from the United States Court of Appeals for Veterans Claims
in No. 17-298, Judge Coral Wong Pietsch, Judge Margaret C.
Bartley, Judge Michael P. Allen.
Kenneth M. Carpenter, Law Offices of Carpenter Chartered,
Topeka, KS, argued for intervenors-appellants.
E. Kurland, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent-appellee. Also represented by Joseph H. Hunt,
Claudia Burke, Robert Edward Kirschman, Jr.; Y. Ken Lee,
Andrew J. Steinberg, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
Lourie, Dyk, and Chen, Circuit Judges.
Gentile and Harold Hoffman ("intervenors") appeal a
decision from the United States Court of Appeals for Veterans
Claims ("Veterans Court") dismissing their claim
for attorney's fees and other expenses (hereinafter
"attorney's fees") under the Equal Access to
Justice Act, 28 U.S.C. § 2412(d) ("EAJA"). We
conclude that the intervenors lack standing to pursue a claim
for attorney's fees and affirm.
case involves a recurring problem-a claim for statutory
attorney's fees by counsel where the client declines to
authorize the request for fees.
Shealey ("client") served on active duty in Vietnam
from February 1967 to March 1969. He filed a claim for
entitlement to service connection for a cervical spine
disability, major depressive disorder, and shortness of
breath, which he contended were incurred during his active
military service. On July 1, 2015, the Board of Veterans'
Appeals ("Board") issued a decision finding that
Mr. Shealey was dishonorably discharged from military
service, and that the character of his discharge was a
statutory bar to veteran's benefits. Mr. Shealey three
times filed for reconsideration, all of which were denied by
the Board. Before filing his third motion for
reconsideration, Mr. Shealey obtained a favorable decision
from the Army Board for Correction of Military Records, which
upgraded his discharge to "under honorable
conditions." J.A. 31. Despite this, the Board denied
reconsideration. Mr. Shealey appealed to the Veterans Court
and-like many other similarly situated veterans-sought
assistance from a legal aid organization.
Gentile and Mr. Hoffman are attorneys of the Veterans Legal
Advocacy Group ("VetLAG"), a nonprofit law firm
that offers legal representation for veterans. On February
18, 2017, Mr. Shealey engaged the intervenors to represent
him in his appeal and entered into a fee agreement. Under the
fee agreement, VetLAG "[would] not charge a fee to
represent [Mr. Shealey] in [his] case," and "if the
[Veterans] Court grant[ed] attorney's fees, VetLAG may
keep the full amount of the award." J.A. 35. Mr. Shealey
agreed that (1) "VetLAG may apply for attorney's
fees and litigation expenses with respect to [his] case under
the [EAJA]," and (2) he would "provide any
assistance or information the attorneys of VetLAG may need to
prepare their request for attorney's fees."
February 13, 2017, Ms. Gentile and Mr. Hoffman entered
appearances on behalf of Mr. Shealey. Over the next three
months Ms. Gentile and Mr. Hoffman reviewed the record,
researched the legal issues that the case presented, and
advised Mr. Shealey on his case. On May 17, 2017, they
participated in a Rule 33 pre-briefing conference, where the
government stated its intent to file a motion for dismissal.
Based on the possibility of dismissal, Ms. Gentile and Mr.
Hoffman advised Mr. Shealey to file a new claim to reopen his
case. But Mr. Shealey disagreed with this advice-so much so
that he discharged his counsel. Mr. Shealey was represented
by new counsel for the remainder of his appeal. On August 21,
2017, the Veterans Court issued an order effectively vacating
and remanding the Board's denial of Mr. Shealey's
claim. The government did not dispute that Mr. Shealey was
the "prevailing party" on his appeal.
September 19, 2017, Ms. Gentile and Mr. Hoffman filed an EAJA
application in Mr. Shealey's name. In their application,
Ms. Gentile and Mr. Hoffman sought $4, 061.60 for "work
performed while representing [Mr.
Shealey]."J.A. 52-53. The government did not oppose
the fee award. However, Mr. Shealey filed three objections to
the EAJA application on October 3, November 8, and November
13, 2017, stating, among other things, that Ms. Gentile and
Mr. Hoffman pressured him to drop his claim, delayed his
case, and did not perform any work that contributed to Mr.
Shealey prevailing in his appeal. As the Veterans Court
observed, Mr. Shealey "made it very clear that he
opposed the EAJA application." J.A. 79. The court
allowed Ms. Gentile and Mr. Hoffman to intervene but
dismissed the EAJA application based on a determination that
Ms. Gentile and Mr. Hoffman lacked standing to seek fees
under the EAJA. Ms. Gentile and Mr. Hoffman appeal the
Veterans Court's dismissal. We have jurisdiction under 38
U.S.C. § 7292(a).
scope of this court's review of a decision of the
Veterans Court is governed by 38 U.S.C. § 7292(d). We
have jurisdiction to review "all relevant questions of
law, including interpreting constitutional and statutory
provisions." 38 U.S.C. § 7292(d)(1). Standing is a
question of law that this court reviews de ...