422 F.3d 815 (9th Cir. 2005), 04-16981, Preminger v. Principi

Docket Nº:04-16981.
Citation:422 F.3d 815
Party Name:Steven R. PREMINGER and Santa Clara County Democratic Central Committee, Plaintiffs-Appellants, v. Anthony J. PRINCIPI, as Secretary of Veterans Affairs and in his personal capacity; Elizabeth Freeman, as Director of the Palo Alto Health Care System and in her personal capacity; Helen Girton; Sacha Poulenz; and Myrel Willeford, Defendants-Appellees
Case Date:August 25, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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422 F.3d 815 (9th Cir. 2005)

Steven R. PREMINGER and Santa Clara County Democratic Central Committee, Plaintiffs-Appellants,


Anthony J. PRINCIPI, as Secretary of Veterans Affairs and in his personal capacity; Elizabeth Freeman, as Director of the Palo Alto Health Care System and in her personal capacity; Helen Girton; Sacha Poulenz; and Myrel Willeford, Defendants-Appellees.

No. 04-16981.

United States Court of Appeals, Ninth Circuit.

Aug. 25, 2005

Argued and Submitted May 9, 2005.

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Appeal from the United States District Court for the Northern District of California; Jeremy Fogel, District Judge, Presiding. D.C. No. CV-04-02012-JF.

Michael M. Markman, Heller Ehrman White & McAuliffe LLP, Menlo Park, CA, for the plaintiffs-appellants.

Owen P. Martikan, Assistant United States Attorney, San Francisco, CA, for the defendants-appellees.

Before HAWKINS and GRABER, Circuit Judges, and SELNA, [*] District Judge.

Opinion by Judge GRABER; Concurrence by Judge SELNA.

GRABER, Circuit Judge.

The Santa Clara County Democratic Central Committee and its chair, Steven Preminger, are Plaintiffs in this action. They challenge the Department of Veterans' Affairs' ("VA") exclusion of Preminger and others from VA premises when they tried to register resident veterans to vote. Plaintiffs claim that the VA regulation used to justify their expulsion, which prohibits partisan activities on VA premises, violates the First Amendment. The district court denied Plaintiffs' request for a preliminary injunction against Defendants, the Department of Veterans' Affairs and several of its employees. We hold that the district court did not abuse its discretion in concluding that Plaintiffs failed to demonstrate probable success on the merits of their claim and, therefore, affirm the denial of a preliminary injunction.


In April 2004, about six months before the November 2004 presidential election, Preminger and his lawyer, Scott Rafferty, along with another California resident, visited the VA Menlo Park Campus with the intent to register voters. The Campus provides care for elderly, homeless, disabled, and psychologically impaired veterans. The veterans are housed in numerous buildings, including Building 331, which provides long-term nursing home care for up to 150 residents.

The April 2004 visit was not Rafferty's first. On earlier occasions, he had tried to register voters but had been denied access by VA employees. Rafferty apparently had been disruptive and confrontational with the VA staff when he was told that he could not register voters on the premises. After his first attempt was rebuffed, Rafferty contacted various VA officials and sought their advance permission to register voters at the Campus. Eventually, the Director of the Palo Alto Health Care

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System, which oversees the Campus, granted Rafferty permission to register voters on the Campus provided that his actions did not interrupt patient care and that the unit's nursing manager agreed.

Despite this advance permission, when Preminger and Rafferty entered Building 331 in April 2004, a VA employee recognized Rafferty and told the group to leave. The employee then called the VA police, who briefly stopped the men in the parking lot.

After the April incident, Plaintiffs filed this action challenging the VA's refusal to allow them to register voters on the Campus. Plaintiffs sought a preliminary injunction to prohibit the VA from (1) enforcing 38 C.F.R. § 1.218(a)(14), the VA regulation that bans partisan activity on VA premises; (2) conditioning the right to visit VA premises on a person's expressed or assumed political affiliation or conduct; (3) requiring prior authorization for political expression by visitors; and (4) interfering with the receipt of political contributions on VA grounds. 1 After a hearing, the district court denied Plaintiffs' motion. The court analyzed Plaintiffs' claim as an as-applied challenge to the regulation, rather than a facial one, and held that Rafferty's alleged inappropriate conduct justified Plaintiffs' exclusion from the Campus.

Plaintiffs timely appeal the denial of their motion for a preliminary injunction.


We review for abuse of discretion a district court's order denying a preliminary injunction. SW Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc) (per curiam). Our review is limited, affording the district court's decision considerable deference. Id. We will reverse if the district court relied on an erroneous legal standard or clearly erroneous findings of fact. Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 964 (9th Cir.2002). We may affirm a decision by the district court on any ground supported by the record, even if the district court's reasoning differs from our own. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir.2003) (per curiam).


A. Jurisdiction

Before we address the merits of Plaintiffs' claim, we must first consider a threshold jurisdictional issue. Plaintiffs mount both a facial and an as-applied First Amendment challenge to VA regulation 38 C.F.R. § 1.218(a)(14), 2 which bans partisan

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activity. The district court held that, although it retained jurisdiction to review an as-applied challenge to 38 C.F.R. § 1.218(a)(14), it lacked jurisdiction to review a facial challenge to the regulation. We agree.

Generally, a federal court may review a facial challenge to a regulation promulgated by an agency under its broad federal-question jurisdiction. See 5 U.S.C. § 703 (providing for judicial review of agency proceedings in any court of competent jurisdiction in the absence of another congressionally mandated review process). But when Congress provides for a "special statutory review proceeding" in one specific court, challenges to the administrative action must take place in the designated forum. Id. We face just such a situation because Congress has designated a judicial review path for challenges to VA regulations under 38 U.S.C. § 502. 3

Section 502 gives the Federal Circuit exclusive jurisdiction to review challenges to most actions by the Secretary of Veterans' Affairs. In particular, § 502 applies to (1) actions that require publication in the Federal Register, such as rules of procedure, substantive rules of general applicability, statements of general policy, and amendments, revisions, or repeals to those actions, under 5 U.S.C. § 552(a)(1); and (2) agency rulemaking, under 5 U.S.C. § 553. Thus, Congress explicitly has provided for judicial review of direct challenges to VA rules and regulations only in the Federal Circuit. See Chinnock v. Turnage, 995 F.2d 889, 893 (9th Cir.1993) ("Under 38 U.S.C. § 502, VA rulemaking is subject to judicial review only in the Federal Circuit."); Hall v. U.S. Dep't Veterans' Affairs, 85 F.3d 532, 534 (11th Cir.1996) (per curiam) (holding that a direct facial constitutional attack on a VA regulation must be pursued in the Federal Circuit). The VA regulation at issue here, 38 C.F.R. § 1.218, was added as an amendment to an already existing rule, and it was published in the Federal Register as required by 5 U.S.C. § 552(a)(1)(E). See 50 Fed. Reg. 29,226, 29,226 (July 18, 1985) ("These regulation amendments clarify and update the rules governing the standards of conduct on property under the charge and control of the VA...."). Accordingly, any direct challenge to its validity must be brought in the Federal Circuit.

Although we are statutorily barred from reviewing a facial challenge to a VA regulation, we retain jurisdiction to review an as-applied challenge. The application of...

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