UNITED STATES COURT OF VETERANS APPEALS

Misc. No. 7-98

IN RE: RULES 3 AND 46

Before NEBEKER, Chief Judge, and KRAMER, FARLEY,

HOLDAWAY, IVERS, STEINBERG, and GREENE, Judges.

O R D E R

Pursuant to the authority of 38 U.S.C. § 7264(a) and consistent with 28 U.S.C. § 2071(b) and

(e), the Court has determined the need to clarify the requirements for appearance by representatives

of the parties. It is

ORDERED that the attached proposed changes to Rules 3 and 46 and Forms 1 and 3 are

hereby published. Public comment on these changes is invited. Such comment must be submitted

to the Clerk of this Court at 625 Indiana Avenue, NW, Suite 900, Washington, DC 20004-2950, by

September 30, 1998.

DATED: August 3, 1998 BY THE COURT:

FRANK Q. NEBEKER

Chief Judge

Attachments
ATTACHMENT TO USCVA MISCELLANEOUS ORDER NO. 6-98

RULE CHANGES (only affected subsections shown)

(Former rule on left; changed rule on right)

RULE 3. HOW TO APPEAL RULE 3. HOW TO APPEAL

(f) Limited Appearance. The filing of a

Notice of Appeal alone, or the filing of a

motion to stay proceedings to permit

evaluation of a case for possible

representation, by a representative, will

not amount to an appearance under Rule

46 by that representative if the Notice of

Appeal or the motion contains the

statement "This is a limited appearance."

(f) (Rescinded)

[Reason: Limited representation status has been abused by some practitioners, creating confusion

about the true representation status of an appellant. Under the change, such representation will be

allowed only for the filing of a Notice of Appeal. See Form 1 and amended Rule 46(d)(5), below.

It will no longer be allowed while a person is contemplating but has not yet agreed to represent a

party. Underthose circumstances, the party remains self-represented for all purposes. The potential

representative may draft necessary motions, such as those for extensions of time, but the party must

sign and file them.] 
RULE 46. REPRESENTATION RULE 46. REPRESENTATION

(d) Appearance, Withdrawal, and Change

of Address.

(1) Appearance. No attorney or nonattorney practitioner may participate

in any proceedings in any case unless

that individual has entered an

appearance. The signing of a pleading

or motion, or the physical appearance

at oral argument, by an attorney or

non-attorney practitioner constitutes

an appearance by that individual as the

representative in the case. The

appearance must be accompanied by

filing and service on all parties of a

written statement that the

representative is representing a

designated client or clients, giving the

name, address, and telephone number

of the representative, and signed by

him or her. See sample Notice of

Appearance at Form 3 in the

Appendix of Forms. In the case of a

non-attorney practitioner, the name,

address, and signature of the

responsible supervising attorney

(subparagraph (b)(1) of this rule) or

the identification of the employing

organization (subparagraph (b)(2) of

this rule) must appear on each paper

filed with the Court. Appearances

may not be made in the name of a law

firm or other organization. If a party

is represented by more than one

individual, one shall be designated as

the representative of record for the

purpose of receipt of papers sent by

the Court and served by other parties.

(d) Representation Requirements.

(1) Appearance. No person may

participate on behalf of a party or

amicus in any proceedings in a case

without first filing:

(A) a written notice of appearance,

which must be on the form

prescribed at Form 3 in the

Appendix of Forms; and

(B) a copy of the fee agreement if

the person is representing an

appellant or petitioner or

intervenor, unless the

representation is without

charge to that party. If the

agreement provides for direct

payment out of past-due

benefits under 38 U.S.C. §

5904, a copy must be served

on the Secretary.

An appearance may not be made in

the name of a law firm or other

organization.

(2) Papers filed by non-attorney

representative. Each paper filed by a

non-attorney representative must

include the name, address, and

signature of the responsible

supervising attorney under Rule

46(b)(1) or the identification of the

employing organization under Rule

46(b)(2).
(2) Withdrawal. A representative, other

than a government attorney who has

been properly replaced, may not

withdraw without the Court's

permission upon motion and written

notice to the client and all other

parties who have appeared. The

motion must describe the current or

last known address or addresses of the

client and the efforts made to notify

the client of the motion to withdraw. 

The authority and duty of the

representative will continue until he or

she is relieved by order of the Court. 

Permission to withdraw may be

granted subject to such conditions as

the Court considers appropriate. This

paragraph will not apply when a

representative, without taking any

other action, files a Notice of Appeal

on behalf of an appellant under Rule

3(f).

(3) Withdrawal. A representative —

except a government attorney who has

been properly replaced — may not

withdraw from a case without

obtaining the Court's permission by

filing a motion to withdraw that

(A) lists the client's current address

and telephone number, and

(B) assures the Court that 

(i) the client has been notified

of the motion to withdraw,

and

(ii) copies of all papers filed

by the parties, all notices

and orders accumulated by

counsel, and all files

belonging to the client

have been sent to the client

or to a named substitute

representative.

The representative's authority and duty

continues until he or she is relieved by

the Court, subject to conditions that

the Court considers appropriate.
(3) Change of address. Each

representative and each party

appearing on his or her own behalf has

a continuing duty to notify the Clerk

and all other parties of any change of

address or telephone number. Absent

such notice, service of documents at

the most recently provided address of

that representative or party will be

fully effective.

(e) Fee Agreement. A representative who

enters an appearance (other than a limited

appearance) must file a copy of a fee

agreement or a statement indicating that

the appellant is being represented without

charge to the appellant. If the fee

agreement provides for direct payment out

of past due benefits under 38 U.S.C. §

5904, a copy must be served on the

Secretary.

* * *

(g) Self-representation. Any appellant may

appear and present his or her own case

before the Court.

(4) Change of address. Each

representative and self-represented

party must notify the Clerk and all

other parties of any change of his or

her address or telephone number. 

Absent such notice, the mailing of

documents to the address most

recently provided by that person will

be fully effective.

(5) Limited representation. This Rule

46(d) does not apply when a

representative files a Notice of Appeal

on behalf of an appellant and specifies

that the representation is limited to

that filing.

(e) (Rescinded)

* * *

(g) Self-representation. Any appellant,

petitioner, or intervenor may be selfrepresented before the Court.

[Reason: To insure the Court's control over representatives' appearance and withdrawal by requiring

clear and uniform procedures for each. Form 3 (Notice of Appearance) has been expanded and its

use is mandatory. The self-representation provision has been reworded for clarity.] 
UNITED STATES COURT OF VETERANS APPEALS

Notice of Appeal

The following named appellant appeals to the Court from a final Board of Veterans' Appeals (BVA)

decision. The Board's decision was dated :

 

VA claims file number

Appellant's printed name

 

Appellant's telephone number

Appellant's address

 

 

Signature of person filing this notice

CERTIFICATE OF SERVICE

On , a copy of this Notice was mailed postage prepaid or served personally on

General Counsel (027), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington,

DC 20420. I declare under penalty of perjury, under the laws of the United States, that the foregoing

is true and correct.

 

Signature of person filing this notice

Only if this Notice of Appeal is filed by a representative, check one of the following:

[ ] My Notice of Appearance is attached.

[ ] My representation is limited to the filing of this Notice of Appeal.

INSTRUCTIONS

Send this Notice of Appeal (NOA) (original only) to:

Clerk, US Court of Veterans Appeals 

625 Indiana Avenue, NW, Suite 900

Washington, DC 20004-2950 

It will be in time if it is properly addressed to the

Court and bears a legible postmark affixed by the

United States Postal Service (USPS) within 120 days

after the mailing date of the BVA decision that you

are appealing. A postage-metered date imprint other

than one affixed by USPS does not qualify.

You may send this NOA by facsimile transmission to

(202) 501-5848 or by means other than US mail.

If you do that, or if you mail the NOA and it does not

bear a legible USPS postmark, the NOA will be too

late if it arrives at the Court after the 120-day time

limit. The Court cannot extend the time limit.

There is a $50 filing fee for an appeal to the Court. 

Send a check or money order, payable to "US Court

of Veterans Appeals," with this NOA. Do not send

cash. To request a waiver of the filing fee, attach a

completed Form 4 (Motion to Waive Filing Fee).

Send a copy of this NOA to VA General Counsel and

complete the certificate of service shown above.

Form 1

(Rev 07/98)
UNITED STATES COURT OF VETERANS APPEALS

Notice of Appearance

 , [ ]Appellant,

[ ]Petitioner,

v. No. 

 ,

Secretary of Veterans Affairs.

1. Please enter my appearance for [ ] the appellant or petitioner

[ ] the Secretary

[ ] the intervenor

[ ] amicus curiae: .

2. I am:

[ ] admitted to practice before this Court.

[ ] awaiting admission to practice; my application was submitted on (date) .

[ ] seeking to appear in this case only, under Rule 46(c); my motion is attached.

3. I am:

[ ] the representative of record. I will accept service for the party and will inform all of the

party's other representatives of the matters served upon me.

[ ] not the representative of record, but am joining that representative.

[ ] replacing the representative of record, who has been permitted to withdraw.

4. If I am representing the appellant or petitioner, my representation is:

[ ] pursuant to the attached fee agreement. If it provides for direct payment out of past-due

benefits under 38 U.S.C. § 5904, I have served a copy on counsel for the Secretary.

[ ] without charge to the appellant or petitioner.

 

Date

Signature

 

Veterans service organization, if Rule 46(b)(2) applies.

Printed name

 Signature and printed name and address of supervising attorney,

if Rule 46(b)(1) applies:

Address

 

 

Telephone number

 

Attachments:

[ ] Motion to appear under Rule 46(c)

[ ] Fee agreement Form 3

(Rev 07/98)