(C) in excess of statutory jurisdiction, authority, or

limitations, or in violation of a statutory right; or

(D) without observance of procedure required by law.

(2) Except to the extent that an appeal under this chapter

presents a constitutional issue, the Court of Appeals may not

review (A) a challenge to a factual determination, or (B) a

challenge to a law or regulation as applied to the facts of a

particular case.

(e)(1) Upon such review, the Court of Appeals for the Federal

Circuit shall have power to affirm or, if the decision of the Court

of Appeals for Veterans Claims is not in accordance with law, to

modify or reverse the decision of the Court of Appeals for Veterans

Claims or to remand the matter, as appropriate.

(2) Rules for review of decisions of the Court of Appeals for

Veterans Claims shall be those prescribed by the Supreme Court

under section 2072 of title 28.

-SOURCE-

(Added Pub. L. 100-687, div. A, title III, Sec. 301(a), Nov. 18,

1988, 102 Stat. 4120, Sec. 4092; amended Pub. L. 101-94, title III,

Sec. 302(b), Aug. 16, 1989, 103 Stat. 628; renumbered Sec. 7292,

Pub. L. 102-40, title IV, Sec. 402(b)(1), May 7, 1991, 105 Stat.

238; Pub. L. 102-54, Sec. 14(e)(5), June 13, 1991, 105 Stat. 287;

Pub. L. 102-83, Secs. 4(b)(1), (2)(E), 5(c)(1), Aug. 6, 1991, 105

Stat. 404-406; Pub. L. 105-368, title V, Sec. 512(a)(1), Nov. 11,

1998, 112 Stat. 3341; Pub. L. 107-330, title IV, Sec. 402(a), Dec.

6, 2002, 116 Stat. 2832.)

-MISC1-

AMENDMENTS

2002 – Subsec. (a). Pub. L. 107-330 inserted “a decision of the

Court on a rule of law or of” after “the validity of” in first

sentence.

1998 – Subsecs. (a), (b), (d)(1), (e). Pub. L. 105-368

substituted “Court of Appeals for Veterans Claims” for “Court of

Veterans Appeals” wherever appearing.

1991 – Pub. L. 102-40 renumbered section 4092 of this title as

this section.

Subsec. (a). Pub. L. 102-83, Sec. 5(c)(1), substituted “1155” for

“355”.

Subsec. (b)(1). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted

“Secretary” for “Administrator”.

Subsec. (c). Pub. L. 102-54 amended subsec. (c) as in effect

immediately before the enactment of Pub. L. 102-40 by substituting

“United States Court” for “United States Courts”.

1989 – Subsec. (d)(1). Pub. L. 101-94 struck out “statute or”

before “regulation”.

EFFECTIVE DATE OF 2002 AMENDMENT

Pub. L. 107-330, title IV, Sec. 402(b), Dec. 6, 2002, 116 Stat.

2832, provided that: “The amendment made by subsection (a)

[amending this section] shall apply with respect to any appeal –

“(1) filed with the United States Court of Appeals for the

Federal Circuit on or after the date of the enactment of this Act

[Dec. 6, 2002]; or

“(2) pending with the United States Court of Appeals for the

Federal Circuit as of the date of the enactment of this Act in

which a decision has not been rendered as of that date.”

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-368 effective on first day of first

month beginning more than 90 days after Nov. 11, 1998, see section

513 of Pub. L. 105-368, set out as a note under section 7251 of

this title.

EFFECTIVE DATE OF 1989 AMENDMENT

Amendment by Pub. L. 101-94 effective as if included in Pub. L.

100-687, div. A, see section 302(c) of Pub. L. 101-94, set out as a

note under section 5701 of this title.

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