Preminger v. Secretary of Veterans Affairs, 2007-7008.

• Decision Date: 25 February 2008
• Docket Number: No. 2007-7008.,2007-7008.
• Citation: 517 F.3d 1299
• Parties: Steven PREMINGER, Petitioner, v. SECRETARY OF VETERANS AFFAIRS, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

517 F.3d 1299

Steven PREMINGER, Petitioner, v. SECRETARY OF VETERANS AFFAIRS, Respondent.

No. 2007-7008.

United States Court of Appeals, Federal Circuit.

February 25, 2008.

Scott J. Rafferty, of Washington, DC, argued and filed a combined petition for rehearing and rehearing en banc for petitioner.

Jane W. Vanneman, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued and filed a response to the petition for respondent. With her on the brief and response were Jeffrey S. Bucholtz, Acting Assistant Attorney General, and Jeanne E. Davidson, Director.

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

ORDER ON PETITION FOR REHEARING

ORDER

Steven Preminger has petitioned for rehearing of the court's August 17, 2007 decision in Preminger v. Secretary of Veterans Affairs, 498 F.3d 1265 (Fed Cir. 2007). In that decision, we rejected Mr. Preminger's facial challenge to the constitutional validity of 38 C.F.R. § 1.218(a)(14), a Department of Veterans Affairs ("VA") regulation that prohibits visitors to VA property from engaging in unauthorized "demonstrations," which the regulation defines to include "partisan activities." In doing so, we concluded that the fora at issue — VA medical centers — are nonpublic in nature, and that the restrictions on partisan activities imposed by section 1.218(a)(14) are both reasonable and viewpoint neutral. In addition, we noted that many of Mr. Preminger's arguments related to his as-applied challenge to section 1.218(a)(14), which remains pending in the United States District Court for the Northern District of California. Preminger v. Principi, No. 5:04-cv-02012-JF, 2004 WL 3669201 (N.D.Cal. filed May 21, 2004).

In his petition for rehearing, Mr. Preminger argues that the panel erred in several respects. First, he argues that we erred in rejecting as untimely his Administrative Procedure Act ("APA") challenge to the promulgation of section 1.218(a)(14). Turning to his constitutional challenge, he argues that we erred in classifying VA medical centers as nonpublic fora, and in rejecting his contention that the regulation is vague, overbroad, and not viewpoint neutral. Finally, Mr. Preminger argues that we erred in concluding that the amount of discretion that section 1.218(a)(14) provides to VA officials in determining whether to authorize partisan activities is reasonable.

We deny rehearing with respect to all of these issues except for Mr. Preminger's contention that section 1.218(a)(14) grants excessive discretion to the VA. On that issue, Mr. Preminger argues that the regulation does not set forth sufficient standards to guide the VA's exercise of discretion in determining whether to authorize or refuse to authorize partisan activities. Mr. Preminger essentially argues that, because the regulation does not set forth adequate standards, VA officials possess "unbridled discretion" to withhold authorization for any reason at all, including viewpoint discrimination. Mr. Preminger contends that the lack of adequate standards in section 1.218(a)(14) therefore causes the regulation to violate the First Amendment on its face.

In our initial opinion, we considered whether the amount of discretion that section 1.218(a)(14) provides to the VA is reasonable in light of the "function and character" of the nonpublic VA medical centers. Preminger, 498 F.3d at 1279-80. We determined that "[t]he VA must be able to maintain a place of healing and rehabilitation for the veterans for which it provides services." Id. at 1279. To that end, we concluded that the VA must ultimately have the discretion to determine whether any particular "demonstration" (defined to include "partisan activities") would be disruptive to the VA's mission. Id. at 1280. We stated: "[A]s part of the exercise of its discretion, the VA must be able to decide when its mission would be compromised to a level that counsels against granting the request to conduct a demonstration." Id. at 1280.

We grant Mr. Preminger's petition for rehearing for the limited purpose of explaining in further detail our conclusion that section 1.218(a)(14) does not grant unbridled discretion to the VA. As the attached opinion makes clear, we think that the regulation sets forth specific, objective standards to guide the VA's exercise of discretion. We thus see little risk that the VA will be able to use the regulation to engage in undetectable viewpoint discrimination. Accordingly, we decline to hold section 1.218(a)(14) facially invalid as a regulation granting "unbridled discretion" to restrict speech. Accordingly,

IT IS ORDERED THAT:

(1) The petition for rehearing is granted for the limited purpose of explaining in further detail the panel's conclusion that section 1.218(a)(14) does not grant unbridled discretion to the VA. Our prior opinion, dated August 17, 2007, is hereby withdrawn and the opinion attached to this order is substituted in its place.

(2) In all other respects, the petition for rehearing is denied.

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" 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.

BACKGROUND

I.

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.

II.

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. Principi, 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.

DISCUSSION

I.

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