-CITE-

    38 USC Sec. 5904                                            01/03/05

-EXPCITE-

    TITLE 38 - VETERANS' BENEFITS

    PART IV - GENERAL ADMINISTRATIVE PROVISIONS

    CHAPTER 59 - AGENTS AND ATTORNEYS

-HEAD-

    Sec. 5904. Recognition of agents and attorneys generally

-STATUTE-

      (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.

-SOURCE-

    (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.)

-MISC1-

                                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.]