Griffin v. Department of Veterans Affairs, Civ.A. WMN-00-2837.

• Decision Date: 29 January 2001
• Docket Number: No. Civ.A. WMN-00-2837.,Civ.A. WMN-00-2837.
• Citation: 129 F.Supp.2d 832
• Parties: Patrick J. GRIFFIN, III v. DEPARTMENT OF VETERANS AFFAIRS, et al.
• Court: U.S. District Court — District of Maryland

129 F.Supp.2d 832 Patrick J. GRIFFIN, III
v.
DEPARTMENT OF VETERANS AFFAIRS, et al. No. Civ.A. WMN-00-2837. United States District Court, D. Maryland. January 29, 2001.

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Steven D. Campen, Law Office, Frederick, MD, Stephen Samuel Burgoon, Greber & Simms, Frederick, MD, Michael F. Wright, Case, Knowlson, Jordan and Wright, Los Angeles, for Plaintiff.

Lynne A. Battaglia, U.S. Attorney, Baltimore, MD, Perry F. Sekus, United States Attorney's Office, Baltimore, MD, Theodore C. Hirt, W. Scott Simpson, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM

NICKERSON, District Judge.

This action is before the Court on Plaintiff's Motion for Preliminary Injunction (Paper No. 3). Defendants have opposed the motion, and have also moved for summary judgment (Paper No. 7). The issues have been fully briefed and a hearing, going both to the request for a preliminary injunction and the merits, was held on November 30, 2000.

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I. BACKGROUND

Point Lookout Confederate Cemetery ("Point Lookout"), located in St. Mary's County, Maryland, was the site of the Point Lookout prison camp operated by the United States during the Civil War. Complaint at ¶ 9. Point Lookout contains a mass grave of approximately 3,300 Confederate soldiers who died while imprisoned at Point Lookout. Id. The grave is marked by an "eighty-five foot granite monument ["Federal Monument"], erected and maintained by the United States." Opp. at 1. Around the base of the Federal Monument are "twelve bronze plaques bearing the names of Confederate Prisoners known to have died at Point Lookout," as well as a bronze plaque indicating, among other things, that the monument was erected by the United States. Opp. at 6. Point Lookout also contains a smaller state monument. The only other permanent display at Point Lookout is a U.S. flag, which flies on a permanent flagpole at all times, illuminated between sunset and sunrise. Surrounding Point Lookout is a five-foot-high, wrought-iron fence, see Opp. at 5, with a bronze plaque at the entrance identifying the property as "Point Lookout Confederate Cemetery." Motion at 6.

The entrance to Point Lookout is less than 30 feet from a state highway. Both monuments and the U.S. flag are visible from the road, as is the bronze entrance plaque identifying Point Lookout. Approximately eight-tenths of a mile from Point Lookout is the State of Maryland's Point Lookout State Park, which includes a Civil War museum and other attractions. See Opp. at 6.

Point Lookout was the property of the State of Maryland until ownership was transferred to the U.S. government in 1910. Point Lookout is currently owned and controlled by the Department of Veterans Affairs ("VA") through the National Cemetery Association ("NCA"). To facilitate the management of national cemeteries, the VA and NCA have promulgated various regulations regarding the operation and use of such cemeteries, including Point Lookout. These regulations (collectively referred to as the "Flag Restrictions") include 38 C.F.R. § 1.218(a)(14),¹ which addresses demonstrations at VA facilities generally, and the National Cemetery Service Handbook 3220 ("Flag Manual")² and a one-page Confederate flag

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policy ("Flag Policy"),³ which specifically regulate the display of various flags at VA national cemeteries.

Plaintiff, a descendant of a Confederate soldier held prisoner at Point Lookout and a member of various confederate historical organizations, including the Sons of Confederate Veterans ("SCV"),⁴ sought to display, beginning August 30, 2000, and daily thereafter, between the hours of 9:00 a.m. and 6:00 p.m., a full-sized, historically accurate Confederate flag from its own flag pole at Point Lookout. See August 17, 2000 Griffin Letter. Plaintiff, in his request, states that he, with the assistance of the SCV, will "provide the flag pole and the flag, as well as all labor necessary" to place and remove the flag on a daily basis. Id. Plaintiff's request was denied on the ground that the Flag Manual permits display of the Confederate flag "only on Memorial Day and, in States where it is officially observed, Confederate Memorial Day." August 24, 2000 Pohlman Letter.

In light of this denial, Plaintiff brought suit seeking declaratory and injunctive relief⁵ on the grounds that: (1) the Flag Restrictions, facially and as applied, are improper content and viewpoint restrictions of speech in violation of the First and Fifth Amendments; (2) the Flag Restrictions are unreasonable in the context of Point Lookout; (3) 38 C.F.R. § 1.218(a)(14), facially and as applied, violates the First and Fifth Amendments because it lacks proper procedural safeguards; (4) the Flag Restrictions are unconstitutionally overbroad; (5) the Flag Restrictions, facially and as applied, deny equal protection to speakers who engage in forms of speech related to the Confederate flag; and (6) the portions of the Flag Restrictions imposing different standards on the Confederate Flag, as compared to other "primary" flags,⁶ are unconstitutionally vague.

Plaintiff then filed his motion seeking a preliminary injunction to prohibit "defendants from interfering with Plaintiff's display of a full-size, historically accurate Confederate flag at [Point Lookout], on a daily basis, from its own flag pole located near the Federal Monument."⁷ Motion at 34. Defendants not only opposed Plaintiff's motion but also moved for summary judgment. Defendants, in their opposition, contend that they are entitled to summary

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judgment on the following grounds: (1) this Court is without jurisdiction to hear a challenge to the constitutionality of 38 C.F.R. § 1.218(a)(14); and (2) the Constitution does not require the daily display of the Confederate flag at Point Lookout because (i) Plaintiff has no right to require the government to engage in speech and (ii) the government has a compelling interest in avoiding a message of racial intolerance or divisiveness on federal property.

A hearing was held on November 30, 2000. Under Fed.R.Civ.P. 65, a hearing on a motion for preliminary injunction may be consolidated with a trial on the merits. At the hearing, the parties went beyond the issues surrounding the necessity of a preliminary injunction and fully addressed the merits of the case. Thus, the Court will proceed directly to the merits.

II. DISCUSSION

A. 38 C.F.R. § 1.218(a)(14)

1. Facial Challenge

Plaintiff asserts that 38 C.F.R. § 1.218(a)(14), on its face, is an unconstitutional prior restraint on speech because it: (1) vests unlimited discretion in VA officials to prohibit speech; (2) fails to require prompt decisions on requests to "speak"; and (3) improperly places the burden on the speaker to initiate court proceedings to secure the right to speak. See Motion at 17-22. Defendants do not address the merits of Plaintiff's challenge to the regulation; instead, Defendants assert that such a challenge is not properly before this Court as exclusive jurisdiction lies with the Court of Appeals for the Federal Circuit.

Permissibility of judicial review of rules and regulations, such as 38 C.F.R. § 1.218, is governed by 38 U.S.C. § 502. Under section 502, "[a]n 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 brought only in the United States Court of Appeals for the Federal Circuit." The parties do not dispute that section 553 specifically exempts matters relating to public property, such as Point Lookout, from the purview of section 502. This exemption, however, is negated by the application of section 552(a)(1), which covers rulemaking. See Chinnock v. Turnage, 995 F.2d 889, 893 (9th Cir.1993) (stating that under 38 U.S.C. § 502, VA rulemaking is subject to judicial review only in the Federal Circuit).

In an unpersuasive plea, Plaintiff requests that this Court disregard the statute and exercise jurisdiction in the name of "fairness." See Pl. Reply at 39. The Court is, however, without authority to grant such a request. The statute is clear that "[f]acial constitutional attacks on regulations promulgated by the Secretary may be pursued in one of two ways—either in accordance with the procedure set forth in the Veterans' Judicial Review Act [not applicable here], or directly in the Federal Circuit Court of Appeals as permitted by 38 U.S.C. § 502." Hall v. U.S. Dep't Veterans' Affairs, 85 F.3d 532, 534 (11th Cir. 1996).

For the foregoing reasons, the Court holds that the facial constitutional challenge to 38 C.F.R. § 1.218(a)(14) may only be brought in the Federal Circuit Court of Appeals.

2. "As Applied" Challenge

In addition to the facial challenge, Plaintiff also asserts an "as applied" challenge to 38 C.F.R. § 1.218(a)(14). An as applied challenge differs from a facial challenge in that it looks to the constitutionality of the statute or regulation as it is applied to a particular set of circumstances. In addition, the remedy is very...