552 F.3d 757 (9th Cir. 2008), 08-15714, Preminger v. Peake

Docket Nº:08-15714.
Citation:552 F.3d 757
Party Name:Steven R. PREMINGER; Santa Clara County Democratic Central Committee, Plaintiffs-Appellants, v. James B. PEAKE, 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; Myrel Willeford, Defendants-Appellees.
Case Date:August 08, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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552 F.3d 757 (9th Cir. 2008)

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


James B. PEAKE, 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; Myrel Willeford, Defendants-Appellees.

No. 08-15714.

United States Court of Appeals, Ninth Circuit.

August 8, 2008

Argued and Submitted June 12, 2008.

Amended Dec. 22, 2008.

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Scott Rafferty, Washington, D.C., for the plaintiffs-appellants.

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

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

Before: HAWKINS and SUSAN P. GRABER, Circuit Judges, and JAMES V. SELNA,[*] District Judge.



The opinion filed on August 8, 2008, is amended as follows:

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On slip opinion page 10153, 536 F.3d at 1009, line 1, add the following footnote after " was reasonable" :

As mentioned above, see note 5, our decision in this case is limited to plaintiffs' efforts to register voters in Building 331, in which all residents have significant medical needs. We express no opinion on the constitutionality of VA efforts to prevent members of the public from registering voters in other buildings managed by the VA, in which the need for ongoing skilled nursing or medical care may be absent. We also express no opinion on the constitutionality of VA regulations, policies, or directives adopted after the events at issue in this case.

On slip opinion page 10155, 536 F.3d at 1010, at the end of the first full paragraph, add the following footnote: " We express no opinion on the constitutionality of the VA's decision to prevent residents of its facilities from registering fellow patients, as that issue is not before us."

With these amendments, the panel has voted to deny the petition for rehearing. Judges Hawkins and Graber have voted to deny the petition for rehearing en banc, and Judge Selna has so recommended.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it.

The petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or for rehearing en banc may be filed.


GRABER, Circuit Judge:

Plaintiffs Steven R. Preminger and the Santa Clara County Democratic Central Committee appeal the district court's dismissal, for lack of standing, of their First Amendment challenge to the Department of Veterans Affairs' (" VA" ) denial of entry to one of their facilities for the purpose of registering voters. We now hold that Preminger has standing. Nonetheless, we affirm the judgment in favor of the VA because Plaintiffs failed to demonstrate that the VA's application of 38 C.F.R. § 1.218(a)(14) (" the Regulation" ) to them violated the First Amendment.


The VA's Menlo Park campus provides care for elderly, homeless, disabled, and psychologically impaired veterans. The veterans reside in numerous buildings on the campus, including Building 331, which provides skilled nursing care for up to 150 residents. Many of the residents have severe physical and mental health care needs.

Before his first visit to the campus, lawyer Scott Rafferty contacted VA officials and obtained permission to register veterans to vote. He later visited Building 331 but was denied access to patients. He contacted VA officials again, advising them of the problem he had encountered on his initial visit to Building 331. The Director of the Palo Alto Health Care System, which includes the Menlo Park facility, confirmed in writing that Rafferty had been granted permission to register voters at the Menlo Park campus, provided that his actions not interrupt patient care and that he obtain the permission of the unit's head nurse.

When Rafferty, along with Preminger and another California resident, returned to Building 331 with the intent to register voters, Rafferty was wearing a " John Kerry" button and introduced the group as being affiliated with the Democratic Party when approached by a VA nurse. The

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nurse told the group that they had to leave and then called the VA police. When a VA police officer stopped the group in the parking lot, Rafferty produced the letter from the Director, authorizing him to register voters on the campus. Upon seeing the letter, the police officer confirmed that they had permission to register voters and said that they should not have been denied access to Building 331. But the group did not attempt to return to Building 331 that day. Rafferty later contacted the Director's office. On that occasion, Rafferty learned that the VA had revoked his permission to register voters on the ground that the Regulation 1 precluded " partisan activities" on VA property.

Plaintiffs then filed this action, challenging on First Amendment grounds the VA's refusal to allow them to register voters on the Menlo Park campus.2 They brought both facial and as-applied challenges to the Regulation and sought a preliminary injunction to prohibit the VA from enforcing the Regulation.

The district court denied Plaintiffs' request for a preliminary injunction and held that it lacked jurisdiction over Plaintiffs' facial challenge to the Regulation because the Federal Circuit had exclusive jurisdiction over that claim. We affirmed. Preminger v. Principi (Preminger I), 422 F.3d 815, 821, 826 (9th Cir.2005). Thereafter, Plaintiffs filed their facial challenge in the Federal Circuit, and the Federal Circuit rejected Plaintiffs' facial challenge on the merits. Preminger v. Sec'y of Veterans Affairs, 517 F.3d 1299, 1302-03 (Fed.Cir.2008).

Plaintiffs returned to the Northern District of California. The district court held a three-day bench trial on Plaintiffs' as-applied First Amendment challenge to the Regulation. The court concluded that the VA properly characterized Plaintiffs' voter registration efforts as " partisan activities" within the meaning of the Regulation and that the VA's application of the Regulation was both reasonable and viewpoint neutral. But the district court also concluded that Plaintiffs lacked standing to challenge the Regulation and dismissed the case on that ground. Plaintiffs timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291.


A. Plaintiffs have standing. 3

The " irreducible constitutional minimum of standing" consists of three

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elements: (1) injury in fact, (2) causation, and (3) likelihood that a favorable decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiffs bear the burden of establishing standing. Id. at 561, 112 S.Ct. 2130.

An " injury in fact" is " an invasion of a legally protected interest" that is (a) " concrete and particularized" ; and (b) " actual or imminent," not " conjectural" or " hypothetical." Id. at 560, 112 S.Ct. 2130. " Injury in fact" is particularized if it has affected the plaintiff in a " personal and individualized way." Id. at 561 n. 1, 112 S.Ct. 2130.The injury may be minimal. See Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 932 (9th Cir.2008) (holding that " ‘ an identifiable trifle’ " is sufficient to establish standing (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973))).

In an as-applied First Amendment challenge, the plaintiff must identify some personal harm resulting from application of the challenged statute or regulation. See, e.g., Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.1998) (" An as-applied challenge contends that the law is unconstitutional as applied to the litigant's particular speech activity, even though the law may be capable of valid application to others." ). However, the question whether that harm constitutes " injury in fact" is entirely distinct from the question whether that harm amounts to a violation of the First Amendment. The standing analysis focuses on the plaintiff and on whether harm to the plaintiff is sufficient to give him or her the " requisite personal interest" in a case. See Jacobs v. Clark County Sch. Dist., 526 F.3d 419, 425 (9th Cir.2008) (discussing the " requisite personal interest" required for a plaintiff to have standing); see also Vasquez v. L.A....

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