galeano versus united states postal service appeals thirty twenty four from the present year on the three cases argument list we'll hear argument first an appeal seventy forty four from two thousand  and we we understand the philosophical political background here that isn't the question whether the secretary abused his discretion or active arbitrarily and capriciously in declining to do rulemaking as requested in your petition or more specifically while aided by circumventing the rule making process i'm trying to see if is not initiating rule making and not giving you a reason then you could evaluate it on that basis but in fact he said the reason i'm not is yes we need a rule but we're not going to have a regulation i don't understand that we are reviewing and directives seem to me what we're reviewing is his refusal to engage in the requested rulemaking whether the directive is good bad or indifferent not clear to me it has anything to do with whether he was capricious and declining to engage in rule making as you requested but that's not the only only standard he also acted contrary constitutional right there is an affirmative constitutional right to have standards and procedures compliant with friedman before anyone's first amendment rights in this case we're talking about the most sacred of all for us we understand that not everyone understands how we're the bill of rights are that i'm just trying to understand what the legal issue is here because most of the arguments in your brief and most of the citations that you provide seem to me to not deal with the only issue that i understand to be before the court you don't like the regulation and you don't like the directive either and you've challenge which perfectly appropriate in various courts the regulation on its face the regulation as apply and in your brief you criticized the directive a of which of course is perfectly fine but it seems to me it doesn't have much to do with our decision but if it does i don't understand the connection very well can you help me let's focus on what the jurisdiction of this court is as defined by  i'd like you to explain exactly why you think you're in the right or i will do that very quickly section five zero two gives your jurisdiction only over actions of the secretary on its face this is an action of an undersecretary  issues they one of the issues is whether direct and then you put in your usual first amendment issue you say whether directive is valid when issued by a subordinate official without the public fired by five fifty three five fifty three as a number of exceptions horizon this directive simply one of those exceptions well the exceptions go to whether it is an interpretive rules general statements of policy usually or rules of agency organization procedure or practice if you read the document that you're challenging the direct which i had a moment ago it starts out saying  well wherever it is it starts out saying that it is a policy statement why isn't this under the exception to five fifty three rule making we are  because when you go down to four d it says that the facility directors are must forty one forty two document says they must set criteria for evaluating the time place and manner of voter registration and then procedures for coordinating offers of voter registration and consulting regarding determining the nonpartizan character of groups offering such assistance it that is not consistent with the previous quarter of this court which said that the existing law which is the authority that's in five the existing rule patients bill of rights and the demonstration will do not permit content censorship and they do not permit in the partisan or nonpartisan the status of the citizen so under the existing rule there is no authority for us but this is affecting and constricting the first amendment rights of individuals and that violates you not answering my question my question is why isn't this directive simply a policy statement what the directive itself twenty zero eight zero fifty three it starts out saying purpose this veterans health administration directive defines the policy forces being patients who seek information on voter registration and voting and it purports to be a clarification of thirty eight  f r one point two eight hundred eight fourteen which is the regulation you have unsuccessfully challenge up to this point i'd unpossible that as to what is meant by the statute reference to general statements of available of the places at which forms may be obtained and instructions as to the scope and contents of all papers reports or examinations that's clearly a procedure when dealing with filing the papers and then they insist that this is procedure a usual in their including a statements of general interpretation which this is statements actually it says statements of general policy no u s practice or interpretations of general applicability formulated in an adopted by the agency which could very well cover your directive yes as we tell what you did while we tell whether you come under five the who a one d whether you come under the exception to five fifty three you have any suggestions well we definitely come under fire fifty to eighty two and this is not complied with the yeah because you come under five fifty to a two you don't i'm sorry why did you have to file a warrant one day you think you based for a denial of whom a king which is your first question where in the statute we have jurisdiction over there that's the massachusetts b a p know that massachusetts is not a statute we have jurisdiction over two categories of activities five fifty two eighty one and five fifty three and i am asking where in the language of section do you find a denial of rule making is a jurisdictional agreeable activity that we can hear you complain about you need to provide us with jurisdiction own can't deal with actually i think we need to go back to that way the prime minister previous case was decided there's a very it was read heard by the panel because it was a very serious conflict with the fourth circuit on the issue of broad discretion and there are seven courts of appeals which said that the underlying regulation  in the demonstration regulation which had been invoked under color of law had been invoked to to to authorize this policy was involved broad discretion and the this court decided that that without that could be papered over by saying that there would be no content censorship and this this directive violates the mandate under directive the directive are you waving the argument about to adopt a rule no well then where's the gers diction we have over that issue please in the statute in the statute it's a substantive change to the rights of veterans and the people who are trying to help them but failure to adopt the rule is not a substantive change is it if you were arresting people for  for attempting to register voters for arriving on of the campus with voter registration forms this draftee has a rule about this issue you challenge that rule and it's not about this issue it's about unauthorized secretary said no i don't need to i've got enough stuff out there right he said he had this document but whatever he said and you did something it would be a different you has appealed to  denial of room making and before i file this appeal the week after this document came out i moved to enforce the mandate in the old case i gave affidavit showing that five a one c three s were in turn down up and down california when they said the the problem here your honor is that the ninth circuit has said that that it it will that the district courts in this country are required to deem all these rules to be constitutional and that until they are set of side in this court and that jurisdictional statute can't be constitutional under citizens united if it allows an issue this important to be separated into facial and as a to this appeal before this court you need you can't separate the facial as applied which is what you have always done and that's what the ninth circuit has always done policy statements which need to be published under the a p a but haven't been and because those exist and because those gov decisions are being enforced against real people i will not have a rule making that is arbitrary and capricious and that's not only arbitra capricious but that would defeat the jurisdiction of this court over any decision know first of all the panel decision they were heard for a reason and when they conducted rehearing they took that regulation out of the arsenal they said that regulation can never be used to censor content you can have no directive nothing based on this regulation can say because it's voter registration special rules apply special licensing a prior restraint this co but if that's your honor if that's all you decide then you have created not only assist you not only reopen the substantive conflict with the fourth circuit over whether standards are constitutionally adequate in the demonstration rule but you have also created a serious question about the constitutionality of five o two because spybot too is ousting the jurisdiction of district courts to hear first amendment claims which under says united can no longer be buy for  violate eilish what is the vice the significantly what if the violation of the a p a that you want us to find and then what remedy you want us to issue both no publication of the federal register and no notice in common a rule making and they've conceded that the issue on an emergency basis rules that will get us through the primary season but we have an election deadline coming up on on may twenty fourth in california the primaries are ongoing and we can have a full dress rule making where we can have public comment and we can have a decision before october eighteenth which is the registration deadline for the general and you should specifically instructed your and they that he comply with friedman which has has standards and procedures and including judicial review in in the court you designate you need to solve that problem we cannot be bounced from court court to court for six years during which wounded warriors from two wars come back they used to have don't tell us what we can and you can with equal that i would like us to do with equal effect you can remain under the secretary with a specific instructions to follow friedman and citizens united and to do so  and to ensure that as by fifty two a one requires that neither this directive nor any other ad hoc policies unpublished policies they can be thrown up some of the time and and innocently violated the rest of the or i believe it will work as effectively as an injunction if you don't believe you have authority to issue an injunction or the equivalent of an injunction to achieve in force one of the first and then there is a serious problem problem about the jurisdictional division and the exclusive jurisdiction which has been found by this court and the ninth circuit  not in your life of tips and not and not here under five o two because the directive that petitioners challenging is an interpretive rule forget the direct with the simple i asked when the secretary first issue is that an issue that before us under five o two and if not why no it's not because five o two specifically references that's five o two is part of thirty eight u court just substantive room caressa talks about procedural rules and policy statements the reference to the procedural rules i think can be understood in line of the court's recent decision in military or in the purple heart where there were procedures that the v a had had by statute and regulation that provided basically due process rights an opportunity for the veteran to be heard saman evidence and what the v a did in changing the procedures affected the substantive rights of the veterans to benefits as well as their right to be heard and submit evidence and not have a basically secret v a procedure by which largely where you go of all that well basically the reference to procedure in the a p a as it was addressed in military order affects substantive rights but here are the the procedures so to speak that the  that the directive talks about as grounded in the regulation don't change anything about the rights that are in the regulations i don't know that you need to change anything in order to have and statements of general policy or interpretations of general applicability formulated and adopted by the agency that sounds very much like the sort of thing he wants us to deal with i th jurisdiction one key there is adopted by the agency or refers to formal rulemaking involving substantive rules not to interpretive internal agency guidance to its employees on how to handle  particular manner and five fifty five fifty two a one c refers to rules of procedure descriptions of formal papers so here but now flip over to five fifty three ok and five fifty three this which is also referred to in the it says e j agency shall give an interested person  he's challenging the directive is interpreted not substantive because under five fifty three a wait a minute each agency shall give an interested person the right to petition for the issuance amendment or repeal of a rule  d fifty three all of the very sections of five fifty three talk about substantive rules versus interpreted rules it seems to me when congress meant to say subs need to rule they use the words in the rule if i were to interpret do have jurisdiction that you know we've not conceded under stiction because in response to your question even though the term substantive may not be on all parts of the up with the ball parts of the a p a the case law that we've cited in our grief the courts routinely distinguish between substance to rules and purely interpretive or procedural sometimes they called it because you know for certain sections of the a p a which require you to look at only one or the other what court case stands for the proposition that part b a five fifty three as you suggest is limited to only substantive rules despite the a where you could say that five fish the three he talked about interested person having the right  the issuance of rule and since there's no evidence that he was denied the right to petition it doesn't say anything about he has a right to have a rule granted just because the petition for  well you could say that but on the other hand the congress possibly mean that all we're going to look at is his right to petition rather than his right to at least have an explanation as to why well he has the right to petition and high know there's another part of the a p a that the agency needs to respond which here it did with the reasons and assuming jurisdiction the massachusetts  the proposition that the courts give an even higher degree of deference when an agency decides not to initiate rulemaking than a dozen ordinarily when it reviews up a substance a rule it's been adopt so that while i had the right decision an answer he got it and in the administrative record of the secretary gave a number of reasons as to why the secretary was not initiating formal rule making  with respect to that question the use of the word rule in five fifty three d the a p a defined rule in five fifty one four as substantive you know it doesn't policy or describing the organization procedure or practice requirements of an agency and then it goes on to talk about rates of wages and so on it doesn't say anything like you can say this and i'm and so i don't know where policy meaning something that has the force and effect of law but it says rules this is a rule is obviously defined much more broadly than those three words because it has a bunch of words before and a whole bunch of words afterwards the top distinguish between the substantive and perceived rules and i move you for a moment since i have i'm guilty of having races jurisdiction issue and let's move to the question of the directive the you tube the direct understood your question assumes an understanding of a real understand the difference between legislative and non legislative so i'm not sure i do so what the way i want to answer it is it's a legislative in the sense it is a policy is an agency judgment call on how best to achieve its mission and here grounded on the regulation that this court has sustained as constitutional on its face the directive cites the regulation and basically is not inconsistent with the regulation it's attempting to provide some guidance to various b h a facilities across the nation on how best to render voting assistance for me a patient's consistent with the regulation  meaning there yes to that question a little differently why shouldn't that directive have been adopted through notice publication parliaments because it doesn't change anything about the exist have standardless you know look unlimited powers the regulation is clear especially when you look at subsection five of the regulation that gives the v a authority to prevent disturbances or any disruptions that would impede because it it only addresses the policy it's establishing a uniform approach but as the general counsel testified to the senate and that's in the record the v a facilities are cross the country very you'd be surprised but we can  indeed if it was required to be repealed rule making we would have to declare it in an invalid document if we were to declare the directive invalidly executed because it required notice and comment rule making then it seems to me the secretaries than all of them will make and based on the existence of directive asked for with in which case what is the proper remedy that you struck down the directive then the v a is left with the regulation that this court has already held is constitutional on its face that has standards in it that in a non public forum  can exclude partisan groups or entities from coming on to conduct a voter registration drive and undertake any activities that are to prevent disturbances or disruptions that interfere with its mission so if the directive were struck down then the v a still has the regulation and would have to decide how to go from there before you should and let me shift back just for a moment to the jurisdiction problem let's assume we do not have jurisdiction over  will make you under the statute because of the way we might read the statute but let's assume hypothetically we do have jurisdiction over his second issue which is whether the directive should have been subject to notice tom that will making it in the absence of that it's invalid if we have jurisdiction over one of his complaints the directive is that allow us to then addresses other that is once we invoke the jurisdiction of this court can we then deal with everything in his petition or is the jurisdiction of the court issue by issue well the court if the court decided that it it had decide we have jurisdiction to look at the directive that we have jurisdiction to look at everything for the exception you just carved out i want to understand you just answered just players if the court decides it had years has challenge to the denial of his petition for rule making obviously are the rules cannot deny us jurisdiction just very quickly you nailed it on the head when you said it would i have to win this from draft further appeals they talk about further as applied actions this is time critical speech there are already been primary elections this year there's a primary registration dead like coming up in six weeks in california this is a this is a nationwide election the first priority should be five fifty two a one should be enforced by ruling  that this unpublished directive and any other ad hoc unpublished advice that is not put in the federal register not just online in the federal register can't be enforced that's that this court can do it and i believe you can do it as effectively as an injunction i wish you could you direct the district court like the previous panel did to apply certain tests which included no discrimination based on party affiliation period but it didn't work and attorney which is if we have jurisdiction over whether or not the directive was relatively or in validly promulgated by the secretary i think if we all agree we do have jurisdiction over that is that somehow more jurisdiction oh i say sir that we say repeatedly that the circumvented the will making process and that this is de facto rule we assume that you don't had we proceeded on the basis that the jurisdiction was over the decision to deny rule making and that the veterans it's been six years they deserve the right to vote and the evidence in the record submitted shows that there were only one hundred seventy three of volunteers all allowed to register in fourteen hundred facilities nationwide and that they registered only