Griffin v. Dept. of Vet. Affairs

• Decision Date: 30 October 2001
• Docket Number: No. 01-1450,01-1450
• Citation: 274 F.3d 818
• Parties: (4th Cir. 2001) PATRICK G. GRIFFIN, III, an individual, Plaintiff-Appellee, v. DEPARTMENT OF VETERANS AFFAIRS, a Department of the United States Government; ROGER R. RAPP, Acting Under Secretary for Memorial Affairs and Head of the National Cemetery Administration; ROBIN POHLMAN, Director, Point Lookout Confederate Cemetery, an individual, in her official capacity, Defendants-Appellants. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 818

274 F.3d 818 (4th Cir. 2001)

PATRICK G. GRIFFIN, III, an individual, Plaintiff-Appellee, v. DEPARTMENT OF VETERANS AFFAIRS, a Department of the United States Government; ROGER R. RAPP, Acting Under Secretary for Memorial Affairs and Head of the National Cemetery Administration; ROBIN POHLMAN, Director, Point Lookout Confederate Cemetery, an individual, in her official capacity, Defendants-Appellants.

No. 01-1450

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: October 30, 2001

Decided: December 17, 2001

Appeal from the United States District Court for the District of Maryland, at Baltimore. William M. Nickerson, District Judge. (CA-00-2837-WMN) COUNSEL ARGUED: John Samuel Koppel, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Michael F. Wright, CASE, KNOWLSON, JORDAN & WRIGHT, Los Angeles, California, for Appellee. ON BRIEF: Stuart E. Schiffer, Acting Assistant Attorney General, Stephen M. Schenning, United States Attorney, Mark B. Stern, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Steven D. Campen, Stephen S. Burgoon, CAMPEN & BURGOON, Frederick, Maryland, for Appellee.

Before WILKINS, LUTTIG, and GREGORY, Circuit Judges.

Reversed by published opinion. Judge Luttig wrote the opinion, in which Judge Wilkins and Judge Gregory joined.

OPINION

LUTTIG, Circuit Judge:

Patrick Griffin brought suit in federal district court to compel the Veterans Administration to permit him to fly the Confederate flag daily over Point Lookout Confederate Cemetery, a national cemetery administered by the Veterans Administration through the National Cemetery Administration. The district court concluded that Griffin's proposed flag display constituted private speech in a nonpublic forum, and held that the Veterans Administration's asserted reasons for excluding this speech were neither reasonable nor viewpoint neutral. Accordingly, the district court enjoined the Veterans Administration to permit Griffin to fly the Confederate flag at Point Lookout daily, on a flag pole to be erected and maintained by Griffin. Because we hold that the Veterans Administration's denial of Griffin's request is both reasonable and viewpoint neutral, we reverse.

I.

The National Cemetery Administration ("NCA"), part of the Veterans Administration ("VA"), operates 119 national cemeteries, including Point Lookout Confederate Cemetery, which the federal government acquired from the state of Maryland in 1910. Congress requires that all national cemeteries "shall be considered national shrines as a tribute to our gallant dead," 38 U.S.C. S 2403(c), and has delegated to the Secretary of Veterans Affairs authority to make "all rules and regulations which are necessary or appropriate to carry out" this mandate, 38 U.S.C. S 2404(a).

A VA regulation, 38 C.F.R. S 1.218(a), broadly proscribes many forms of expression, absent specific authorization, on all VA property. It prohibits all "demonstration[s], except as authorized by the head of the facility." This includes the "display of any placards, banners, or foreign flags," and also "partisan activities." Id. The VA supplemented this general regulation with several more specific directives related to flag displays at national cemeteries. Of particular relevance to this case, the VA issued a formal directive, "Flags in VA National Cemeteries" ("Old Flag Manual"), in 1995. J.A. 165-72. A new directive ("New Flag Manual"), issued on April 30, 2001, after the district court decided the case now before us, superseded the Old Flag Manual.

Griffin requested permission to fly an historically accurate Confederate flag over Point Lookout on August 30, 2000, and daily thereafter. J.A. 95-96. The VA refused Griffin's requests, explaining that, although its rules (set forth in the Old Flag Manual) allowed for display of the Confederate flag two days a year, it did not "believe that additional displays of the Confederate flag at Point Lookout [were] in keeping with the NCA's mission." J.A. 97-98.

Dissatisfied, Griffin brought suit in district court, alleging that the VA's various flag restrictions were facially unconstitutional and unconstitutional as applied to his specific request. Griffin moved for a preliminary injunction, and the VA moved for summary judgment. See Griffin v. Dep't of Veterans Affairs, 129 F. Supp. 2d 832, 834 (D. Md. 2001). The district court proceeded directly to a trial on the merits, pursuant to Federal Rule of Civil Procedure 65. Id. at 837.

The court concluded that it lacked jurisdiction to hear Griffin's facial attack on 38 C.F.R. S 1.218(a)(14). Griffin, 129 F. Supp. 2d at 837 (citing 38 U.S.C. S 502, which allows for judicial review of VA rulemaking, but only in the Federal Circuit). It concluded, however, that it did have jurisdiction over Griffin's challenge to the regulation as applied to his request through the Old Flag Manual. Id. at 838.

The district court thereafter held that Point Lookout is a nonpublic forum, id. at 839, and that the VA's restrictions were neither reasonable in light of the purpose of the forum nor viewpoint neutral, id. at 841-44. Accordingly, the district court entered a permanent injunction, ordering the VA to permit Griffin to fly the Confederate flag daily, using his own equipment and labor. Id. at 839 n.9. This appeal followed.

II.

The district court concluded, Griffin, 129 F. Supp. 2d at 840, and the parties agree, that Point Lookout is a nonpublic forum. Restrictions on speech in such a forum must be both reasonable in light of the purpose of the forum and viewpoint neutral. See, e.g., Cornelius v. NAACP Legal Def. & Ed. Fund, Inc., 473 U.S. 788, 806 (1985). As noted, the district court held that the VA's restrictions meet neither requirement. We address each in turn.¹

A.

In order to assess the reasonableness of the Secretary's restrictions, we must first determine the purpose of Point Lookout, the relevant forum. We agree with the VA that that purpose is to honor, as Americans, in tranquil and nonpartisan surroundings, those who have given their lives to the Nation. We also conclude that the Secretary's restrictions are reasonable both as a means of ensuring the integrity of the VA's own message (which, in this case, coincides with the purpose) and, relatedly, as an effort to maintain the nature of the forum.

1.

The VA contends that the purpose of Point Lookout is to pay "tribute to [the Confederate soldiers] as citizens of the United States," Appellant's Reply Br. at 7. In confirmation of this purpose, the VA directs us to 38 U.S.C. S 2403(c), in which Congress provided that

[a]ll national [cemeteries] shall be considered national shrines as a tribute to our gallant dead and, notwithstanding the provision of any other law, the Secretary is hereby authorized to permit appropriate officials to fly the flag of the United States of America at such cemeteries twenty-four hours each day.

(Emphasis added). Congress' evident concern that such cemeteries "shall be considered national shrines" and its focus on "our gallant dead," combined with its emphasis on the flying of the "flag of the United States of America," all but inexorably lead to the conclusion that Congress did, as the VA maintains, intend national cemeteries to be places in which we honor "our gallant dead" as Americans.

Further, to implement and effectuate this statutory mandate, the VA has promulgated various regulations designed to preserve these cemeteries as quiet places in which to honor the American dead, free from controversy and partisan conflict. See, e.g., New Flag Manual (stating that "flags may not be displayed on NCA property as a means of political activity or similar conduct that promotes any particular viewpoint or ideology other than to commemorate military service"); 38 C.F.R. S 1.218(a)(14) (limiting most forms of expression on VA property).

Griffin, not surprisingly, argues that the purpose of Point Lookout is to honor the Confederates buried at the Cemetery as Confederates and that the district court made factual findings to that effect, whichwe may review only for clear error. The district court did note that Point Lookout was "established for the sole purpose of honoring Confederate dead," Griffin, 129 F. Supp. 2d at 842, and went on to state that the proposed positioning of the Confederate flag "simply represents an unpretentious recognition that those who are buried there died as members of the Confederate Army," id .

Critically, however, nothing in the district court's opinion rejects or even refutes the VA's position that the purpose of Point Lookout is to honor those Confederate soldiers who are buried there as Americans. To say that the purpose is to honor the Confederate dead, as the district court did, is not at all to say that the purpose is not to honor them as Americans. That is, even if we assume that the district court's comments amount to findings of fact (and ignore the district's failure to comply with Federal Rule of Civil Procedure 52(a), which requires the court to "find the facts specially and state separately its conclusions of law thereon") we would still conclude, as the VA urges, that the purpose of Point Lookout is to honor, as Americans, those who are buried within that cemetery.

Stated another way, the district court's purported findings are simply irrelevant to the disposition of this case. As discussed below, the reasonableness of the VA's restrictions turns on whether the purpose of Point Lookout is to honor the Confederates as Confederates or as Americans. Griffin insists that it is the former, and the VA insists that it is the latter, but the district court's opinion is silent as to which it is. Because there is no factual finding by the district court on this pivotal distinction to which we must defer, and because the statute compels us to accept the VA's position, we hold that the...