United States Court of Appeals 

for the Federal Circuit ______________________ 

MATTHEW SHEALEY, JR.,

Claimant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

v.

MEGHAN GENTILE, HAROLD H. HOFFMAN, III,

Intervenors-Appellants

______________________ 

2019-1057

______________________ 

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.

______________________ 

Decided: January 6, 2020

______________________ 

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, 
2 SHEALEY v. WILKIE

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 
SHEALEY v. WILKIE 3

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.
4 SHEALEY v. WILKIE

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 novo. Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 1376 (Fed. Cir. 2012). 

 

1 The government did not dispute that the intervenors performed this work or that this work is eligible for 

attorney’s fees under the EAJA. See Bowling v. Principi, 

15 Vet. App. 379, 386 (2002) (holding that an attorney’s 

withdrawal from the case “pose[d] no barrier to an EAJA 

award by the Court”).
SHEALEY v. WILKIE 5

The issue here is whether Ms. Gentile and Mr. Hoffman have standing to file a claim for attorney’s fees under 

the EAJA when Mr. Shealey, the “prevailing party” under 

the statute, has objected to such an application.

Section 2412(d) provides that “a court shall award to a

prevailing party . . . fees and other expenses . . . in any civil 

action . . . brought by or against the United States . . . unless the court finds that the position of the United States 

was substantially justified.” 28 U.S.C. § 2412(d). “Congress enacted [the] EAJA . . . in 1980 ‘to eliminate the barriers that prohibit small businesses and individuals from 

securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal 

Government.’” Starry Assocs. v. United States, 892 F.3d 

1372, 1377 (Fed. Cir. 2018) (second alteration in original) 

(quoting Scarborough v. Principi, 541 U.S. 401, 406 

(2004)).

There are three theories on which Ms. Gentile and Mr. 

Hoffman might have standing to sue the government for 

attorney’s fees under the EAJA. 

I 

First, Ms. Gentile and Mr. Hoffman assert that they 

have suffered an injury in fact affording them standing because there has been “an invasion of a legally protected interest.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 

(1992). They assert that “by virtue of the EAJA statute, 

they have a legal right to reimbursement from the Secretary of the cost of their attorney fees and expenses.” Intervenors’ Reply Br. 3. They argue that because Mr. Shealey’s 

substantive right to fees “is derived from the services performed . . . by [Ms. Gentile and Mr. Hoffman],” they have 

an “ancillary” substantive right “to apply for and collect 

EAJA fees.” Id. at 16–17. They contend that they are the 

real parties in interest. See Fed. R. Civ. P. 17(a).
6 SHEALEY v. WILKIE

However, the Supreme Court expressly rejected such 

an argument in Astrue v. Ratliff, 560 U.S. 586 (2010). In 

Ratliff, the Court explained that the statutory right 

granted by the EAJA is limited to the “prevailing party”—

in this case, Mr. Shealey—and not to the “attorney who 

performed the work that generated the fees.” Id. at 591. 

“The fact that the statute awards to the prevailing party 

fees in which [its] attorney may have a beneficial interest 

or a contractual right does not establish that the statute 

‘awards’ the fees directly to the attorney.” Id. at 593. 

Even before Ratliff, we held in Willis v. Government Accountability Office, 448 F.3d 1341 (Fed. Cir. 2006), that

with respect to a similar fee-shifting statute, “only the prevailing party and not the attorney has the right to assert a 

claim for attorney’s fees under the statute.” Id. at 1346. 

Under the plain text of the EAJA, Ms. Gentile and Mr. 

Hoffman lack any substantive rights sufficient to confer 

standing. 

II

The second theory Ms. Gentile and Mr. Hoffman might 

assert is that they have a right through assignment of Mr. 

Shealey’s EAJA claim under the fee agreement. Indeed, 

the Supreme Court has explained that an assignment of a 

claim may be sufficient to confer standing. Sprint Communs. Co., L.P. v. APCC Servs., 554 U.S. 269, 271–72, 285–

86 (2008) (holding that an assignee of a statutory claim under 47 U.S.C. § 226 satisfied Article III standing); id. at 290 

(holding that once a claim is assigned, the assignee sues 

based on “legal rights of their own” and do not trigger prudential limitations such as third-party standing). However, because the claim for fees here is against the 

government, Ms. Gentile and Mr. Hoffman would have to 

overcome the Anti-Assignment Act, 31 U.S.C. § 3727 

(“AAA”), which generally prohibits the assignment of 

claims against the government unless the government has 
SHEALEY v. WILKIE 7

waived an objection to the assignment.2 See Tuftco Corp. 

v. United States, 614 F.2d 740, 745 (Ct. Cl. 1980) (holding

that the government waived an objection to the AAA when 

it “was aware of, assented to, and recognized the assignments”).

This assignment theory is unavailable here, because 

the fee agreement on its face does not purport to assign Mr. 

Shealey’s EAJA claim to intervenors, and the intervenors 

expressly disclaimed such a theory at oral argument.

III

Third, a party “generally must assert [its] own legal 

rights and interests, and cannot rest [its] claim to relief on 

the legal rights or interests of third parties.” Kowalski v. 

Tesmer, 543 U.S. 125, 129 (2004) (quoting Warth v. Seldin, 

422 U.S. 490, 499 (1975)). But Ms. Gentile and Mr. Hoffman assert that in the unusual circumstances here they 

have third party standing to sue for fees on Mr. Shealey’s 

behalf. This theory is foreclosed because Ms. Gentile and 

Mr. Hoffman do not meet the requirements of third-party 

standing. “[P]rudential standing requirements consist of 

‘judicially self-imposed limits on the exercise of federal jurisdiction.’” Willis, 448 F.3d at 1348 (quoting Allen v. 

Wright, 468 U.S. 737, 751 (1984)). In those unusual circumstances where third-party standing is asserted, the 

 

2 In Kerr v. Commissioner of Social Security, 874 

F.3d 926 (6th Cir. 2017), the Sixth Circuit held that “a fee 

award under [the] EAJA is ‘a right to demand money from 

the United States,’” and could not be assigned to another 

party’s lawyer “[u]nless the government waives application 

of the AAA.” Id. at 937 (quoting United States v. Kim, 806 

F.3d 1161, 1171 (9th Cir. 2015)). The Sixth Circuit observed that “[a]lthough the Court never mentioned the 

AAA [in Ratliff], it was undoubtedly aware of the prevalence of attorney fee assignments.” Id. at 935.
8 SHEALEY v. WILKIE

court looks at three factors in determining whether third 

party standing is available: “the relationship of the litigant 

to the person whose rights are being asserted; the ability of 

the person to advance his own rights; and the impact of the 

litigation on third-party interests.” Caplin & Drysdale v. 

United States, 491 U.S. 617, 623 n.3 (1989). 

In Willis, this court applied the Caplin & Drysdale factors to facts similar to those here and found that the attorney lacked standing. In Willis, the appellant, an attorney 

seeking a fee award under 5 U.S.C. § 7701(g)(1), argued 

that she had third-party standing to pursue her client’s fee 

award, including fees that the client had “expressly declined to request.” Willis, 448 F.3d at 1343. 

We found that the first factor weighed in favor of thirdparty standing because the appellant “ha[d] an attorneyclient relationship with [the client], which the Supreme 

Court recognized as being ‘of special consequence.’” Id. at 

1348. However, as to the second and third factors, we 

found that the client was “clearly free to assert the fee 

claim,” and that “there [was] no need to recognize [the appellant’s] standing in order to avoid impairment of [the client’s] right to attorney’s fees.” Id. at 1348–49. We noted 

that “[the client’s] ability to claim fees would be impaired 

if [her attorney] were afforded standing because [the client’s] ability to resolve her fee claim by settlement with the 

government, and her ability to present her best case for a 

fee award, would be undermined if [her attorney] could independently pursue an award.” Id. at 1349. Third-party 

standing requires “that [the litigant’s] interests are aligned

with those of the party whose rights are at issue.” Id. (emphasis added) (quoting Pony v. Cty. of L.A., 433 F.3d 1138, 

1147 (9th Cir. 2006)).

The intervenors attempt to distinguish Willis on the 

basis that their “primary theory of standing is based on 

their fee agreement with Mr. Shealey.” Intervenors’ Reply 

Br. 5. They rely on the provision of the agreement 
SHEALEY v. WILKIE 9

authorizing counsel to “apply for attorney’s fees and litigation expenses with respect to [Mr. Shealey’s] case under the 

applicable provisions of the [EAJA].” J.A. 35. The problem 

for the intervenors is that Mr. Shealey revoked this authority through his objection to their EAJA application. That 

revocation may have been a breach of the fee agreement—

an issue that we do not decide here—but Mr. Shealey’s revocation of authorization deprived intervenors of the authority to seek fees on his behalf. The prudential concerns 

identified in Caplin & Drysdale remain. 

Like the appellant in Willis, Ms. Gentile and Mr. Hoffman have a relationship “of special consequence” with Mr. 

Shealey, but the other two factors weigh against a finding 

of third-party standing. Like the client in Willis, Mr. Shealey is clearly free to assert or not to assert his EAJA claim. 

And as in Willis, the interests of a client such as Mr. Shealey—including the ability to resolve their fee claim by settlement with the government and the ability to decline 

pursuing an EAJA claim at all—would be impaired if their 

attorneys were afforded standing to file a claim on their 

behalf when that authority has been revoked. Affording 

standing to Ms. Gentile and Mr. Hoffman over Mr. Shealey’s objections would “would contravene the policies and 

rationale on which the doctrine of third-party standing is 

based.” Willis, 448 F.3d at 1349 (quoting Pony, 433 F.3d at 

1148). “Under these circumstances an attorney cannot satisfy the requirements for prudential standing.” Id. 

IV

Finally, Ms. Gentile and Mr. Hoffman assert that 

“[w]ithout a merits decision from the Veterans Court on 

their entitlement to an EAJA award[, they] will have no 

basis to seek a remedy against their former client” in state 

court for breach of the fee agreement. Intervenors’ Br. 1–

2. They argue that they “would not be able to prove damages from [Mr. Shealey’s] breach because there could be no 

way to establish that an EAJA payment would have been 
10 SHEALEY v. WILKIE

awarded by the Veterans Court.” Intervenors’ Reply Br. 

24. This argument ignores the authority of state courts to 

“render binding judicial decisions that rest on their own interpretations of federal law.” ASARCO, Inc. v. Kadish, 490 

U.S. 605, 617 (1989). Nor is it at all clear that the state 

court would lack authority to compel Mr. Shealey to authorize a fee application. The utility of obtaining a Veterans Court decision of entitlement to a fee award cannot 

confer jurisdiction on the Veterans Court to adjudicate 

these state law breach of contract and unjust enrichment 

claims that intervenors potentially have against their former client. See Wick v. Brown (In re Wick), 40 F.3d 367, 

370–73 (Fed. Cir. 1994). Nor does the Veterans Court have 

authority to render an advisory opinion on this issue. See 

Flast v. Cohen, 392 U.S. 83, 96–97 (1968).

AFFIRMED

COSTS

No costs.