Preminger v. Principi ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN R. PREMINGER and SANTA 
CLARA COUNTY DEMOCRATIC
CENTRAL COMMITTEE,
Plaintiffs-Appellants,
v.
No. 04-16981
ANTHONY J. PRINCIPI, as Secretary
of Veterans Affairs and in his  D.C. No.
CV-04-02012-JF
personal capacity; ELIZABETH
FREEMAN, as Director of the Palo OPINION
Alto Health Care System and in
her personal capacity; HELEN
GIRTON; SACHA POULENZ; and
MYREL WILLEFORD,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding
Argued and Submitted
May 9, 2005—San Francisco, California
Filed August 25, 2005
Before: Michael Daly Hawkins and Susan P. Graber,
Circuit Judges, and James V. Selna,* District Judge.
Opinion by Judge Graber;
Concurrence by Judge Selna
*The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
11533
PREMINGER v. PRINCIPI 11537
COUNSEL
Michael M. Markman, Heller Ehrman White & McAuliffe
LLP, Menlo Park, California, for the plaintiffs-appellants.
Owen P. Martikan, Assistant United States Attorney, San
Francisco, California, for the defendants-appellees.
OPINION
GRABER, Circuit Judge:
The Santa Clara County Democratic Central Committee
and its chair, Steven Preminger, are Plaintiffs in this action.
They challenge the Department of Veterans’ Affairs’ (“VA”)
exclusion of Preminger and others from VA premises when
they tried to register resident veterans to vote. Plaintiffs claim
that the VA regulation used to justify their expulsion, which
prohibits partisan activities on VA premises, violates the First
Amendment. The district court denied Plaintiffs’ request for
a preliminary injunction against Defendants, the Department
of Veterans’ Affairs and several of its employees. We hold
11538 PREMINGER v. PRINCIPI
that the district court did not abuse its discretion in concluding
that Plaintiffs failed to demonstrate probable success on the
merits of their claim and, therefore, affirm the denial of a pre-
liminary injunction.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2004, about six months before the November 2004
presidential election, Preminger and his lawyer, Scott Raf-
ferty, along with another California resident, visited the VA
Menlo Park Campus with the intent to register voters. The
Campus provides care for elderly, homeless, disabled, and
psychologically impaired veterans. The veterans are housed in
numerous buildings, including Building 331, which provides
long-term nursing home care for up to 150 residents.
The April 2004 visit was not Rafferty’s first. On earlier
occasions, he had tried to register voters but had been denied
access by VA employees. Rafferty apparently had been dis-
ruptive and confrontational with the VA staff when he was
told that he could not register voters on the premises. After his
first attempt was rebuffed, Rafferty contacted various VA
officials and sought their advance permission to register vot-
ers at the Campus. Eventually, the Director of the Palo Alto
Health Care System, which oversees the Campus, granted
Rafferty permission to register voters on the Campus provided
that his actions did not interrupt patient care and that the
unit’s nursing manager agreed.
Despite this advance permission, when Preminger and Raf-
ferty entered Building 331 in April 2004, a VA employee rec-
ognized Rafferty and told the group to leave. The employee
then called the VA police, who briefly stopped the men in the
parking lot.
After the April incident, Plaintiffs filed this action chal-
lenging the VA’s refusal to allow them to register voters on
the Campus. Plaintiffs sought a preliminary injunction to pro-
PREMINGER v. PRINCIPI 11539
hibit the VA from (1) enforcing 38 C.F.R. § 1.218(a)(14), the
VA regulation that bans partisan activity on VA premises; (2)
conditioning the right to visit VA premises on a person’s
expressed or assumed political affiliation or conduct; (3)
requiring prior authorization for political expression by visi-
tors; and (4) interfering with the receipt of political contribu-
tions on VA grounds.1 After a hearing, the district court
denied Plaintiffs’ motion. The court analyzed Plaintiffs’ claim
as an as-applied challenge to the regulation, rather than a
facial one, and held that Rafferty’s alleged inappropriate con-
duct justified Plaintiffs’ exclusion from the Campus.
Plaintiffs timely appeal the denial of their motion for a pre-
liminary injunction.
STANDARDS OF REVIEW
We review for abuse of discretion a district court’s order
denying a preliminary injunction. Sw. Voter Registration
Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003)
(en banc) (per curiam). Our review is limited, affording the
district court’s decision considerable deference. Id. We will
reverse if the district court relied on an erroneous legal stan-
dard or clearly erroneous findings of fact. Sammartano v.
First Judicial Dist. Court, 303 F.3d 959, 964 (9th Cir. 2002).
We may affirm a decision by the district court on any ground
supported by the record, even if the district court’s reasoning
differs from our own. Atel Fin. Corp. v. Quaker Coal Co., 321
F.3d 924, 926 (9th Cir. 2003) (per curiam).
1
Plaintiffs allege that the VA stopped them from collecting unsolicited
political contributions on VA premises, but they have not briefed the
issue. Accordingly, we do not address it further. Collins v. City of San
Diego, 841 F.2d 337, 339 (9th Cir. 1988).
11540 PREMINGER v. PRINCIPI
DISCUSSION
A. Jurisdiction
Before we address the merits of Plaintiffs’ claim, we must
first consider a threshold jurisdictional issue. Plaintiffs mount
both a facial and an as-applied First Amendment challenge to
VA regulation 38 C.F.R. § 1.218(a)(14),2 which bans partisan
activity. The district court held that, although it retained juris-
diction to review an as-applied challenge to 38 C.F.R.
§ 1.218(a)(14), it lacked jurisdiction to review a facial chal-
lenge to the regulation. We agree.
[1] Generally, a federal court may review a facial challenge
to a regulation promulgated by an agency under its broad
federal-question jurisdiction. See 5 U.S.C. § 703 (providing
2
The relevant text of the regulation provides:
(14) Demonstrations.
(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 prohibited. Jogging, bicy-
cling, sledding and other forms of physical recreation on ceme-
tery grounds is prohibited.
(ii) For the purpose of the prohibition expressed in this para-
graph, unauthorized demonstrations or services shall be defined
as, but not limited to, picketing, or similar conduct on VA prop-
erty; any oration or similar conduct to assembled groups of peo-
ple, unless the oration is part of an authorized service; the display
of any placards, banners, or foreign flags on VA property unless
approved by the head of the facility or designee; disorderly con-
duct such as fighting, threatening, violent, or tumultuous behav-
ior, unreasonable 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.
(Emphasis added.)
PREMINGER v. PRINCIPI 11541
for judicial review of agency proceedings in any court of
competent jurisdiction in the absence of another congressio-
nally mandated review process). But when Congress provides
for a “special statutory review proceeding” in one specific
court, challenges to the administrative action must take place
in the designated forum. Id. We face just such a situation
because Congress has designated a judicial review path for
challenges to VA regulations under 38 U.S.C. § 502.3[2] Section 502 gives the Federal Circuit exclusive jurisdic-
tion to review challenges to most actions by the Secretary of
Veterans’ Affairs. In particular, § 502 applies to (1) actions
that require publication in the Federal Register, such as rules
of procedure, substantive rules of general applicability, state-
ments of general policy, and amendments, revisions, or
repeals to those actions, under 5 U.S.C. § 552(a)(1); and (2)
agency rulemaking, under 5 U.S.C. § 553. Thus, Congress
explicitly has provided for judicial review of direct challenges
to VA rules and regulations only in the Federal Circuit. See
Chinnock v. Turnage, 995 F.2d 889, 893 (9th Cir. 1993)
(“Under 38 U.S.C. § 502, VA rulemaking is subject to judicial
review only in the Federal Circuit.”); Hall v. U.S. Dep’t Vet-
erans’ Affairs, 85 F.3d 532, 534 (11th Cir. 1996) (per curiam)
(holding that a direct facial constitutional attack on a VA reg-
ulation must be pursued in the Federal Circuit). The VA regu-
lation at issue here, 38 C.F.R. § 1.218, was added as an
amendment to an already existing rule, and it was published
in the Federal Register as required by 5 U.S.C. § 552(a)(1)(E).
See 50 Fed. Reg. 29,226, 29,226 (July 18, 1985) (“These reg-
ulation amendments clarify and update the rules governing the
3
The statute provides in part:
An action of the [VA] Secretary to which section 552(a)(1) or
553 of title 5 (or both) refers . . . is subject to judicial review.
Such review shall be in accordance with chapter 7 of title 5 and
may be sought only in the United States Court of Appeals for the
Federal Circuit.
(Emphasis added.)
11542 PREMINGER v. PRINCIPI
standards of conduct on property under the charge and control
of the VA . . . .”). Accordingly, any direct challenge to its
validity must be brought in the Federal Circuit.
Although we are statutorily barred from reviewing a facial
challenge to a VA regulation, we retain jurisdiction to review
an as-applied challenge. The application of a rule that is
deemed to be (or that the Federal Circuit has held to be) valid
to a particular party or individual is neither rulemaking nor an
action by the Secretary that requires notice and publication.
See Griffin v. Dep’t of Veterans Affairs, 274 F.3d 818, 820
(4th Cir. 2001) (“Griffin II”) (reviewing the constitutionality
of VA regulation 38 C.F.R. § 1.218 as applied to the parties).
In fact, the Fourth Circuit has reviewed a similar First
Amendment challenge to the same regulation at issue here, 35
C.F.R. § 1.218(a)(14). In Griffin v. Dep’t of Veterans Affairs,
129 F. Supp. 2d 832, 836 (D. Md. 2001) (“Griffin I”), the
plaintiff filed a motion for a preliminary injunction to stop the
VA from prohibiting him, under § 1.218(a)(14), from display-
ing a Confederate flag at a VA-run cemetery. The district
court held that it lacked jurisdiction to review a facial chal-
lenge to the regulation. Griffin I, 129 F. Supp. 2d at 837. The
court did, however, exercise jurisdiction over the plaintiff’s
as-applied challenge. Id. at 837-38. On review, the Fourth
Circuit did not disturb the district court’s holding that it
lacked jurisdiction to hear a facial challenge, and went on to
analyze the VA regulation’s application to the plaintiff. Grif-
fin II, 274 F.3d at 820. Thereafter, the plaintiff brought suit
in the Federal Circuit to challenge the constitutionality of the
regulation on its face. Griffin v. Sec’y of Veterans Affairs, 288
F.3d 1309, 1316 (Fed. Cir. 2002) (“Griffin III”). Thus, plain-
tiffs have available judicial avenues in which to bring both as-
applied and facial challenges to VA regulations.
Plaintiffs argue that, even if the district court lacked juris-
diction to review a facial challenge to § 1.218, it nonetheless
erred by failing to transfer that portion of the case to the Fed-
PREMINGER v. PRINCIPI 11543
eral Circuit under 28 U.S.C. § 1631. Section 1631 requires a
court that is without jurisdiction to hear a case to transfer that
case to the correct forum if the interests of justice so demand.4
We review for abuse of discretion the court’s decision not to
transfer the case. Taylor v. Soc. Sec. Admin., 842 F.2d 232,
233 (9th Cir. 1988).
[3] The Federal Circuit already has reviewed a facial chal-
lenge to § 1.218 and has held that the regulation is not uncon-
stitutional on its face. Griffin III, 288 F.3d at 1331. Moreover,
Plaintiffs could have followed the same procedure as the
plaintiff in Griffin, by asking that the VA waive or amend
§ 1.218(a)(14). If such a request had been made and denied,
Plaintiffs could have filed a separate action in the Federal Cir-
cuit to challenge the validity of the regulation. See Griffin III,
288 F.3d at 1317 (noting that the court had jurisdiction to
review a facial challenge to the regulation because the VA’s
refusal to waive or amend § 1.218(a)(14) was a final agency
action); Fed. Cir. Rule 47.12(a) (providing for review of
agency action under 38 U.S.C. § 502 within 60 days of a
denial of a request for amendment or waiver of a rule or regu-
lation). Because the issue already has been addressed by the
Federal Circuit and because Plaintiffs could have brought an
action themselves in the correct forum, the district court did
not abuse its discretion by declining to transfer the case. See
Hill v. U.S. Air Force, 795 F.2d 1067, 1070-71 (D.C. Cir.
1986) (per curiam) (noting that, in deciding whether to grant
or deny a motion to transfer, a court should consider timeli-
ness concerns for bringing suit in the alternate forum and
4
Title 28 U.S.C. § 1631 provides in part:
Whenever a civil action is filed in a court as defined in section
610 of this title or an appeal, including a petition for review of
administrative action, is noticed for or filed with such a court and
that court finds that there is a want of jurisdiction, the court shall,
if it is in the interest of justice, transfer such action or appeal to
any other such court in which the action or appeal could have
been brought at the time it was filed or noticed . . . .
11544 PREMINGER v. PRINCIPI
whether certain claims could still be heard in the original
forum).
Accordingly, we now turn to the merits of Plaintiffs’ as-
applied challenge to 38 C.F.R. § 1.218.
B. Preliminary Injunction Standards
To prevail on their motion for a preliminary injunction,
Plaintiffs must demonstrate “either: (1) a combination of
probable success on the merits and the possibility of irrepara-
ble harm; or (2) that serious questions are raised and the bal-
ance of hardships tips in [their] favor.” A&M Records, Inc. v.
Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). Both of
those approaches require us to assess the potential merits of
the parties’ positions and the harm or hardship that they will
face from a grant or denial of the preliminary injunction. Sam-
martano, 303 F.3d at 965. Finally, we review “whether the
public interest will be advanced by granting preliminary
relief.” Overstreet v. United Bhd. of Carpenters & Joiners,
Local Union No. 1506, 409 F.3d 1199, 1207 (9th Cir. 2005).
1. Building 331 is a Nonpublic Forum
[4] Plaintiffs contend that VA regulation 38 C.F.R. § 1.218violates their First Amendment right to free expression on
government property. In order to assess their claim, we first
must “identify the nature of the forum, because the extent to
which the Government may limit access depends on whether
the forum is public or nonpublic.” Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985).
[5] Public property, depending on its character, falls within
one of three main categories for purposes of First Amendment
analysis. Public fora are places, such as streets and parks, that
have traditionally been devoted to expressive activity. Perry
Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45
(1983). Content-based restrictions in public fora are justified
PREMINGER v. PRINCIPI 11545
only if they serve a compelling state interest that is narrowly
tailored to the desired end. Id. Designated public fora are
areas that the government affirmatively has opened to expres-
sive activity, and exclusion from these fora must also satisfy
strict scrutiny. Id. at 45-46. Nonpublic fora, areas that have
not traditionally or explicitly been open to expressive activity,
are subject to a more lenient standard. Id. at 46. Content-
based restrictions in nonpublic fora need only be “reasonable
and not an effort to suppress expression merely because pub-
lic officials oppose the speaker’s view.” Id.With that background, we must classify Building 331.5
5
The VA characterizes Plaintiffs’ motion as a request solely to enter
Building 331. Plaintiffs’ Complaint seeks access to “VA premises” and
mentions various buildings, parks and streets on the Campus. Plaintiffs
also confirmed this scope at argument. Accordingly, we understand Plain-
tiffs originally to have requested access to the Campus at large. See Cor-
nelius, 473 U.S. at 801 (noting that “[w]hen speakers seek general access
to public property, the forum encompasses that property,” but when the
access sought is limited, then the parameters of the forum are similarly cir-
cumscribed). But Plaintiffs’ mere mention of the parks and streets on the
Campus, areas generally considered traditional public fora, is insufficient
for us to classify them because the preliminary injunction record contains
insufficient detail. Areas that are traditionally considered public fora may
be classified as nonpublic depending on their location in conjunction with
other nonpublic fora and their purpose. See United States v. Kokinda, 497
U.S. 720, 728-29 (1990) (“[T]he location and purpose of a publicly owned
sidewalk is critical to determining whether such a sidewalk constitutes a
public forum.”). For example, we have held that postal sidewalks that are
separated from municipal sidewalks constitute a nonpublic forum. Monte-
rey County Democratic Cent. Comm. v. United States Postal Serv., 812
F.2d 1194, 1197 (9th Cir. 1987). At the preliminary injunction stage,
Plaintiffs have the burden of proof.
Even assuming a more complete preliminary injunction record, we
would not reach Plaintiffs’ additional claims. Plaintiffs did not clearly
argue in this court that the VA applied the regulation improperly to areas
other than Building 331 until their reply brief on appeal. That is too late.
Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1112 n.2 (9th Cir. 2001)
(noting that a court may consider an issue waived which is not raised in
an opening appellate brief). Accordingly, for the purposes of this appeal
we analyze only Plaintiffs’ exclusion from Building 331.
11546 PREMINGER v. PRINCIPI
Plaintiffs contend that Building 331 is a designated public
forum because the VA itself characterizes the lobby and
entrance ways as “public” and because the building acts as a
home for veterans.
[6] In a written guideline regarding partisan activity, the
VA has characterized the grounds, entrances, and lobbies of
VA premises as “public areas.” Campaigning and Other Parti-
san Political Activities on VA Premises: Guidelines. But the
VA’s reference to “public areas” does not automatically trans-
form those spaces into designated public fora for First
Amendment purposes. See Cornelius, 473 U.S. at 802 (noting
that, to create a designated public forum, the government
must have acted intentionally to open up the space for public
discourse). Moreover, the mere fact that veterans reside in
Building 331 does not render it a public forum — it is the
government’s purpose, not the forum’s users, that informs the
characterization of a forum. Designated public fora are not
created haphazardly, and the Supreme Court has found them
to exist only in places where the government has expressly
dedicated the property for expressive conduct. See, e.g., Wid-
mar v. Vincent, 454 U.S. 263, 267 (1981) (university meeting
facilities); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555
(1975) (municipal auditoriums). The purpose of Building 331
is not to facilitate public discourse; to the contrary, the VA
has established the facility to provide for veterans who require
long-term nursing care. Any meetings between those veterans
and their visitors are ancillary to the facility’s primary aim of
providing long-term nursing services to veterans. Conse-
quently, we conclude that Building 331 is a nonpublic forum.
2. Application of the Regulation was Reasonable and
Viewpoint Neutral
[7] The VA justified its exclusion of Plaintiffs under 38
C.F.R. § 1.218(a)(14). That regulation prohibits certain
expressive activity on VA premises, specifically, “partisan
activities,” which include “commentary or actions in support
PREMINGER v. PRINCIPI 11547
of, or in opposition to, or attempt[s] to influence, any current
policy of the Government of the United States, or any private
group, association, or enterprise.” For purposes of briefing
this appeal, Plaintiffs have assumed that their voter registra-
tion effort was a partisan activity. The VA’s restriction of
Plaintiffs’ expressive conduct in Building 331, a nonpublic
forum, does not violate the Constitution as long as it is (1)
“reasonable in light of the purpose served by the forum” and
(2) “viewpoint neutral.” Cornelius, 473 U.S. at 806.
a. Reasonableness
The reasonableness inquiry requires us to examine the
VA’s actions “in the light of the purpose of the forum and all
the surrounding circumstances.” Id. at 809. The VA must
have more than a rational basis for its actions; the restriction
must reasonably fulfill a legitimate need. Sammartano, 303
F.3d at 967. Yet, in a nonpublic forum, the restriction need
not constitute the least restrictive alternative available.
Swarner v. United States, 937 F.2d 1478, 1482 (9th Cir.
1991).
[8] The VA gave several reasons for excluding Plaintiffs in
light of Building 331’s purpose as a nursing home. Most per-
suasively, the VA argued that it excluded Plaintiffs in order
to prevent the appearance of partisan affiliation. See McCon-
nell v. Fed. Election Comm’n, 540 U.S. 93, 168 (2003) (not-
ing that voter registration confers significant benefits on
political candidates). In a nonpublic forum, the government
may restrict expressive activity so as to avoid the perception
that it favors one political group over another. See Cornelius,
473 U.S. at 809 (“[A]voiding the appearance of political
favoritism is a valid justification for limiting speech in a non-
public forum.”); Monterey County Democratic Cent. Comm.
v. United States Postal Serv., 812 F.2d 1194, 1199 (9th Cir.
1987) (holding that the Postal Service’s desire to remain free
from the “appearance of involvement in the political process”
is a reasonable justification for regulating expressive activity
11548 PREMINGER v. PRINCIPI
in a nonpublic forum). The VA cares for a large number of
veterans, some of whom live permanently on VA premises. In
an effort to avoid alienating any of the veterans who are
receiving treatment at its facilities, the VA reasonably could
conclude that limiting the appearance of partisan involvement
is critical to its ability to carry out its mission. Because the
VA has presented one clearly reasonable rationale for its deci-
sion to exclude Plaintiffs, we need not address the many other
reasons in support of its position.
b. Viewpoint Neutrality
Even if the application of § 1.218 to Plaintiffs is reason-
able, the VA must still show that it excluded Plaintiffs for
viewpoint-neutral reasons. The VA allows other groups that
it classifies as nonpartisan — for example, the League of
Women Voters — to register voters on VA premises. Plain-
tiffs assert that the VA’s exclusion of their voter registration
effort was motivated by the “nature of the message rather than
the limitations of the forum or a specific risk within that
forum,” Sammartano, 303 F.3d at 971, because both Plaintiffs
and the “nonpartisan” groups are engaging in partisan activity
by attempting to register voters. The VA counters that its
actions are viewpoint-neutral because it excludes all political
parties from registering voters on the Campus.
The contours of viewpoint neutrality analysis are often dif-
ficult to discern. See id. at 970 (“We freely admit that the
Supreme Court’s concept of viewpoint neutrality in First
Amendment jurisprudence has not been easy to understand.”).
In this instance though, we are aided by applicable precedents
from both the Supreme Court and this circuit.
[9] The Supreme Court has held that, in a nonpublic forum,
the government has “the right to make distinctions in access
on the basis of subject matter and speaker identity.” Perry
Educ. Assn., 460 U.S. at 49; id. at 49 n.9 (noting that a school
board’s decision to limit union access to a school’s internal
PREMINGER v. PRINCIPI 11549
mail system was viewpoint neutral because all unions, except
for the recognized bargaining representative of the teachers,
were excluded and there was no indication that the policy was
implemented to suppress a particular message). Even more
specifically, we have upheld a distinction very similar to the
one that Plaintiffs challenge here. The postal service enacted
a regulation that allowed only government agencies and non-
profit civic leagues to register voters, but excluded political
parties from doing the same. Monterey County, 812 F.2d at
1195. The local Democratic Party challenged that regulation,
claiming that it violated their First Amendment right to
engage in expressive conduct on government property. After
classifying the area to which the plaintiffs had requested
access as a nonpublic forum, we held that the restriction ban-
ning political parties from registering voters qualified as
viewpoint neutral. See id. at 1198-99 (“By excluding all parti-
san groups from engaging in voter registration — conduct
permitted by non-partisan groups — the Postal Service is not
granting to one side of a debatable public question a monop-
oly in expressing its views.” (internal quotation marks and
ellipses omitted) (emphasis added)).
[10] The VA asserts that it excludes all political parties and
there is nothing to suggest that the VA “intended to discour-
age one viewpoint and advance another.” Id. at 1198. In light
of Monterey County and the Supreme Court’s holding that, in
a nonpublic forum, distinctions on the basis of speaker iden-
tity are permissible, the district court did not abuse its discre-
tion by holding that Plaintiffs failed to demonstrate a
likelihood of success on the merits.
3. Plaintiffs Did Not Demonstrate Significant Irreparable
Harm
The preliminary injunction analysis does not end with a
review of the possible merits of Plaintiffs’ claim. We must
turn next to the potential for irreparable harm and to the bal-
ance of hardships that will result from a denial of Plaintiffs’
11550 PREMINGER v. PRINCIPI
motion. Overstreet, 409 F.3d at 1207. The smaller the proba-
bility of a plaintiff’s success, the greater must be the showing
of irreparable harm. A&M Records, 239 F.3d at 1013.
[11] Because the district court properly held, at the prelimi-
nary injunction stage, that Plaintiffs did not show a probabil-
ity of success on the merits, to prevail on their motion they
had to show significant irreparable harm. This they failed to
do. Their inability to register residents of Building 331 until
the outcome of a trial on the merits does not, on this record,
outweigh the VA’s legitimate interest in providing the best
possible care for veterans on the Campus and in maintaining
political neutrality for the benefit of Campus residents.
4. The Public Interest Does Not Require an Injunction
[12] Finally, we must consider the public interest. See
Westlands Water Dist. v. Natural Res. Def. Council, 43 F.3d
457, 459 (9th Cir. 1994) (“If the public interest is involved,
the district court must also determine whether the public inter-
est favors the [plaintiffs]”). “The public interest inquiry pri-
marily addresses [the] impact on non-parties rather than
parties.” Sammartano, 303 F.3d at 974. Generally, public
interest concerns are implicated when a constitutional right
has been violated, because all citizens have a stake in uphold-
ing the Constitution. See, e.g., id. (noting “the significant pub-
lic interest in upholding First Amendment principles”).
Because Plaintiffs have not shown a likelihood of success on
the merits of their First Amendment claim, because the VA
has a competing public interest in providing the best possible
care, in a politically neutral environment, for the veterans
seeking services from the Campus, and because other means
are available for registering resident veterans to vote, the pub-
lic interest does not require us to reverse the district court.
[13] To conclude, we cannot say, on this record, that the
district court abused its discretion by denying Plaintiffs’
motion for a preliminary injunction.
AFFIRMED.
PREMINGER v. PRINCIPI 11551
SELNA, District Judge, concurring:
I concur in the Judgment and in the Opinion with the
exception of Section B.2.b of the Discussion. I would affirm
the district court’s denial of the motion for a preliminary
injunction on the ground that it did not abuse its discretion.
Beardslee v. Woodford, 395 F.3d 1064, 1068 (9th Cir. 2005);
Playmakers LLC v. ESPN, Inc., 376 F.3d 894, 896 (9th Cir.
2004); Southwest Voter Registration Educ. Project v. Shelley,
344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam).