Steven Preminger v. Peake , 536 F.3d 1000 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN R. PREMINGER; SANTA 
CLARA COUNTY DEMOCRATIC
CENTRAL COMMITTEE,
Plaintiffs-Appellants,
v.
No. 08-15714
JAMES B. PEAKE, as Secretary of
Veterans Affairs and in his  D.C. No.
04-CV-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; MYREL
WILLEFORD,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted
June 12, 2008—San Francisco, California
Filed August 8, 2008
Before: Michael Daly Hawkins and Susan P. Graber,
Circuit Judges, and James V. Selna,* District Judge.
Opinion by Judge Graber
*The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
10139
PREMINGER v. PEAKE 10143
COUNSEL
Scott Rafferty, Washington, D.C., for the plaintiffs-appellants.
Owen P. Martikan, Assistant United States Attorney, San
Francisco, California, for the defendants-appellees.
OPINION
GRABER, Circuit Judge:
Plaintiffs Steven R. Preminger and the Santa Clara County
Democratic Central Committee appeal the district court’s dis-
missal, for lack of standing, of their First Amendment chal-
lenge to the Department of Veterans Affairs’ (“VA”) denial
of entry to one of their facilities for the purpose of registering
voters. We now hold that Preminger has standing. Nonethe-
10144 PREMINGER v. PEAKE
less, we affirm the judgment in favor of the VA because
Plaintiffs failed to demonstrate that the VA’s application of
38 C.F.R. § 1.218(a)(14) (“the Regulation”) to them violated
the First Amendment.
FACTUAL AND PROCEDURAL HISTORY
The VA’s Menlo Park campus provides care for elderly,
homeless, disabled, and psychologically impaired veterans.
The veterans reside in numerous buildings on the campus,
including Building 331, which provides skilled nursing care
for up to 150 residents. Many of the residents have severe
physical and mental health care needs.
Before his first visit to the campus, lawyer Scott Rafferty
contacted VA officials and obtained permission to register
veterans to vote. He later visited Building 331 but was denied
access to patients. He contacted VA officials again, advising
them of the problem he had encountered on his initial visit to
Building 331. The Director of the Palo Alto Health Care Sys-
tem, which includes the Menlo Park facility, confirmed in
writing that Rafferty had been granted permission to register
voters at the Menlo Park campus, provided that his actions not
interrupt patient care and that he obtain the permission of the
unit’s head nurse.
When Rafferty, along with Preminger and another Califor-
nia resident, returned to Building 331 with the intent to regis-
ter voters, Rafferty was wearing a “John Kerry” button and
introduced the group as being affiliated with the Democratic
Party when approached by a VA nurse. The nurse told the
group that they had to leave and then called the VA police.
When a VA police officer stopped the group in the parking
lot, Rafferty produced the letter from the Director, authorizing
him to register voters on the campus. Upon seeing the letter,
the police officer confirmed that they had permission to regis-
ter voters and said that they should not have been denied
access to Building 331. But the group did not attempt to
PREMINGER v. PEAKE 10145
return to Building 331 that day. Rafferty later contacted the
Director’s office. On that occasion, Rafferty learned that the
VA had revoked his permission to register voters on the
ground that the Regulation1 precluded “partisan activities” on
VA property.
Plaintiffs then filed this action, challenging on First
Amendment grounds the VA’s refusal to allow them to regis-
ter voters on the Menlo Park campus.2 They brought both
facial and as-applied challenges to the Regulation and sought
a preliminary injunction to prohibit the VA from enforcing
the Regulation.
The district court denied Plaintiffs’ request for a prelimi-
nary injunction and held that it lacked jurisdiction over Plain-
tiffs’ facial challenge to the Regulation because the Federal
Circuit had exclusive jurisdiction over that claim. We
affirmed. Preminger v. Principi (Preminger I), 422 F.3d 815,
821, 826 (9th Cir. 2005). Thereafter, Plaintiffs filed their
1
The Regulation proscribes, in relevant part:
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. . . .
(ii) For the purpose of the prohibition expressed in this para-
graph, unauthorized demonstrations or services shall be defined
as, but not limited to, . . . 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.
2
Plaintiffs raised a number of other claims before the district court,
which they do not raise on appeal.
In addition, the VA recently issued new guidelines under the Regula-
tion, including Directive 2008-025, which bars all voter registration drives
at VA facilities. The Regulation itself remains unchanged. Our opinion is
limited to the Regulation as applied to Plaintiffs on the Menlo Park cam-
pus in 2004.
10146 PREMINGER v. PEAKE
facial challenge in the Federal Circuit, and the Federal Circuit
rejected Plaintiffs’ facial challenge on the merits. Preminger
v. Sec’y of Veterans Affairs, 517 F.3d 1299, 1302-03 (Fed.
Cir. 2008).
Plaintiffs returned to the Northern District of California.
The district court held a three-day bench trial on Plaintiffs’ as-
applied First Amendment challenge to the Regulation. The
court concluded that the VA properly characterized Plaintiffs’
voter registration efforts as “partisan activities” within the
meaning of the Regulation and that the VA’s application of
the Regulation was both reasonable and viewpoint neutral.
But the district court also concluded that Plaintiffs lacked
standing to challenge the Regulation and dismissed the case
on that ground. Plaintiffs timely appealed, and we have juris-
diction pursuant to 28 U.S.C. § 1291.
DISCUSSION
A. Plaintiffs have standing.3
[1] The “irreducible constitutional minimum of standing”
consists of three elements: (1) injury in fact, (2) causation,
and (3) likelihood that a favorable decision will redress the
injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). Plaintiffs bear the burden of establishing standing. Id.
at 561.
[2] An “injury in fact” is “an invasion of a legally protected
interest” that is (a) “concrete and particularized”; and (b) “ac-
tual or imminent,” not “conjectural” or “hypothetical.” Id. at
560. “Injury in fact” is particularized if it has affected the
plaintiff in a “personal and individualized way.” Id. at 561
3
We review de novo questions of standing. Buono v. Norton, 371 F.3d
543, 546 (9th Cir. 2004). But we review for clear error the district court’s
underlying factual findings. Am.-Arab Anti-Discrimination Comm. v.
Thornburgh, 970 F.2d 501, 506 (9th Cir. 1991).
PREMINGER v. PEAKE 10147
n.1. The injury may be minimal. See Council of Ins. Agents
& Brokers v. Molasky-Arman, 522 F.3d 925, 932 (9th Cir.
2008) (holding that “ ‘an identifiable trifle’ ” is sufficient to
establish standing (quoting United States v. Students Chal-
lenging Regulatory Agency Procedures (SCRAP), 412 U.S.
669, 689 n.14 (1973)).
In an as-applied First Amendment challenge, the plaintiff
must identify some personal harm resulting from application
of the challenged statute or regulation. See, e.g., Foti v. City
of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998) (“An as-
applied challenge contends that the law is unconstitutional as
applied to the litigant’s particular speech activity, even though
the law may be capable of valid application to others.”). How-
ever, the question whether that harm constitutes “injury in
fact” is entirely distinct from the question whether that harm
amounts to a violation of the First Amendment. The standing
analysis focuses on the plaintiff and on whether harm to the
plaintiff is sufficient to give him or her the “requisite personal
interest” in a case. See Jacobs v. Clark County Sch. Dist., 526
F.3d 419, 425 (9th Cir. 2008) (discussing the “requisite per-
sonal interest” required for a plaintiff to have standing); see
also Vasquez v. L.A. County, 487 F.3d 1246, 1250 (9th Cir.)
(stating that the purpose of the “injury in fact” prong is to
ensure that “there is an advocate with a sufficient personal
concern to effectively litigate the matter” (internal quotation
marks omitted)), cert. denied, 128 S. Ct. 711 (2007). By con-
trast, the focus of the First Amendment analysis is on the gov-
ernment’s conduct, specifically, its rationale for imposing the
identified harm on the plaintiff. See, e.g., Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983)
(identifying the varying restrictions placed on government
regulation of expressive activity, depending on the forum).
Precisely because the test and the proof differ in those two
analyses, we often have held that a party had standing to bring
an as-applied First Amendment claim, yet failed to establish
that the government’s conduct violated the First Amendment.
See, e.g., Jacobs, 526 F.3d at 426, 441-42 (finding standing,
10148 PREMINGER v. PEAKE
but holding that a school’s uniform policy did not violate the
First Amendment).4
[3] Here, we have no trouble concluding that Preminger has
direct standing to bring an as-applied First Amendment chal-
lenge to the Regulation. When the group asked to register vet-
erans on the Menlo Park campus, the VA turned back
Preminger personally. The harm to Preminger therefore was
actual, concrete, and particularized. In addition, the VA
caused the harm to Preminger by barring him from registering
voters, and a favorable decision could redress the harm by
altering the VA’s registration policy. Because we conclude
that Preminger has direct standing to bring an as-applied chal-
lenge, we need not and do not consider whether the Santa
Clara County Democratic Central Committee has standing
and whether either Plaintiff has associational or third-party
standing. See Leonard v. Clark, 12 F.3d 885, 888 (9th Cir.
1993) (“The general rule applicable to federal court suits with
multiple plaintiffs is that once the court determines that one
4
Monterey County Democratic Central Committee v. United States
Postal Service, 812 F.2d 1194 (9th Cir. 1987), reviewed an as-applied
challenge to a regulation very similar to the one at issue here. In Monterey
County, the Postal Service had promulgated a regulation that allowed only
government agencies and nonprofit civic groups to register voters, but
barred political parties from doing so. Id. at 1195. The local postmaster
had denied the Committee’s request to register voters at the post office,
finding that the Committee was a partisan group that was not authorized
to conduct voter registration under the regulation. Id. Like Plaintiffs here,
the Committee challenged the regulation on the ground that it violated its
First Amendment right of free expression. Id. 1195-96. We held that the
Postal Service had not violated the Committee’s First Amendment right
because the Committee was unable to prove that the Postal Service had
applied the regulation in a discriminatory manner. Id. at 1198-99. In so
holding, we did not question the Committee’s standing to bring its as-
applied challenge. We did not require that the Committee prove, for stand-
ing purposes, that its First Amendment rights were infringed by the way
in which the Postal Service had enforced the Regulation at issue. Indeed,
had we required the Committee to provide such proof to establish stand-
ing, we would have dismissed the case on standing grounds.
PREMINGER v. PEAKE 10149
of the plaintiffs has standing, it need not decide the standing
of the others.”).
B. The VA’s application of the Regulation did not violate
the First Amendment.
[4] Plaintiffs contend that the VA’s denial of their request
to register voters in Building 331 violates their First Amend-
ment right to free expression.5 The VA justified its exclusion
of Plaintiffs from Building 331 under 38 C.F.R.
§ 1.218(a)(14). The Regulation prohibits certain expressive
activities on VA grounds, including “partisan activities.” That
term encompasses activities “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.”6 38
C.F.R. § 1.218(a)(14)(ii). The VA argues that this restriction
on activities on VA property is reasonable in light of the VA’s
mission and that Plaintiffs were excluded from Building 331
for viewpoint-neutral reasons.
Had the district court dismissed this action before trial, we
likely would have remanded the case to permit the district
court to consider the merits of Plaintiffs’ First Amendment
claim in the first instance. But the court held a three-day
bench trial on the claim before dismissing the action for lack
of standing. Consequently, there is a fully developed record
5
Plaintiffs alleged that they sought access to the Menlo Park campus at
large. Although Plaintiffs challenge the district court’s decision to limit
the trial to Plaintiffs’ efforts to register voters at Building 331, we see no
error in that decision. See infra Part C. We thus limit our analysis to events
at Building 331.
6
On appeal, Plaintiffs seem to suggest that the VA’s ban on voter regis-
tration by political parties exceeds the scope of the Regulation. But they
have not clearly and separately briefed this issue and it is, therefore, aban-
doned. See Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1182 (9th Cir. 2001)
(holding that issues raised in an appellate brief but not supported by argu-
ment are deemed abandoned).
10150 PREMINGER v. PEAKE
for us to review. Moreover, although the district court dis-
missed the case for lack of standing, the court also issued
Findings of Fact and Conclusions of Law that address the
merits of Plaintiffs’ First Amendment claim. Thus, we reach
the merits and hold that Plaintiffs failed to demonstrate that
the VA’s application of the Regulation to them violated the
First Amendment.7
1. Building 331 is a nonpublic forum.
[5] The parties do not dispute that voter registration is
speech protected by the First Amendment. But the privileges
afforded by the First Amendment are not absolute. See Hef-
fron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S.
640, 647 (1981) (“[T]he First Amendment does not guarantee
the right to communicate one’s views at all times and places
or in any manner that may be desired.”). The extent to which
the government may restrict access to a forum depends on the
nature of the forum chosen by the speaker. Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797
(1985); Perry Educ. Ass’n, 460 U.S. at 45-46.
[6] Fora are grouped into three categories. Public fora are
places such as streets and parks that traditionally have been
devoted to expressive activity; content-based restrictions in
public fora are justified only if they serve a compelling state
interest that is narrowly tailored to the desired end. Perry
Educ. Ass’n, 460 U.S. at 45. Designated public fora are areas
that the government affirmatively has opened to expressive
activity; exclusion from designated public fora also must
7
We review de novo the constitutionality of a federal regulation. Gonza-
lez v. Metro. Transp. Auth., 174 F.3d 1016, 1018 (9th Cir. 1999). We like-
wise review de novo a district court’s conclusions of law. Int’l Bhd. of
Teamsters v. N. Am. Airlines, 518 F.3d 1052, 1055 (9th Cir. 2008). We
review for clear error the district court’s findings of fact. Id. We may
affirm a district court’s judgment on any ground supported by the record,
even one on which the district court did not rely. Alvarado v. Table Moun-
tain Rancheria, 509 F.3d 1008, 1019 (9th Cir. 2007).
PREMINGER v. PEAKE 10151
serve a compelling state interest and be narrowly tailored to
that interest. Id. at 45-46. Nonpublic fora are areas that do not,
by tradition or designation, serve as a forum for public com-
munication; content-based restrictions in nonpublic fora need
only be “reasonable and not an effort to suppress expression
merely because public officials oppose the speaker’s view.”
Id. at 46.
[7] In our earlier decision in this case, we held that Build-
ing 331 is a nonpublic forum, Preminger I, 422 F.3d at 824,
and that holding remains the law of the case. See Ranchers
Cattlemen Action Legal Fund v. U.S. Dep’t of Agric., 499
F.3d 1108, 1114 (9th Cir. 2007) (stating that decisions at the
preliminary injunction phase generally do not constitute the
law of the case, but that conclusions of law made in that con-
text are binding). We also note that the Federal Circuit
reached the same conclusion in deciding Plaintiffs’ facial
challenge to the Regulation, holding that “VA Medical Cen-
ters, exemplified by the Menlo Park Medical Center, consti-
tute nonpublic fora.” Preminger, 517 F.3d at 1313. That being
so, the VA’s exclusion of Plaintiffs from Building 331 did not
violate the First Amendment if it was (1) “reasonable in light
of the purpose served by the forum,” and (2) “viewpoint neu-
tral.” Cornelius, 473 U.S. at 806.
2. The VA’s application of the Regulation was
reasonable.
[8] A restriction on expressive conduct in a nonpublic
forum must be reasonable “in the light of the purpose of the
forum and all the surrounding circumstances.” Id. at 809. The
government must proffer more than a rational basis for the
restriction; the restriction must reasonably fulfill “a legitimate
need.” Sammartano v. First Judicial Dist. Court, 303 F.3d
959, 967 (9th Cir. 2002). But the restriction need not consti-
tute the least restrictive alternative available. Swarner v.
United States, 937 F.2d 1478, 1482 (9th Cir. 1991).
10152 PREMINGER v. PEAKE
The district court found that the primary mission of the
VA’s Menlo Park facility is to provide veterans with needed
health care. The Federal Circuit, in deciding Plaintiffs’ facial
challenge, agreed. See Preminger, 517 F.3d at 1314 (“The
mission of the VA is to provide health care and services for
veterans and their families.”). Building 331 is a skilled nurs-
ing facility, all of whose residents have significant health care
needs, including both severe mental and physical disabilities,
that require ongoing medical management. The district court
also found that an essential aspect of the VA’s ability to pro-
vide quality patient care is the extent to which patients trust
their caregivers. Preminger does not challenge these findings,
and the record fully supports them.
[9] The VA offered two reasons for excluding Plaintiffs
from Building 331: (1) a concern that permitting one political
party to register voters would require the VA to permit all
other political parties to do so, which would disrupt and inter-
fere with patient care; and (2) a desire to prevent the appear-
ance of partisan affiliation, which would undermine patient
trust and therefore would compromise patient care. The dis-
trict court ruled that the VA’s concern that voter registration
drives could compromise its ability to provide health care ser-
vices to veterans was a reasonable rationale for denying Plain-
tiffs’ permission to register voters in Building 331. We agree.
[10] In a nonpublic forum, “[t]he First Amendment does
not forbid a viewpoint-neutral exclusion of speakers who
would disrupt a nonpublic forum and hinder its effectiveness
for its intended purpose.” Cornelius, 473 U.S. at 811. The res-
idents of Building 331 have significant health care needs and
require complex care. The VA reasonably concluded that
allowing one political party access to the Menlo Park campus
would invite requests from other political parties to do the
same and that supervising numerous voter registration cam-
paigns would be difficult and time-consuming, diverting
resources vital to the residents’ treatment. In light of the facil-
ity’s mission to provide skilled nursing care to its patients, the
PREMINGER v. PEAKE 10153
VA’s decision to exclude Plaintiffs was reasonable. See Cor-
nelius, 473 U.S. at 809-11 (concluding that excluding legal
defense and political advocacy groups from a federal employ-
ees’ charity drive was reasonable in light of the drive’s mis-
sion and the government’s interest in avoiding controversy
that could jeopardize the success of the charity drive).
[11] In addition, in a nonpublic forum, the government may
restrict expressive activity so as to avoid the perception of
favoring one political group over another. Id. at 809
(“[A]voiding the appearance of political favoritism is a valid
justification for limiting speech in a nonpublic forum.”). The
VA reasonably concluded that allowing individuals associated
with the Democratic Party to register voters on its campus
would give the appearance of favoring the Democratic Party
over other parties. Thus, the VA’s decision to exclude Plain-
tiffs in order to avoid violating the trust of its patients was
reasonable. See Monterey County, 812 F.2d at 1199 (“The
Postal Service reasonably could conclude that its freedom
from the appearance of involvement in the political process is
critical to its ability to carry out its charge.”).
3. The VA’s application of the Regulation was viewpoint
neutral.
At the time of the events at issue here, the VA allowed the
League of Women Voters to register voters on VA property.
Plaintiffs contend that the League engages in partisan activity
by seeking to register voters and by taking positions on public
policy issues and, therefore, that the VA’s exclusion of Plain-
tiffs’ must have been motivated by the VA’s desire to sup-
press the Democratic Party’s point of view. Plaintiffs also
contend that the VA has permitted individuals associated with
the Republican Party to register voters at the Menlo Park
facility. The VA counters that it never has knowingly permit-
ted individuals associated with a political party to register vot-
ers on the Menlo Park campus.
10154 PREMINGER v. PEAKE
[12] A restriction on expressive conduct in a nonpublic
forum must be viewpoint neutral. Cornelius, 473 U.S. at 811
(“The existence of reasonable grounds for limiting access to
a nonpublic forum, however, will not save a regulation that is
in reality a facade for viewpoint-based discrimination.”). But
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. Ass’n, 460 U.S. at 49, as long
as the distinctions are not “an effort to suppress expression
merely because public officials oppose the speaker’s view,”
id. at 46.
[13] In Monterey County, 812 F.2d at 1198-99, we held that
a restriction banning political parties from registering voters
in a nonpublic forum was viewpoint neutral. We reasoned
that, “[b]y excluding all partisan groups from engaging in
voter registration—conduct permitted by non-partisan groups
—the [government] [wa]s not granting to one side of a debat-
able public question a monopoly in expressing its views.” Id.
(internal quotation marks and ellipsis omitted). Here, Prem-
inger testified at trial that he went to Building 331 to register
voters as an individual, not as an official representative of the
Democratic Party. But the VA nurse who encountered Prem-
inger and Rafferty testified that Rafferty was wearing a Kerry
button and that he introduced Preminger to her as being affili-
ated with the local Democratic Party. The VA therefore rea-
sonably concluded that Preminger and Rafferty were affiliated
with a political party and that their voter registration cam-
paign was a partisan political activity. The key question,
therefore, is whether the VA excluded Plaintiffs because of
opposition to their views.
The two individuals who initially granted Rafferty permis-
sion to register voters testified at trial that Rafferty denied
being associated with a political party. They testified that, had
they known that he was associated with any political party,
they never would have granted him permission in the first
place. In addition, the nurse who denied Preminger and Raf-
PREMINGER v. PEAKE 10155
ferty access to Building 331 testified that she asked them to
leave not because of any particular opinion of the Democratic
Party, but because she believed that the appearance of politi-
cal neutrality was critical to patient care.
All of the VA personnel who appeared at trial testified that
neither they nor the VA itself ever had knowingly authorized
any political party to conduct voter registration at the Menlo
Park campus. The VA conceded that, in 2004, an individual
in another residential unit on the Menlo Park campus regis-
tered two fellow patients as Republicans. But the patient did
so without the VA’s knowledge or consent; indeed, when the
patient later sought permission to register other patients, the
VA denied the request because it represented partisan activity
and was both against VA policy and clinically unwise.
In addition, the district court did not clearly err in finding
that the VA did not knowingly permit “Republican opera-
tives” to register patients inside Building 347, a closed resi-
dential unit on the Menlo Park campus. Plaintiffs presented
evidence that several patients in Building 347 registered to
vote as Republican during September and October of 2004.
But this evidence fails to demonstrate who registered the
patients or that the VA was aware of any registration efforts.
[14] Finally, the VA’s decision to allow the League of
Women Voters to register voters was a permissible access dis-
tinction on the basis of speaker identity. By Plaintiffs’ own
admission, the purpose of the Santa Clara County Democratic
Central Committee is to promote the election of Democratic
Party candidates, to register Democratic voters, and to educate
and inform voters in ways that assist the Democratic Party.
The League, by contrast, is nonpartisan. Although it seeks to
influence public policy through education and advocacy, the
League neither endorses nor opposes candidates—including
partisan candidates—for office at any level of government.
Thus, permitting only the League to register voters comported
with the VA’s interests of limiting non-healthcare related
10156 PREMINGER v. PEAKE
activities in VA residential units and of maintaining an
appearance of partisan neutrality. As previously discussed, the
VA reasonably concluded that permitting Plaintiffs to register
voters would have advanced neither interest.
C. The district court did not abuse its discretion in limiting
discovery and the scope of the trial.
Plaintiffs challenge the district court’s decisions to close
discovery in January 2006, more than one year in advance of
trial, and to limit the scope of the trial to claims arising from
Plaintiffs’ efforts to register voters in Building 331. We find
no abuse of discretion.8
[15] Contrary to Plaintiffs’ assertion, the district court’s
January 2006 order did not close discovery definitively.
Instead, the order invited Plaintiffs to request additional dis-
covery if they believed that discovery was necessary to
oppose a future motion for summary judgment. There is noth-
ing in the record or in Plaintiffs’ opening brief to suggest that
they ever did so.
[16] In addition, at a pretrial hearing in March 2007, the
district court offered Plaintiffs the option of reopening discov-
ery and expanding the scope of the trial beyond Building 331
or of proceeding immediately on their claims concerning
Building 331 only. Plaintiffs chose to proceed to a trial lim-
ited to Building 331. The district court did not abuse its dis-
cretion in allowing Plaintiffs to make that choice.
8
We review for abuse of discretion a district court’s decisions concern-
ing discovery, Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th
Cir. 2004), and trial supervision, Price v. Kramer, 200 F.3d 1237, 1252
(9th Cir. 2000).
PREMINGER v. PEAKE 10157
D. The district court has not abused it discretion by failing
to decide Plaintiffs’ motion for sanctions.
Plaintiffs challenge the district court’s failure, to date, to
decide their November 2005 motion for sanctions against VA
counsel Owen Martikan. Plaintiffs allege that Martikan acted
in bad faith in presenting evidence about Rafferty that he
knew to be false and in failing to correct the record when
requested to do so. Again, we find no abuse of discretion.9
[17] Initially, the district court denied the motion for sanc-
tions conditionally, finding that disputed issues of material
fact required a trial. The court then postponed the trial at
Plaintiffs’ request so that they could pursue their facial chal-
lenge to the Regulation in the Federal Circuit.
[18] After the Federal Circuit ruled, this case revived. The
district court offered to make an express finding that, based
on the record, no evidence supported the VA’s allegations
about Rafferty. Plaintiffs rejected that offer. Instead, at trial,
they asked the district court again to postpone deciding the
motion, because they would withdraw it if they prevailed on
their as-applied challenge. The court did not issue its Memo-
randum of Intended Decision, indicating an intent to enter
judgment for the VA and inviting Plaintiffs to indicate
whether they still wished to proceed with the motion, until
January 28, 2008, to which Plaintiffs responded on February
5, 2008. The delay of the ensuing five months does not consti-
tute an abuse of discretion by the district court. See Atchison,
Topeka & Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071,
1074 (9th Cir. 1998) (stating the well-established principle
that “district courts have inherent power to control their dock-
ets” (internal quotation marks and alteration omitted)).
9
We review for abuse of discretion a district court’s decisions concern-
ing its management of litigation. FTC v. Enforma Natural Prods., Inc.,
362 F.3d 1204, 1212 (9th Cir. 2004).
10158 PREMINGER v. PEAKE
CONCLUSION
Plaintiffs had standing to bring their as-applied challenge,
but the VA’s application of the Regulation to them did not
violate the First Amendment.
AFFIRMED.