Hugh Campbell McKinney v. Douglas A. Collins, Secretary of Veterans Affairs

The Administrative Procedure Act (“APA”) provides that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e). Yet, that right is illusory: a citizen’s petition can intentionally languish at an agency for many years, only to be denied for reasons that utterly strain credulity and indeed even fail to address the central matter raised by the petitioner. And, in practice, the agency’s denial—no matter how deficient—is essentially unreviewable. Under 5 U.S.C. § 706(2)(A), a reviewing court is supposed to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” But the extremely deferential standard of review under Massachusetts v. EPA, 549 U.S. 497, 527-28 (2007) (quoting Nat’l Customs Brokers & Forwarders Ass’n of Am., Inc. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989), a 5-4 decision, precludes any meaningful inquiry into the denial. The question presented is: Whether the Court should overrule Massachusetts v. EPA with respect to the “extremely limited” and “highly deferential” standard of review applied to the denial of a rulemaking petition.