§ 5904. — Recognition of agents and attorneys generally.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 38USC5904]
TITLE 38--VETERANS' BENEFITS
PART IV--GENERAL ADMINISTRATIVE PROVISIONS
CHAPTER 59--AGENTS AND ATTORNEYS
Sec. 5904. Recognition of agents and attorneys generally
(a) The Secretary may recognize any individual as an agent or
attorney for the preparation, presentation, and prosecution of claims
under laws administered by the Secretary. The Secretary may require that
individuals, before being recognized under this section, show that they
are of good moral character and in good repute, are qualified to render
claimants valuable service, and otherwise are competent to assist
claimants in presenting claims.
(b) The Secretary, after notice and opportunity for a hearing, may
suspend or exclude from further practice before the Department any agent
or attorney recognized under this section if the Secretary finds that
such agent or attorney--
(1) has engaged in any unlawful, unprofessional, or dishonest
practice;
(2) has been guilty of disreputable conduct;
(3) is incompetent;
(4) has violated or refused to comply with any of the laws
administered by the Secretary, or with any of the regulations or
instructions governing practice before the Department; or
(5) has in any manner deceived, misled, or threatened any actual
or prospective claimant.
(c)(1) Except as provided in paragraph (3), in connection with a
proceeding before the Department with respect to benefits under laws
administered by the Secretary, a fee may not be charged, allowed, or
paid for services of agents and attorneys with respect to services
provided before the date on which the Board of Veterans' Appeals first
makes a final decision in the case. Such a fee may be charged, allowed,
or paid in the case of services provided after such date only if an
agent or attorney is retained with respect to such case before the end
of the one-year period beginning on that date. The limitation in the
preceding sentence does not apply to services provided with respect to
proceedings before a court.
(2) A person who, acting as agent or attorney in a case referred to
in paragraph (1) of this subsection, represents a person before the
Department or the Board of Veterans' Appeals after the Board first makes
a final decision in the case shall file a copy of any fee agreement
between them with the Board at such time as may be specified by the
Board. The Board, upon its own motion or the request of either party,
may review such a fee agreement and may order a reduction in the fee
called for in the agreement if the Board finds that the fee is excessive
or unreasonable. A finding or order of the Board under the preceding
sentence may be reviewed by the United States Court of Appeals for
Veterans Claims under section 7263(d) of this title.
(3) A reasonable fee may be charged or paid in connection with any
proceeding before the Department in a case arising out of a loan made,
guaranteed, or insured under chapter 37 of this title. A person who
charges a fee under this paragraph shall enter into a written agreement
with the person represented and shall file a copy of the fee agreement
with the Secretary at such time, and in such manner, as may be specified
by the Secretary.
(d)(1) When a claimant and an attorney have entered into a fee
agreement described in paragraph (2) of this subsection, the total fee
payable to the attorney may not exceed 20 percent of the total amount of
any past-due benefits awarded on the basis of the claim.
(2)(A) A fee agreement referred to in paragraph (1) is one under
which the total amount of the fee payable to the attorney--
(i) is to be paid to the attorney by the Secretary directly from
any past-due benefits awarded on the basis of the claim; and
(ii) is contingent on whether or not the matter is resolved in a
manner favorable to the claimant.
(B) For purposes of subparagraph (A) of this paragraph, a claim
shall be considered to have been resolved in a manner favorable to the
claimant if all or any part of the relief sought is granted.
(3) To the extent that past-due benefits are awarded in any
proceeding before the Secretary, the Board of Veterans' Appeals, or the
United States Court of Appeals for Veterans Claims, the Secretary may
direct that payment of any attorneys' fee under a fee arrangement
described in paragraph (1) of this subsection be made out of such past-
due benefits. In no event may the Secretary withhold for the purpose of
such payment any portion of benefits payable for a period after the date
of the final decision of the Secretary, the Board of Veterans' Appeals,
or Court of Appeals for Veterans Claims making (or ordering the making
of) the award.
(Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1238, Sec. 3404; Pub. L. 99-
576, title VII, Sec. 701(80), Oct. 28, 1986, 100 Stat. 3298; Pub. L.
100-687, div. A, title I, Sec. 104(a), Nov. 18, 1988, 102 Stat. 4108;
renumbered Sec. 5904 and amended Pub. L. 102-40, title IV,
Sec. 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102-83,
Sec. 4(a)(1), (3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403-405;
Pub. L. 102-405, title III, Sec. 303(a), Oct. 9, 1992, 106 Stat. 1985;
Pub. L. 103-446, title V, Sec. 504(a), Nov. 2, 1994, 108 Stat. 4663;
Pub. L. 105-368, title V, Sec. 512(a)(1), Nov. 11, 1998, 112 Stat.
3341.)
Amendments
1998--Subsecs. (c)(2), (d)(3). Pub. L. 105-368 substituted ``Court
of Appeals for Veterans Claims'' for ``Court of Veterans Appeals''
wherever appearing.
1994--Subsec. (d)(2)(A). Pub. L. 103-446 amended subpar. (A)
generally. Prior to amendment, subpar. (A) read as follows: ``A fee
agreement referred to in paragraph (1) of this subsection is one under
which (i) the amount of the fee payable to the attorney is to be paid to
the attorney by the Secretary directly from any past-due benefits
awarded on the basis of the claim, and (ii) the amount of the fee is
contingent on whether or not the matter is resolved in a manner
favorable to the claimant.''
1992--Subsec. (c)(1). Pub. L. 102-405, Sec. 303(a)(1), substituted
``Except as provided in paragraph (3), in'' for ``In''.
Subsec. (c)(3). Pub. L. 102-405, Sec. 303(a)(2), added par. (3).
1991--Pub. L. 102-40, Sec. 402(b)(1), renumbered section 3404 of
this title as this section.
Subsec. (a). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted
``Secretary'' for ``Administrator'' in two places.
Pub. L. 102-83, Sec. 4(a)(1), substituted ``administered by the
Secretary'' for ``administered by the Veterans' Administration''.
Subsec. (b). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted
``Secretary'' for ``Administrator'' in two places in introductory
provisions.
Pub. L. 102-83, Sec. 4(a)(3), (4), substituted ``Department'' for
``Veterans' Administration'' in introductory provisions and in par. (4).
Pub. L. 102-83, Sec. 4(a)(1), substituted ``administered by the
Secretary'' for ``administered by the Veterans' Administration'' in par.
(4).
Subsec. (c)(1). Pub. L. 102-83, Sec. 4(a)(3), (4), substituted
``Department'' for ``Veterans' Administration''.
Pub. L. 102-83, Sec. 4(a)(1), substituted ``administered by the
Secretary'' for ``administered by the Veterans' Administration''.
Subsec. (c)(2). Pub. L. 102-83, Sec. 4(a)(3), (4), substituted
``Department'' for ``Veterans' Administration''.
Pub. L. 102-40, Sec. 402(d)(1), substituted ``7263(d)'' for
``4063(d)''.
Subsec. (d)(2)(A), (3). Pub. L. 102-83, Sec. 4(b)(1), (2)(E),
substituted ``Secretary'' for ``Administrator'' wherever appearing.
1988--Subsecs. (c), (d). Pub. L. 100-687 added subsecs. (c) and (d)
and struck out former subsec. (c) which read as follows: ``The
Administrator shall determine and pay fees to agents or attorneys
recognized under this section in allowed claims for monetary benefits
under laws administered by the Veterans' Administration. Such fees--
``(1) shall be determined and paid as prescribed by the
Administrator;
``(2) shall not exceed $10 with respect to any one claim; and
``(3) shall be deducted from monetary benefits claimed and
allowed.''
1986--Subsec. (b). Pub. L. 99-576 substituted ``the Administrator''
for ``he'' in introductory text.
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 1994 Amendment
Section 504(b) of Pub. L. 103-446 provided that: ``The amendment
made by subsection (a) [amending this section] shall apply with respect
to fee agreements entered into on or after the date of the enactment of
this Act [Nov. 2, 1994].''
Effective Date of 1992 Amendment
Section 303(b) of Pub. L. 102-405 provided that: ``Paragraph (3) of
section 5904(c) of title 38, United States Code, as added by subsection
(a), shall apply with respect to services of agents and attorneys
provided after the date of the enactment of this Act [Oct. 9, 1992].''
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-687 effective Sept. 1, 1989, see section
401(a) of Pub. L. 100-687, set out as an Effective Date note under
section 7251 of this title.
Fee Agreements
Subsec. (d) of this section not to prevent award of fees and
expenses under section 2412(d) of Title 28, Judiciary and Judicial
Procedure, but subsec. (d) of this section inapplicable to such award
where fees for the same work are received under both sections and
claimant's attorney refunds to claimant amount of smaller fee, see
section 506(c) of Pub. L. 102-572, set out as a note under section 2412
of Title 28.
Applicability to Attorneys Fees
Section 403 of Pub. L. 100-687, which provided that the amendment to
subsec. (c) of this section by section 104(a) of Pub. L. 100-687 applied
only to services of agents and attorneys in cases in which a notice of
disagreement was filed with the Department of Veterans Affairs on or
after Nov. 18, 1988, was repealed by Pub. L. 107-103, title VI,
Sec. 603(b), Dec. 27, 2001, 115 Stat. 999.
[Repeal of section 403 of Pub. L. 100-687, formerly set out above,
applicable to any appeal filed with the United States Court of Appeals
for Veterans Claims on or after Dec. 27, 2001, or before that date but
in which a final decision has not been made under section 7291 of this
title as of that date, see section 603(d) of Pub. 107-103, set out as a
note under section 7251 of this title.]
Section Referred to in Other Sections
This section is referred to in sections 5905, 7263 of this title.
