United States v. NEWMAN, 1:17-po-00039

On March 2, 2017, Muriel Newman was issued an amended violation notice at the Malcolm Randall VA Medical Center charging disorderly conduct under 38 C.F.R. § 1.218(a)(5) and penalty § 1.218(b)(11).
The Statement of Probable Cause alleges Newman loudly shouted and used profanity after being told she could not represent a non‑bargaining‑unit employee at an Administrative Investigative Board hearing, and continued shouting in a VA unit housing union and administrative offices.
The regulation § 1.218(a)(5) prohibits conduct that creates loud or unusual noise, impedes/disrupts official duties, prevents timely services, or uses loud/abusive/improper language on VA property; (b)(11) prescribes a $250 penalty for certain disorderly conduct.
Newman moved to dismiss the amended violation on two as‑applied constitutional grounds: (1) violation of her First Amendment freedom of association; and (2) void‑for‑vagueness of § 1.218(a)(5) as applied.
The Government opposed; the magistrate judge held the motion was ripe and denied dismissal.

Issue	Newman’s Argument	Government’s Argument	Held
Whether § 1.218(a)(5) as applied infringed Newman’s First Amendment freedom of association	Regulation was not narrowly tailored and was used to punish her exercise of union association/representation	Conduct was not protected association: employee was not a union member and the regulation targeted disorderly, disruptive conduct (volume, profanity, interference) not association	Denied — no First Amendment violation: no associational interest implicated and regulation addressed disruptive conduct
Whether § 1.218(a)(5) is void‑for‑vagueness as applied	Regulation fails to give fair notice of prohibited conduct and invites arbitrary enforcement in contexts like administrative hearings and union offices	Regulation gives ordinary persons sufficient notice (prohibits conduct loud/boisterous/unusual enough to tend to disturb VA operations) and supplies standards limiting enforcement discretion	Denied — regulation is sufficiently definite and provides standards to prevent arbitrary enforcement

Roberts v. United States Jaycees, 468 U.S. 609 (recognition of expressive association protections)
Boy Scouts of Am. v. Dale, 530 U.S. 640 (freedom of association can be overridden by compelling state interests when narrowly tailored)
Nat'l Ass'n for Advancement of Colored People v. Button, 371 U.S. 415 (limits on state regulation affecting association and advocacy)
City of Chicago v. Morales, 527 U.S. 41 (void‑for‑vagueness framework; as‑applied challenges)
Grayned v. City of Rockford, 408 U.S. 104 (vagueness: notice requirement and enforcement standards)
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (heightened vagueness scrutiny where First Amendment rights implicated)
Giaccio v. Pennsylvania, 382 U.S. 399 (vagueness and the need for fixed legal standards to prevent arbitrary enforcement)
Agront v. (Unnamed), 773 F.3d 192 (interpreting "loud, boisterous, and unusual" standard as requiring actual or imminent interference with facility operations)
Holder v. Humanitarian Law Project, 561 U.S. 1 (discussion of as‑applied challenges and statutory construction in constitutional contexts)
United States v. Fisher, 289 F.3d 1329 (Eleventh Circuit statement on void‑for‑vagueness requiring definite penal statutes)