Argued and Submitted April 8, 2013, Pasadena, California
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Central District of California. D.C. No. 2:10-cv-01878-SJO-SS. S. James Otero, District Judge, Presiding.
Peter J. Eliasberg (argued), Hector O. Villagra and Jessica G. Price, ACLU Foundation of Southern California, Los Angeles, California, for Plaintiff-Appellant.
Indira J. Cameron-Banks (argued), Assistant United States Attorney, United States Department of Justice, Los Angeles, California; André Birotte Jr., United States Attorney, and Leon W. Weidman, Assistant United States Attorney (Chief of the Civil Division), United States Department of Justice, Los Angeles, California, for Defendants-Appellants.
Before: Ferdinand F. Fernandez, Johnnie B. Rawlinson, and Jay S. Bybee, Circuit Judges. Opinion by Judge Bybee; Dissent by Judge Rawlinson.
BYBEE, Circuit Judge.
Since 1973, a regulation promulgated by the Department of Veterans Affairs (VA), 38 C.F.R. § 1.218, has prohibited the posting of materials on VA property except when authorized by the head of the VA facility in question or a designee of that individual, or when the posting of materials is part of authorized Government activities. See 38 C.F.R. § 1.218(a)(9); see also Security, Law Enforcement, and Standards of Conduct on Veterans Administration Property, 38 Fed. Reg. 24,364, 24,365 (Sept. 7, 1973) (to be codified at 38 C.F.R. pt. 1). This case arises from the inconsistent enforcement of § 1.218 as applied to Robert Rosebrock.
Rosebrock is a veteran who objects to the failure of the VA to use a lawn outside of the Los Angeles Campus (LA Campus) of the VA Greater Los Angeles Healthcare System (VAGLA) for the benefit of veterans, and particularly homeless veterans. Since March 2008, Rosebrock and a group of like-minded veterans have protested weekly outside of the locked fence that surrounds the LA Campus lawn to draw public attention to the VA's failure to use the lawn for veterans. Although neither VAGLA nor the VA has ever had a general policy of inconsistent enforcement of the prohibition on posting materials in § 1.218, VAGLA and its police force inconsistently enforced the regulation in response to these protests. In particular, over a period of at least eight months, VAGLA and its police failed to enforce the regulation when Rosebrock and his fellow protestors hung the American flag union up on the fence surrounding the LA Campus lawn, but enforced the regulation when the protestors hung the American flag union down on the fence. Based on the record before us, this inconsistent enforcement stopped on June 30, 2010, when a VAGLA associate director sent an e-mail to the VAGLA police instructing them to consistently enforce the prohibition in the regulation.
While the inconsistent enforcement was ongoing, Rosebrock filed a complaint in the United States District Court for the Central District of California, bringing a cause of action under the First Amendment, and seeking declaratory and injunctive relief. The district court ultimately granted summary judgment to Rosebrock with regard to declaratory relief, holding that the VA defendants violated Rosebrock's First Amendment rights by engaging in viewpoint discrimination, but the district court denied Rosebrock any injunctive relief. Rosebrock v. Beiter, 788 F.Supp.2d 1127, 1140-49 (C.D. Cal. 2011). One of the rationales given by the district court for denying injunctive relief was that the request for injunctive relief had been mooted by the June 30, 2010 e-mail instructing the VAGLA police to enforce § 1.218 consistently. Id. at 1143-45.
Before us now is Rosebrock's appeal from the district court's denial of injunctive relief. We agree with the district court that Rosebrock's requests for injunctive relief are moot, and thus we affirm.
Pursuant to its authority to " make all needful rules and regulations for the governing of the property under [the Secretary of Veterans Affairs'] charge and control" under the National Cemeteries Act of 1973, Pub. L. No. 93-43, § 4, 87 Stat. 75, 79 (codified as amended at 38 U.S.C. § 901), the VA promulgated 38 C.F.R. § 1.218 in 1973. See Security, Law Enforcement, and Standards of Conduct on Veterans Administration Property, 38 Fed. Reg. at 24,364-65. This subsection has not materially changed in the nearly forty years since its promulgation. Compare Security,
Law Enforcement, and Standards of Conduct on Veterans Administration Property, 38 Fed. Reg. at 24,365 (subsection (i)), with 38 C.F.R. § 1.218(a)(9). Today's version reads as follows:
Distribution of handbills. The distributing of materials such as pamphlets, handbills, and/or flyers, and the displaying of placards or posting of materials on bulletin boards or elsewhere on property is prohibited, except as authorized by the head of the facility or designee or when such distributions or displays are conducted as part of authorized Government activities.
38 C.F.R. § 1.218(a)(9). According to a declaration from the VAGLA police chief who is a defendant in this suit, VAGLA policy has always been strict enforcement of the prohibition on posting in § 1.218(a)(9). There is no evidence in the record suggesting that VAGLA or the VA has ever had a general policy of inconsistent enforcement. Accordingly, this case arises not from the regulation itself, or from a general VAGLA or VA policy with regard to its enforcement, but rather from inconsistent enforcement of the regulation by VAGLA and its police officers on the ground in this particular case.
VAGLA is one of the largest and most complex VA healthcare systems in the country. The LA Campus is the only VAGLA location in the Los Angeles region where complex medical, surgical, and psychiatric care is offered. Rosebrock and other veterans protest for three to four hours each Sunday outside of the locked fence that surrounds the LA Campus lawn to draw public attention to the VA's failure to use the lawn for veterans. During these protests, which began on March 9, 2008, Rosebrock initially hung the American flag union up on the fence, along with a POW/MIA banner. Sometimes, Rosebrock would also hang a Vietnam unit flag and a " Support Our Troops" banner on the fence. When Rosebrock hung the American flag union up, he intended to express patriotism, and a message of honor and support for the U.S. military. VAGLA police had informed Rosebrock that the posting of materials on the LA Campus fence was prohibited by federal regulations, but, in spite of the broad prohibition in § 1.218(a)(9), they had also informed him, incorrectly, that there was an exception covering the American flag and POW/MIA banner.
VAGLA police and staff did not confront Rosebrock about hanging the Vietnam unit flag and " Support Our Troops" banner--neither of which was covered by the stated exception--until November 30, 2008, when a VAGLA police sergeant asked Rosebrock to remove them. Consistent with the stated exception, the VAGLA police sergeant told Rosebrock that the union-up American flag and POW/MIA banner, which were right next to the flag and banner that had to be removed, could remain on the fence. For the seven months following this confrontation, Rosebrock continued to hang the union-up American flag and the POW/MIA banner on the fence, and the VAGLA police did not interfere. According to VAGLA, VAGLA and its police refrained from citing Rosebrock to avoid confrontation with demonstrators, which VAGLA feared could escalate the fervor of the protests. VAGLA and its police, many of whom were veterans themselves, were also reluctant because many
of the demonstrators were elderly veterans.
Rosebrock grew increasingly upset with the situation involving the lawn, and, as a result, beginning on June 14, 2009, he started to hang the American flag union down rather than union up. In hanging the flag union down, Rosebrock meant to convey an entirely different message than the message he had intended to convey by hanging the flag union up. Specifically, the union-down flag was intended to convey a " distress call" regarding the VA's use of land that, in Rosebrock's opinion, rightfully should be used for veterans.
A week after he first hung the flag union down, VAGLA police approached Rosebrock and ordered him to hang the flag union up or remove it, and Rosebrock complied by removing the flag. Shortly thereafter, on June 26, 2009, Rosebrock received an e-mail from a VAGLA associate director saying that he could " not attach the American flag, upside down, anywhere on VA property including [the] perimeter gates," and that doing so " is considered a desecration of the flag and is not ...