288 F.3d 1309 (Fed. Cir. 2002), 01-7026, Griffin v. Secretary of Veterans Affairs

Docket Nº:01-7026
Citation:288 F.3d 1309
Party Name:Griffin v. Secretary of Veterans Affairs
Case Date:April 30, 2002
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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288 F.3d 1309 (Fed. Cir. 2002)

Patrick J. GRIFFIN, III, and Gregory S. Clemmer, Petitioners,



Nos. 01-7026, 01-7038.

United States Court of Appeals, Federal Circuit

April 30, 2002

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Michael F. Wright, Case, Knowlson, Jordan & Wright, of Los Angeles, CA, argued for petitioners.

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Armando O. Bonilla, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel; and Martin J. Sendek, Staff Attorney, Department of Veterans Affairs, of Washington, DC.

Before CLEVENGER, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.

CLEVENGER, Circuit Judge.

Petitioners bring a constitutional challenge to the validity of 38 C.F.R. § 1.218(a)(14) under the jurisdiction of this court to ts eew rulemaking by the Department of Veterans Affairs. Section 1.218(a)(14) governs the conduct of visitors on property under the charge and control of the Department of Veterans Affairs, including national cemeteries administered by the National Cemetery Administration. Petitioners charge that the regulation on its face violates the First Amendment to the United States Constitution because it vests unbridled discretion to suppress speech in the hands of government officials, because it lacks procedural safeguards to ensure that decisions permitting or denying speech are made promptly, and because the regulation is unconstitutionally vague. We hold that 38 C.F.R. § 1.218(a)(14) does not on its face violate the First Amendment, and deny the petition to invalidate the regulation.


Petitioners Patrick J. Griffin, III, and Gregory S. Clemmer (together, "Griffin") are, respectively, a former "Commander-in-Chief" and a former "Historian-in-Chief" of the Sons of Confederate Veterans, an organization dedicated to preserving the history and legacy of soldiers who fought for the Confederacy in the Civil War. Respondent is the Secretary of Veterans Affairs. The Department of Veterans Affairs ("VA"), through its National Cemetery Administration ("NCA"), is responsible for administering 119 national cemeteries in 39 states and Puerto Rico. National cemeteries provide burial for veterans of the Armed Forces, their spouses and minor dependents, and certain veterans of the reserves, Coast Guard, Public Health Service, and the wartime Merchant Marine. 1 The VA also maintains medical centers, outpatient clinics, veterans' centers, and regional offices for benefits administration throughout the country.

The roots of this case lie in a dispute between Griffin and the VA over the display of the Confederate flag at Point Lookout Cemetery in Maryland, a national cemetery administered by the VA where there are buried approximately 3,300 Confederate soldiers who died while imprisoned at the Union prison camp at Point Lookout during the Civil War. The United States flag, of course, is flown daily at Point Lookout as it is at all national cemeteries. Display of the National League of Families POW/MIA flag on designated days is mandated by statute (36 U.S.C. § 902), and all national cemeteries that are staffed daily currently fly the POW/MIA flag each day. 2

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From 1994 to 1998, a Confederate flag flew daily at Point Lookout, allegedly on the unauthorized personal initiative of a VA employee. In 1998, a party unrelated to Griffin or the Sons of Confederate Veterans complained to the VA that only a Confederate flag should fly at Point Lookout, and not the United States flag. 3 In response to this complaint, the VA discontinued the display of the Confederate flag at Point Lookout.

At the time Mr. Griffin filed his complaint, display of flags in national cemeteries was governed by National Cemetery System 4 Handbook 3220, issued on April 21, 1995 ("the Flag Manual"). The Flag Manual permitted display of Confederate flags at national cemeteries on only two days of the year: Memorial Day and Confederate Memorial Day (in states where Confederate Memorial Day is observed). The Flag Manual limited Confederate flag display to small flags on individual graves, and required the Confederate flag to be subordinate to the United States flag in size and prominence.

The Flag Manual was promulgated under 38 C.F.R. § 1.218(a)(14). Section 1.218, itself promulgated under 38 U.S.C. § 218a (now 38 U.S.C. § 901), was issued in 1985 and sets forth security and law enforcement regulations applicable at all VA facilities and property not administered by the General Services Administration. Section 1.218(a)(14)(i) prohibits any service, ceremony, or demonstration on VA property, unless authorized by the head of the facility, while section 1.218(a)(14)(ii) places the display of unauthorized flags in the category of forbidden demonstrations:

(i) All visitors are expected to observe proper standards of decorum and decency while on VA property. Toward this end, any service, ceremony, or demonstration, except as authorized by the head of the facility or designee, is prohibited. Jogging, bicycling, sledding and other forms of physical recreation on cemetery grounds is prohibited.

(ii) For the purpose of the prohibition expressed in this paragraph, unauthorized demonstrations or services shall be defined as, but not limited to, picketing, or similar conduct on VA property; any oration or similar conduct to assembled groups of people, unless the oration is part of an authorized service; the display of any placards, banners, or foreign flags on VA property unless approved by the head of the facility or designee; disorderly conduct such as fighting, threatening, violent, or tumultuous behavior, unreasonable noise or coarse utterance, gesture or display or the use of abusive language to any person present; and 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.

38 C.F.R. § 1.218(a)(14) (2001).

After the VA discontinued daily display of the Confederate flag at Point Lookout, Griffin's attorney wrote to the VA, demanding that the VA permit the Sons of Confederate Veterans to display a Confederate flag at Point Lookout every day. When the VA refused permission for a daily display, Mr. Griffin filed suit against the VA in the District Court for the District of Maryland. The complaint alleged that the VA's Flag Manual and Flag Policy, as well as 38 C.F.R. § 1.218(a)(14), violated the First Amendment both on their face and as applied to Mr. Griffin's request for a daily flag display.

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The district court agreed with Griffin that the VA's Flag Manual and Flag Policy, as applied to Griffin's request to fly a Confederate flag daily at Point Lookout, violated the First Amendment. See Griffin v. Dep't of Veterans Affairs, 129 F.Supp.2d 832 (D.Md.2001). The district court classified Point Lookout Cemetery as a nonpublic forum, meaning that restrictions on speech imposed by the VA at Point Lookout would be upheld provided they were reasonable and viewpoint neutral. Id. at 840. Nonetheless, rejecting the government's argument that flag displays at Point Lookout should be treated as government speech rather than private speech on government property, the district court ruled that the VA's refusal was unreasonable and viewpoint discriminatory. According to the district court, the fact that a Confederate flag had flown at Point Lookout without controversy from 1994 to 1998 belied concerns that Confederate flags might create controversy or disrupt the tranquility and dignity of the cemetery. Id. at 841. Moreover, the district court believed that the VA's decision to exclude the Confederate flag reflected a conviction that the Confederate flag symbolizes racial intolerance and divisiveness, making the decision to exclude the flag an impermissible exercise of viewpoint discrimination. Id. at 843-44. As a consequence of the district court's decision that application of the VA's flag policies to Mr. Griffin violated the First Amendment, the VA revised its flag regulations to permit a Confederate flag to be flown daily at Point Lookout Cemetery, but not at any other VA facility. See Flags in VA National Cemeteries, NCA Directive 3220 (April 30, 2001).

However, the district court held that it lacked jurisdiction to consider Griffin's facial challenge to 38 C.F.R. § 1.218(a)(14). The district court noted that 38 U.S.C. § 502 vests the Court of Appeals for the Federal Circuit with exclusive jurisdiction to review any action of the Secretary for Veterans Affairs that is subject to the public notice or notice-and-comment requirements of the Administrative Procedure Act (5 U.S.C. §§ 552(a)(1) and 553). Concluding that a challenge to 38 C.F.R. § 1.218(a)(14) fell under 38 U.S.C. § 502, because rulemaking is covered by section 552(a)(1) of the Administrative Procedure Act, the district court therefore held that exclusive jurisdiction over a facial challenge to the constitutionality of 38 C.F.R. § 1.218(a)(14) rested with this court. Id. at 837-38. Despite having prevailed on his as-applied challenge, thereby winning the right to display the Confederate flag daily at Point Lookout, Mr. Griffin proceeded to file a petition in this court seeking invalidation of 38 C.F.R. § 1.218(a)(14) on the grounds that the regulation violates the First Amendment on its face.


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