498 F.3d 1265 (Fed. Cir. 2007), 2007-7008, Preminger v. Secretary of Veterans Affairs

Docket Nº:2007-7008.
Citation:498 F.3d 1265
Party Name:Steven PREMINGER, Petitioner, v. SECRETARY OF VETERANS AFFAIRS, Respondent.
Case Date:August 17, 2007
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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498 F.3d 1265 (Fed. Cir. 2007)

Steven PREMINGER, Petitioner,



No. 2007-7008.

United States Court of Appeals, Federal Circuit.

August 17, 2007

Appealed from United States Department of Veterans Affairs

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[Copyrighted Material Omitted]

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Scott J. Rafferty, of Washington, DC, argued for petitioner.

Jane W. Vanneman, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Peter D. Keisler, Assistant Attorney General, and Jeanne E. Davidson, Director.

Before LOURIE, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and SCHALL, Circuit Judge.

SCHALL, Circuit Judge.

Petitioner Steven Preminger brings a constitutional challenge to the validity of 38 C.F.R. § 1.218(a)(14), a regulation promulgated by the Department of Veterans Affairs ("VA").1 He does so pursuant to 38 U.S.C. § 502, which gives this court authority to review rulemaking by the VA.

Section 1.218(a)(14) governs the conduct of visitors on property under the charge and control of the VA. Among other things, it prohibits visitors to VA property from engaging in "demonstrations" unless authorized by the head of the facility involved. Id. § 1.218(a)(14)(i). The regulation defines "unauthorized demonstrations"

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to include "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." Id. § 1.218(a)(14)(ii). Mr. Preminger challenges section 1.218(a)(14) on two grounds. First, he argues that, in promulgating the regulation, the Secretary of the VA ("Secretary")2 exceeded his statutory authority and failed to engage in required notice and comment rulemaking. Second, he argues that the regulation on its face violates the First Amendment to the United States Constitution. For the reasons set forth below, we reject Mr. Preminger's challenge to the promulgation of section 1.218(a)(14). In addition, we hold that section 1.218(a)(14) does not on its face violate the First Amendment. We therefore deny Mr. Preminger's petition to invalidate the regulation.



Mr. Preminger is the chairman of the Santa Clara County, California, Democratic Central Committee ("SCCDCC"). He wishes to register to vote veterans who reside at the VA's Menlo Park, California, Medical Center ("Menlo Park Medical Center" or "Medical Center").

In April of 2004, Mr. Preminger, his attorney Scott Rafferty, and another individual, visited Building 331 at the Menlo Park Medical Center, intending to register voters. However, when Mr. Preminger's party visited Building 331, a VA employee told the party to leave, which it did.


After being turned away from the Medical Center, Mr. Preminger, along with the SCCDCC, filed suit in the United States District Court for the Northern District of California, seeking an injunction against enforcement of section 1.218(a)(14). In the suit, Mr. Preminger claimed, inter alia, that section 1.218(a)(14) violates the First Amendment, both as applied to him and on its face. Preminger v. Prinicipi, 422 F.3d 815, 820 (9th Cir. 2005). After filing suit, Mr. Preminger moved for a preliminary injunction to prohibit enforcement of the regulation. Id. The district court denied the motion insofar as it related to Mr. Preminger's as-applied challenge, finding that Mr. Preminger had not met his burden of showing a likelihood of success on the merits. Id. As far as the facial challenge was concerned, the district court held that only this court has jurisdiction over such a challenge. Id. at 820-21.

Mr. Preminger appealed the denial of his motion for a preliminary injunction to the United States Court of Appeals for the Ninth Circuit. On August 25, 2005, the Ninth Circuit affirmed the ruling of the district court that Mr. Preminger had not shown a likelihood of success on the merits with respect to his as-applied challenge. Id. at 826. The circuit court also affirmed the district court's ruling that it lacked jurisdiction over Mr. Preminger's facial challenge to section 1.218(a)(14). Id. at 820-21. On October 14, 2006, Mr. Preminger's section 502 petition was docketed in this court. His as-applied challenge to section 1.218(a)(14) remains pending in the district court.



Pursuant to 38 U.S.C. § 502, we have jurisdiction "to directly review the validity

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of both the rulemaking process and the challenged rules of the VA." Disabled Am. Veterans v. Gober, 234 F.3d 682, 688 (Fed. Cir. 2000). In pertinent part, section 502 states:

An action of the Secretary to which section 552(a)(1) or 553 of title 5 (or both) refers (other than an action relating to the adoption or revision of the schedule of ratings for disabilities adopted under section 1155 of this title) is subject to judicial review. Such review shall be in accordance with chapter 7 of title 5 and may be sought only in the United States Court of Appeals for the Federal Circuit.3

Therefore, our review is in accordance with Chapter 7 of the Administrative Procedure Act ("APA"), which directs us to hold unlawful and set aside any agency action that is "contrary to constitutional right, power, privilege, or immunity." 5 U.S.C. § 706(2)(B). In his petition pursuant to section 502, Mr. Preminger asserts that, in promulgating section 1.128(a)(14), the Secretary exceeded his authority and failed to comply with the requirements of notice and comment rulemaking. In addition, he argues that the regulation is unconstitutional on its face because it violates the First Amendment. We address the former contentions first.



Mr. Preminger contends that when section 1.128(a)(14) was promulgated, the Secretary exceeded his statutory authority. Section 1.128(a)(14) was promulgated pursuant to 38 U.S.C. § 901, which gives the Secretary authority to "prescribe regulations to provide for the maintenance of law and order and the protection of persons and property on Department property." Mr. Preminger argues that section 1.128(a)(14) covers the "content of private speech, " and therefore "is not within the scope of the statutory authority to maintain law and order or to protect persons and property." Mr. Preminger further argues that Congress does not have the authority to grant the Secretary the authority to violate the First Amendment, which he asserts section 1.128(a)(14) does. The government responds that the regulation is within the Secretary's authority.

We reject Mr. Preminger's argument. We agree, of course, that Congress cannot authorize, nor can the VA promulgate, a regulation that violates the Constitution, and we address, in Part III, infra, whether section 1.218(a)(14) does violate the First Amendment. Assuming for present purposes that the regulation is constitutional, we agree with the government that its promulgation was within the Secretary's statutory authority.

As early as February of 1970, the Secretary promulgated predecessors to 38 C.F.R. § 1.218(a)(14), Conduct and Ceremonies, 35 Fed.Reg. 2389, 2389 (Feb. 3, 1970); Veterans Administration Cemeteries, 35 Fed.Reg. 2389, 2389-90 (Feb. 3, 1970), and in September of 1973, the Secretary promulgated another version of the regulation, which provided in relevant part:

For the purpose of the prohibition expressed in this paragraph unauthorized demonstrations or services shall be defined as, but not limited to, . . . partisan activities which may be described as commentary or actions in support of, or

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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 F. Reg. 24, 364, 24, 364-65 (September 7, 1973). In 1973, section 901 gave the Secretary the power to "make all needful rules and regulations for the governing of the property under his charge and control." National Cemeteries Act of 1973, Pub. L. No. 93-43, § 4, 87 Stat. 75, 79 (codified as amended at 38 U.S.C. § 901 (2000)). As seen, the present version of section 901 gives the Secretary authority to "prescribe regulations to provide for the maintenance of law and order and the protection of persons and property on Department property." We think both versions of section 901 make it clear that Congress wanted the VA to have the ability to ensure that the activities of visitors to VA property not be disruptive of the VA's mission to provide services to veterans. See, e.g., VA Palo Alto Health Care System, http://www.palo-alto.med.va.gov/Mission.asp ("Mission Statement: Honor America's veterans by providing exceptional health care that improves their health and well-being.") (last visited June 17, 2007). Assuming its constitutionality, section 1.218(a)(14), which prohibits unauthorized demonstrations, is plainly within section 901's grant of authority.


Mr. Preminger next argues that section 1.218(a)(14) is invalid because it has never been subjected to a notice and comment rulemaking process. See Farrell v. Dep't of Interior, 314 F.3d 584, 590 (Fed. Cir. 2002) ("If an agency policy statement is intended to impose obligations or to limit the rights of members of the public, it is subject to the Administrative Procedure Act, and, with certain exceptions, must be published in the Federal Register as a regulation. If it is not, it is invalid." (citation omitted)). The VA's failure to subject section 1.218(a)(14) to notice and comment, Mr. Preminger contends, is a "continuing violation of the...

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