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Shealey v. Wilkie

United States Court of Appeals, Federal Circuit

January 6, 2020

MATTHEW SHEALEY, JR., Claimant
v.
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
v.
MEGHAN GENTILE, HAROLD H. HOFFMAN, III, Intervenors-Appellants

          Appeal 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.

          Joshua 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.

          Before Lourie, Dyk, and Chen, Circuit Judges.

          Dyk, Circuit Judge.

         Meghan 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.

         Background

         This case involves a recurring problem-a claim for statutory attorney's fees by counsel where the client declines to authorize the request for fees.

         Matthew 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.

         Ms. 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." Id.

         On 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.

         On 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]."[1]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).

         Discussion

         The 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 ...


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