Rosinski v. Wilkie

• Decision Date: 24 January 2019
• Docket Number: 18-0678
• Parties: Douglas J. Rosinski, Petitioner, v. Robert L. Wilkie, Secretary of Veterans Affairs, Respondent.
• Court: United States Court of Appeals For Veterans Claims

Douglas J. Rosinski, Petitioner,
v.
Robert L. Wilkie, Secretary of Veterans Affairs, Respondent.

No. 18-0678

United States Court of Appeals For Veterans Claims

January 24, 2019

Before DAVIS, Chief Judge, and PIETSCH and GREENBERG, Judges.

ORDER

PER CURIAM.

On February 8, 2018, Douglas J. Rosinski filed through counsel ^[1] a petition for extraordinary relief in the form of a writ of mandamus. The petitioner asks the Court to order VA to provide him, in his capacity as counsel representing current claimants before VA, the same access that veterans service organizations (VSOs) have to newly completed but not promulgated regional office (RO) rating decisions (draft rating decisions).

For the following reasons, the Court will grant the petition, in part, and order the Secretary to issue an appealable decision, with the appropriate notice of appellate rights, to Mr. Rosinski regarding his request for access to draft rating decisions.

I. BACKGROUND

VA's M21-1 Adjudication Procedures Manual allows VSOs to "review a rating decision prior to promulgation" to "identify any clear errors or matters of clarification that require significant discussion, and/or correction prior to promulgation." M21-1 Adjudication Procedures Manual, pt. I, ch. 3, sect. B(3)(a), (b).

The petitioner is a private attorney who represents veterans and other claimants before VA and at this Court. The petitioner claims that "at any time, [he] represents several dozen claimants and appellants awaiting VA rating decisions." Petition at 3. Currently, he is representing several clients at the RO level. Oral Argument (OA) at 22:29, Rosinski v. Wilkie, U.S. Vet. App. No. 18 0678 (oral argument held Aug. 23, 2018), http://www.uscourts.cavc.gov/ oral_arguments_audio.php. In January 2014, the petitioner wrote to VA, requesting access to the draft rating decisions of all the claimants he represented. See Petition, Exhibit (Ex.) B. The petitioner sent followup requests in March 2014, August 2014, September 2015, and February 2017. Petition, Exs. C-F. In April 2017, VA emailed the petitioner, stating: "[The Veterans

Benefits Administration] is unable to provide you the opportunity to seek clarification of unpromulgated rating decisions at this time." Petition, Ex. H.

This is the second petition that the petitioner has filed with the Court on this issue. In April 2017, the petitioner filed a petition for extraordinary relief in the nature of a writ of mandamus, asking the Court to provide him, in his capacity as an attorney representing claimants before the VA, access to draft rating decisions. The petitioner also filed an opposed motion for aggregate action encompassing all similarly situated attorneys. The Court dismissed the petition for lack of standing and denied the motion for aggregate action in January 2018. Rosinski v. Shulkin, 29 Vet.App. 183 (2018).

Mr. Rosinski filed this petition on February 8, 2018, requesting a writ of mandamus ordering the Secretary to immediately grant him access to draft rating decisions in cases where he is the representative of record. On April 10, 2018, this case was submitted to a panel for a decision under section I(b)(4) of the Court's Internal Operating Procedures. The Court heard oral argument on August 23, 2018.^[2]

II. ANALYSIS

A. The Court has subject matter jurisdiction over Mr. Rosinski's dispute.

This matter arises under the All Writs Act, which authorizes the Court to "issue all writs necessary or appropriate in aid of [its] respective jurisdiction[] and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The All Writs Act "unambiguously applies" to the Court, but it does not expand its jurisdiction. Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998). Rather, "the Act provides for the issuance of writs 'in aid of' the jurisdiction already possessed by a court." Id. "The propriety of a writ . . . turns on the question of whether the Court . . . would have jurisdiction to review" the challenged matter on direct appeal. Bates v. Nicholson, 398 F.3d 1355, 1359 (Fed. Cir. 2005).

The Court has "exclusive jurisdiction to review decisions of the Board of Veterans' Appeals," 38 U.S.C. § 7252(a), which in turn has jurisdiction to hear "[a]ll questions in a matter which under [38 U.S.C. § 511] is subject to decision by the Secretary," 38 U.S.C. § 7104(a). Section 511(a) commands the Secretary to "decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans." A "law that affects the provision of benefits" is "a single statutory enactment that bears a Public Law number in the Statutes at Large." Bates, 398 F.3d at 1361. Therefore, "[t]he ultimate question" as to whether this Court has subject matter jurisdiction "is whether [the] case arises 'under a law that affects the provision of benefits.'" Id. at 1359.

The petitioner argues that VA's policy interferes with both his and his clients' statutory and regulatory rights. Petition at 5-21. He contends that he has a statutory right to represent his clients under 38 U.S.C. § 5904^[3], and that his clients have a concurrent right to be represented by the person of their choosing. Id. at 11. During oral argument, the petitioner additionally argued that the policy implicated 38 U.S.C. § 5701(b), which commands the Secretary to disclose relevant records to "duly authorized" representatives. OA at 9:35-:52.

This Court has expressly held that both sections 5701 and 5904 are laws "affecting the provision of benefits" for the purposes of section 511 and are thus within the Court's subject matter jurisdiction. Rosinski, 29 Vet.App. at 189. Therefore, "regardless of whether the [M21-1 provision at issue here] derives from section 5701 or 5904, the Court has subject matter jurisdiction over this matter." Id.

B. Mr. Rosinski has standing to bring this challenge.

1. Legal Background

A party invoking the jurisdiction of the Court must show standing to have its grievance heard. Swan v. Derwinski, 1 Vet.App. 20, 22 (1990); see also Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (adopting the case-or-controversy requirements of Article III courts). Standing requires three elements:

First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized and (b) "actual or imminent, not 'conjectural' or 'hypothetical[.]'" Second, there must be a causal connection between the injury and the conduct complained of . . . . Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted).

In addition to direct standing, the Supreme Court has recognized limited circumstances "where it is necessary to grant a third party standing to assert the rights of another." Kowalski v. Tesmer, 543 U.S. 125, 129-30; In re Stanley, 9 Vet.App. 203, 210-11 (1996). To invoke third-party standing, "the party asserting the right [must have] a 'close' relationship with the person who possesses the right." Kowalski, 543 U.S. at 130. In addition, the party asserting the right must also show that "there is a 'hindrance' to the possessor's ability to protect his own interests." Id.

Furthermore, "'Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.'" Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1549 (2016) (quoting Lujan, 504 U.S. at 580 (Kennedy, J, concurring)). Where Congress grants a statutory right, the violation of that right may confer standing when it causes a concrete injury. Id. But intangible harms defined by statute may also form the basis of standing. Id.; see also Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440 (1989) (plaintiffs had standing to sue to obtain information regarding a professional legal organization's committee's activities to the extent permitted by statute).

2. The Parties' Standing Arguments

The petitioner argues that both he and his clients have been injured by the challenged M21-1 policy. He argues that he has a statutory right to represent clients and obtain a fair adjudication process, and that the Secretary's discriminatory policy vis-à-vis VSOs invades these rights. Petition at 11; see also 38 U.S.C. § 5904(a); Spokeo, 136 S.Ct. at 1547. He claims that because he is denied access to draft rating decisions, he has to do extra work to achieve the same results as a VSO; and because fees are statutorily restricted, performing extra work means he has to either do it for free or lower the effective hourly rate for all of the work. Petition at 12; see also 38 U.S.C. § 5904(a)(5). He further advances that his inability to alert the RO of factual errors in draft rating decisions will lead to unnecessary delay in certain claims, causing him to forego new clients. See 38 C.F.R. § 14.632(b) (2018). The petitioner also argues that he suffers an intangible harm through interference with the attorney-client relationship, resulting from his lack of access to information that he could share with his clients. Petition at 16-17 (citing Pub. Citizen, 491 U.S. at 450).

The petitioner also argues that his clients are not fully afforded their right to representation under section 5904(a) because they must choose between either using the representative of their choosing-here, the petitioner-or being represented by a VSO with access to draft rating decisions. Petition at 6, 11. By choosing to be represented by the petitioner, his clients have had to constrict their statutory right to access "files, records, reports, and other papers and documents" concerning them. Petition at 6 (citing 38 U.S.C. § 5701(b) and 38 C.F.R. § 1.577(a) (2017)). Further, the petitioner posits that the...