-CITE-

    38 USC Sec. 7292                                            01/19/04

-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.

-SECREF-

                   SECTION REFERRED TO IN OTHER SECTIONS               

      This section is referred to in sections 7252, 7291 of this title.