Preminger v. Secretary of Veterans Affairs
2011 U.S. App. LEXIS 1559
| Fed. Cir. | 2011Background
- Preminger, chair of a Democratic Central Committee, sought VA access to register voters at Menlo Park VA facility.
- He filed 38 U.S.C. §502 petition for direct review challenging VA actions, including regulation 38 C.F.R. §1.218(a)(14).
- Earlier, Preminger I held §1.218(a)(14) did not facially violate the First Amendment and that VA facilities are nonpublic fora.
- The Secretary denied Preminger’s petition for rulemaking in Oct. 2008, citing VA’s voter-assistance actions and VHA Directive 2008-053.
- The Secretary relied on Directive 2008-053 to refuse additional rulemaking; Preminger challenged the denial under §553(e) and §502.
- The court addressed jurisdiction under §502 to review a denial of a petition for rulemaking and then addressed the directive’s validity on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §502 jurisdiction covers denial of rulemaking | Preminger argues §502 permits review of denial. | Government contends jurisdiction is improper or limited. | Jurisdiction exists to review denial of a petition for rulemaking under §553(e). |
| Whether review extends to VHA Directive 2008-053 | Directive validity may affect Secretary’s denial. | Directive is not dispositive; review focuses on denial rationale. | Directive deemed valid for purposes of review; denial still supported by reasoned explanation. |
| What is the proper standard of review for denial of rulemaking | Argues for a narrower standard, heightened scrutiny. | Advocates highly deferential review under §706(2)(A). | Apply highly deferential, arbitrary-and-capricious review with reasoned decisionmaking. |
| Is VHA Directive 2008-053 a legislative rule requiring notice | Directive is a legislative rule requiring notice-and-comment. | Directive is not a legislative rule; exempt from §553. | Directive is not a legislative rule; §553 notice-and-comment not required. |
| Was failure to publish in the Federal Register harmful | Failure to publish deprived Preminger of notice. | Failure harmless if actual notice was provided. | Harmless error; lack of publication did not invalidate the Directive. |
Key Cases Cited
- Preminger v. Sec'y of Veterans Affairs, 517 F.3d 1299 (Fed.Cir.2008) (addressed VA rulemaking and nonpublic fora; First Amendment issues)
- WWHT, Inc. v. FCC, 656 F.2d 807 (D.C.Cir.1981) (agency denial of rulemaking reviewable)
- American Horse Prot. Ass'n v. Lyng, 812 F.2d 1 (D.C.Cir.1987) (distinguishes enforcement vs. rulemaking reviewability)
- Massachusetts v. EPA, 549 U.S. 497 (U.S. 2007) (distinguishes petition-for-rulemaking reviewability from enforcement)
- Paralyzed Veterans of America v. West, 138 F.3d 1434 (Fed.Cir.1998) (interpretive vs. legislative rules and publication considerations)
- NOVA v. Sec'y of Veterans Affairs, 260 F.3d 1365 (Fed.Cir.2001) (non-legislative rules and notice requirements in APA context)
- Splane v. West, 216 F.3d 1058 (Fed.Cir.2000) (definitions of legislative vs non-legislative rules)