Robert Rosebrock v. Ronald Mathis
2014 U.S. App. LEXIS 4890
9th Cir.2014Background
- VA regulation 38 C.F.R. § 1.218(a)(9) prohibits posting materials on VA property absent authorization or government activity.
- Rosebrock and veterans protested outside the LA Campus lawn since March 2008 to urge use of the lawn for veterans.
- VAGLA police initially tolerated flag/postings; later prohibited and cited only when the flag was hung union down.
- June 30, 2010 email directed enforcement of § 1.218(a)(9) to be precise and consistent, effectively closing the fence to speech.
- District court found First Amendment violation for viewpoint discrimination but found injunctive relief moot; this appeal challenges mootness and merits of relief.
- Court holds that the conduct was moot due to the June 30, 2010 email rekindling consistent enforcement, and affirms dismissal of injunctive relief on mootness grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rosebrock's injunction requests are moot. | Rosebrock argues ongoing risk of enforcement discrimination. | VA shows voluntary cessation moots claims. | Yes, mootness established. |
| Whether the June 30, 2010 email constitutes a permanent policy change. | Email is not a true policy change and could be abandoned. | Email confirms recommitment to enforcement; constitutes mootness. | No true permanent change; mootness based on recommitment. |
| Whether the regulation 1.218(a)(9) applied to Rosebrock’s display (flag) and supported the district court’s ruling. | Regulation may cover display/posting; Rosebrock’s act falls within display. | Text focuses on handbills; may not cover flag. | Regulation applicable to display; mootness nonetheless controls. |
| Whether the district court erred in not addressing the merits of viewpoint discrimination. | Merits should be reached if mootness resolved. | Merits moot once mootness is established. | No need to decide merits due to mootness. |
Key Cases Cited
- Already, LLC v. Nike, Inc., 133 S. Ct. 721 (U.S. 2013) (voluntary cessation may moot a case if not likely to recur in a broad policy context)
- White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (policy change protecting First Amendment rights can moot a case)
- Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013) (special orders lacking durability can fail to moot claims when the policy could be abandoned)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (U.S. 2000) (voluntary cessation of challenged conduct requires a heavy burden to show no recurrence)
- Coral Construction Co. v. King County, 941 F.2d 910 (9th Cir. 1991) (voluntary cessation in policy changes requires scrutiny when government can reenact later)
- Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176 (9th Cir. 2010) (courts give deference to government good faith but require evidence of no recurrence)