US (United States) Code. Title 38. Chapter 59: Agents and attorneys

Codificación normativa de EEUU (Estados Unidos) Legislación Federal estadounidense # Veterans Benefits. General Administrative Provisions

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  • País: Estados Unidos Estados Unidos
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-CITE-

38 USC CHAPTER 59 - AGENTS AND ATTORNEYS 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART IV - GENERAL ADMINISTRATIVE PROVISIONS

CHAPTER 59 - AGENTS AND ATTORNEYS

-HEAD-

CHAPTER 59 - AGENTS AND ATTORNEYS

-MISC1-

Sec.

5901. Prohibition against acting as claims agent or

attorney.

5902. Recognition of representatives of organizations.

5903. Recognition with respect to particular claims.

5904. Recognition of agents and attorneys generally.

5905. Penalty for certain acts.

AMENDMENTS

1991 - Pub. L. 102-40, title IV, Sec. 402(c)(1), May 7, 1991, 105

Stat. 239, renumbered items 3401 to 3405 as 5901 to 5905,

respectively.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in title 10 sections 1553, 1554.

-End-

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38 USC Sec. 5901 01/06/03

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TITLE 38 - VETERANS' BENEFITS

PART IV - GENERAL ADMINISTRATIVE PROVISIONS

CHAPTER 59 - AGENTS AND ATTORNEYS

-HEAD-

Sec. 5901. Prohibition against acting as claims agent or attorney

-STATUTE-

Except as provided by section 500 of title 5, no individual may

act as an agent or attorney in the preparation, presentation, or

prosecution of any claim under laws administered by the Secretary

unless such individual has been recognized for such purposes by the

Secretary.

-SOURCE-

(Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1238, Sec. 3401; Pub. L.

91-24, Sec. 12(a), June 11, 1969, 83 Stat. 34; Pub. L. 99-576,

title VII, Sec. 701(79), Oct. 28, 1986, 100 Stat. 3298; renumbered

Sec. 5901, Pub. L. 102-40, title IV, Sec. 402(b)(1), May 7, 1991,

105 Stat. 238; Pub. L. 102-83, Sec. 4(a)(1), (b)(1), (2)(E), Aug.

6, 1991, 105 Stat. 403-405.)

-MISC1-

AMENDMENTS

1991 - Pub. L. 102-40 renumbered section 3401 of this title as

this section.

Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted "Secretary" for

"Administrator".

Pub. L. 102-83, Sec. 4(a)(1), substituted "administered by the

Secretary" for "administered by the Veterans' Administration".

1986 - Pub. L. 99-576 substituted "such individual" for "he".

1969 - Pub. L. 91-24 substituted "Except as provided by section

500 of title 5, no individual may act" for "No individual may act".

-End-

-CITE-

38 USC Sec. 5902 01/06/03

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TITLE 38 - VETERANS' BENEFITS

PART IV - GENERAL ADMINISTRATIVE PROVISIONS

CHAPTER 59 - AGENTS AND ATTORNEYS

-HEAD-

Sec. 5902. Recognition of representatives of organizations

-STATUTE-

(a)(1) The Secretary may recognize representatives of the

American National Red Cross, the American Legion, the Disabled

American Veterans, the United Spanish War Veterans, the Veterans of

Foreign Wars, and such other organizations as the Secretary may

approve, in the preparation, presentation, and prosecution of

claims under laws administered by the Secretary.

(2) The Secretary may, in the discretion of the Secretary,

furnish, if available, space and office facilities for the use of

paid full-time representatives of national organizations so

recognized.

(b) No individual shall be recognized under this section -

(1) unless the individual has certified to the Secretary that

no fee or compensation of any nature will be charged any

individual for services rendered in connection with any claim;

and

(2) unless, with respect to each claim, such individual has

filed with the Secretary a power of attorney, executed in such

manner and form as the Secretary may prescribe.

(c)(1) Unless a claimant specifically indicates in a power of

attorney filed with the Department a desire to appoint only a

recognized representative of an organization listed in or approved

under subsection (a), the Secretary may, for any purpose, treat the

power of attorney naming such an organization, a specific office of

such an organization, or a recognized representative of such an

organization as the claimant's representative as an appointment of

the entire organization as the claimant's representative.

(2) Whenever the Secretary is required or permitted to notify a

claimant's representative, and the claimant has named in a power of

attorney an organization listed in or approved under subsection

(a), a specific office of such an organization, or a recognized

representative of such an organization without specifically

indicating a desire to appoint only a recognized representative of

the organization, the Secretary shall notify the organization at

the address designated by the organization for the purpose of

receiving the notification concerned.

(d) Service rendered in connection with any such claim, while not

on active duty, by any retired officer, warrant officer, or

enlisted member of the Armed Forces recognized under this section

shall not be a violation of sections 203, 205, 206, or 207 of title

18.

-SOURCE-

(Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1238, Sec. 3402; Pub. L.

91-24, Sec. 12(b), June 11, 1969, 83 Stat. 34; Pub. L. 98-160,

title VII, Sec. 703(5), Nov. 21, 1983, 97 Stat. 1010; renumbered

Sec. 5902, Pub. L. 102-40, title IV, Sec. 402(b)(1), May 7, 1991,

105 Stat. 238; Pub. L. 102-83, Sec. 4(a)(1), (b)(1), (2)(E), Aug.

6, 1991, 105 Stat. 403-405; Pub. L. 104-275, title V, Sec. 508(a),

Oct. 9, 1996, 110 Stat. 3343.)

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AMENDMENTS

1996 - Subsecs. (c), (d). Pub. L. 104-275 added subsec. (c) and

redesignated former subsec. (c) as (d).

1991 - Pub. L. 102-40 renumbered section 3402 of this title as

this section.

Subsec. (a)(1). 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".

Subsecs. (a)(2), (b). Pub. L. 102-83, Sec. 4(b)(1), (2)(E),

substituted "Secretary" for "Administrator" wherever appearing.

1983 - Subsec. (a)(1). Pub. L. 98-160, Sec. 703(5)(A),

substituted "the Administrator" for "he".

Subsec. (a)(2). Pub. L. 98-160, Sec. 703(5)(B), substituted "the

discretion of the Administrator" for "his discretion".

Subsec. (b)(1). Pub. L. 98-160, Sec. 703(5)(C), substituted "the

individual" for "he".

Subsec. (c). Pub. L. 98-160, Sec. 703(5)(D), substituted "member"

for "man".

1969 - Subsec. (c). Pub. L. 91-24 substituted "sections 203, 205,

206 or 207 of title 18" for "section 281 or 283 of title 18, or a

violation of section 99 of title 5".

EFFECTIVE DATE OF 1996 AMENDMENT

Section 508(b) of Pub. L. 104-275 provided that: "The amendments

made by this section [amending this section] apply to any power of

attorney filed with the Department of Veterans Affairs, regardless

of the date of its execution."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 521, 1711, 2041 of this

title; title 10 section 2679.

-End-

-CITE-

38 USC Sec. 5903 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART IV - GENERAL ADMINISTRATIVE PROVISIONS

CHAPTER 59 - AGENTS AND ATTORNEYS

-HEAD-

Sec. 5903. Recognition with respect to particular claims

-STATUTE-

The Secretary may recognize any individual for the preparation,

presentation, and prosecution of any particular claim for benefits

under any of the laws administered by the Secretary if -

(1) such individual has certified to the Secretary that no fee

or compensation of any nature will be charged any individual for

services rendered in connection with such claim; and

(2) such individual has filed with the Secretary a power of

attorney, executed in such manner and in such form as the

Secretary may prescribe.

-SOURCE-

(Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1238, Sec. 3403;

renumbered Sec. 5903, Pub. L. 102-40, title IV, Sec. 402(b)(1), May

7, 1991, 105 Stat. 238; Pub. L. 102-83, Sec. 4(a)(1), (b)(1),

(2)(E), Aug. 6, 1991, 105 Stat. 403-405.)

-MISC1-

AMENDMENTS

1991 - Pub. L. 102-40 renumbered section 3403 of this title as

this section.

Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted "Secretary" for

"Administrator" in introductory provisions and wherever appearing

in pars. (1) and (2).

Pub. L. 102-83, Sec. 4(a)(1), substituted "administered by the

Secretary" for "administered by the Veterans' Administration" in

introductory provisions.

-End-

-CITE-

38 USC Sec. 5904 01/06/03

-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.]

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 5905, 7263 of this title.

-End-

-CITE-

38 USC Sec. 5905 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART IV - GENERAL ADMINISTRATIVE PROVISIONS

CHAPTER 59 - AGENTS AND ATTORNEYS

-HEAD-

Sec. 5905. Penalty for certain acts

-STATUTE-

Whoever (1) directly or indirectly solicits, contracts for,

charges, or receives, or attempts to solicit, contract for, charge,

or receive, any fee or compensation except as provided in sections

5904 or 1984 of this title, or (2) wrongfully withholds from any

claimant or beneficiary any part of a benefit or claim allowed and

due to the claimant or beneficiary, shall be fined as provided in

title 18, or imprisoned not more than one year, or both.

-SOURCE-

(Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1239, Sec. 3405; Pub. L.

99-576, title VII, Sec. 701(81), Oct. 28, 1986, 100 Stat. 3298;

Pub. L. 100-687, div. A, title I, Sec. 104(b), Nov. 18, 1988, 102

Stat. 4109; renumbered Sec. 5905 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. 5(c)(1), Aug. 6, 1991, 105 Stat. 406.)

-MISC1-

AMENDMENTS

1991 - Pub. L. 102-40 renumbered section 3405 of this title as

this section and substituted "5904" for "3404".

Pub. L. 102-83 substituted "1984" for "784".

1988 - Pub. L. 100-687 substituted "shall be fined as provided in

title 18, or imprisoned not more than one year, or both" for "shall

be fined not more than $500 or imprisoned at hard labor for not

more than two years, or both".

1986 - Pub. L. 99-576 substituted "to the claimant or

beneficiary" for "him".

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.

-End-