Patrick J. Griffin, Iii, and Gregory S. Clemmer v. Secretary of Veterans Affairs

viеws of point. the same factual As a III. CONCLUSION result, this third basis of circumstantial The finding of the MSPB that Mr. help agency prove evidence does not the wrongly Haebe falsified statements on the prong the intent of the Naekel test. Report is not supported by substantial evi- dence the because MSPB’s reasons for sum, In given prob- the above-described substituting its credibility own determina- lems with the sufficiency of the agency’s tions for that of the AJ are not sufficiently circumstantial evidence to derive in- intent addition, sound. In the misapplied MSPB ferentially, a fact reasonable finder would the intent element of the falsification agency not find that the proven Mr. charge. Therefore, we reverse. Haebe’s intent to violate by the policy REVERSED. preponderance the evidence. Mr. directly

Haebe testified as to his intent COSTS plausible explanation had a for the ambiguous language. Given this opinion’s appellant. Costs to reinstatement of AJ’s findings under specification one, charge two of motive

not circumstantial evidence in the agency’s because,

favor under the facts as found

the AJ that Mr. Haebe did go to the

airport morning and observed Mr. directly,

Alcala Mr. Haebe had no motive description obfuscate his bag GRIFFIN, III, Gregory Patrick J. protect Thus, other than to the Cl. we Clemmer, Petitioners, S. reverse the decision with MSPB respect specification three of charge one, and set aside DEA’s action be- SECRETARY OF VETERANS arbitrary, cause it was capricious, un- AFFAIRS, Respondent. supported by substantial evidence. Nos. 01-7038. Finally, specifications under both United Appeals, State's Court of one, charge analysis the AJ’s of the vari- Federal Circuit. credibility ous squarely issues meets April 2002. requirements of Hillen and Spithaler. In particular, carefully AJ documented required aspects of evaluating a wit- required

ness as by the MSPB Hillen. only aspect Spithaler that mar-

ginally lacking in analysis the AJ’s is ex-

planation of the upon authorities which his

reasoning rests. to the extent error,

this is it is harmless error here critical,

because the material analysis is

within surrounding universe facts events of the morning of March Case, Knowlson, F. Wright,

Michael Jor- Wright, CA, dan & of Angeles, Los argued petitioners. BACKGROUND Bonilla, Attorney, Commer- Armando Division, De- Branch, Civil Litigation cial Griffin, III, and Patrick J. Petitioners DC, Justice, Washington, of of partment “Griffin”) (together, Clemmer Gregory S. With him respondent. argued “Commander- are, a former respectively, Schiffer, Acting As- E. Stuart brief were former “Historian-in- and a in-Chief’ ’ General; David M. Co- Attorney sistant Veter- Confederate the Sons of Chief Melnick, As- A. Director; Mark hen, preserv- ans, dedicated organization an the brief counsel on Of Director. sistant who legacy soldiers history ing the Deputy Assistant Hipolit, J. were Richard in the Civil Confederacy for the fought Sendek, Counsel; J. and Martin General Secretary Vet- is the Respondent War. Veterans Attorney, Department Staff of Veter- Department erans Affairs. Affairs, DC. Washington, (“VA”), National through its Affairs ans (“NCA”), is re- Cemetery Administration CLEVENGER, Judge, Circuit Before national administering 119 sponsible for Judge, and ARCHER, Circuit Senior Rico. and Puerto in 39 states cemeteries DYK, Judge. Circuit for vet- provide burial cemeteries National Forces, spouses their Armed erans CLEVENGER, Judge. Circuit veter- and certain dependents, and minor chal- a constitutional bring Petitioners Guard, reserves, Public Coast ans of the C.F.R. validity of lenge to Service, Merchant wartime and the Health of this jurisdiction under medical maintains The VA also Marine.1 Depart- rulemaking by to review court clinics, cen- centers, veterans’ outpatient Affairs. Section Veterans ment ad- for benefits ters, regional offices conduct of visitors governs country. throughout the ministration control charge under the and property on dispute in a this lie Affairs, of case The roots of Veterans Department the of the dis- over and the VA administered between Griffin national cemeteries including Look- flag at Point Confederate play the Cemetery Administration. by the National cem- a national Cemetery Maryland, on out regulation charge that Petitioners where there by the VA etery administered to First Amendment face violates its 3,300 approximately Confeder- it buried because States Constitution the United at imprisoned died while who suppress ate soldiers to discretion vests unbridled Lookout camp Point prison the Union offi- the hands speech in States The United Civil War. during the safe- cials, procedural lacks because at Point course, daily is flown flag, permitting decisions to ensure that guards national it is at all cemeteries. and Lookout as promptly, made speech are denying or of Families League the Nаtional Display of unconstitutionally is because the man- days is designated flag on 38 C.F.R. POW/MIA vague. We hold 902), (36 § and all by U.S.C. dated statute violate on its face does not § daily are staffed national cemeteries Amendment, peti- deny the First day.2 flag each currently fly the regulation. POW/MIA to invalidate tion designated those flag days than on other MIA United in the military Other cemeteries interest of local Army (e.g., Ar- was at the initiative by by statute maintained States are VA admin- Cemetery), by individual lington groups. National evidence indicates No cases, and, Department by the deny interest in a few local permitted states to were istrators flag fly of the Interior. to groups permission POW/MIA daily. lodged his initial time Mr. Griffin 2. At the display of the appears that complaint, it POW/ stration, flag except From 1994 to Confederate flew as authorized by the Lookout, on the daily allegedly at Point of the facility designee, head or pro- is personal unauthorized initiative of VA Jogging, bicycling, hibited. sledding 1998, a to employee. party In unrelated and other forms of physical recreation Griffin or the of Confederate Veter- Sons cemetery grounds on prohibited. only complained ans the VA that (ii) For the purpose prohibition of the flag fly Confederate should Look- Point expressed paragraph, this unautho- out, flag.3 In and not United States rized demonstrations or services shall be response complaint, to this discon- VA as, tо, defined but not limited picketing, display flag tinued the the Confederate or similar property; conduct on VA any at Point Lookout. or similar oration conduct to assembled At the time Mr. Griffin filed his com- groups people, unless oration is plaint, display flags national cemeter- service; an part of authorized the dis- by governed Cemetery ies was National banners, play any placards, or foreign System4 April Handbook issued on on flags property approved unless (“the Manual”). Flag Flag The facility the head of the or designee; permitted display Manual of Confederate disorderly conduct fighting, such as flags only at national cemeteries on two violent, threatening, or tumultuous be- days year: Day of the Memorial and Con- havior, unreasonable noise or coarse ut- (in Day federate Memorial states where terance, gesture display or or the use of observed). Day Confederate Memorial person language any present; abusive Flag The limited flag Manual Confederate i.e., activities, partisan those involv- graves, small individual of, ing commentary support or actions required flag the Confederate to, opposition or in attempting subordinate to the United States influence, any policy current of the Gov- prominence. size and States, ernment United un- Flag promulgated Manual was association, private group, or enterprise. 1.218(a)(14). § der 38 C.F.R. Section 1.218(a)(14)(2001). 38 C.F.R. 1.218, promulgated itself under 38 U.S.C. daily the display After VA discontinued (now 901), § § 218a 38 U.S.C. was issued Lookout, flag of the at Point Confederate security in 1985 and forth sets and law VA, attorney Griffin’s wrote to the de- applicable enforcement at regulations all that manding permit the VA the of Sons property VA facilities and not adminis- display a Confederate Veterans to Confed- by tered the General Services Administra- flag every erate at Point 1.218(a)(14)(i) day. Lookout prohibits any tion. Section service, permission When the VA refused for a ceremony, demonstration on VA daily display, against Mr. Griffin filed suit property, of by unless authorized the head 1.218(a)(14)(ii) facility, the section the in the District for the while VA Court Dis- places flags Maryland. complaint of display alleged the unauthorized trict of The the category of forbidden demonstrations: Flag Flag that the VA’s Manual and Poli- 1.218(a)(14), §

(i) cy, as as well 38 C.F.R. All expected visitors are to observe the First proper violated Amendment both on standards of decorum decen- and cy to property. applied while on this their face and as Mr. Griffin’s Toward end, service, any for a ceremony, request daily flag display. or demon- precursor The 3. Sons of Veterans that 4. The of the NCA. Confederate state they do not share this view. Secretary for review action of the with Griffin to agreed court district Flag subject Poli the Manual and Affairs that to Flag

that the VA’s Veterans fly a request to applied as to re- cy, public Griffin’s notice or notice-and-comment Lookout, flag daily at Point Confederate Proce- of the Administrative quirements First Amendment. See (5 552(a)(1) 553). the §§ violated Act dure U.S.C. and Grif Affairs, Dep’t v. Veterans to 38 challenge that a C.F.R. Concluding fin (D.Md.2001). The district F.Supp.2d 832 1.218(a)(14) § § fell under 38 U.S.C. Cemetery as Point Lookout court classified rulemaking by is covered because forum, meaning that restric a nonpublic 552(a)(1) the Administrative Procedure at speech imposed the VA tions on Act, that the district court therefore held upheld provided Point Lookout would be chal- jurisdiction exclusive over facial neu they viewpoint and were reasonable constitutionality lenge the 38 C.F.R. Nonetheless, rejecting at 840. tral. Id. § this Id. at rested with court. dis flag government’s argument the Despite prevailed on his having 837-38. should be treated plays at Point Lookout as-applied challenge, thereby winning the private government speech rather than as daily right display flag the Confederate dis government property, the speech on Lookout, proceeded Point Mr. at Griffin was trict ruled that the VA’s refusal court petition in this seeking file a court invali- viewpoint discriminato unreasonable dation 38 C.F.R. on court, the ry. According to the district violates the grounds at flag had flown fact that a Confederate First on face. its controversy from Point Lookout without After Mr. facial was Griffin’s сoncerns that Confed 1994 to 1998 belied court, argued Appeals to this the Court might controversy or erate create Dis- Fourth Circuit reversed the tranquility dignity disrupt Maryland trict for the District of Court Moreover, dis cemetery. Id. as-applied challenge. Mr. Griffin’s that the VA’s decision trict court believed Dep’t Affairs, Veterans F.3d 818 flag the Confederate reflected exclude Cir.2001). (4th Agreeing with district sym flag conviction the Confederate nonpublic was a court that Point Lookout divisiveness, racial intolerance bolizes forum, Fourth Circuit took more seri- flag an the decision to exclude the making ously the concern that the VA’s own VA’s viewpoint dis impermissible exercise of “message” might gar- Point Lookout Id. As a conse crimination. at 843-44. private groups if were bled distorted quence of the district court’s decision flags. their Id. at allowed to own policies to Mr. application flag VA’s Amendment, therefore held 822-23. The Fourth Circuit First Griffin violated the deny permission regulations its that the decision to VA revised VA’s flag daily flag display flown was daily Confederate to be Point for a Confederate any reasonable, not at other Cemetery, purpose Lookout but of Point since the in VA National facility. Flags See honor Lookout to the soldiers buried was 30, Cemeteries, (April NCA Directive 3220 Americans, there as not as Confederates. Moreover, might reasonably the VA Id. 2001). Griffin’s acceding Mr. re- that to believe However, that it the court held district provoke requests from quest would similar fa- jurisdiction lacked to consider Griffin’s groups partisan and invite conflict other 1.218(a)(14). § challenge cial to C.F.R. Finally, cemetery. into the Id. at U.S.C. court noted district that Confederate the Fourth Circuit held Appeals § for the vests Court being far from discriminated jurisdiction flag display, Federal Circuit with exclusive actually treated more favor- against, was The constitutionality of a statute ably private flag displays, law, than other since States, is an issue of Demko v. United flag policy private groups allowed 1049, VA’s (Fed.Cir.2000), 216 F.3d and we display flag days the Confederate two likewise review the constitutionality of an special permission-a year seeking without agency regulation without deference to the privilege flag not accorded to other agency. prior while restraints except display those whose is man- presumed invalid, facial challenges to by dated statute. Id. at 824. Accordingly, speech generally restrictions are disfa Fourth Circuit held that the decision petitioner vored heavy faces a burden deny request Mr. for a daily Griffin’s in advancing his claim. See Nat’l Endow flag display Confederate at Point Lookout 569, ment Finley, Arts v. 524 U.S. viewpoint-neutral, was reasonable 580, 2168, 118 S.Ct. 141 L.Ed.2d 500 thereby satisfying requirements of the (1998). prevail, To Mr. Griffin must dem nonpublic First Amendment in a forum. onstrate application of 1.218(a)(14) poses a real and substantial I alleged threat of the censorship risks. See 502, § Pursuant to 38 U.S.C. we id.; City Lakewood v. Plain Dealer jurisdiction have to review both the rule- Co., Publ’g process making challenged and the rules of 2138, 100 (1988). L.Ed.2d 771 VA, jurisdiction extending to matter, As an initial the VA asks us amendment, repeal revision or of the VA’s stay our pend consideration of this case rules as well. Disabled Am. Veterans v. ing the final resolution of Mr. as- Griffin’s Gober, (Fed. Cir.2000). 284 F.3d applied challenge. We decline to do so. § Under 38 our U.S.C. review is in logic There is no to the suggestion VA’s Chapter accordance with 7 of the Adminis this action would suffer a collateral Act, trative Procedure which directs the estoppel as-applied effect from Griffin’s reviewing court to hold unlawful and set challenge. Despite government’s stub any agency contrary aside action to consti argument born refusal at oral recognize right, power, tutional privilege or immuni plain allegations of Mr. peti Griffin’s ty, any agency action unlawfully with tion, presents a this case facial 706(2)(B) (2000). § held. 5 U.S.C. In this granted to the discretion to VA adminis case, both Deputy the NCA’s Under Sec 1.218(a)(14). by § trators 38 C.F.R. “Fa retary Operations and the VA’s Gener cial attacks on the discretion granted to a al writing Counsel denied in Griffin’s re dependent decisionmaker are not on the quest for waiver or amendment of 38 particular facts surrounding any 1.218(a)(14). C.F.R. To the extent those Forsyth County, decision.” Ga. v. Nation authorized, properly actions were we are Movement, alist 133 n. presented agency with an action denying (1992). request.5 If Griffin’s those actions lacked Whether or not Mr. Griffin has a constitu proper authority, a matter not raised right tional Confederate parties, the failure agency to act daily Cemetery very at Point Lookout request on Griffin’s would constitute an withheld, agency bearing action little on whether section unlawfully assum 1.218(a)(14) ing regulation the was in fact the unconstitu violates First Amendment below, tional. explain on its face. As we we con ture,” 5. government’s The record that the reflects General Coun- and the brief asserts that signa- sel’s request. written denial was "cleared for "the VA denied” Mr. Griffin’s pro- of speech has to in advance what forms standing elude that Mr. Griffin hibited. against challenge a section mount facial 1.218(a)(14) right of whether regardless his that Mr. Griffin’s demand to We note display a Lookout would be flag

to at Point the permission display the VA for to was Moreover, Maryland the protected or not. specific flag. He did not ask Confederate that the court concluded VA’s deci district permission speeches, make conduct cer- to deny was request to Mr. Griffin’s sion demonstrations, emonies, or hold even Manual, Flag in its and primarily rooted ‍‌​​‌‌​​‌​​​‌​‌‌‌‌​​‌​​‌​​‌‌‌​​‌‌‌​​​‌‌‌​‌​​​‌‌​​‍though regulation he now attacks the 1.218(a)(14). § not 38 C.F.R. See pow- part gives VA officials because Grif fin, F.Supp.2d at 838. Mr. Griffin expres- er to those other forms оf restrict to challenge limits facial 38 C.F.R. here his sion.6 1.218(a)(14). Accordingly, § is no there that, argue does not adjudication to of Mr.

reason condition specific did because Mr. Griffin not seek on the of challenge facial outcome Griffin’s any permission engage from the VA to as-applied his claim. expressive display conduct other than only he chal- flag, may the Confederate presses challenge Mr. Griffin his to sec- lenge aspects of the that those 1.218(a)(14)’svalidity sep- under three tion display. con- flag restrict We nonetheless First, alleges Mr. Griffin arate theories. whether, scope determining sider 1.218(a)(14) gives VA that section officials our facial chal- review Mr. Griffin’s prohibit any to kind of unbridled discretion lenges, weigh should refuse to Mr. we on and is speech property, VA therefore beyond that arguments Griffin’s reach under the unconstitutional well-established scope original request agency of his to the prohibition against First stan- display flag. the Confederate Second, licensing dardless schemes. Mr. 1.218(a)(14) argues that fails notions of exhaustion Griffin section While requirement pro- judi remedies narrow may the First Amendment for administrative scheme, statutory Ac safeguards challenges, in a cial see licensing cedural review 1.218(a)(14) FCC, provides no tion Children’s Television v. because section (D.C.Cir.1996), we time limit in a VA official must F.3d 1256-57 which preclude know that our grant deny request or an individual’s of no rule would Third, non-flag of Mr. alle speak property. VA Mr. Griffin consideration Griffin’s argues gations once his constitutional is void vagueness, regulation’s properly use of 38 before since C.F.R. “par- admittedly as “oration” this Mr. undefined terms such or court. activity” pun- sought permit, display permits permission, tisan VA officials to flag. He a three- speakers specifying ish disfavored without Confederate mounts Although opined flag request Griffin’s as the Confederate could be we treat Mr. only "part approved cere- only display displayed directed as an Confederate request mony activity.” flag, subject special to a When Griffin in his broader inter- or sought pretation. request permission writing protested the lack of stated stan- His every govern ceremony special flag pole, day to erect there- dards to such or first view, stating flag, change activity, VA its “display after to and remove revised qualify cemetery.” "[sjimple of a as from the Mr. Griffin did not does any particular ceremony special event.” We some describe ritual think lowering, changing uncertainty may as raising remain to whether more involved flag. flag-flying might removing, simple than result from a Confederate Before initially request. request, granting Griffin's VA’s denial his Mr. facial pronged challenge regulation to the would in fairness Mr. Griffin decline to whence the denial of his thus request inquiry. narrow our or emanates. Whether not he has fact II permission

sought partiсular for one expression, type of attacks on dis “[flacial At the heart of argument Griffin’s lies granted cretion a decisionmaker are not 1.218(a)(14) the accusation that section em- dependent on the facts surrounding any bodies an unconstitutional li- standardless particular permit Forsyth, decision.” scheme, censing granting government offi- 10, 112 Further, U.S. 138 n. S.Ct. 2395. power cials the to preemptively restrain subject because one to a standardless li speech setting but no guide- substantive censing “may scheme challenge facially lines to cabin administrators’ discretion. for, necessity applying without the of first Mr. objections Griffin’s pro- arise from the denied, license,” Lakewood, being 1.218(a)(14) visions of section that permit a 2138, 486 U.S. at Mr. facility head to authorize exceptions to its applied Griffin need not permis have prohibitions (i) speech. on Paragraph of any specific sion for expression form of the challenged regulation prohibits any He, all. like other First Amendment service, demonstration, ceremony or “ex- plaintiffs, rely is entitled to on the regula cept as authorized the head of the impact expressive tion’s on “the activities Likewise, facility designee.” or among its of others as well as own.” [his] See Schad list of activities qualifying as unauthorized Borough Ephraim, Mount 452 U.S. (ii) demonstrations, paragraph includes the 61, 66, 2176, 101 S.Ct. 68 L.Ed.2d 671 display banners, placards, foreign (1981). partiсular plaintiff Whether a flags, approved by “unless the head of the requisite standing complain of re facility Thus, designee.” 38 C.F.R. strictions that yet imposed have not been 1.218(a)(14) § allows VA officials to make concern, is of course a matter of but in this exceptions to general ban on demon- case the challenge raises no and displays property. strations on VA Mr. standing. Griffin’s 1.218(a)(14) explicit Section sets no stan- We therefore principle conclude that no dards to determine when a may VA official prevents us from considering scope the full approve exceptions authorize or to the ban. of Mr. challenge.7 Griffin’s If we had charges dis- Griffin that in the absence of such standards, cretion to restrict our review to nothing facility heads or other offi- flag display more than his challenge, grant exceptions we cials could to favored dissent, colleague relying 7. Our primarily speech, unless the text of the statute or Grace, 171, regulation clearly United States v. 461 U.S. 175- sets forth such a distinc 76, 1702, (1983), ACLU, 103 S.Ct. 75 L.Ed.2d 736 tion. See Reno v. 883- argues (1997); that our consideration of Mr. Griffin’s 117 S.Ct. 138 L.Ed.2d 874 challenge § facial to 38 C.F.R. Treasury Employees United States v. Nat'l Un ion, aspects regulation limited to 479 n. conduct, (1995). apply Lastly, to Mr. Griffin’s own desired we note that i.e., flying at VA cemeteries. if the dissent is correct in its assessment that overbroad,” Mr. Griffin raises an "grossly unbridled dis regulation, cretion to the and Lake would be struck down without ref unmistаkably rejects particular type wood view speech narrow erence to the Mr. challenges. engage such Even outside the unbridled Airport Griffin would in. See Bd. of context, Jesus, Inc., discretion Court has L.A. v. Comm'rs Jews 569, 574-75, refused to read Grace and similar cases as 96 L.Ed.2d (1987). limiting challenges particular facial to a kind 1320 as-applied challenge. in an the deny disfavored tion Given them to

groups permit VA the licensor’s actions groups. selectivity challenging would burden Such arbitrarily to facility case-by-case, as-applied to discriminate these heads barriers viewpoint may speakers challenges based on render the licensor’s deci- between by speaker-such as forbid- espoused challenges unless facial sions unreviewable a ding display 758-59, Mr. to Confederate Griffin Id. 108 S.Ct. are allowed. at 2138. permitting private groups to flag but other A liking. flags more to the VA’s alleges power further this In considering Mr. Griffin’s chal just wielded not to control which could be lenge, we that section assume cemeteries, displayed at but

flags prior speech, act as a may restraint or even speeches to restrict formal also power to grant we further assume that the property. on VA casual comments exceptions raises the same concerns of se application lective that render standardless bring thus to Mr. Griffin seeks licensing to an schemes vulnerable unbri cаtegory of licens- within that govern The challenge. dled discretion long schemes that have been held ing dispute not attempted ment has either vesting the First Amendment for a violate ask point. indepen we must government official with discre- “unbridled dently standing whether speech at Mr. Griffin suppress tion” to will. expression principle bring a facial challenge. of this With reversal broadest as-applied v. Plain Dealer City challenge found Lakewood of his Fourth Co., Brennan, Publishing Circuit, which Justice Mr. Griffin cannot claim in Court, a speaking majority 4-3 of his fringement rights, own constitutional stated: proposed flag display least as far as at his li- Cemetery. Arguably, at Point Lookout facial lies whenever

[A] censing gives law official there is confusion as to whether one chal agency power substantial discrimi- must lenging licensing allege scheme viewpoint on the nate based content or applied that the can never be speech by suppressing manner, disfavored allege injury a valid or must speakers. disliked speech or parties third the court via the before Compare City overbreadth doctrine. In at 2138. 486 U.S. S.Ct. this Vincent, L.A. Taxpayers Council formulation, very it is the of such existence 789, 796-798, exercised, 466 U.S. 104 S.Ct. power, not how it is that ren- (1984) (describing L.Ed.2d 772 unbridled licensing law ders a unconstitutional. challenges discretion as cases which “ev According majority opinion to the ery application of the statute created an Lakewood, per- facial be challenges should impermissible suppression risk of licensing against mitted standardless ideas”) 618-19, Finley, with aspects two of such schemes because laws (de (Souter, J., dissenting) 118 S.Ct. 2168 as-applied challenges make difficult. scribing challenges unbridled discretion as First, very existence of licensor’s challenges); Forsyth, overbreadth discretion, coupled with unfettered 129-30, (same); U.S. at restraint, power prior intimidate 312, 329, Barry, Boos v. parties speech censoring into their own (1988) (same). 1157, 99 L.Ed.2d 333 But than Id. challenging rather the restraint. Second, regardless of facial attacks against how might express licensing for a standardless schemes absence of standards license classified, prove formally it difficult to illicit discrimina- Court has makes standing challenge made clear that such B depend schemes does not on whether the turnWe now to the merits of challenger’s may pro own conduct challenge. Griffin’s Government restric Lakewood, at scribed. U.S. speech tions on public property are (quoting 108 S.Ct. 2138 Freedman v. Ma traditionally analyzed by classifying the 51, 56, ryland, 380 U.S. 85 S.Ct. 13 regulated property as one of three kinds of (1965)). L.Ed.2d 649 We therefore con fora by Supreme described Court: clude that may Mr. Griffin raise a facial fora, public fora, designated public 1.218(a)(14), challenge regard to section nonpublic fora, fora. In public traditional less of the ultimate outcome his as- devoted assembly by debate long applied challenge or whether the VA fiat, tradition or govern him grants permission a Confed speaker ment exclude a only when the erate at Point Lookout Cemetery. exclusion is necessary to serve a compel mindful, however, areWe that un ling state interest and the exclusion is formulation, der Mr. must Griffin narrowly drawn to achieve that interest. 1.218(a)(14) show that 38 C.F.R. poses designated fora, In public gov which the more than a theoretical danger protect ‍‌​​‌‌​​‌​​​‌​‌‌‌‌​​‌​​‌​​‌‌‌​​‌‌‌​​​‌‌‌​‌​​​‌‌​​‍ ernment by creates intentionally opening a speech. ed Even under the broad articula forum to speakers, certain classes of Lakewood, tion of an unbridled discretion government’s speaker exclusion of a who challenge is by proviso circumscribed falls within the class to which the forum is challenged regulation “pose must made generally available subjected will be a real and substantial threat of the identi fora, to strict scrutiny. nonpublic In Lakewood, fied censorship risks.” 486 government may restrict access content 759, 108 U.S. S.Ct. 2138. And when the speaker identity, long so as the restric plaintiff alleges that a law gov invests the tions are reasonable and not an effort to ernment with discretion to discriminate on suppress expression merely public because viewpoint, the basis of “such a ‘facial chal oppose speakеr’s officials view. See lenge will not succeed unless statute is Legal Cornelius v. NAACP & Educ. Def. overbroad,’ “substantially” by which we Fund, Inc., 788, 800, 473 U.S. 105 S.Ct. mean that ‘a law should not be invalidated (1985). Thus, 87 L.Ed.2d 567 re for overbreadth unless it reaches a sub speech nonpublic straints on in a forum impermissible stantial number of applica upheld they will be unless are unreason ” Finley, tions.’ 118 S.Ct. they impermissible able or embody view (Souter, (citations J., dissenting) point discrimination. omitted) Ass’n, N.Y. (quoting State Club All of the modern cases in which York., 1, 11, City Inc. v. New 487 U.S. Supreme Court has set forth the unbri (1988), 101 L.Ed.2d 1 dled discretion doctrine have pub involved Ferber, 747, 771, New York v. fora, lic and no Court case has (1982)). Thus, 73 L.Ed.2d 1113 suggested that applicable the doctrine is while we need not inquire whether Mr. setting public outside the of a forum. Griffin’s own conduct would be constitu challenge against While an overbreadth an tionally protected in order to consider his entirely unreasonable restraint will suc facial challenge, Mr. Griffin must still show regardless ceed how the forum is classi possibility application realistic fied, see Airport Bd. Comm’rs L. A. v. suppress will a sub Jesus, Inc., 569, 574-75, constitutionally protect stantial amount of Jews See, speech. (1987), ed e.g., United States v. we Kalb, (3d Cir.2000). 234 F.3d accepted have no framework to decide how heads facility should tion vests VA discretion

an unbridled discretion to impermissibly broad with forum. nonpublic be evaluated no we have suppress speech. But since essentially us would have property to conclude that other VA reason argues, He the forum doctrine. ignore a traditional or ought to be classified as the case support from apparent without forum, public shall assume designated we law, discretion grant that a of unbridled properties nonpub- other VA are also that discrimination, and since arbitrary enables how a and we not lic fora need consider unreasonable, such a is arbitrariness a weigh against facial should never be reason grant of discretion can governs public regulation both in a cannot even be sustained able Furthermore, fora. Mr. Griffin nonpublic bottom, forum. At nonpublic allegation section makes no every a rule that adopt per us to se urges 1.218(a)(14) poses censorship a risk facially is grant of unbridled discretion property than national ceme- any VA other part, gov unconstitutional. For its teries, parties he or not before or that of or either unaware ernment seems to at other kinds of speak the court desire discretion ignore unbridled chooses property. If cemeteries are national VA entirely. only that sec argues It doctrine alleged expression to free where the threat a rational basis tion meets appropriate then we think it lodged, be reject both extremes. We test. We on national when we eval- focus cemeteries is to the demands lieve our task reconcile alleged relationship uate the between the doctrines, to consider both of both restrained, restraint, speech and the so particular circumstances under the gether there- analysis of the forum. nature Our case. of Mr. Griffin’s only take into the fact fore will account fora, properties nonpublic but that VA are parties agree VA cemeteries Both also the relevant characteristics of national fora, have nonpublic and other courts are charac- cemeteries to the extent that those are public concluded that cemeteries also presented to the court. teristics have been of First nonpublic purposes fora 129 analysis. Griffin, See have no explained, As we 840; Boca F.Supp.2d City Warner v. the un- attempts apply decision Court (S.D.Fla. Raton, 1272, F.Supp.2d 1291 64 in the context bridled discretion doctrine 1999). purposes of our will assume for We terms, the nonpublic By of a forum. its nonpublic analysis that VA cemeteries ar- unbridled discretion doctrine has been fora, suggests no evidence before us since regimes limit licensing as a ticulated contrary a party urges and no otherwise See, v. public e.g., in fora. Shuttlesworth special for the finding. except 147, Ala., City Birmingham, 394 U.S. in recreation prohibition against physical (1969) S.Ct. 22 L.Ed.2d 162 89 cemeteries, regulates (“[W]e li- consistently have condemned сemeteries, just conduct not at national in an admin- censing systems which vest by the property all but at administered grant official istrative discretion 1.218(a) (2001) (“[T]he 38 VA. C.F.R. un- criteria upon withhold broad apply at all following regulations rules and proper public regulation related York, and control of property charge under New 340 places.”) (quoting Kunz v. in or on persons entering 290, 293-294, ... and to all 95 L.Ed. (1951)). forum, in this facial property.”). Formally, In a nonpublic such has operate propri- the fact that Mr. Griffin' as challenge, government is said to etor, cemetery States sought access to national not licensor. See United Kokinda, 720, 725, 110 S.Ct. sec- question to the of whether irrelevant (1990). (1983). 3115, 111 L.Ed.2d 571 Nonethe- As the Court explained, less, we are special “[e]onsideration aware of several cases from of a forum’s attrib sister circuits have struck down utes is our relevant to the constitutionality aof nonpub- licensing significance standardless schemes since the Perhaps leading governmental fora. circuit lic case interest must be assessed Watts, light Co. v. is Sentinel Communications the characteristic nature and func (11th Cir.1991), F.2d particular which tion of the forum involved.” Ko kinda, Eleventh invalidated a Circuit statu- 497 U.S. at 110 S.Ct. 3115 tory scheme that gave (quoting em- v. Int’l Soc. Krishna Heffron Consciousness, Inc., ployee Florida unfettered discretion placement newspaper (1981)). over racks Cornelius, areas along highway. rest the interstate See also 473 U.S. at Thus, that Concluding nonpub- particular rest areas were S.Ct. 3439. in circum fora, stances, grants lic the Eleventh Circuit nonetheless of discretion in nonpublic nonpublic that fora have upheld despite held forum status “does been the ab — eliminate sence of require- not the constitutional substantive proce standards or dural discretionary safeguards li- such ment standards discretion is —when however, censing. necessary preserve It may, require that the function and See, character regulations the,forum. e.g., promulgated or standards Muller by Sch., Muller Lighthouse v. ... be 98 only reviewed reasonableness Jefferson (7th 1530, 1540-1541 Cir.1996) F.3d (apply higher scrutiny.” instead some level of ing nonpublic News, uphold forum doctrine to at 1199 n. 11 N.Y. (quoting Id. Inc. school). prior restraint Auth., public To 133, deter Transp. F.Supp. v. Metro. 753 1.218(a)(14) mine whether (S.D.N.Y.1990)). section violates No court sug- 140 the First as a Amendment standardless gested exactly how this more deferential scheme, licensing we must assess whether scrutiny should be applied. the discretionary power granted to VA 1.218(a)(14) The text of section sets no officials is reason explicit limit on the discretion VA offi light able in of the characteristic nature exceptions, govern cials and the and function of national cemeteries. given ment has us or no why little reason grant of outset, this discretion differs from those At the we conclude that that have been struck as unconstitu greater down ought latitude to be accorded to past. believe, tional do We not in nonpublic officials fora. however, compelled apply Selectivity we are and discretion are some of the defining the unbridled discretion doctrine nonpublic mechani characteristics of the cally and strike forum. example, Perry, down section For the fact inquiry building without into the characteristics of individual principals had to obliged give permission the relevant forum. areWe for use of school mail sys examine the nature of the forum because tems tended to that the mail system show in nonpublic nonpublic restrictions fora was a Perry, rea forum. See 460 47, if they sonable are preserving aimed the U.S. 103 948. S.Ct. Cornelius dis property purpose tinguished for the to which it nonpublic is fora from those fora Perry dedicated. See Educ. Ass’n v. speaker Per which the decision to admit a Ass’n, that, Local ry “merely Educators’ is without disc ministerial” — Cornelius, 74 S.Ct. L.Ed.2d 794 retion.8 See 473 U.S. at relating Ministerial: 8. Of or to an act that involves obedience to instructions or laws in- Affairs, Regulatory might protest Statement one Veterans While (Unified 61,261-01 Priorities, the fundamental logic Fed.Reg. that such undercuts 3, 2001). doc discretion premise gov- unbridled Dec. Because the Agenda, trine, Ark. Television Comm’n see Educ. cemeter- ernment has established national Forbes, n. memory of as shrines to honor the ies (Ste (1998) 1633, 140 L.Ed.2d 875 served, maintаining an atmo- those who vens, J., dissenting), the fact discre respect is neces- sphere tranquility defining characteristic tionary access is a forum. sarily purpose central to of the suggest forum nonpublic should government may need Consequently, in a permissible more official discretion expression to decide what forms of acceptable nonpublic forum than would be compatible atmosphere with this of solem- Moreover, while public in a forum. preserve for the nity in order to the forum government may that the constitution fact In it was established. a First purpose on ally impose content-based restrictions analysis, agency’s an mandate nonpublic fora does not insulate speech judg- judgments to make such sets those from discretion an unbridled apart comparatively objective from ments Lakewood, 486 U.S. at challenge, see decisions, audito- such as access to a school expression restriction municipal Finley, rium or theater. See property pose the same at VA does 586, 118 524 U.S. at S.Ct. 2168. It follows expression identified Lake threats to government greater that have must licensing that restrict wood schemes speech permis- to decide what is discretion public newspapers or other media than in those sible national cemeteries The rationale for a facial forum. patriotic purpose forа which serve no such correspondingly weaker. See Lake government. for the wood, S.Ct. financial, and (explaining political, National also serve cemeteries as-applied make expressive gov time constraints important functions impossible in challenges by the media speech At least at national ernment. some practice). statutorily-re as the cemeteries —such display of and quired the United States func Turning nature and to the flags government speech. POW/MIA —is cemeteries, find that tion of national we no the government have doubt that We national government has established speech engages in when it flies its own particular cemeteries to serve commemo cemetery, over a national and that its flags expressive By the ex rative and roles. fly may of which favor one choice press of cemeteries Congress, command viewpoint speech, over and another. Such of “shall consid under control the VA competing such discrimination between a to our ered national shrines as tribute not, however, viewpoints, implicate does 2403(c) (1994). gallant dead.” 38 U.S.C. rights the First Amendment of others. statute, imposes on Under this the VA is entitled to full control government duty “to maintain those cemeter itself speaks speech, its own whether over a perpetuity as national shrines in as ies parties private its own voice or еnlists with grateful final of a to honor tribute Nation message, remedy convey its and the memory service of those who Dep’t political in the with choices is served Armed Forces.” dissatisfaction its discretion, added). judgment, Black's stead or skill. (7th ed.1999) (emphasis Dictionary Law Regents Bd. judicial. government’s

rather than dilute the own message. Southworth, Sys. government 529 U.S. The Univ. therefore must exercise of Wis. 217, 235, 120 S.Ct. 146 L.Ed.2d 193 discretion and judgment to decide what (2000); ‍‌​​‌‌​​‌​​​‌​‌‌‌‌​​‌​​‌​​‌‌‌​​‌‌‌​​​‌‌‌​‌​​​‌‌​​‍speech Rosenberger appropriate v. Rector & Visitors for national cemeter- 819, 833, of Va., 115 ies. Univ. (1995). Thus, course, any Of individual decision to ex- fly fly or not government’s decision clude or a speaker certain remains particular it that of the Union —be as-applied vulnerable to an challenge if Confederacy trespass or the not —does that decision is unreasonable or viewpoint- upon the First Amendment. NAACP v. discriminatory. But Mr. Griffin has not (11th Cir.1990).9 Hunt, 1555, 1566 891 F.2d convinced us that preserving the national cemetery government’s for the own ex- While we have no evidence be pressive purposes accomplished can be fore us to indicate what mix of vesting significant degree without of dis- speech, speech, private speech invited facility cretion VA heads. cemeteries, may be found at national we believe the use of national cemeteries short, In national cemeteries are speech for government heightens the dis highway interstate rest areas. The nature facility cretion to be afforded to adminis and function of the cemetery national course, government may, trators. The preservation make the dignity and deco- property restrict use of its to deliver its concern, paramount rum a govern- and the messages.10 “Simply gov own because the may impose ment speech restraints on opens speak ernment its mouth to does not pursuit. reasonable Because give every group outside individual or the judgments necessary to ensure that right play First Amendment ventrilo cemeteries remain “sacred to the honor Dist., quist.” Downs v. L.A. memory Sch. of those interred or memori- Unified (9th Cir.2000). 1003, may defy objective descrip- 228 F.3d 1013 See alized there” Forbes, 673-83, also tion may vary 523 U.S 118 S.Ct. with individual circum- stances, we conclude that (upholding exclusion of candidate the discretion in vested VA administrators section permissible from televised debate as exer 1.218(a)(14) light in of the nonpublic cise of “editorial discretion” in reasonable forum). Where, here,.the characteristic nature and function of na- as tional cemeteries. project image seeks to a certain and atmo sphere, it especially must be sensitive to C private speech taking place concerns that might perceived by additionally the same forum deny We must Mr. government speech, petition listeners as or might Griffin’s to invalidate section Recognizing principle, charge viewpoint this Griffin does not vulnerable to a discrimi- 9. allege government's here that the to challenge. choice nation in this facial promote flag one over another in a national cemetery raises concerns of content view- government may particular 10. The also invite Rather, point per peti- discrimination se. his speakers nonpublic into fora to deliver mes theory tion rests on the well-established that sages obliging its choice without itself censorship the mere existence of unbridled speakers opposite viewpoints, invite when power may pro- chill substantial amount of messages purposes such further speech, tected even if the never actual- censor Cornelius, 820, forum. See 473 U.S. at ly viewpoint favors one over another. See (Blackmun, J., dissenting); S.Ct. Greerv. Lakewood, 486 U.S. at 108 S.Ct. Spock, 424 U.S. 838 n. suggested gov- 2138. Griffin has not that the (1976). flags ernment’s decision to favor certain But, 1995, the discre

1.218(a)(14) at least since we do not believe sion. because con has been expression threat tion of VA administrators real substantial eliminated) by the (although not alleged unbridled discretion strained from the flows Manual, Flag heads. As we discuss detailed as set forth facility in VA VA’s vested un above, a attack will not succeed 3220. Unbridled discretion facial NCA Directive real and challenger establishes a to be unсonstitution less the need not be exercised challenged regula binding risk that con substantial al. administrative protected speech. struction, or chill suppress tion will and uni or a well-understood one of requirement may This stems from on applied practice, set limits formly premises challenges, of facial basic not that are otherwise official discretion broadly writ very existence of some “the challenged apparent from the face chill the potential laws has the Lakewood, ten 486 U.S. at regulation. expressive activity of others not before Kalb, 835; 2138; 234 F.3d at 129, 112 Forsyth, 505 U.S. at court.” Linick, 538, 542 195 F.3d United States v. Accordingly, while we must bear (9th Cir.1999). speech Even unwritten opportunity present evi mind that the may constitutional chal policies survive if a facial to VA dence is limited City lenge uniformly if enforced. Wells v. brought only an regulations may be before Denver, County 1150- & F.3d court, sec we cannot invalidate appellate (10th Cir.2001). may The Flag Manual has unless Mr. Griffin tion on the impose not definitive constraints regulation may sig convinced that the us 1.218(a)(14), but enforcement of section nificantly compromise First appear forth a VA does to set consistent Vincent, protections. See irony of Mr. policy flag display. on 104 S.Ct. 2118. challenge is unbridled discretion Griffin’s that, supposedly unautho excepting made no allegations

Mr. Griffin has display at Point Lookout from 1994 rized speech will chill policy flаg display, VA’s It other than national cemeteries. venue display particular, said, and Confederate example, been The 1995 narrow, unwavering. has been clear and objective, promulgate must VA primary Flag specified Manual standards what banners and definite at national atop or for authorized for buildings, be flown flag, may made within were the United States what kinds of orations be cemeteries though flag, flags, offices—even section VA the its the State POW/MIA 1.218(a)(14) those punish flag, flag although could be used to and the Confederate — performed per acts authori- display flag who such without was the Confederate us given zation. Mr. has therefore and only days year Griffin mitted two the on chal- reason to conclude that flag. little was subordinate to the United States a substantial lenged restricting “reaches policy official While VA’s impermissible applications.” number display displeased Mr. Confederate Ferber, and Veter the Sons Confederate ans, us that VA suggests the record before a fa brings Mr. Griffin While flag display policy has left little room system regulat to the entire cial arbitrary discriminatory enforcement allega expression property, his ing on VA cemetery by individual officials. posed by threat VA tions focus on the Flag Manual and the 2001 Both per to administrators’ unbridled discretion heads the Flag grant facility Manual do prohibit flag displays displays mit or — flags to other exprеs- discretion readily we admit constitute which occasions,” special long might power so as such the VA exercise grant “for its military “commemorate honorable exceptions to favor only order those However, the current directive service.” orations or demonstrations that are to the examples provides multiple that delineate government’s liking, we do not believe that displays permissible, kind of and what possibility justifies this alone the drastic requires, theory, at least the directive remedy Kalb, of facial invalidation. See promote any particular “not any flag 234 F.3d at 835. If viewpoint ideology.” this discretion To Considering summarize: the esthetic heads, facility is all that is afforded to then judgments inherently necessary to main- enough regula- it is to render the not VA’s shrines, tain VA as cemeteries national we A tory scheme unconstitutional. limited find that expression the restraints on im- exception special “for occasions” does not 1.218(a)(14) posed by § 38 C.F.R. are not negate constraining Flag effect of the so unreasonable as to render regula- Flag Manual. the existence of the While tion facially vague invalid. allega- Griffin’s might alone not save Manual 38 C.F.R. tions that people might prevented some 1.218(a)(14) § from constitutional chal- or discouraged speaking from do not es- lenge, Flag significantly Manual re- tablish will reach a pose regulation may duces the risks the protected substantial amount of speech or protected speech. impermissible applications its sub- 1.218(a)(14) restricts Section forms stantially permissible exceed its ones. expression than flag display other VA While the discretion vested VA offi- demonstrations, property, picket- such as subject cials must still be to the constitu- ing, or orations. Griffin makes only the tional speaker thinnest most unsubstantiat- limitation that a cannot be allegations ed that unbridled exercise of solely excluded suppress speaker’s provisions these will threaten his own viewpoint permissible on an otherwise sub- rights rights parties or the of third not ject, as-applied par- we think challenges example: before the court. For “Mr. Grif- ticular acts of viewpoint discrimination are colleagues might fin or his make a remark appropriate a more means to ensure that flag policy (arguably ‘partisan’ about VA facility power heads do wield their statement) group peo- to an ‘assembled grant exceptions arbitrarily or unrea- ” “ ple,’ could be used sonably. recently As the Court highly unpredictable arbitrary fash- in rejecting stated a similar unbridled dis- punish people say ion to who things challenge: cretion VA does not like. It could also be used to Granting speakers waivers to favored people merely prohib- arrest who listen to (or, more precisely, denying them to dis- speech.” ited We do not think that these speakers) favored would of course be speculative allegations “heavy meet unconstitutional, think that but we this required burden” for facial invalidation of abuse must be dealt with if and when a stated, a law. As the Court has pattern appears, of unlawful favoritism reluctant, event, in any “we are to invali- rather than a insisting degree legislation hypo- date ‘on the basis of its rigidity in legal is found few ar- application thetical to situations not before ” rangements. 584, Finley, the Court.’ 524 U.S. 118 Dist., 316, Thomas v. Chi. Park 534 U.S. (quoting S.Ct. 2168 v. FCC Pacifica (2002). 775, 781, 122 Found., 151 L.Ed.2d 783 726, 743, 3026, 438 U.S. 98 S.Ct. (1978)). reach the conclusion here not 57 L.Ed.2d We same Although we ac- knowledge the possibility only theoretical because the Lakewood rationales for Township, Ltd. v. 463 U.S. in the context M.I.C. are weak

facial invalidation Bedford 1341, 17, granting 1343, because challenge, also 104 S.Ct. of this but 1983). relief and inval- requested (Brennan, their petitioners Few Circuit Justice in its en- 38 C.F.R. idating requirement proce- for cases invoke the the VA without tirety would leave explicit censor- safeguards unless an dural conduct at any visitor’s power to restrict by definition is not ship scheme—which hospitals, office facility including any VA attack, — under and the content-neutral —is do not mean buildings, and the like. We recently has confirmed Supreme Court regulations stand less suggest doctrine is procedural safeguards that the the more being invalidated chance of Thomas, 122 S.Ct. scope. so limited See having are. But broadly they drawn that content-neutral (holding at 779-80 opportunities themselves of availed satisfy need not Freedman’s regulations doctrine, must also petitioners the facial procedural safeguards). requirement for imposed on those “heavy burden” bear are not sub- To the extent its concerns a law on its face. We seeking to invalidate analy- into the unbridled discretion sumed has been met that burden do believe sis, requirement procedural safeguards case before us. independent or no basis for provides little Ill nonpublic striking regulation" a a down matter, raises, separate as a also identify the forum. While some courts the contention safeguards as an added procedural lack of scrutiny because fails First for un- liability they of schemes condemn deny excep decision to or the VA’s discretion, of no case bridled we are aware unauthorized demon tions to the ban on an demanding procedural safeguards as subject any procedural is not strations nonpublic in a independent requirement limits, provisions or for safeguards, time Indeed, speakers forum. exclusions procedural safe judicial Such review. nonpublic upheld fora have been de- from required explicit for guards long have been spite complete absence of established expression censorship rеstricting schemes procedures making such decisions. See, v. public e.g., fora. Freedman Ma See, Forbes, 666, e.g., 523 U.S. 118 S.Ct. 85 S.Ct. ryland, U.S. Greer, 875; 140 L.Ed.2d (1965). The rationale behind L.Ed.2d 96 S.Ct. 47 L.Ed.2d Since that of the requirement is similar to this nonpublic forum clas- one rationale for the If discretion doctrine. a licens unbridled government wider give sification is to allows a official to ing scheme leeway the conduct of its internal over de delay indefinitely approving before affairs, Cornelius, see license, masquerad nying system then counterproduc- would time, manner ing place as a may to encumber decisions that affect tive suppress reality allow officials to government’s expressive own use of speech arbitrarily. See disfavored FW/ requirements procedur- forum with Dallas, 215, 226- City PBS safeguards. al (1990). 596, 107 L.Ed.2d 603 independent find no rationale for We procedural safe procedural safeguards application has little relevance ‍‌​​‌‌​​‌​​​‌​‌‌‌‌​​‌​​‌​​‌‌‌​​‌‌‌​​​‌‌‌​‌​​​‌‌​​‍to guards requirement the cur- here. note that requirement We The doctrine comes into present case. of NCA Directive implementation rent primarily a undertakes play “when State Deputy Under requires NCA’s from certain kinds of public to shield the approve Secretary Operations for offensive.” expression it has labelled flag policy within similar deny exceptions groups conduct to assembled days although individual people” five business “partisаn activity” imper- are — Cemetery Directors seem to be under no missibly vague. In the First Amendment obligation to forward recommendations to context, challenger may a mount a facial Deputy Secretary promptly.11 Under vagueness upon attack a statute even if its Nonetheless, Griffin has shown meaning plain applied is as to his or her imposing procedural require- additional own conduct. Young v. Am. Mini The decision-making pro- ments on the VA’s atres, Inc., 50, 59-60, materially advance cess would First (1976). by increasing interests ex- past Mr. injuries Griffin’s stem from the pression, any potential expression or that VA’s refusal to him to display a by proce- would be chilled lack of VA’s flag historical which may not be —conduct safeguards. may legiti- dural If the VA regulated by allegedly vague terms. mately discretionary judgments make to While Mr. presents Griffin some amor speakers, proce- exclude certain then the phous may claims that he or others wish to by may dures which it do so become less express themselves in the future a man critical. The need for swift decisions is ner that might the VA consider an “ora compelling less in the calm of national tion” “partisan activity,” courts are re fora, public than in where cemeteries de- luctant to confer standing challengers on layed permit dispute may resolution of a present who allegations unsubstantiated newspaper publisher be fatal to а or movie subjective a chill specific rather than a distributor. present threat of or future harm. See Convoy, Inc. v. City Diego, San IV (9th Cir.1999). 1108, 1112 183 F.3d Finally, alleges Mr. Griffin section I.218(a)(14) vagueness, void since Assuming Mr. Griffin has “oration,” peo- groups terms “assembled standing bring vagueness a facial chall ple,” “partisan activity” employed are enge,12 we cannot still strike down section regulation. but not defined While regulation’s vague unless the vagueness the overbreadth and doctrines poses ness a real and substantial threat to distinct, analytically Mr. Griffin’s protected expression. Young, See vagueness challenge resembles his unbri- 2440. Mr. Griffin has dled discretion because both speculate done no more than third alleges he himself, parties, might or even he be sub suppress protected expression by arbitrary ject penalties to criminal uttering discriminatory enforcement. wrong property. on un words VA While application constitutional of the law not express skepticism

We some attack, prerequisite a for a facial we have may bring vague whether Mr. Griffin a no indication before us that the VA has challenge, simply ness because is not penalized speaker ever a for unauthorized injury clear he has suffered from the chal partisan activity proper orations or lenged portions regulation. complains that “any ty. explained, the terms oration or As the Court 30, 2001, April 11. Under the revision of NCA 12. has not contested Mr. 3220, Cemetery Directive Director is autho right bring vagueness challenge. Griffin’s only request, deny rized or to Deputy Secretary recommend to the Under request approved. that the 1330 Terms like demonstrations. in unauthorized possible vagueness about

“speculation have standing alone been not before situations “demonstration” hypothetical See, attack on a e.g., a facial support against vagueness attack. upheld Court will ‘in the vast surely valid it is statute when Network W. v. Pro-Choice Schenck of applications.’” its intended majority 855, of N.Y., 357, 383, 117 S.Ct. 137 519 U.S. 733, Colorado, 703, Hill v. (1997); Sec’y Culver v. L.Ed.2d (2000) (quot 2480, 147 L.Ed.2d (D.C.Cir. Force, 622, 559 F.2d 628-629 Air 17, Raines, 362 U.S. v. ing United States 1977). that additional therefore doubt We (1960)). 519, 80 S.Ct. of “dem fleshing out the definition terms uncon prohibition render the onstration” challenged terms were if the Even stitutionally vague. applica of their intended not valid most that Mr. tions, above Griffin explain we activity” is well-ex- “partisan term application of section not shown that has fail to see regulation and we plained protect limit significantly will Like- ambiguity in its definition. any real parties not before the speech by third ed wise, groups people” while “assembled speakers be deterred court. A few term, must deliver an precise not a one if will uncertain the VA they are because groups to said or similar conduct” “oration “demonstration,” as a punish their conduct regulation to to run аfoul of the in order “oration,” “partisan activity,” “[t]he but Congress begin with. noteWe vagueness challenge of a facial touchstone on other similarly prohibited “orations” however, context, the First decency property at which legitimate amount of is not whether some purpose to the and decorum are central chilled; be is whether speech will forum, Library of Con- such as the legitimate speech substantial amount building. gress and the Court Ass’n v. chilled.” Teachers will be Calif. (2000); 13j § § 40 U.S.C. 167d U.S.C. (9th Educ., 888, 898 263 F.3d State Bd. of (1994). Challenged terms must be read Cir.2001). whole, see regulation as context Nor, alleg convinced that the if we were 408 U.S. at 92 S.Ct. Grayned, posed a real and sub edly vague terms that visitors of have little doubt and we protected expression, threat stantial reading ordinary intelligence unconsti they conclude that would we 1.218(a)(14)would understand what behav- has not estab tutionally vague. proper- on VA expected ior was of them fail to challenged terms lished grounds of a na- ty particularly on the — ordinary intelligence a provide persons of cemetery. tional opportunity to know what reasonable undoubtedly these standards are ‘While conceive Mr. Griffin can prohibited. While flexible, implementing and the officials application of hypotheticals in which the debatable, discretion, exercise considerable challenged terms would them will do not rise to the level have ambiguities clarity precise guidance such perfect Grayned vagueness. unconstitutional See required regulations even of never been 104, 110 15, n. Rockford, 408 U.S. City v. activity.” Ward expressive that restrict (1972). 33 L.Ed.2d Racism, Against Rock (1989) 105 L.Ed.2d that the itself literal- We note regulations (rejecting facial services, prohibits only unauthorized ly to be “balanced required sound level demonstrations, ceremonies, see 38 neigh- nearby residential 1.218(a)(14)(i) respect with (2001); all of the C.F.R. bors”). possibili- Although the theoretical examples of appear as challenged terms

1331 1.218(a)(14) ty States, that violators of section will ernment of the United any pri or subject prosecution association, criminal group, be raises vate enterprise,” 38 1.218(a)(14)(ii) § scrutiny apply, (2001), the level of we must we do C.F.R. the regula appears that Mr. has carried the tion political believe to bar discussions showing patients either of the chal- hospital burden at a VA or by employees unconstitutionally lenged vague terms are headquarters building, even activities, vagueness pose or that such would though such are constitutionally protected McPherson, real and threat protected. substantial See Rankin v. 483 speech. (1987) L.Ed.2d 315 (finding discharge of

CONCLUSION county employee unconstitutional where above, For the reasons set forth we hold employee inappropriate made comment to 1.218(a)(14) § that 38 C.F.R. does not on regarding attempted coworker assassina its face violate the First Amendment. We tion of President Reagan). It bars the deny petition therefore to invalidate unauthorized use of “coarse” or “abusive” regulation. language, though Supreme even Court has held such in terminology statutes to be

COSTS unconstitutionally vague. Gooding v. Wil No costs. son, 518, 525-28, (1972) L.Ed.2d 408 (finding prohib statute DENIED. iting “abusive” language unconstitutionally DYK, Judge, part Circuit concurring overbroad). vague and It appears to bar dissenting part. “picketing” unauthorized or orations on part facilities, sidewalks that are of VA generally agree majority’s I with the even though protected. such conduct is rejection appellant’s well-reasoned claim Grace, 171, 183, United States 1.218(a)(14) that section regula- of the VA (1983) L.Ed.2d 736 facially tions is unconstitutional insofar as (finding prohibit section of federal statute regulates flying VA ceme- ing picketing and leafleting on sidewalks teries. I dissent to the extent Supreme surrounding building Court un majority, in purporting to resolve constitutional). If compelled by we were claim, an overbreadth addresses the con- the overbreadth doctrine to consider the stitutionality aspects of other of this VA facial constitutionality regulation of this regulation, aspects that have not even been contexts, all I likely would find it unconsti challenged before the VA itself. substantially tutional because it is over- I broad. regula- majority

Section of the VA writes that “we know of no appears grossly tions In- preclude overbroad. rule that would our consideration deed, it reads like a law school non-flag allegations examination of Mr. Griffin’s once question in which law students are invited his constitutional challenge to 38 C.F.R. to find the maximum number properly of serious before this by hypotheti- constitutional issues raised court.” Ante at I respectfully dis- By cal ordinance. barring agree. unauthorized I think we obligated, are not activities,” “partisan permitted, by defined as “those in- even Court’s volving commentary support jurisprudence or actions First to consid- of, to, opposition or in or attempting hypothetical applications to er the reg- of this influence, any policy current deciding constitutionality of the Gov- ulation in obscene, question film in reaching Grif whether the portion noted, Co., Scalia conduct. As Justice Vance v. Universal Amusement

fin’s 316-17, 1156, is in 308, some ten 100 63 the overbreadth doctrine U.S. S.Ct. (1980) curiam). III case and contro (per sion with the Article also L.Ed.2d 413 See City Chicago v. versy requirement. Tribe, H. American Constitu- Laurence of 77, 1849, Morales, 41, 119 527 (2d S.Ct. ed.1988); U.S. § 4 Ronald tional Law 12-35 (Scalia, (1999) J., dissent Nowak, D. E. Treatise on Rotunda & John (“[F]or go ... to further ing) ed.1999). the Court (3d § Law Constitutional 20.46 is the statute unconsti pronounce and give The does not overbreadth doctrine [sjeems ... to in applications tutional all plaintiff a First this court a or advisory oрin an me no than more roving to invalidate an entire stat- warrant ”). a a determination that ion.... Often ute, ordinance, regulation simply or be- simply fatally overbroad means statute portions nothing cause that have to do with unconstitutional in the that the statute is hand unconsti- controversy may the controversy, of the particular context the in example, v. tutional. For United States significant, and portion unconstitutional Grace, 171, 175-76, 103 S.Ct. cannot part the constitutional be severed 1702, (1983), 736 the Court 75 L.Ed.2d parts. from the Ash unconstitutional See of portions held that it should address — Coalition, Free Speech v. U.S. croft prohibiting a federal statute demonstra- -, 1389, 1406, -, 122 S.Ct. 152 Supreme tions and grounds, on the Court (2002). the L.Ed.2d 403 But overbreadth portion review to the of the confined its sometimes allow the doctrine also partic- the the reaching statute conduct of to court hold a statute unconstitutional parties ular it. The at issue before statute whether, determining in explicitly without in prohibited Grace two activities: distinct language the the seminal v. of Thornhill “ (1) stand, in parade, proces- ‘to or move decision, “the evidence ... could Alabama in assemblages Supreme sions or the support upon a conviction founded ever “ ” (2) Building grounds;’ Court or ‘to precise charges.” 310 different more banner, display any flag, device therein or 88, 96, 736, 84 1093 U.S. 60 S.Ct. L.Ed. designed adapted bring public to into or (1940). reaches, Even its outеr when party, organization, notice or move- any in used this sense the overbreadth doctrine ” ment.’ 103 (quoting Id. at S.Ct. 1702 permit no than a regulated does more (1976)). § 40 13k The Court ac- U.S.C. system party challenge permit a without only portion the knowledged that second seeking permit, City a Lakewood the of the the statute reached conduct Co., Publ’g Plain Dealer parties it: “the threat of arrest before 755-56, 108 100 771 S.Ct. L.Ed.2d appellee subjected was which each was (1988); City Griffin, U.S. Lovell v. prohibition the dis- violating against the 82 L.Ed. 949 play Accordingly, a ‘banner or device.’ (1938); permit regulated party or a portion our is limited to latter review challenge licensing scheme for ob movie similarly of the statute.” Id. Court scenity submitting without first the film appeals’ limited the reach of court of approval, Mary Freedman v. question “[ajlthough Appeals decision: Court of land, 51, 54-56, S.Ct. opinion to hold unconstitu- purports 13k (1965); L.Ed.2d 649 a regulated indication tional on its face without statutory al party scheme portion is limited to that holding prohibit future lowing judges state that deals with the statute pictures exhibition motion have not banner, device,’ obscene, decision yet regardless ‘flag, been found prohibi to that tions not before the court. See also read as limited Free must be — 5, 103 Coalition, -, Even at 175 n. S.Ct. 1702. Speech tion.” Id. U.S. at prohibition, the respect to the second (O’Connor, J., with at 1410 concurring majority, over the dissent of Justice Court judgment part dissenting part) Marshall, “public holding limited its to the (three dissenting justices urging ap- sidewalks,” only area of plication of should in only Grace result particular involved grounds Court statute). partial invalidation of the There controversy. Id. at any severability is no need to consider Arcades, Spokane also Brockett v. See question here since we sustain the statute 491, 502-05, 2794, Inc., 472 105 S.Ct. U.S. it regulates flying flags insofar as the in (1985) (invalidating statute L.Ed.2d 394 86 VA cemeteries. v. Nat’l Trea only part); in United States majority’s entertaining The insistence on Union, 454, sury Employees 477- challenge particularly the overbreadth (1995) 1003, 78, 115 S.Ct. 130 L.Ed.2d 964 majority rejects peti- curious since the the only parties relief to before the (limiting tioner’s claims because VA cemeteries are Court). simply different from other factual con- majority suggests that Grace is no The texts. I law. Ante at 1319 n. 7. longer good case, portion In only this the of section majority The relies on so-called disagree. 1.218(a)(14) reaching Griffin’s conduct is undermining cases ‍‌​​‌‌​​‌​​​‌​‌‌‌‌​​‌​​‌​​‌‌‌​​‌‌‌​​​‌‌‌​‌​​​‌‌​​‍as unbridled discretion that the in relating flying flags VA supporting and as its reading our of Grace plaintiffs standing cemeteries. These lack challenge. of the overbreadth consideration challenge any aspect regu- other of the Court’s recent decision in As Accordingly, lations. we should confine District, Chicago v. Park 534 Thomas U.S. flying our review to 775, (2002), 122 S.Ct. 151 L.Ed.2d 783 cemeteries, what lest we render effect clear, however, makes to a advisory opinion. simply an We are licensing ground scheme on the conjecture possible authorized to about the discretion in an confers unbridled constitutionality myriad appli- other incorporate re- administrator or fails to regulation. cations of the quired procedural safeguards is a chal- regulated party’s based on the own lenge II parties rights, rights not the of third as is yet another reason to avoid challenge. There is the case an overbreadth fully petitioner’s cases are consis- invitation to consider other unbridled discretion portions argu tent with Grace. of this ordinance: these ment’s not even raised VA. were before cases, severability Nor are the Reno v. It that the doctrine of is well established Union, Liberties American Civil ap of administrative remedies exhaustion 844, 883-85, L.Ed.2d 138 case of constitutional chal plies (1997), Em Treasury and National Syracuse action. lenges regulatory Union, at 479 n. ployees U.S. FCC, 867 F.2d 656- Peace Council propriety relevant to the of an denied, (D.C.Cir.1989), cert. These sim challenge. overbreadth cases whether, if a stat ply question address the (1990). Here, petitioner’s claim before part as a result of

ute is unconstitutional was case, simply VA was holding particular in a the court’s invalidated, regulated insofar as it unconstitutional as a whole must be statute flag at VA ceme- applica- flying in other of the Confederate whether it can be saved VA, petition petition- to the teries. In his

er stated: you and the request

We further (“VA”) Affairs

Department of Veterans rescind 38 C.F.R. to waive and

agree rules or other VA interpreted to might

regulations above-requested display

prohibit battle at the Ceme-

the Confederate

tery. added).

(emphasis opportu- given thus been no

The VA has newly-minted

nity pass petitioner’s concerning claims the inval-

constitutional in other contexts.

idity those claims for the should not address

We

first time on review. LTD., Bearings

RHP NSK BEARINGS Corporation,

Europe Ltd., and NSK

Plaintiffs-Appellants, STATES, Defendant-Appellee,

UNITED Company, Torrington

Defendant-Appellee.

No. 01-1160. Appeals,

United States Court

Federal Circuit.

April

Case Details

Case Name: Patrick J. Griffin, Iii, and Gregory S. Clemmer v. Secretary of Veterans Affairs

Court Name: Court of Appeals for the Federal Circuit

Date Published: Apr 30, 2002

Citation: 288 F.3d 1309

Docket Number: 01-7026, 01-7038

Court Abbreviation: Fed. Cir.