38 U.S.C. § 5904

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 5904 - Recognition of agents and attorneys generally

(a) RECOGNITION.-

(1) Except as provided in paragraph (4), 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.

(2) The Secretary shall prescribe in regulations (consistent with the Model Rules of Professional Conduct of the American Bar Association) qualifications and standards of conduct for individuals recognized under this section, including a requirement that, as a condition of being so recognized, an individual must-

(A) show that such individual is of good moral character and in good repute, is qualified to render claimants valuable service, and is otherwise competent to assist claimants in presenting claims;

(B) have such level of experience or specialized training as the Secretary shall specify; and

(C) certify to the Secretary that the individual has satisfied any qualifications and standards prescribed by the Secretary under this section.

(3) The Secretary shall prescribe in regulations requirements that each agent or attorney recognized under this section provide annually to the Secretary information about any court, bar, or Federal or State agency to which such agent or attorney is admitted to practice or otherwise authorized to appear, any relevant identification number or numbers, and a certification by such agent or attorney that such agent or attorney is in good standing in every jurisdiction where the agent or attorney is admitted to practice or otherwise authorized to appear.

(4) The Secretary may not recognize an individual as an agent or attorney under paragraph (1) if such individual has been suspended or disbarred by any court, bar, or Federal or State agency to which the individual was previously admitted to practice and has not been subsequently reinstated.

(5) The Secretary may prescribe in regulations reasonable restrictions on the amount of fees that an agent or attorney may charge a claimant for services rendered in the preparation, presentation, and prosecution of a claim before the Department. A fee that does not exceed 20 percent of the past due amount of benefits awarded on a claim shall be presumed to be reasonable.

(6)

(A) The Secretary may charge and collect an assessment from an individual recognized as an agent or attorney under this section in any case in which the Secretary pays to the agent or attorney, from past-due benefits owed to a claimant represented by the agent or attorney, an amount as a fee in accordance with a fee arrangement between the claimant and the agent or attorney.

(B) The amount of an assessment under subparagraph (A) shall be equal to five percent of the amount of the fee required to be paid to the agent or attorney, except that the amount of such an assessment may not exceed $100.

(C) The Secretary may collect an assessment under subparagraph (A) by offsetting the amount of the fee otherwise required to be paid to the agent or attorney from the past-due benefits owed to the claimant represented by the agent or attorney.

(D) An agent or attorney who is charged an assessment under subparagraph (A) may not, directly or indirectly, request, receive, or obtain reimbursement for such assessment from the claimant represented by the agent or attorney.

(E) Amounts collected under this paragraph shall be deposited in the account available for administrative expenses for veterans' benefits programs. Amounts so deposited shall be merged with amounts in such account and shall be available for the same purpose, and subject to the same conditions and limitations, as amounts otherwise in such account.

(b) SUSPENSION OF AGENTS AND ATTORNEYS.-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;

(5) has in any manner deceived, misled, or threatened any actual or prospective claimant;

(6) has presented to the Secretary a frivolous claim, issue, or argument, involving conduct inconsistent with ethical standards for the practice of law;

(7) has been suspended or disbarred by any court or bar to which such agent or attorney was previously admitted to practice, or has been disqualified from participating in or appearing before any Federal agency, and has not been subsequently reinstated;

(8) has charged excessive or unreasonable fees, as determined by the Secretary in accordance with subsection (c)(3)(A); or

(9) has failed to comply with any other condition specified in regulations prescribed by the Secretary for purposes of this subsection.

(c)

(1) Except as provided in paragraph (4), 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 a claimant is provided notice of the agency of original jurisdiction's initial decision under section 5104 of this title with respect to the case. The limitation in the preceding sentence does not apply to fees charged, allowed, or paid for 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 a claimant is provided notice of the agency of original jurisdiction's initial decision under section 5104 of this title with respect to the case shall file a copy of any fee agreement between them with the Secretary pursuant to regulations prescribed by the Secretary.

(3)

(A) The Secretary may, upon the Secretary's own motion or at the request of the claimant, review a fee agreement filed pursuant to paragraph (2) and may order a reduction in the fee called for in the agreement if the Secretary finds that the fee is excessive or unreasonable.

(B) A finding or order of the Secretary under subparagraph (A) may be reviewed by the Board of Veterans' Appeals under section 7104 of this title.

(C) If the Secretary under subsection (b) suspends or excludes from further practice before the Department any agent or attorney who collects or receives a fee in excess of the amount authorized under this section, the suspension shall continue until the agent or attorney makes full restitution to each claimant from whom the agent or attorney collected or received an excessive fee. If the agent or attorney makes such restitution, the Secretary may reinstate such agent or attorney under such rules as the Secretary may prescribe.

(4) 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) PAYMENT OF FEES OUT OF PAST-DUE BENEFITS.-

(1) When a claimant and an agent or attorney have entered into a fee agreement described in paragraph (2), the total fee payable to the agent or 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 agent or attorney-

(i) is to be paid to the agent or 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), 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 fee to an agent or attorney under a fee arrangement described in paragraph (1) 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.

38 U.S.C. § 5904

Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1238, §3404; Pub. L. 99-576, title VII, §701(80), Oct. 28, 1986, 100 Stat. 3298; Pub. L. 100-687, div. A, title I, §104(a), Nov. 18, 1988, 102 Stat. 4108; renumbered §5904 and amended Pub. L. 102-40, title IV, §402(b)(1), (d) (1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102-83, §4(a)(1), (3), (4), (b) (1), (2)(E), Aug. 6, 1991, 105 Stat. 403-405; Pub. L. 102-405, title III, §303(a), Oct. 9, 1992, 106 Stat. 1985; Pub. L. 103-446, title V, §504(a), Nov. 2, 1994, 108 Stat. 4663; Pub. L. 105-368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 109-461, title I, §101(a)(1), (b), (c) (1), (d)-(f), Dec. 22, 2006, 120 Stat. 3405, 3407, 3408; Pub. L. 115-55, §2(n), Aug. 23, 2017, 131 Stat. 1110.

EDITORIAL NOTES

AMENDMENTS2017-Subsec. (c)(1), (2). Pub. L. 115-55 substituted "claimant is provided notice of the agency of original jurisdiction's initial decision under section 5104 of this title" for "notice of disagreement is filed". 2006-Subsec. (a). Pub. L. 109-461, §101(a)(1)(A), inserted heading.Subsec. (a)(1). Pub. L. 109-461, §101(a)(1)(A)-(C), designated existing provisions as par. (1), substituted "Except as provided in paragraph (4), the Secretary may recognize" for "The Secretary may recognize", and struck out last sentence which read as follows: "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."Subsec. (a)(2) to (6). Pub. L. 109-461, §101(a)(1)(D), added pars. (2) to (6). Subsec. (b). Pub. L. 109-461, §101(b)(1), inserted heading.Subsec. (b)(6) to (9). Pub. L. 109-461, §101(b)(2)-(4), added pars. (6) to (9).Subsec. (c)(1). Pub. L. 109-461, §101(e)(1), substituted "paragraph (4)" for "paragraph (3)". Pub. L. 109-461, §101(c)(1), substituted "a notice of disagreement is filed with respect to" for "the Board of Veterans' Appeals first makes a final decision in", struck out "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." before "The limitation", and inserted "fees charged, allowed, or paid for" after "does not apply to". Subsec. (c)(2). Pub. L. 109-461, §101(d), substituted "after a notice of disagreement is filed with respect to the case" for "after the Board first makes a final decision in the case" and "with the Secretary pursuant to regulations prescribed by the Secretary" for "with the Board at such time as may be specified by the Board" and struck out at end: "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." Subsec. (c)(3), (4). Pub. L. 109-461, §101(e)(2), (3), added par. (3) and redesignated former par. (3) as (4).Subsec. (d). Pub. L. 109-461, §101(f)(1), inserted heading.Subsec. (d)(1). Pub. L. 109-461, §101(f)(2), (3), inserted "agent or" before "attorney" in two places and struck out "of this subsection" after "paragraph (2)". Subsec. (d)(2)(A). Pub. L. 109-461, §101(f)(2), inserted "agent or" before "attorney" in introductory provisions and in cl. (i). Subsec. (d)(2)(B). Pub. L. 109-461, §101(f)(4), struck out "of this paragraph" after "subparagraph (A)". Subsec. (d)(3). Pub. L. 109-461, §101(f)(5), substituted "fee to an agent or attorney" for "attorneys' fee" and struck out "of this subsection" after "paragraph (1)". 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, §303(a)(1), substituted "Except as provided in paragraph (3), in" for "In". Subsec. (c)(3). Pub. L. 102-405, §303(a)(2), added par. (3). 1991- Pub. L. 102-40, §402(b)(1), renumbered section 3404 of this title as this section. Subsec. (a). Pub. L. 102-83, §4(b)(1), (2) (E), substituted "Secretary" for "Administrator" in two places. Pub. L. 102-83, §4(a)(1), substituted "administered by the Secretary" for "administered by the Veterans' Administration". Subsec. (b). Pub. L. 102-83, §4(b)(1), (2) (E), substituted "Secretary" for "Administrator" in two places in introductory provisions. Pub. L. 102-83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration" in introductory provisions and in par. (4). Pub. L. 102-83, §4(a)(1), substituted "administered by the Secretary" for "administered by the Veterans' Administration" in par. (4). Subsec. (c)(1). Pub. L. 102-83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration". Pub. L. 102-83, §4(a)(1), substituted "administered by the Secretary" for "administered by the Veterans' Administration".Subsec. (c)(2). Pub. L. 102-83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration". Pub. L. 102-40, §402(d)(1), substituted "7263(d)" for "4063(d)".Subsec. (d)(2)(A), (3). Pub. L. 102-83, §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.

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115-55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115-55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115-55 set out as a note under section 101 of this title, and bracketed note thereunder.

EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109-461, title I, §101(h), Dec. 22, 2006, 120 Stat. 3408, provided that: "The amendments made by subsections (c)(1) and (d) [amending this section] shall take effect on the date that is 180 days after the date of the enactment of this Act [Dec. 22, 2006] and shall apply with respect to services of agents and attorneys that are provided with respect to cases in which notices of disagreement are filed on or after that date." Pub. L. 109-461, title I, §101(i), Dec. 22, 2006, 120 Stat. 3408, provided that: "No assessments on fees may be collected under paragraph (6) of section 5904(a) of title 38, United States Code (as added by subsection (a)(1)(D) of this section), until the date on which the Secretary of Veterans Affairs prescribes the regulations [regulations prescribed effective June 23, 2008, see 73 F.R. 29851] required by the amendments made by this section [amending this section and sections 5902, 5903, and 5905 of this title]."

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 Pub. L. 103-446, title V, §504(b), Nov. 2, 1994, 108 Stat. 4664, 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 Pub. L. 102-405, title III, §303(b), Oct. 9, 1992, 106 Stat. 1985, provided that: "Paragraph (3) [now (4)] 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 Pub. L. 100-687, title IV, §403, Nov. 18, 1988, 102 Stat. 4122, 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, §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. L. 107-103 set out as a note under section 7251 of this title.]