UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 17-1117

DOUGLAS J. ROSINSKI, PETITIONER,

V.

DAVID J. SHULKIN, M.D.,

SECRETARY OF VETERANS AFFAIRS, RESPONDENT.

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

O R D E R

On April 24, 2017, Douglas J. Rosinski filed through counsel a petition for extraordinary 

relief in the nature of a writ of mandamus. In it, he asks the Court to compel VA to provide him, 

in his capacity as an attorney representing claimants before VA, with access to newly completed 

but non-promulgated rating decisions for review and comment, a practice VA currently limits to 

veterans service organization (VSO) representatives. On April 27, 2017, Mr. Rosinski filed an 

opposed motion for aggregate action encompassing all similarly situated attorneys.

For the following reasons, the Court holds that, although it has jurisdiction to consider the 

validity of VA's policy with respect to the review of newly completed rating decisions, Mr. 

Rosinski has not demonstrated that he has standing to challenge the policy. The Court will, 

accordingly, dismiss the petition.

I. BACKGROUND

VA affords VSO representatives with an opportunity to review newly completed rating 

decisions before they are promulgated. VA's M21-1 Adjudication Procedures Manual provides 

that the purpose of this review "is to identify any clear errors or matters of clarification that require 

significant discussion, and/or correction prior to promulgation." M21-1, pt. I, ch. 3, sec. B(3)(a).1

Under this policy, once a decision is complete, a VSO representative has 48 hours to review it to 

resolve mistakes and request clarifications, but "[d]isagreements with a decision should be pursued 

through the appellate process." Id. sec. B(3)(c).

In January 2014, Mr. Rosinski first requested the ability to review his clients' newly 

completed rating decisions in the same manner afforded to VSO representatives; he sent followup requests in August 2014, September 2015, and February 2017. In March 2017, a VA 

representative responded to Mr. Rosinski's inquiry, stating that VA was "considering [his] request 

for access to draft rating decisions, and attorney access to draft decisions in general," but that it 

was not clear whether VA would ultimately grant the request. Petition, Exhibit (Ex.) G at 2. On 

 

1 VA amended the M21-1 sections pertaining to VSO review of newly completed rating decisions on July 21, 

2017, during the pendency of this matter. Although VA revised and reorganized some of the policy's language, the 

substance of the policy remains unchanged.
2

April 21, 2017, after further correspondence, a different VA representative informed Mr. Rosinski 

via email that VA was "unable to provide [him] the opportunity to seek clarification of 

unpromulgated rating decisions" but that it would "continue to study the matter." Id., Ex. H.

Mr. Rosinski filed his petition on April 24, 2017, and subsequently filed his motion for 

aggregate action on April 27, 2017. On May 4, 2017, this case was submitted to a panel for decision 

pursuant to section I(b)(4) of the Court's Internal Operating Procedures. On June 1, 2017, the Court 

ordered the parties to file supplemental briefs addressing "the alleged disparate treatment of 

attorney practitioners at the regional office (RO) level, whether class action or some other form of

aggregate action is warranted here, and any other matters deemed relevant by the parties." 

Thereafter, on July 11, 2017, the Court invited the participation of interested amici curiae. Between 

July 24, 2017, and September 6, 2017, the Court received the parties' supplemental briefs, as well 

as the briefs of three amici curiae: the National Veterans Legal Services Program and Military 

Order of the Purple Heart; the National Law School Veterans Clinic Consortium; and the 

Administrative Law, Civil Procedure, & Federal Courts Law Professors.2 On September 20, 2017, 

the Court heard oral argument.3

II. ARGUMENTS

In their briefing and at oral argument, the parties and amici focused on three general issues: 

first, whether the Court has jurisdiction over this matter, including whether Mr. Rosinski has 

standing to challenge VA's policy; second, whether a writ is warranted, including whether VA's 

policy is arbitrary and capricious; and finally, whether aggregate action is appropriate in this case.

A. Jurisdiction

Mr. Rosinski contends that because VA's policy here constitutes a "[r]estraint[] of an 

attorney's ability to represent a veteran client," it is a "matter 'affecting the provision of benefits' 

and is thus within the Court's jurisdiction" under 38 U.S.C. § 5904. Petitioner's Brief (Br.) at 6. At 

oral argument, Mr. Rosinski clarified his argument, asserting that the Court has jurisdiction over 

this matter pursuant to 38 U.S.C. §§ 511 and 5904. Oral Argument (O.A.) at 07:54–08:06, Rosinski

v. Shulkin, U.S. Vet. App. No. 17-1117 (argued Sept. 20, 2017), http://www.uscourts.cavc.gov/

oral_arguments_audio.php. Mr. Rosinski also argues that he has standing to bring this challenge, 

as VA's policy causes him professional and economic harm. Specifically, he contends that the 

policy impedes his ability to provide competent representation, causing him to "miss the 

opportunity to provide [an] advocacy tool." O.A. at 13:08–:17. Mr. Rosinski does not contend that 

he has third-party standing on behalf of his clients. O.A. at 19:31–:37. 

The Secretary responds that Mr. Rosinski lacks standing "because he does not explain how 

he has been, or imminently will be, injured by [VA]'s policy." Secretary's Response (Resp.) at 3. 

 

2 The Court thanks the amici curiae who responded to the invitation for their helpful briefing in this matter.

3 Walton J. McLeod, of Columbia, South Carolina, argued for Mr. Rosinski. Mark D. Vichich, of Washington, 

D.C., argued for the Secretary; with him on the pleadings were Richard A. Daley, Deputy Chief Counsel; Mary Ann 

Flynn, Chief Counsel; and Meghan Flanz, Interim General Counsel. Angela K. Drake, of Columbia, Missouri, argued 

for amicus National Law School Veterans Clinic Consortium.
3

The Secretary rejects Mr. Rosinski's contention that VA's policy "affects his ability to 'effectively 

and efficiently' represent his clients," as Mr. Rosinski "fails to support [his arguments] with 

specific, concrete facts." Id. at 4 (quoting Petition (Pet.) at 9). In addition, the Secretary argues that 

the Court lacks subject matter jurisdiction over this matter, as "VA's policy to afford VSOs the 

opportunity to review rating decisions before they are finalized is a matter of internal VA 

administration, detached from any statutory enactment or even any regulations implementing a 

statute." Id. at 13; see also Secretary's Br. at 5 (characterizing this dispute as arising from VA's 

"gratuitous extension of a procedure to one class of representatives but not others"); see also O.A. 

at 49:24–:41 (linking VA's policy to the Secretary's discretionary authority under 38 U.S.C. 

§ 5701).

B. Merits of the Petition

Turning to the merits of the petition, Mr. Rosinski contends that a writ is warranted in this 

case. First, he argues that he lacks adequate alternative means to obtain relief, as "[t]he Secretary 

has stymied all other avenues" to do so and "has repeatedly refused to change the offensive policy 

despite no fewer than eight written and emailed requests." Petitioner's Br. at 16. Second, Mr. 

Rosinski asserts that VA's refusal to allow attorneys access to newly completed rating decisions in 

the same manner as VSO representatives "violates [his] rights as an accredited representative and 

his client's rights to fair process." Pet. at 4; see also Petitioner's Br. at 8 ("The Secretary's policy 

of allowing VSOs, and no one else, access to review draft rating decisions is arbitrary, disparate, 

and patently unfair."). He argues that the Secretary has offered no rationale or legal basis for his 

"discriminatory" policy, prejudicing "veterans who choose to exercise their right to attorney 

representation." Pet. at 5. As a consequence, Mr. Rosinski argues that claimants who are 

represented by attorneys are required to use the appeal process to correct factual errors and suggest 

relevant, overlooked regulations, resulting in delays in the resolutions of their cases.

Amicus National Law School Veterans Clinic Consortium argues that VA's policy is 

arbitrary and capricious, citing an example of an attorney, the director of a veterans law clinic, 

who contrary to VA's policy has been afforded the opportunity to review newly completed rating 

decisions. The amicus also argues that, because attorneys cannot charge a fee until a Notice of 

Disagreement is filed, attorneys and VSO representatives are similarly situated.

The Secretary responds that Mr. Rosinski is not entitled to a writ on the merits of his 

petition, as he has an alternative means of obtaining relief: namely, appealing a VA decision 

denying him access to newly created rating decisions. This is so, the Secretary contends, because 

Mr. Rosinski "did not bring the petition on behalf of any particular claimant" but instead brought 

the petition based on his "general inability to have this access in any of his client's cases, . . . relief 

that can be granted only prospectively." Secretary's Reply Br. at 9. In the alternative, the Secretary 

asserts that VA has a rational basis for treating VSO representatives and attorneys differently.

C. Aggregate Action

In his motion for aggregate action and his subsequent briefing, Mr. Rosinski contends that 

aggregate action is necessary "to prevent a deluge of essentially identical cases," as the Secretary's 

policy affects all accredited attorney representatives. Petitioner's Br. at 23. Applying the criteria 
4

set forth in Rule 23 of the Federal Rules of Civil Procedure, Mr. Rosinski argues that this case 

satisfies the "numerosity, commonality, typicality, and adequacy" requirements to certify classes 

in Federal district courts. Id. at 24. Finally, he contends that an aggregate action would "confer[] 

upon each class member the benefit of an inclusive court order and jurisdiction under that order to 

directly seek relief from violations" of the order. Petitioner's Reply Br. at 9.

The Secretary objects to aggregate action. He argues that "a single precedential order of 

this Court is all that is needed to afford relief," Secretary's Reply Br. at 12, because "the Secretary 

will be bound by that ruling in all cases in which attorney representatives seek pre-decisional 

review," Secretary's Br. at 23. He also argues that an aggregate action would run contrary to the 

interests of judicial economy, as the Court would be required to develop and carry out class action 

procedures in addition to ruling on the merits of the case.

III. ANALYSIS

A. Jurisdiction

"'A party seeking the exercise of jurisdiction in its favor has the burden of establishing that 

such jurisdiction exists.'" Disabled Am. Veterans v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1075 

(Fed. Cir. 2017) (quoting Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 2001)). Before 

turning to the merits of Mr. Rosinski's arguments, then, the Court must satisfy itself that it 

possesses jurisdiction to act in this case. This inquiry involves two separate questions: first, 

whether the Court has subject matter jurisdiction over the dispute; and second, whether Mr. 

Rosinski has standing to challenge VA's policy. 

1. Subject Matter Jurisdiction

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); see Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998) 

(holding that the All Writs Act "unambiguously applies" to the Court). The All Writs Act "does 

not expand a court's jurisdiction." Cox, 149 F.3d at 1363. "Rather, as explicitly stated in the [Act] 

itself, the Act provides for the issuance of writs 'in aid of' the jurisdiction already possessed by a 

court." Id. Thus, "[t]he propriety of a writ of mandamus in this case turns on the question of 

whether the Court . . . would have jurisdiction to review" this matter on direct appeal. Bates v. 

Nicholson, 398 F.3d 1355, 1359 (Fed. Cir. 2005).

Under 38 U.S.C. § 7252, the Court has "exclusive jurisdiction to review decisions of the 

Board of Veterans' Appeals [(Board)]." 38 U.S.C. § 7252(a). The Board, in turn, has jurisdiction 

to consider "all questions in a manner which under section 511(a) of this title is subject to decision 

by the Secretary." 38 U.S.C. § 7104(a). Section 511(a) states, in pertinent part, that "the Secretary 

shall 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." 38 U.S.C. § 511(a). Therefore, "[t]he ultimate question before us is whether this case 

arises 'under a law that affects the provision of benefits.'" Bates, 398 F.3d at 1359; see also Ledford 
5

v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) (holding that this Court's "jurisdiction is premised on 

and defined by the Board's decision concerning the matter being appealed").

Both this Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have 

clarified the types of matters that fall within the Court's jurisdiction. See, e.g., Cox, 149 F.3d at 

1364-65 (holding that the Court had jurisdiction to compel VA to pay attorneys' fees pursuant to 

38 U.S.C. §§ 511 and 5904(d)); Freeman v. Shinseki, 24 Vet.App. 404, 413-15 (2011) (holding 

that the Court had jurisdiction to review the Secretary's appointment of fiduciaries pursuant to 

38 U.S.C. § 5502). Most recently, in Chisholm v. McDonald, this Court held that it had jurisdiction 

to review the Secretary's "authorizing or denying access to electronic records for counsel seeking 

benefits on behalf of their clients," because 38 C.F.R. § 14.629—the regulation governing such 

access—was promulgated pursuant to 38 U.S.C. §§ 501(a) and 5904. 28 Vet.App. 240, 242.

These cases follow the Federal Circuit's clarification in Bates that a "law that affects the 

provision of benefits" means "a single statutory enactment that bears a Public Law number in the 

Statutes at Large." 398 F.3d at 1361. In each case, the jurisdictional question turned on either a 

statute enacted as part of a law affecting benefits or a regulation promulgated pursuant to such a 

statute. 

In this case, the M21-1 provision at issue—M21-1, part I, chapter 3, section B(3)—does

not expressly flow from a statute or regulation.

4 The Secretary argues that it is promulgated 

pursuant to 38 U.S.C. § 5701(d), which provides that the Secretary "as a matter of discretion may 

authorize an inspection of Department records by duly authorized representatives of recognized 

organizations." 38 U.S.C. § 5701(d); see Secretary's Br. at 15-16. Mr. Rosinski, in contrast, 

contends that the policy derives from section 5904, which governs attorney representation before 

VA. The Court need not decide whether VA's policy is authorized by section 5701 or 5904 

because, regardless of which statute is invoked, the Court is satisfied that it has jurisdiction.

The Court holds that section 5701 is a "law affecting the provision of benefits" for the 

purposes of section 511. As the Secretary notes, section 5701(d) traces its origins to Veterans 

Regulation 11, created in March 1933 by Executive Order 6099. See Exec. Order No. 6099 § I(g)

(Mar. 31, 1933) (providing that the "Administrator of Veterans' Affairs in his discretion may 

authorize an inspection of Veterans' Administration records by duly authorized representatives of 

recognized organizations"). This provision was later codified in title 38 of the Code of Federal 

Regulations by Public Law 85-857, which "consolidate[d] into one Act all of the laws administered 

by [VA]." See Pub. L. No. 85-857, § 3301, 72 Stat. 1105, 1236 (1958). Applying the Federal 

Circuit's reasoning in Bates, section 5701(d)—included in Public Law 85-857—is a "law that 

affects the provision of benefits." 398 F.3d at 1361. To the extent that the Secretary appears to 

 

4 This lack of a citation to an express authority appears to be contrary to Congress's mandate that "[a]ny rule, 

regulation, guideline, or other published interpretation or order . . . shall contain citations to the particular section or 

sections of statutory law or other legal authority upon which such issuance is based." 38 U.S.C. § 501(b).

In his initial response to the petition, the Secretary argues that the policy "is a matter of internal VA 

administration, detached from any statutory enactment or even any regulations implementing a statute." Secretary's 

Resp. at 13. This cannot be the case—VA, like all Federal agencies, "has no power to act . . . unless and until Congress 

confers power upon it." La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986). Therefore, VA's policy must derive 

from some statutory or regulatory authority.
6

contend that the discretion afforded by 5701(d) shields VA's policy from review, his argument 

confuses the jurisdictional question of whether the action arises out of a law affecting the provision 

of benefits with the merits question of whether the Secretary abused his discretion under the statute.

Likewise, both this Court and the Federal Circuit have expressly held that section 5904 

falls within the Court's jurisdiction. See, e.g., Cox, 149 F.3d at 1364-65. Thus, under either 

proposed authority, the Court has subject matter jurisdiction; neither party cites any contrary 

authority. Cf. Freeman, 24 Vet.App. at 415 ("[U]nless Congress explicitly prohibits it, there is a 

strong presumption in favor of judicial review."). Thus, regardless of whether the VA policy 

regarding newly created rating decisions derives from section 5701 or 5904, the Court has subject 

matter jurisdiction over this matter.

2. Standing

Separate and apart from the jurisdictional limits set by section 7252, this Court has 

"adopt[ed] as a matter of policy the jurisdictional restrictions of the Article III case or controversy 

rubric." See, e.g., Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990). In Swan v. Derwinski, the Court 

recognized that the "case or controversy" requirement included a "requirement that a litigant have 

standing, which 'is perhaps the most important of [the "case or controversy"] doctrines.'" 

1 Vet.App. 20, 22 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)); see also Matter of

Stanley, 9 Vet.App. 203, 209 (1996) ("This standing requirement emerges from the case-orcontroversy requirement in Article III, Section 2, of the U.S. Constitution, a jurisdictional restraint 

to which this Court has held it will adhere.").

"[T]he irreducible constitutional minimum of standing contains three elements." Lujan v. 

Defs. of Wildlife, 504 U.S. 555, 560 (1992). "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[.]"'" Id. (quoting Whitmore v. Arkansas, 

495 U.S. 149, 155 (1990). "Second, there must be a causal connection between the injury and the 

conduct complained of . . . ." Id. "Third, it must be 'likely,' as opposed to merely 'speculative,' that 

the injury will be 'redressed by a favorable decision.'" Id. at 561 (quoting Simon v. E. Ky. Welfare 

Rights Org., 426 U.S. 26, 38, 43 (1976)). 

"'The party invoking federal jurisdiction bears the burden of establishing' standing . . . ." 

Clapper v. Amnesty Int'l USA, 568 U.S. 398, 411-12 (2013) (quoting Defs. of Wildlife, 504 U.S. at 

561). "A federal court is powerless to create its own jurisdiction by embellishing otherwise 

deficient allegations of standing." Whitmore, 495 U.S. at 155-56. Courts must, however, "accept 

as true all material allegations of the complaint, and must construe the complaint in favor of the 

complaining party." Warth v. Seldin, 422 U.S. 490, 501 (1975).

The parties' dispute with respect to standing centers on whether Mr. Rosinski satisfies the 

first element above—that is, whether he has suffered an injury in fact that is concrete, 

particularized, and actual or imminent. As an initial matter, at oral argument, Mr. Rosinski did not 

argue that he possessed third-party standing, O.A. at 19:31–:37, and the Court will not address 

standing based on injuries to his current or hypothetical future clients. See Amnesty Int'l USA, 

568 U.S. at 411-12.
7

Mr. Rosinski premises his standing on two alleged injuries in fact: first, that the policy 

interferes with his ability to practice law and provide competent representation; and second, that 

he may suffer economic harm because of the policy. Turning first to the assertion that VA's policy 

may cause him economic harm, the Court holds that Mr. Rosinski has not established an injury in 

fact. He cites no evidence that he has personally suffered economic harm, nor has he demonstrated 

that such harm is imminent. But see Petitioner's Br. at 19 (noting that VA's policy may "result[] in 

higher attorney fees in contingency fee matters" (emphasis added)). Instead, the possibility of 

economic harm is mere conjecture and, accordingly, cannot serve as a basis for standing. See 

Whitmore, 495 U.S. at 155; Nw. Airlines, Inc. v. FAA, 795 F.2d 195, 201 (D.C. Cir. 1986) ("Where 

there is no current injury, and a party relies wholly on the threat of future injury, the fact that the 

party (and the court) can 'imagine circumstances in which [the party] could be affected by the 

agency's action' is not enough." (quoting United States v. Students Challenging Regulatory Agency 

Procedures, 412 U.S. 669, 688-89 (1973))).

Likewise, Mr. Rosinski has not demonstrated an injury sufficient to give rise to standing 

with respect to his ability to practice law or provide competent representation. The U.S. Supreme 

Court has generally recognized a protected right "'to engage in any of the common occupations of 

life.'" Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 

399 (1923)); see Conn v. Gabbert, 526 U.S. 286, 290-91 (1999) (holding that the "Due Process 

Clause includes some generalized due process right to choose one's field of private employment, 

but a right which is nevertheless subject to reasonable government regulation"). Citing this interest, 

the Supreme Court has invalidated "complete prohibition[s] of the right to engage in a calling," 

but not "brief interruption[s]." Conn, 526 U.S. at 292.

Here, although Mr. Rosinski argues that VA's policy prevents him from effectively and 

zealously representing his clients by depriving him of an advocacy tool, he has not demonstrated 

that VA's policy prevents him from representing his clients. On the contrary, the Secretary 

correctly notes that existing VA policies afford him the ability to achieve the same results—i.e., 

correction of errors in rating decisions. For example, the M21-1 provides that the RO 

must . . . correct the Narrative section of a rating decision if after the claimant has 

been notified of the decision it is discovered that

 inaccurate information was provided such as service dates or entitlements, 

and/or

 incomplete information was provided to the claimant, such as criteria for 

the next higher evaluation, or a change of law applicable to the pending 

claim.

M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a); see also id., sec. B(3)(b) (requiring correction of errors 

on the rating codesheet, including disability evaluations, effective dates, and diagnostic codes); 

id., sec. B(3)(c) (requiring referral of an erroneous decision "to a decision maker to issue a new 

decision" once an error has been identified).
8

To the extent that Mr. Rosinski cites increased delay in adjudication under these alternative 

procedures, that delay, if any, may be an injury to his clients, not to him. Finally, to the extent that 

Mr. Rosinski postulates that he may lose, or fail to attract, clients because of VA's policy, that 

allegation, without more, is too speculative to constitute actual or imminent harm. See Amnesty 

Int'l USA, 568 U.S. at 411 (holding that a theory of standing premised on "a highly attenuated 

chain of possibilities[] does not satisfy the requirement that threatened injury must be certainly 

impending"); Nw. Airlines, Inc., 795 F.2d at 201. Significantly, Mr. Rosinski offers no proof that 

he has actually lost or failed to attract a client because of his inability to review newly created 

rating decisions. Indeed, when pressed at oral argument, Mr. Rosinski's counsel could not articulate 

any specific economic injury to Mr. Rosinski caused by VA's policy. Compare O.A. at 15:00–:14

("I believe the economic harm results in, by denying the access and the process for his clients, the 

inevitable result is the delay and the loss of the ability to secure fees."), with O.A. at 13:48–:59 

(noting that a clerical error "delayed the result that needed to be reached and it also created an 

economic harm also for his client, resulting in a larger fee later down the road").

The Court cannot conclude that VA's policy interferes with Mr. Rosinski's ability to 

practice law to an extent necessary to give rise to standing. Therefore, because Mr. Rosinski has 

not demonstrated that he suffers, or will imminently suffer, an injury in fact, he has no standing to 

bring this challenge, and the Court will dismiss the petition.5See Amnesty Int'l USA, 568 U.S. at 

411-12; Whitmore, 495 U.S. at 155-56.

B. Aggregate Action

In Monk v. Shulkin, the Federal Circuit reversed 26 years of this Court's precedent and held 

that the Court has the "authority to certify and adjudicate class action cases . . . under the All Writs 

Act, other statutory authority, and the [Court]'s inherent powers." 855 F.3d 1312, 1318 (Fed. Cir. 

2017). Since the Federal Circuit's decision in Monk issued, this Court has not yet had occasion to 

consider the scope of that authority; indeed, Mr. Monk's remanded case remains pending. See 

Monk v. Shulkin, U.S. Vet. App. No. 15-1280 (submitted to en banc panel Aug. 10, 2017).

Although this Court has not yet determined what form any aggregate action procedures 

will take, it finds one principle applicable to class actions under Rule 23 of the Federal Rules of 

Civil Procedure instructive in this case—namely, the requirement that a putative class 

representative's claims be "typical" of the class. See FED. R. CIV. P. 23(a)(1). Here, because Mr. 

Rosinski has not demonstrated that he has standing to challenge VA's policy regarding newly 

created rating decisions, he has not shown that he asserts a claim typical of a class—indeed, lacking 

standing, he has no justiciable claim at all. Absent some claim for which Mr. Rosinski may serve 

as a class representative, the Court sees no basis to grant his motion for aggregate action, and it

will, therefore, deny the motion. See O'Shea v. Littleton, 414 U.S. 488, 494 (1974) ("[I]f none of 

the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy 

with the defendants, none may seek relief on behalf of himself or any other member of the class.").

 

5 To be clear, the Court does not hold that attorneys categorically lack standing to challenge VA's policy, 

only that Mr. Rosinski has not demonstrated that he has standing on the facts of this case. See Amnesty Int'l USA, 

568 U.S. at 411-12. Under the appropriate facts, such as a showing of actual economic harm, an attorney may have 

standing to challenge this policy.
9

IV. CONCLUSION

For the foregoing reasons, the Court holds that Mr. Rosinski lacks standing to challenge 

VA's policy regarding newly created rating decisions. Accordingly, the Court will dismiss the 

petition and deny Mr. Rosinski's motion for aggregate action.

On consideration of the foregoing, it is 

ORDERED that Mr. Rosinski's April 27, 2017, motion for aggregate action is denied. It is 

further

ORDERED that the petition is DISMISSED.

DATED: January 26, 2018 PER CURIAM.

DAVIS, Chief Judge, concurring: I write separately to emphasize how disturbing it is to 

me to see the efforts of an attorney to get a straight answer from the Secretary over a 4-year period 

thwarted, only to be told that VA was "unable to provide [him] the opportunity to seek clarification 

of un-promulgated rating decisions but that it would continue to study the matter." First, it is 

preposterous that the Secretary took 4 years to respond to Mr. Rosinski's very simple, clear, and 

direct requests to review newly created rating decisions for error correction. Second, in addition 

to the timing problem, the Secretary's policy—which discriminates against attorneys in favor of 

VSOs—lacks any persuasive and still viable rational basis. In a different posture, I would have 

found that Mr. Rosinski had standing and would have declared the Secretary's policy arbitrary and 

capricious.

Third, although there is a long history of both a "special relationship" between VA and 

VSOs and restrictions on attorney practice before VA, the practical differences between VSO and 

attorney representation are less significant now than they have ever been. See, e.g., 38 C.F.R. 

§ 3.103(e) (2017) ("[C]laimants are entitled to representation of their choice at every stage in the 

prosecution of a claim."). Moreover, since 1933, when VA presumably established its practice of 

allowing VSO representatives to review newly completed rating decisions, attorneys have been 

afforded more opportunities to represent clients and have become more active in Agency 

adjudications.6See Veterans Judicial Review Act of 1988, Pub. L. No. 100-687 § 104, 102 Stat. 

4105 (repealing $10 limit on attorney fees for representing VA claimants after a Notice of 

Disagreement has been filed); Veterans Appeals Improvement and Modernization Act of 2017, 

Pub. L. No. 115-55 § 2(n), 131 Stat. 1105 (2017) (allowing attorneys to charge fees in connection 

with filing a Notice of Disagreement). 

The increased involvement of attorneys in the adjudication process, both at the adversarial 

and nonadversarial stages, suggests that the disparate treatment of VSO representatives and 

attorneys has perhaps outlived its usefulness and may no longer be rationally justified. Indeed, 

 

6 At the Board level, attorney representation has increased from 3.4% of all cases decided by the Board in 

1996 to 14.3% in 2016. Compare BOARD OF VETERANS' APPEALS FISCAL YEAR 1996 REPORT OF THE CHAIRMAN 42 

(1996), with BOARD OF VETERANS' APPEALS ANNUAL REPORT 26 (2016).
10

although there once may have been a logical reason to grant VSO representatives but not attorneys 

access to draft rating decisions, it is not clear to me that those reasons remain. There is no evidence 

that providing attorneys with access to newly completed rating decisions would unduly burden 

VA. On the contrary, the Secretary concedes that any attorney who currently has access to a client's 

electronic claims folders can view newly completed rating decisions before they are promulgated. 

O.A. at 1:04:27–:33 ("Any person who has [electronic claims file] access, even if it's an attorney, 

can see these draft decisions.").

Fourth, it is not clear that attorney review of newly completed rating decisions would result 

in an increased number of readjudications. In Fiscal Year 2016, VSO representatives reviewed 

newly completed decisions in 36% of their cases. O.A. at 52:30–53:49. VA does not track whether 

these reviews resulted in the identification of errors in those decisions. Id. However, VA's internal 

quality review process indicates that roughly 10% of rating decisions involving VSO 

representatives are sent back for correction of an error prior to promulgation, compared to roughly 

11% of cases involving attorney representatives. O.A. at 59:23–1:00:52. Based on these statistics, 

the aggregate effect of VSO representatives' review of newly completed rating decisions does not 

appear to be significant.

The Secretary contends that it would be difficult for VA to justify not providing access to 

unrepresented veterans if it extended such access to attorneys, and he raises legitimate arguments 

regarding both the administrability of allowing unrepresented veterans access to newly completed 

rating decisions and the effect of this Court's decision in Sellers v. Shinseki, 25 Vet.App. 265 

(2012), on such review.7 O.A. at 1:05:49–07:10. Although I understand the Secretary's concern, it 

is troubling that he appears to be relying on the mere fact that it may be difficult for VA to change 

its policy to justify giving some veterans an extra chance to correct errors while denying that 

opportunity to others.

Finally, even assuming VA has valid reasons to limit its policy to VSO representatives, I 

am deeply troubled by the assertions of amicus National Law School Veterans Clinic Consortium 

that the policy has not been consistently enforced. The Secretary's response to these concerns at 

oral argument was less than satisfying. See O.A. at 1:08:08–:48 ("If that means that someone in 

the [RO] thought that attorneys do have the ability to suggest changes and point out mistakes for 

correction, that's incorrect . . . . It does appear that maybe somebody at the [RO] mistakenly 

thought that this 48-hour review applied to attorneys, and that's incorrect."). If, as the amicus 

contends and the Secretary seems to concede, VA has afforded some attorneys associated with law 

school clinics the ability to review newly completed rating decisions despite its stated policy to 

the contrary, then VA's implementation of its policy is arbitrary and capricious on its face.

Regardless of the next steps taken by VA and Mr. Rosinski in the wake of this order, I 

encourage VA to reflect on its policy, consider whether the justifications behind it and enforcement 

of it are consistent with the current realities of attorney and VSO practice, and make the review 

process available to all or to none.

 

7

In Sellers, the Court held that, under certain circumstances, actual notice of a draft rating decision by a 

veteran could transform that decision into a final, binding decision. 25 Vet.App. at 279.
11

GREENBERG, Judge, dissenting: I respectfully dissent because I would have concluded 

and I would have held that we have exclusive jurisdiction to hear this case. The petitioner has 

standing. The petition should have been granted either because of an injury in fact or because an 

injury in fact need not be alleged. The practice complained of is patently arbitrary, capricious and 

unreasonable, and I would have so held. At the very least it violates the letter and spirit of the 

Administrative Procedure Act, and may also rise to a matter of constitutional dimension. Further, 

I would have certified a class consisting of lawyers like the petitioner. I would have concluded 

that class certification was necessary and proper. I would have ordered notice, at very little cost 

to the Government, through existing electronic means at the U.S. Department of Defense and the 

U.S. Department of Veterans Affairs to all ROs, lawyers, and litigants. In addition, I would have 

ordered suitable notice in all Department of Veterans Affairs facilities, similar to HIPAA notices, 

and emergency room notices of rights (many in foreign languages). Veterans surely have as much 

right to notice as all others. Finally, I would have granted attorney fees and costs in accordance 

with the Equal Access to Justice Act, upon the filing of a suitable affidavit of services. 

I agree with Justice Brennan,8that "[d]issent for its own sake has no value . . . . However, 

where significant and deeply held disagreement exists, members of the Court have a responsibility 

to articulate it. . . . Unanimity is not in and of itself a judicial virtue. . . . Judges have no power to 

declare law. Courts derive legal principles and have a duty to explain why and how a given rule 

has come to be. . . . [Judges] are forced by a dissent to reconsider the fundamental questions and 

rethink the result . . . . In my judgment. . . the unique interpretive role of [our Court] with respect 

to the Constitution [and our authority] demands some flexibility with respect to the call of stare 

decisis. . . . [We should not be] captive to the anachronistic view of long-gone generations. . . . The 

right to dissent is one of the great and cherished freedoms by reasons of the excellent accident of 

our American births." William J. Brennan, In Defense of Dissents, 37 HASTINGS L.J. 427, 427-35

(1985) (emphasis in original). 

"In cases involving benefits owed to veterans, Congress has created a scheme conferring 

exclusive jurisdiction over claims affecting veterans' benefits to some federal courts, while 

denying all other federal courts any jurisdiction over such claims." Veterans for Common Sense 

v. Shinseki, 678 F.3d 1013, 1020 (9th Cir. 2012) (en banc) (Bybee, J.), cert. denied, 568 U.S. 1086 

(2013). We have been given broad direction to "use class actions to promote efficiency, 

consistency, and fairness in its decisions" through our authority to issue writs. Monk v. Shulkin, 

855 F.3d 1312, 1321 (Fed. Cir. 2017) (Reyna, J.). 

The majority ignores this command, using the excuse of standing to "slam the courthouse 

door against" the petitioner. Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 159, 

178 (1970) (Brennan, J., concurring in result and dissenting). The conclusion that the petitioner 

did not suffer an economic injury in fact ignores the realities of conducting a law practice, as well 

as the concept of net present value. It is wrong to suggest that simply because further VA delay 

may result in higher back pay and therefore a larger contingency fee, the petitioner has not been 

 

8 William J. Brennan, Jr., was a New Jersey lawyer who tried cases. He was a partner in one of the largest 

and most distinguished law firms, and specialized in labor litigation. He was appointed to the Supreme Court of New 

Jersey by Governor Driscoll and to the Supreme Court of the United States by President Eisenhower. He served from 

1956 to his retirement in 1990. In the Term in which he made the speech resulting in the law review article extensively 

referred to here, he wrote forty-two dissents. 
12

harmed by this practice. A practitioner bears the opportunity cost of representing other clients if 

he is forced through a lengthy appeal that could have been avoided with an equal application of 

the M21-1 provision in question. Furthermore, because back pay awards are dispersed without 

interest, the longer the receipt of his attorney fees is delayed, the less valuable the fees. It is fallacy 

to suggest that the petitioner's harm is at best speculative because he fails to cite specific clients 

affected by the policy. The opportunity costs borne by the petitioner burden him every time a case 

is delayed by the inequitable VA policy.

Moreover, the petitioner is not required to establish specific cases of economic injury: 

When the government erects a barrier that makes it more difficult for members of one group to 

obtain a benefit than it is for members of another group, a member of the former group seeking to 

challenge the barrier need not allege that he would have obtained the benefit but for the barrier in 

order to establish standing. The 'injury in fact' in an equal protection case of this variety is the 

denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to 

obtain the benefit." Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. Jacksonville, 508 U.S. 

656, 666 (1993) (Thomas, J.). A party complaining of an equal protection violation need only 

show that it was able and willing to seek the benefit but was unable to do so on an equal basis with 

those in another group. See id. at 666; see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 

211 (1995) (O'Connor, J.). 

The petitioner, and all similarly situated attorneys, are unable to advocate for their veteran 

clients on an equal footing with VSO representatives. See M21-1 ADJUDICATION PROCEDURES 

MANUAL, pt. I, ch. 3, sec. B(3)(a) (a VSO representative, and only a VSO representative, may

"identify any clear errors or matters of clarification that require significant discussion, and/or 

correction prior to promulgation" (emphasis in original)). Regardless of outcome, the petitioner is 

on the wrong side of historical favoritism, preventing his ability to correct clear errors of draft 

rating decisions prior to their promulgation, and has thus suffered an injury in fact. See Ne. Fla. 

Chapter of Assoc. Gen. Contractors of Am., 508 U.S. at 666.

As early as the First Judiciary Act, chapter XX, section 35, 1 Stat. 73 (1789)

9

, Congress 

has encouraged the broadest possible access to United States courts. Section 35 provides in 

pertinent part as follows: "[A]nd be it further enacted, that in all the courts of the United States, 

the parties may plead and manage their own causes personally or by the assistance of such counsel 

or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and 

conduct causes therein." (emphasis added). Yet, here lawyers are substantially restricted in the 

management of causes by the inability to access the same information available to others. 

Reflective as section 35 is of the will of the original Congress, it is not necessary to resolve 

the issue of standing, see discussion supra. In dismissing the petition, the majority recklessly 

ignores the risks of catastrophic delay that may plague the veterans represented by the petitioner 

and similarly situated attorneys. See Hayburn's Case, 2 U.S. (2 Dall.) at 410, n. (1792) (Jay, C.J.) 

("[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper 

 

9 William Paterson, a New Jersey lawyer, and author of much of the first Judiciary Act as a United States 

Senator, was later appointed a Justice of the U.S. Supreme Court by President George Washington. He was among 

the first Justices to file a dissent. See Simms v. Slacum, 7 U.S. (3 Cranch) 300, 309 (1806). 
13

objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly 

ruined, by a long one.").

On average, an appeal from an RO takes almost five years to be finally 

decided by the Board. See Board of Veterans' Appeals Annual Report Fiscal Year 2016, http://w

ww.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2016AR.pdf (last seen Dec. 28, 2017). The 

difference between receiving a lawful decision at the RO and receiving an erroneous decision 

requiring an appeal is life changing for many veterans. In that waiting period, how are a disabled 

veteran's bills to be paid? How are their families going to be cared for? Are we as a Court willing 

to exacerbate the problem of an abundance of homeless veterans? Why are we here, if not to 

prevent or ameliorate an injustice? 

The Secretary has a fiduciary duty to all veterans. Is he not therefore responsible to all 

veterans, their lawyers, or other surrogates to treat them equally? Who can argue with the notion, 

whether in the context of an adversary proceeding or not, that denial of equal access to important 

and often dispositive governmental determinations, is of supreme importance? Here, the question 

of standing should be self-evident. See, e.g., Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433 

(1952) (Vanderbilt, C.J.).10 Are we to become just another of the cascading impediments faced by 

veterans seeking the benefits conferred by Congress? See Dave Phillips, At Veterans Hospital in 

Oregon, A Push for Better Ratings Puts Patients at Risk, Doctors Say, N.Y. TIMES, Jan. 1, 2018, 

at A1, A12. 

I would have held that the M-21 provision was arbitrary, capricious, and unreasonable. I 

would also have held that such a policy was inconsistent with the mandates of the Administrative 

Procedure Act. See Administrative Procedure Act, ch. 324, 60 Stat. 237 (1946) (codified as 

amended at 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521). I would 

have granted aggregation, invalidated this arbitrary provision, and provided the remedy necessary 

to immediately place all who represented veterans on an equal footing. 

I remind the Court that class action "was an invention of equity . . . mothered by the 

practical necessity of providing a procedural device so that mere numbers would not disable large 

groups of individuals, united in interest, from enforcing their equitable rights nor grant them 

immunity from their equitable wrongs." Montgomery Ward & Co. v. Langer, 168 F.2d 182, 187 

(8th Cir. 1948). The Federal Circuit's statement that class action litigation at our Court would 

"promote efficiency, consistency, and fairness," is entirely consistent with this edict. Monk, 855

F.3d at 1320. The import of this statement is that our practice of issuing precedential decisions 

currently is not adequately accomplishing these goals. 

This is an understandable position given that when a precedential decision is issued by the 

Court, VA provides little transparency regarding how it is effecting our decisions. The Court is 

often left to wonder whether its decisions are actually applied quickly, correctly, and uniformly, 

which is especially troubling for a system wrought with delay and bureaucracy. See Staab v. 

 

10 Arthur T. Vanderbilt was one of the finest New Jersey trial attorneys. He was president of the American 

Bar Association, dean of the New York University School of Law, architect of the great New Jersey Constitution of 

1947, expert on the life and professional career of Lord Mansfield, and, from 1948 to 1957, chief justice of the New 

Jersey Supreme Court.
14

McDonald, 28 Vet.App. 50 (2016) (Greenberg, J); see also O.A. at 1:19:47-:20:49 (the Court 

attempted to ascertain the status of claims relevant to the Court's decision and the Secretary was 

unable to provide any information). There can be no doubt that included in the Federal Circuit's 

class action command is the instruction that the Court must control the enforcement of its decisions 

when it would aid in the promotion of "efficiency, consistency and fairness." Monk, 855 F.3d at 

1320. 

Here, the ability to craft a remedy and to control its enforcement are why a class action is 

necessary. Class action litigation would provide the Court with the means of ensuring that equal 

access to draft rating decisions is made mandatory, without forcing an individual claimant to 

endure the lengthy and painful appeals process. 

I believe "[t]he better road to follow, until we are clearer as to the shape of the class-suit 

needs in this court and the functioning of various class-suit devices, is to proceed on a case-bycase basis, gaining and evaluating experience as we study and decide the class-suit issues presented 

by individual, concrete cases coming up for resolution. If we ultimately adopt a general rule, it will 

be in the light of this ad hoc experience." Quinault Allottee Ass'n & Individual Allottess v. United 

States, 453 F.2d 1272, 1276 (Fed. Cl. 1972). 

I would certify a class of attorneys that practice before VA, hold that the current policy is 

arbitrary and capricious, order VA to properly notify RO employees and the Court-certified class 

of attorneys of the Court's ruling, and instruct VA inform the Court when these actions have been 

completed. I would also appoint a special master to supervise all the Court's orders and retain 

jurisdiction. This matter offered an opportunity for the Court to begin to wield its power to better 

the VA benefits system through aggregation, and the majority's dismissal based on a lack of 

standing suggests that the Court is still not ready to grow and be the Court that Congress intended.

"Where is the Man to be found, who wishes to remain indebted, for the defence of his own 

person and property, to the exertions, the bravery, and the blood of others, without making one 

generous effort to repay the debt of honor and gratitude? In what part of the Continent shall we 

find any Man, or body of Men, who would not blush to stand up and propose measures, purposely 

calculated to rob the Soldier of his Stipend, and the Public Creditor of his due? and were it possible 

that such a flagrant instance of Injustice could ever happen, would it not excite the general 

indignation, and tend to bring down, upon the Authors of such measures, the aggravated vengeance 

of Heaven?" Letter from George Washington, Circular to State Governments (June 8, 1783), 

GEORGE WASHINGTON SELECTED WRITINGS, 205, 211 (Library of America Paperback Classics 

eds., 2011).

For these reasons, I dissent.