United States Court of Appeals for the Federal Circuit
2007-7008
STEVEN PREMINGER,
Petitioner,
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent.
Scott J. Rafferty, of Washington, DC, 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, filed a response to
the petition for respondent. With her on the response were Jeffrey S. Bucholtz, Acting
Assistant Attorney General, and Jeanne E. Davidson, Director.
Appealed from: Department of Veterans Affairs
United States Court of Appeals for the Federal Circuit
2007-7008
STEVEN PREMINGER,
Petitioner,
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent.
On petition for review pursuant to 38 U.S.C. Section 502.
ON PETITION FOR REHEARING
Before LOURIE, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and SCHALL, Circuit
Judge.
SCHALL, Circuit Judge.
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 (N.D. Cal. filed May 25, 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.
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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.
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(2) In all other respects, the petition for rehearing is denied.
FOR THE COURT
02/25/08 /s/_Alvin A. Schall______
Date Alvin A. Schall
Circuit Judge
2007-7008 4