II

103D CONGRESS

2D SESSION S. 2305

To provide that members of the Board of Veterans’ Appeals be referred

to as veterans law judges, to provide for the pay of such members,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 21 (legislative day, JULY 20), 1994

Mr. AKAKA introduced the following bill; which was read twice and referred

to the Committee on Veterans’ Affairs

A BILL

To provide that members of the Board of Veterans’ Appeals

be referred to as veterans law judges, to provide for

the pay of such members, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Veterans Law Judge

5 Act of 1994’’.
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1 SEC. 2. AUTHORITY TO REFER TO MEMBERS OF BOARD OF

2 VETERANS’ APPEALS AS VETERANS LAW

3 JUDGES.

4 Section 7101(b) of title 38, United States Code, is

5 amended by adding at the end the following:

6 ‘‘(5)(A) Except as provided in subparagraph (B), a

7 member of the Board, including the Chairman and the

8 Vice Chairman, shall be referred to as a veterans law

9 judge.

10 ‘‘(B) Subparagraph (A) shall not apply to a tem11 porary member of the Board.’’.

12 SEC. 3. CLASSIFICATION AND PAY OF MEMBERS OF BOARD

13 OF VETERANS’ APPEALS.

14 (a) IN GENERAL.—Section 7101(b) of title 38,

15 United States Code, as amended by section 2, is further

16 amended by adding at the end the following:

17 ‘‘(6) A member of the Board (other than the Chair18 man and Vice Chairman) shall receive compensation under

19 the provisions of section 5372 of title 5 and other benefits

20 equal to those payable to an administrative law judge.’’.

21 (b) EFFECTIVE DATE.—The amendment made by

22 subsection (a) shall take effect on the first day of the first

23 pay period beginning after the date of the enactment of

24 this Act.

25 (c) SAVINGS PROVISION.—The rate of basic pay pay26 able to an individual who is a member of the Board of
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1 Veterans’ Appeals on the date of the enactment of this

2 Act may not be reduced by reason of the amendment made

3 by subsection (a) below the rate payable to such individual

4 on the day before the effective date specified in subsection

5 (b).

6 SEC. 4. CONTINUATION OF SERVICE AND REAPPOINTMENT

7 OF BOARD MEMBERS.

8 (a) CHAIRMAN.—Paragraph (1) of section 7101(b) of

9 title 38, United States Code, is amended to read as fol10 lows:

11 ‘‘(1)(A) The Chairman shall be appointed by the

12 President, by and with the advice and consent of the Sen13 ate, for a term of six years.

14 ‘‘(B) Notwithstanding subparagraph (A), the Chair15 man may, upon the approval of the Secretary, serve after

16 the expiration of the term of the Chairman under that

17 subparagraph. The Chairman may serve under this sub18 paragraph until—

19 ‘‘(i) the confirmation of the Chairman under

20 subparagraph (A) for an additional term to which

21 the Chairman is appointed under paragraph (3); or

22 ‘‘(ii) the confirmation of the successor to the

23 Chairman.

24 ‘‘(C) The Chairman may be removed by the President

25 for misconduct, inefficiency, neglect of duty, or engaging
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1 in the practice of law or for physical or mental disability

2 which, in the opinion of the President, prevents the proper

3 execution of the Chairman’s duties. The Chairman may

4 not be removed from office by the President on any other

5 grounds. Any such removal may only be made after notice

6 and opportunity for hearing.’’.

7 (b) OTHER MEMBERS OF BOARD.—Paragraph (2) of

8 such section is amended to read as follows:

9 ‘‘(2)(A) The other members of the Board (including

10 the Vice Chairman) shall be appointed by the Secretary,

11 with the approval of the President and based upon rec12 ommendations of the Chairman, for a term of nine years.

13 ‘‘(B) Notwithstanding subparagraph (A), a member

14 of the Board may, upon the recommendation of the Chair15 man and the approval of the Secretary, serve after the

16 expiration of the term of the member under that subpara17 graph. A member may serve under this subparagraph

18 until—

19 ‘‘(i) the appointment of the member to an addi20 tional term under paragraph (3); or

21 ‘‘(ii) the appointment of the successor to the

22 member.

23 ‘‘(C)(i) The Secretary shall notify a member of the

24 Board under this paragraph if—
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1 ‘‘(I) the Chairman decides not to recommend

2 the member for appointment under paragraph (3) to

3 an additional term; or

4 ‘‘(II) the Secretary decides not to appoint the

5 member to an additional term under that paragraph.

6 ‘‘(ii) The Secretary shall notify a member of the

7 Board under clause (i) not later than 120 days before the

8 expiration of the member’s term.

9 ‘‘(iii) A notification under clause (i) shall include an

10 explanation of the Chairman’s decision not to recommend

11 the member for appointment or the Secretary’s decision

12 not to appoint the member, as the case may be.

13 ‘‘(iv) The Secretary shall provide a member of the

14 Board who receives a notice under this subparagraph an

15 opportunity for a hearing on the matters in the notice.

16 The hearing shall occur not later than 60 days before the

17 expiration of the member’s term.

18 ‘‘(v) Upon completion of a hearing in the case of a

19 member of the Board under clause (iv), the Secretary shall

20 determine whether or not to appoint the member to an

21 additional term under paragraph (3). The Secretary’s de22 cision shall be final and shall not be subject to judicial

23 review.

24 ‘‘(D)(i) Except as provided in clause (ii), if the Sec25 retary fails to notify a member of the Board covered by
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1 clause (i) of subparagraph (C) by the time specified in

2 clause (ii) of that subparagraph, the member shall be

3 deemed appointed by the Secretary to an additional term

4 under paragraph (3).

5 ‘‘(ii) The President may disapprove the appointment

6 of a member of the Board to an additional term under

7 clause (i). A member whose appointment is so disapproved

8 shall not be deemed appointed to such term under that

9 clause.

10 ‘‘(E) Upon the expiration of the term, including any

11 service after such expiration under subparagraph (B), of

12 a member of the Board (other than the Chairman) who

13 was a career or career-conditional employee in the service

14 before commencement of the term, the member shall re15 vert to the civil service grade and series held by the mem16 ber immediately before the appointment of the member to

17 the Board.

18 ‘‘(F)(i) Reversion of a member of the Board under

19 subparagraph (E) shall not affect the taking against the

20 member of an action referred to in clause (ii) if the action

21 was initiated before the expiration of the term of the mem22 ber.

23 ‘‘(ii) Clause (i) refers to the following actions:

24 ‘‘(I) Removal of a member of the Board.

25 ‘‘(II) Suspension of a member.
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1 ‘‘(III) Reduction in grade of a member.

2 ‘‘(IV) Reduction in pay of a member.

3 ‘‘(V) Furlough of a member for 30 days or less.

4 ‘‘(VI) A reduction-in-force under section 3502

5 of title 5.

6 ‘‘(VII) An action initiated under section 1215

7 of title 5.’’.

8 (c) CRITERIA FOR REAPPOINTMENT OF BOARD MEM9 BERS.—(1) The Secretary of Veterans Affairs shall pre10 scribe criteria applicable to the appointment of members

11 of the Board of Veterans’ Appeals to a term on the Board

12 under section 7101(b)(3) of title 38, United States Code.

13 (2) The criteria prescribed under paragraph (1) shall

14 not apply to the Chairman of the Board.

15 (3)(A) The criteria prescribed under paragraph (1)

16 shall take into consideration the timeliness of a member

17 of the Board, the case management of a member, the ex18 tent to which substantive errors appear in the decisions

19 of the Board issued by the member, and the conduct of

20 a member as a member of the Board.

21 (B) Such criteria shall not provide for an evaluation

22 of a member of the Board in accordance with the granting

23 or denying of appeals by the member.

24 (d) APPLICABILITY.—Subparagraph (B) of section

25 7101(b)(2) of title 38, United States Code, as amended
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1 by subsection (b), shall apply to members of the Board

2 of Veterans’ Appeals appointed under section 201(d) of

3 the Veterans’ Judicial Review Act (division A of Public

4 Law 100–687; 38 U.S.C. 7101 note).

5 SEC. 5. BOARD MEMBERS HOLDING APPOINTMENTS IN THE

6 SENIOR EXECUTIVE SERVICE.

7 Notwithstanding any other provision of law, any

8 member of the Board of Veterans’ Appeals who, on the

9 date of the enactment of this Act, is a member of the Sen10 ior Executive Service shall—

11 (1) continue as a member of the Senior Execu12 tive Service while serving as a member of the Board;

13 and

14 (2) during the term of office of the member

15 under section 7101(b) of title 38, United States

16 Code, receive the pay, leave, and other benefits (in17 cluding benefits relating to reassignment) to which

18 members of the Senior Executive Service are

19 entitled.

Æ