Griffin v. Department of Veterans Affairs , 106 F. App'x 816 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PATRICK G. GRIFFIN, III, an 
individual; MARYLAND DIVISION
SONS OF CONFEDERATE VETERANS, a
Maryland non-profit corporation;
POINT LOOKOUT PRISONER OF WAR
ASSOCIATION, a non-profit
unincorporated association,
Plaintiffs-Appellants,
v.
DEPARTMENT OF VETERANS AFFAIRS, a  No. 03-2042
Department of the United States
Government; ROGER R. RAPP,
Director, National Cemetery
System, a Division of the
Department of Veterans Affairs, an
individual, in his official capacity;
KEN STONER, Point Lookout
Confederate Cemetery, an
individual, in his official capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(CA-02-1917-WMN)
Argued: June 2, 2004
Decided: July 30, 2004
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
2 GRIFFIN v. DEP’T OF VETERANS AFFAIRS
Affirmed in part, vacated in part, and remanded by unpublished opin-
ion. Judge Shedd wrote the opinion, in which Judge Wilkinson and
Judge Duncan joined.
COUNSEL
ARGUED: Michael F. Wright, CASE, KNOWLSON, JORDAN &
WRIGHT, Los Angeles, California, for Appellants. John Samuel
Koppel, Appellate Staff, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON
BRIEF: Peter D. Keisler, Assistant Attorney General, Thomas M.
DiBiagio, United States Attorney, Mark B. Stern, Appellate Staff,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Richard J. Hipolit, Deputy Assistant General
Counsel, Martin J. Sendek, DEPARTMENT OF VETERANS
AFFAIRS, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
SHEDD, Circuit Judge:
Plaintiffs Patrick Griffin, Sons of Confederate Veterans, Inc.
("SCV"), and Point Lookout Prisoner of War Association ("PLPOW")
brought First Amendment challenges to Department of Veterans
Affairs ("VA") regulations that prohibit "partisan activities" and "ora-
tions" at national cemeteries. The district court granted summary
judgment in favor of the VA, holding that the regulations, as applied
to the plaintiffs, are constitutional because they provide for reasonable
restrictions on speech in a non-public forum. For the reasons set forth
below, we affirm the judgment of the district court in part but hold
that the district court lacked jurisdiction to consider two of the plain-
tiffs’ claims on the merits.
GRIFFIN v. DEP’T OF VETERANS AFFAIRS 3
I.
Point Lookout Confederate Cemetery is administered by the VA
and is located near the former Point Lookout Prison Camp, where
Union forces held Confederate prisoners during the Civil War. For
approximately the last twenty years, SCV and PLPOW have held for-
mal Confederate memorial ceremonies at the cemetery. In accordance
with Congress’ instructions that national cemeteries "shall be consid-
ered national shrines as a tribute to our gallant dead," 38 U.S.C.
§ 2403(c), the VA regulates "demonstrations" at its facilities, provid-
ing as follows:
(i) All visitors are expected to observe proper standards of
decorum and decency while on VA property. Toward this
end, any service, ceremony, or demonstration, except as
authorized by the head of the facility or designee, is prohib-
ited. Jogging, bicycling, sledding and other forms of physi-
cal recreation on cemetery grounds is [sic] prohibited.
(ii) For the purpose of the prohibition expressed in this
paragraph, unauthorized demonstrations or services shall be
defined as, but not limited to, picketing, or similar conduct
on VA property; any oration or similar conduct to assem-
bled groups of people, unless the oration is part of an autho-
rized service; the display of any placards, banners, or
foreign flags on VA property unless approved by the head
of the facility or designee; disorderly conduct such as fight-
ing, threatening, violent, or tumultuous behavior, unreason-
able noise or coarse utterance, gesture or display or the use
of abusive language to any person present; and partisan
activities, i.e., those involving commentary or actions in
support of, or in opposition to, or attempting to influence,
any current policy of the Government of the United States,
or any private group, association, or enterprise.
38 C.F.R. § 1.218(a)(14) (emphasis added). Unauthorized demonstra-
tions or ceremonies on the premises of a national cemetery are pun-
ishable by removal from the premises and a $250 fine. Id. § 1.218(b).
During preparations for the 2002 ceremony, Griffin submitted pro-
posed remarks to the VA, in which he criticized its policy of limiting
4 GRIFFIN v. DEP’T OF VETERANS AFFAIRS
the flying of the Confederate flag at national cemeteries to two days
a year. Griffin’s proposed speech said, "The soldiers here at Point
Lookout deserve to have the banner they fought and died under flying
over their graves every day as a symbol of their honor, courage, con-
temporary decency, and respect for their memory and spirit." Griffin
also intended to speak about inadequate maintenance at the cemetery,
asserting that "it would appear as though Veterans Administration
officials are honoring our heroic ancestors with a deliberate program
of demolition by neglect" and that "perhaps the Veterans Administra-
tion would have some funds for this cemetery if it weren’t too busy
using our tax dollars to defend pernicious rules aimed squarely at dis-
respecting our Confederate ancestors."
In response to Griffin’s submitted remarks, the VA’s General
Counsel wrote Griffin’s lawyer saying, "As the Point Lookout Con-
federate Cemetery is a shrine to honor the dead, it would be inappro-
priate for your client to include in his remarks political statements."
The letter also said that the VA "expected" Griffin to "revise his pro-
posed remarks and limit them to paying tribute to those who rest
within the hallowed grounds of Point Lookout Confederate Ceme-
tery." On the same day, Deputy Under Secretary Roger Rapp wrote
the SCV indicating that if Griffin delivered his proposed remarks, the
SCV’s ability to hold future ceremonies would be jeopardized.1
In hopes of delivering the speech as originally proposed, the plain-
tiffs filed the underlying complaint and applied for a temporary
restraining order ("TRO") the day before the 2002 memorial service.
The district court denied the petition for a TRO, and Griffin delivered
a revised version of the speech. At the ceremony, however, Father
Alister Anderson gave a speech that the VA had not screened, in
which he referred, among other things, to the "rise of uncontrolled
feminism, the ugly, demonic sexual revolution and the ever-
increasing octopus-like domination and control of the federal govern-
ment." As a result, Under Secretary Rapp wrote the SCV for a second
1
This is the first of two letters that Rapp sent to the Camalier Camp,
the organization within the SCV that sponsors the ceremony. The Cama-
lier Camp, however, is not a party to this suit. Because the distinction
between the two organizations is not relevant for our purposes, we will
refer to the Camalier Camp as "SCV."
GRIFFIN v. DEP’T OF VETERANS AFFAIRS 5
time and expressed his view that Anderson’s remarks violated VA
regulations because they constituted partisan activities. Rapp also
objected to Anderson’s "commentary on current events" and his
expression of "personal views that were critical of a number of indi-
viduals and organizations." Rapp requested that, for future ceremo-
nies, the SCV provide brief summaries of the intended remarks of any
speakers.
Before the 2003 ceremony, Griffin again submitted proposed
remarks to the VA. The VA requested that Griffin edit the remarks
to delete comments regarding the VA’s Confederate flag policy,
including the sentences, "The government is surely right in allowing
our flag to fly here today," and "Especially in this place, the flag
should fly every day, just as it is doing this morning." The VA did
not object to the phrase, "[W]e are all aware that the battle flag has
been misused by various groups as a symbol so utterly unworthy of
what Confederate soldiers stood for and what they accomplished, that
its misuse constitutes an outright atrocity." The VA also failed to
object to Griffin’s description of the federal government’s treatment
of Confederate prisoners during the Civil War as "wrongful."
The plaintiffs subsequently filed an amended complaint seeking
injunctive and declaratory relief. The district court denied the plain-
tiffs’ request for injunctive relief and granted the VA’s motion for
summary judgment on the declaratory relief claims. This appeal fol-
lowed.
II.
Plaintiffs bring as-applied challenges to § 1.218(a)(14), arguing
that (1) the "partisan activities" prohibition violates their First
Amendment rights to engage in formal speech; (2) the "partisan activ-
ities" and "orations" prohibitions violate their First Amendment rights
to engage in informal speech; (3) the prohibitions in Rapp’s letter2
regarding "personal views" and "commentary on current events" vio-
late the First Amendment and are improperly promulgated regula-
2
Here, we refer to the second letter that Rapp sent to the SCV. To the
extent plaintiffs are still pursuing any claim regarding Rapp’s first letter,
we address that claim in note 5 infra.
6 GRIFFIN v. DEP’T OF VETERANS AFFAIRS
tions; and (4) the VA’s requirement that proposed remarks be
submitted prior to the ceremony is an unconstitutional prior restraint.3
We review the district court’s grant of summary judgment de novo,
viewing the facts and all reasonable inferences drawn therefrom in the
light most favorable to the plaintiffs. See Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986).
A.
We first address plaintiffs’ formal speech claims. The district court
found, and the parties agree, that the cemetery is a non-public forum.
The government may reserve a non-public forum for its intended pur-
pose, and speech restrictions will be upheld if they are reasonable and
viewpoint-neutral. Perry, 460 U.S. at 46; Griffin I, 274 F.3d at 820.
A reasonable restriction "need not be the most reasonable or the only
reasonable limitation." Cornelius v. NAACP Legal Def. and Educ.
Fund, Inc., 473 U.S. 788, 808 (1985). We determined in Griffin I that
the purpose of the cemetery is "to honor, as Americans, in tranquil
and nonpartisan surroundings, those who have given their lives to the
Nation." 274 F.3d 818, 821. With this purpose in mind, we will
uphold the VA’s application of the regulation if done in a reasonable
and viewpoint-neutral manner.
1.
The plaintiffs argue that the VA applied its speech restrictions
unreasonably in light of the fact that the VA allowed the display of
the Confederate flag on the day of the ceremony. Because the VA
restricts the flying of the Confederate flag to two days a year, in an
apparent recognition of the contentious nature of the flag, the plain-
3
Plaintiffs also mounted facial challenges in their complaint. The dis-
trict court, however, only addressed the as-applied claims because the
Federal Circuit previously held § 1.218(a)(14) constitutional on its face.
See Griffin v. Sec’y of Veterans Affairs ("Griffin II"), 288 F.3d 1309(Fed. Cir. 2002). To the extent that plaintiffs assert facial challenges on
appeal, we do not have jurisdiction to consider them. See 38 U.S.C.
§ 502 (conferring exclusive jurisdiction on the Federal Circuit to hear
challenges to VA rulemaking); Griffin v. Dep’t of Veterans Affairs
("Griffin I"), 274 F.3d 818, 825 (4th Cir. 2001).
GRIFFIN v. DEP’T OF VETERANS AFFAIRS 7
tiffs contend that the VA necessarily opens the forum to discussion
of this issue on the day of the ceremony and, accordingly, may not
restrict plaintiffs’ speech.
We find that this argument lacks merit. By allowing the Confeder-
ate flag to fly on the day of the ceremony, the VA did not abandon
its statutory directive that national cemeteries are to serve as "shrines
to our gallant dead" nor did it undermine the cemetery’s purpose of
honoring the dead soldiers in "tranquil and nonpartisan surroundings."
To the contrary, the VA simply accommodated the plaintiffs by
allowing them to display the Confederate flag in commemoration of
the soldiers buried at the cemetery. Because the VA’s action favored
the plaintiffs, it cannot be the very thing that renders the VA’s imple-
mentation of § 1.218(a)(14) unreasonable as to these same plaintiffs.
The plaintiffs also argue that the VA’s application of the regulation
was unreasonable because the VA did not demonstrate how Griffin’s
proposed remarks and Anderson’s comments threaten the cemetery’s
intended use. This argument fails, however, because the Supreme
Court has said that no such determination is necessary regarding non-
public forums. See Perry, 460 U.S. at 52 n.12 ("We have not required
that [proof of past disturbances or likelihood of future disturbances]
be present to justify the denial of access to a non-public forum on
grounds that the proposed use may disrupt the property’s intended
function."). Because the VA is not required to make this showing, and
the plaintiffs have pointed to no other evidence that the VA acted
unreasonably, we find that the VA’s application of § 1.218(a)(14) as
to the plaintiffs was reasonable.
2.
The plaintiffs argue that the VA engaged in viewpoint discrimina-
tion by objecting to pro-flag statements in Griffin’s proposed speech
for the 2003 ceremony while failing to object to other partisan state-
ments in the same speech. For example, the VA did not object to Grif-
fin’s reference to "wrongful former policies of the federal government
in regard to the treatment of Confederate prisoners." The VA also
failed to object to Griffin’s criticism of groups that have "misused"
the Confederate flag. The plaintiffs therefore contend that the VA
applied the regulation selectively to squelch their pro-flag speech.
8 GRIFFIN v. DEP’T OF VETERANS AFFAIRS
As to Griffin’s comment about "wrongful former policies," the reg-
ulation, which has already been upheld on a facial challenge, clearly
does not apply. By its terms, § 1.218(a)(14) prohibits "commentary or
actions in support of, or in opposition to . . . any current policy of the
Government of the United States or any private group, association, or
enterprise." (emphasis added). Because Griffin was referring to a "for-
mer" policy of the government, the regulation is inapplicable. As to
Griffin’s reference to the "misuse" of the Confederate flag, however,
we find that these comments would likely fall under the purview of
the regulation because Griffin criticized current policies of private
groups. Indeed, the VA would have been justified in striking this lan-
guage as well. But the plaintiffs’ argument in this regard suffers from
a fundamental defect: their remedy, if anything, would be for the VA
to strike even more of their speech, rather than allowing all speech.
Under the regulation, partisan activities are prohibited, and the plain-
tiffs cannot seriously contend that they should be allowed to make
any statement they wish, no matter how partisan, if the VA errs on
the side of allowing speech when reviewing proposed remarks. We
are unpersuaded, therefore, that the VA has applied § 1.218(a)(14) in
such a way as to discriminate against a particular viewpoint. Accord-
ingly, we hold that the district court correctly granted summary judg-
ment for the VA on the plaintiffs’ formal speech claims.
B.
We turn next to the plaintiffs’ argument that § 1.218(a)(14) violates
the plaintiffs’ First Amendment rights to engage in informal speech.
The crux of the plaintiffs’ informal speech claims is that the "partisan
activities" and "orations" prohibitions of the regulation apply to infor-
mal gatherings, and thus, interfere with their practice of gathering in
small groups to deliver prayers or tributes to Confederate soldiers.
Although the VA has not applied the regulation to plaintiffs’ informal
speech, the plaintiffs argue that they have standing under Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (hold-
ing that where the "plaintiff has alleged an intention to engage in a
course of conduct arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat of prosecu-
tion thereunder, he should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief").
GRIFFIN v. DEP’T OF VETERANS AFFAIRS 9
While not expressly ruling on the question whether the plaintiffs
have standing to assert their claims regarding informal speech, the
district court determined that the plaintiffs’ arguments failed under
the Federal Circuit’s decision in Griffin II.4 We conclude, however,
that the district court lacked jurisdiction to consider the merits of
these claims because the plaintiffs have failed to establish a "credible
threat" that the VA will seek to enforce the regulation against infor-
mal speech. In fact, the VA takes the position before this court that
"informal, impromptu discussions among small groups of people
plainly are not the same thing as orations to assembled groups." Thus,
plaintiffs have failed to demonstrate a "threatened injury that is con-
crete and particularized," Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992), and have failed to set forth justiciable claims. We
therefore vacate the district court’s judgment on the informal speech
claims and remand with instructions that they be dismissed.
C.
We next address plaintiffs’ claim that Rapp’s second letter to
Camalier Camp, written in response to Anderson’s speech at the 2002
ceremony, improperly promulgated new regulations and that these
regulations violate the First Amendment. In his letter, Rapp objected
to Anderson’s "commentary on current events" and expression of
"personal views that were critical of a number of individuals and
organizations." The district court determined that the VA never
applied Rapp’s letter to the plaintiffs, and accordingly, they failed to
present a proper as-applied challenge. The district court also deter-
mined that Rapp’s letter did not create additional restrictions on
speech, but instead explained why Anderson’s speech was unaccept-
able under the terms of § 1.218(a)(14).
We need not decide whether Rapp’s letter set forth new regulations
or, if so, whether they were improperly promulgated, because the
plaintiffs have not presented any evidence that the VA ever used the
4
There, in rejecting a facial challenge to § 1.218(a)(14), the court said
that "visitors of ordinary intelligence reading § 1.218(a)(14) would
understand what behavior was expected of them on VA property—
particularly on the grounds of a national cemetery." Griffin II, 288 F.3d
at 1330.
10 GRIFFIN v. DEP’T OF VETERANS AFFAIRS
terms of the letter to restrict speech. Rapp’s letter was a response to
Anderson’s speech at the 2002 ceremony, and the VA, therefore,
could not have restricted speech at that ceremony based on a letter
written after its occurrence. Moreover, in objecting to portions of
Griffin’s speech at the 2003 ceremony, the VA made no reference to
Rapp’s letter, relying solely on § 1.218(a)(14). Thus, the plaintiffs
cannot demonstrate that they have been injured by the VA’s applica-
tion of any term in Rapp’s letter. Nor have they established a "credi-
ble threat" of prosecution under Babbitt because even if the VA plans
to enforce the terms of Rapp’s letter against them in the future, the
screening procedure ensures that the plaintiffs will not be forced to
subject themselves to criminal prosecution as the only means of seek-
ing relief. Because the plaintiffs lack standing, we vacate the district
court’s judgment on these claims and remand with instructions that
they be dismissed.5
D.
Finally, we address the plaintiffs’ claim that the VA, by requiring
plaintiffs to submit proposed remarks to the VA prior to the cere-
mony, engaged in an unconstitutional prior restraint. The plaintiffs,
relying on Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S.
569, 576 (1987), argue that this requirement violates the First Amend-
ment because it places unbridled discretion in the hands of VA offi-
cials. We conclude, however, that to the extent the plaintiffs bring an
as-applied challenge, there is no indication in the record that VA offi-
5
In their complaint, the plaintiffs also challenged the first letter written
by Rapp, which was never addressed by the district court. In that letter,
Rapp objected to "political statements" in Griffin’s proposed remarks for
the 2002 ceremony. Because Griffin amended his remarks in response to
this letter, it appears that the plaintiffs would have standing to challenge
it. It is unclear, however, whether the plaintiffs argue on appeal that the
district court erred by not addressing this prior letter. To the extent that
they do, we conclude that such a challenge is without merit. Rapp’s use
of the word "political" was clearly meant to be synonymous with the
term "partisan," and in any event, § 1.218(a)(14) explicitly provides that
the list of activities included in the term "unauthorized demonstration" is
nonexclusive. Moreover, the VA’s application of § 1.218(a)(14) to Grif-
fin’s proposed speech at the 2002 ceremony was reasonable in light of
the clearly partisan remarks that Griffin intended to make.
GRIFFIN v. DEP’T OF VETERANS AFFAIRS 11
cials looked to anything other than the terms of § 1.218(a)(14) in
objecting to the plaintiffs’ speech—terms which have been upheld on
a facial challenge. Moreover, when considered in light of the forum’s
purpose of honoring those who gave their lives to the nation in tran-
quil and nonpartisan surroundings, Griffin I, 274 F.3d at 821, this
requirement was a reasonable response to the partisan remarks deliv-
ered by Anderson at the 2002 memorial service. To the extent that the
plaintiffs bring a facial attack, we are without jurisdiction to consider
it. See 38 U.S.C. § 502.
III.
For the foregoing reasons, we affirm the judgment of the district
court in part, vacate in part, and remand for proceedings consistent
with this opinion.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED