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Paralyzed Veterans of America v. West

March 12, 1998

PARALYZED VETERANS OF AMERICA, PETITIONER,
v.
TOGO D. WEST, JR., ACTING SECRETARY OF VETERANS AFFAIRS, RESPONDENT.



Appealed from: United States Department of Veterans Affairs

Before Rich, Newman, and Rader, Circuit Judges.

The opinion of the court was delivered by: Rader, Circuit Judge.

Paralyzed Veterans of America, Inc. (PVA) charges that the Department of Veterans Affairs repealed a regulation without advance notice and an opportunity for public comment. Upon review of the Department's action, this court upholds as proper the repeal.

I.

On March 4, 1995, the President of the United States instructed federal agencies to eliminate obsolete or unnecessary material from the Code of Federal Regulations. Pursuant to this direction, the Department repealed 38 C.F.R. § 3.101 (1996). Before this repeal, the Department did not provide advance notice or the opportunity for public comment. PVA filed a petition with this court, alleging that the repeal of the regulation without public notice and comment was unlawful.

II.

This court has jurisdiction to review actions of the Department of Veterans Affairs: "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 [the Administrative Procedure Act] and may be sought only in the United States Court of Appeals for the Federal Circuit." 38 U.S.C. § 502 (1994).

The Administrative Procedure Act requires agencies to publish certain rules. This advance publication requirement, however, does not apply to all changes in policy, but instead applies to "rules of procedure," "substantive rules of general applicability adopted as authorized by law," "statements of general policy," "interpretations of general applicability formulated and adopted by the agency," and "each amendment, revision, or repeal" of such a rule. 5 U.S.C. § 552(a)(1)(C)-(E) (1994). Section 553 of title 5 imposes specific requirements on an agency that is involved in "rule making," as defined by 5 U.S.C. §§ 551(4) and 551(5).

The repeal of 38 C.F.R. § 3.101 falls within the statutory definition of rule making. See 5 U.S.C. § 551(5) (1994). Therefore, 5 U.S.C. § 553 governs the procedures that the agency must use to repeal the regulation. An alleged failure to comply with these requirements clearly falls within the jurisdiction of this court as defined by 38 U.S.C. § 502. Thus, this court may directly review the agency's repeal of 38 U.S.C. § 3.101.

III.

The agency repealed 38 C.F.R. § 3.101. That section read, in pertinent part: "All decisions will conform to the statutes and regulations of the Department of Veterans Affairs and to the precedent opinions of the General Counsel." PVA argues that 5 U.S.C. § 553 required the agency to provide the public with notice of, and an opportunity to comment on, this action before its effective date. "Under section 553 of [title 5], certain agency action requires prior public notice and comment." See Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 927 (Fed. Cir. 1991). The Administrative Procedure Act provides:

(a) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law.

(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of ...


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