Shealey v. Wilkie, No. 19-1057 (Fed. Cir. 2020)Annotate this Case
Shealey served on active duty in Vietnam. He sought service connection for a cervical spine disability and major depressive disorder. The Board of Veterans’ Appeals held that Shealey was dishonorably discharged. Before Shealy filed his third motion for reconsideration, the Army Board for Correction of Military Records upgraded his discharge to “under honorable conditions.” The Board denied reconsideration. Shealey sought assistance from Veterans Legal Advocacy Group (VetLAG), a nonprofit law firm; VetLAG would not charge a fee and if the Veterans Court granted attorney’s fees, VetLAG could keep the full amount. Shealey agreed that VetLAG could apply for attorney’s fees and litigation expenses under the Equal Access to Justice Act, 28 U.S.C. 2412(d) (EAJA), and he would provide assistance. VetLAG represented Shealey before the Veterans Court for three months until a pre-briefing conference, where the government stated its intent to move for dismissal. The attorneys advised Shealey to file a new claim to reopen his case. Shealey disagreed, discharged them, and obtained new counsel. The court vacated the Board’s decision. The government did not dispute that Shealey was the “prevailing party” and did not oppose VetLAG's EAJA motion seeking $4,061.60. Shealey opposed the application. The court determined that VetLAG lacked standing. The Federal Circuit affirmed. Under EAJA’s plain text, the attorneys lack any substantive rights sufficient to confer standing. Affording standing to the attorneys over Shealey’s objections would contravene the policies on which the third-party standing doctrine is based. The fee agreement did not constitute an assignment.