Preminger v. Sec'y of Veterans Affairs

• Decision Date: 26 January 2011
• Docket Number: No. 2009–7044.,2009–7044.
• Citation: 632 F.3d 1345
• Parties: Steven PREMINGER, Petitioner,v.SECRETARY OF VETERANS AFFAIRS, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

632 F.3d 1345

Steven PREMINGER, Petitioner,

v.SECRETARY OF VETERANS AFFAIRS, Respondent.

No. 2009–7044.

United States Court of Appeals, Federal Circuit.

Jan. 26, 2011.

Scott J. Rafferty, Attorney at Law, of Washington, DC, argued for petitioner.Jane W. Vanneman, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director.Before PLAGER and MOORE, Circuit Judges.^*Concurring opinion filed by Circuit Judge PLAGER.

PER CURIAM.

By law this court has authority to review directly certain specified actions, when challenged, of the Secretary of Veterans Affairs. 38 U.S.C. § 502. Pursuant to the statute, Steven Preminger seeks review by the court of the Secretary's denial of his petition for rulemaking. Such petitions to the Secretary are authorized by 5 U.S.C. § 553(e). As part of his case, Mr. Preminger also challenges the validity of an internal directive issued by the Veterans Health Administration (“VHA”) that was relied upon by the Secretary in his denial of Mr. Preminger's request.

This case raises an issue of first impression for this court. The issue is whether § 502 confers jurisdiction on the court to review a denial by the Secretary of a petition for rulemaking—an action not expressly provided for by our review statute. We address that question in Part II of this opinion. In Part III, having concluded that we have jurisdiction, we address the question of whether the Secretary employed reasoned decisionmaking in his denial of Mr. Preminger's petition.

I. Background

Mr. Preminger is the chairman of the Santa Clara County, California, Democratic Central Committee. In 2004, he visited a building at the Veterans Affairs (“VA”) Medical Center in Menlo Park, California, intending to conduct voter registration for veterans who were patients there. Mr. Preminger was not allowed to engage in that activity and he subsequently pursued various legal actions in an attempt to gain access to Department of VA facilities to provide voter assistance to veterans.

One action taken by Mr. Preminger was a petition, previously filed with this court, again for review of a Secretarial action pursuant to 38 U.S.C. § 502. In that petition Mr. Preminger directly challenged the constitutionality of a VA regulation, 38 C.F.R. § 1.218(a)(14), that governs the conduct of visitors on property under the charge and control of the VA. Preminger v. Sec'y of Veterans Affairs, 517 F.3d 1299 (Fed.Cir.2008) (“ Preminger I ”). The regulation among other things prohibits visitors to VA property from engaging in “demonstrations” unless authorized by the head of the facility. § 1.218(a)(14)(i). “Unauthorized demonstrations” is defined to include “partisan activities, i.e., those involving commentary or actions in support of, or in opposition to, or attempting to influence, any current policy of the Government of the United States, or any private group, association, or enterprise.” § 1.218(a)(14)(ii).

In deciding this earlier petition for review, we rejected Mr. Preminger's argument that the regulation on its face violates the First Amendment. We concluded that VA medical centers are nonpublic fora, Preminger I, 517 F.3d at 1311–14, and that the restriction on “partisan activities” by visitors to those facilities is both reasonable and viewpoint neutral. Id. at 1315. We also rejected his allegation that the regulation is overbroad. Id. at 1316–18. As part of the reasonableness inquiry, we concluded that the discretion vested in VA officials to determine the disruption that would be caused by a demonstration was necessary in order for the VA to carry out its mission of providing health care services for veterans. Id. at 1315. Subsequently, and in response to Mr. Preminger's petition for panel rehearing, we added language to the opinion explaining in further detail our conclusion that the regulation does not grant the VA “standardless, unbridled discretion.” Id. at 1303–04, 1315–16.

In addition to that petition for direct review in this Circuit, Mr. Preminger pursued a parallel course in the Ninth Circuit, with essentially the same result. He filed suit in the United States District Court for the Northern District of California, challenging on First Amendment grounds the VA's refusal to allow him to register voters at the Menlo Park Medical Center, and seeking an injunction against enforcement of § 1.218(a)(14). The district court in due course concluded that the VA properly characterized Mr. Preminger's voter registration efforts as “partisan activities” within the meaning of the regulation and that the VA's application of the regulation to him was both reasonable and viewpoint neutral and therefore did not violate the First Amendment. See Preminger v. Peake, 552 F.3d 757, 762 (9th Cir.2008). The Ninth Circuit affirmed. Id. at 764–68.

While all this was going on, Mr. Preminger in 2006 requested the Secretary to rescind, amend, or waive the “partisan activities” clause of § 1.218(a)(14); the Secretary denied the request. Through his attorney, Mr. Preminger in November 2007 sought reconsideration of the Secretary's denial. As part of his reconsideration request, Mr. Preminger indicated that, if the Secretary decided not to reconsider the earlier decision, he further requested that, pursuant to 5 U.S.C. § 553(e), the Secretary “initiate a rulemaking to define how veterans who reside on VA campuses will receive assistance in registering and voting.” J.A. 4. The Secretary responded in December 2007, reiterating that the VA would not rescind, amend, or waive the provisions of § 1.218(a)(14), but he indicated that the VA would undertake consideration of Mr. Preminger's petition that the VA initiate additional rulemaking regarding voter assistance to veterans.

Subsequently, in October 2008, the Secretary issued a denial of Mr. Preminger's petition for rulemaking. Citing 38 C.F.R. § 17.33(a)(4)(iv), the Secretary asserted that “no patient in the VA medical care system may be denied the right to register and vote as provided under state law.” J.A. 1. The Secretary then described VHA Directive 2008–053, an “internal guidance” document issued in September 2008, which outlined the roles and responsibilities of VA facility directors in providing voter assistance to veterans. In the Secretary's view, VA regulations, as implemented by facility directors according to Veterans Health Administration (“VHA”) Directive 2008–053, were sufficient to ensure that VA patients receive all necessary voting assistance. The Secretary explained that he therefore would not undertake additional rulemaking concerning VA patients' right to register and vote.

Mr. Preminger now petitions for review of the Secretary's October 2008 denial of his petition for rulemaking.

II. Jurisdiction

A. The Scope of Section 502

In his opening brief, Mr. Preminger simply states that 38 U.S.C. § 502 is the basis for our jurisdiction to review the Secretary's action in denying his petition for rulemaking. Section 502 reads in relevant part:

An action of the Secretary to which section 552(a)(1) or 553 of title 5 (or both) refers is subject to judicial review. Such review shall be in accordance with chapter 7 of title 5 and may be sought only in the United States Court of Appeals for the Federal Circuit.

The referenced sections 552(a)(1) and 553 of title 5 are part of the Administrative Procedure Act (“APA”), and deal primarily with procedures for agency rulemaking. Section 552(a)(1), now also incorporated as part of the Freedom of Information Act (“FOIA”), requires agencies to publish a broad array of information in the Federal Register. This publication requirement applies to agency documents related to rulemaking, such as “rules of procedure, ... substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency[,] and ... each amendment, revision, or repeal of the foregoing.” 5 U.S.C. § 552(a)(1).

Section 553 describes, inter alia, the procedural requirements an agency must follow before adopting certain kinds of rules. An agency wishing to adopt a new rule under this section must publish a notice including “either the terms or substance of the proposed rule or a description of the subjects and issues involved,” § 553(b), and “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation,” § 553(c). Not surprisingly, this is known as “notice-and-comment” rulemaking. The notice-and-comment requirements of § 553 do not apply to the full panoply of agency actions that are found in documents required to be published in the Federal Register under § 552(a)(1); specifically, notice-and-comment procedures do not apply to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” § 553(b).

In determining what rules are within the scope of these APA provisions, the terminology can be confusing. Sorting through the meaning of the often overlapping terms used in these statutes has been a major occupation among academics specializing in this area, and this has produced a wealth of explanatory material.¹ Courts have used various terms to describe what is or is not covered by the different statutes. Although our court sometimes refers to rules subject to notice-and-comment rulemaking as “substantive rules,” ² modern terminology, used in some of our cases,³ has adopted the term “legislative rules” for the rules subject to § 553 procedures. See 1 Charles H. Koch, Jr., Administrative Law and Practice § 4:10 [2] (3rd ed. 2010); 1 Richard J. Pierce, Jr., Administrative Law Treatise § 6.1 (5th ed. 2010)....