Griffin v. Department of Vet

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PATRICK G. GRIFFIN, III, an 
individual,
Plaintiff-Appellee,
v.
DEPARTMENT OF VETERANS AFFAIRS, a
Department of the United States
Government; ROGER R. RAPP, Acting  No. 01-1450
Under Secretary for Memorial
Affairs and Head of the National
Cemetery Administration; ROBIN
POHLMAN, Director, Point Lookout
Confederate Cemetery, an
individual, in her official capacity,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-00-2837-WMN)
Argued: October 30, 2001
Decided: December 17, 2001
Before WILKINS, LUTTIG, and GREGORY, Circuit Judges.
Reversed by published opinion. Judge Luttig wrote the opinion, in
which Judge Wilkins and Judge Gregory joined.
2 GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
COUNSEL
ARGUED: John Samuel Koppel, Appellate Staff, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellants. Michael F. Wright, CASE, KNOWLSON, JOR-
DAN & WRIGHT, Los Angeles, California, for Appellee. ON
BRIEF: Stuart E. Schiffer, Acting Assistant Attorney General, Ste-
phen M. Schenning, United States Attorney, Mark B. Stern, Appellate
Staff, Civil Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellants. Steven D. Campen, Stephen
S. Burgoon, CAMPEN & BURGOON, Frederick, Maryland, for
Appellee.
OPINION
LUTTIG, Circuit Judge:
Patrick Griffin brought suit in federal district court to compel the
Veterans Administration to permit him to fly the Confederate flag
daily over Point Lookout Confederate Cemetery, a national cemetery
administered by the Veterans Administration through the National
Cemetery Administration. The district court concluded that Griffin’s
proposed flag display constituted private speech in a nonpublic forum,
and held that the Veterans Administration’s asserted reasons for
excluding this speech were neither reasonable nor viewpoint neutral.
Accordingly, the district court enjoined the Veterans Administration
to permit Griffin to fly the Confederate flag at Point Lookout daily,
on a flag pole to be erected and maintained by Griffin. Because we
hold that the Veterans Administration’s denial of Griffin’s request is
both reasonable and viewpoint neutral, we reverse.
I.
The National Cemetery Administration ("NCA"), part of the Veter-
ans Administration ("VA"), operates 119 national cemeteries, includ-
ing Point Lookout Confederate Cemetery, which the federal
government acquired from the state of Maryland in 1910. Congress
requires that all national cemeteries "shall be considered national
GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS 3
shrines as a tribute to our gallant dead," 38 U.S.C. § 2403(c), and has
delegated to the Secretary of Veterans Affairs authority to make "all
rules and regulations which are necessary or appropriate to carry out"
this mandate, 38 U.S.C. § 2404(a).
A VA regulation, 38 C.F.R. § 1.218(a), broadly proscribes many
forms of expression, absent specific authorization, on all VA prop-
erty. It prohibits all "demonstration[s], except as authorized by the
head of the facility." This includes the "display of any placards, ban-
ners, or foreign flags," and also "partisan activities." Id. The VA sup-
plemented this general regulation with several more specific
directives related to flag displays at national cemeteries. Of particular
relevance to this case, the VA issued a formal directive, "Flags in VA
National Cemeteries" ("Old Flag Manual"), in 1995. J.A. 165-72. A
new directive ("New Flag Manual"), issued on April 30, 2001, after
the district court decided the case now before us, superseded the Old
Flag Manual.
Griffin requested permission to fly an historically accurate Confed-
erate flag over Point Lookout on August 30, 2000, and daily thereaf-
ter. J.A. 95-96. The VA refused Griffin’s requests, explaining that,
although its rules (set forth in the Old Flag Manual) allowed for dis-
play of the Confederate flag two days a year, it did not "believe that
additional displays of the Confederate flag at Point Lookout [were] in
keeping with the NCA’s mission." J.A. 97-98.
Dissatisfied, Griffin brought suit in district court, alleging that the
VA’s various flag restrictions were facially unconstitutional and
unconstitutional as applied to his specific request. Griffin moved for
a preliminary injunction, and the VA moved for summary judgment.
See Griffin v. Dep’t of Veterans Affairs, 129 F. Supp. 2d 832, 834 (D.
Md. 2001). The district court proceeded directly to a trial on the mer-
its, pursuant to Federal Rule of Civil Procedure 65. Id. at 837.
The court concluded that it lacked jurisdiction to hear Griffin’s
facial attack on 38 C.F.R. § 1.218(a)(14). Griffin, 129 F. Supp. 2d at837 (citing 38 U.S.C. § 502, which allows for judicial review of VA
rulemaking, but only in the Federal Circuit). It concluded, however,
that it did have jurisdiction over Griffin’s challenge to the regulation
as applied to his request through the Old Flag Manual. Id. at 838.
4 GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
The district court thereafter held that Point Lookout is a nonpublic
forum, id. at 839, and that the VA’s restrictions were neither reason-
able in light of the purpose of the forum nor viewpoint neutral, id. at
841-44. Accordingly, the district court entered a permanent injunc-
tion, ordering the VA to permit Griffin to fly the Confederate flag
daily, using his own equipment and labor. Id. at 839 n.9. This appeal
followed.
II.
The district court concluded, Griffin, 129 F. Supp. 2d at 840, and
the parties agree, that Point Lookout is a nonpublic forum. Restric-
tions on speech in such a forum must be both reasonable in light of
the purpose of the forum and viewpoint neutral. See, e.g., Cornelius
v. NAACP Legal Def. & Ed. Fund, Inc., 473 U.S. 788, 806 (1985).
As noted, the district court held that the VA’s restrictions meet neither
requirement. We address each in turn.1
A.
In order to assess the reasonableness of the Secretary’s restrictions,
we must first determine the purpose of Point Lookout, the relevant
forum. We agree with the VA that that purpose is to honor, as Ameri-
cans, in tranquil and nonpartisan surroundings, those who have given
1
Preliminarily, we note that the district court decided this case under
the Old Flag Manual. The parties agree, as do we, however, that the
appeal is not mooted by the adoption of the New Flag Manual. Griffin
claims a constitutional right to his requested display. The New Flag Man-
ual, like its predecessor, provides no mechanism by which Griffin could
seek such blanket approval. And the fact that the VA persists in litigating
this case confirms that it has no intention of acceding to Griffin’s
request. Moreover, Griffin’s claim, at least before this court, is that 38
C.F.R. § 1.218(a)(14) is unconstitutional as applied to him through the
Flag Manual, old or new. Because that regulation remains in effect and
the VA continues to deny his request, the appeal is not moot. See North-
ern Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jack-
sonville, 508 U.S. 656, 662 (1993) ("There is no mere risk that [the VA]
will repeat its allegedly wrongful conduct; it has already done so."); cf.
Valero Terrestrial Corp. v. Paige, 211 F.3d 112 (4th Cir. 2000) (holding
that substantial statutory revisions mooted case).
GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS 5
their lives to the Nation. We also conclude that the Secretary’s restric-
tions are reasonable both as a means of ensuring the integrity of the
VA’s own message (which, in this case, coincides with the purpose)
and, relatedly, as an effort to maintain the nature of the forum.
1.
The VA contends that the purpose of Point Lookout is to pay "trib-
ute to [the Confederate soldiers] as citizens of the United States,"
Appellant’s Reply Br. at 7. In confirmation of this purpose, the VA
directs us to 38 U.S.C. § 2403(c), in which Congress provided that
[a]ll national [cemeteries] shall be considered national
shrines as a tribute to our gallant dead and, notwithstanding
the provision of any other law, the Secretary is hereby
authorized to permit appropriate officials to fly the flag of
the United States of America at such cemeteries twenty-four
hours each day.
(Emphasis added). Congress’ evident concern that such cemeteries
"shall be considered national shrines" and its focus on "our gallant
dead," combined with its emphasis on the flying of the "flag of the
United States of America," all but inexorably lead to the conclusion
that Congress did, as the VA maintains, intend national cemeteries to
be places in which we honor "our gallant dead" as Americans.
Further, to implement and effectuate this statutory mandate, the
VA has promulgated various regulations designed to preserve these
cemeteries as quiet places in which to honor the American dead, free
from controversy and partisan conflict. See, e.g., New Flag Manual
(stating that "flags may not be displayed on NCA property as a means
of political activity or similar conduct that promotes any particular
viewpoint or ideology other than to commemorate military service");
38 C.F.R. § 1.218(a)(14) (limiting most forms of expression on VA
property).
Griffin, not surprisingly, argues that the purpose of Point Lookout
is to honor the Confederates buried at the Cemetery as Confederates
and that the district court made factual findings to that effect, which
6 GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
we may review only for clear error. The district court did note that
Point Lookout was "established for the sole purpose of honoring Con-
federate dead," Griffin, 129 F. Supp. 2d at 842, and went on to state
that the proposed positioning of the Confederate flag "simply repre-
sents an unpretentious recognition that those who are buried there
died as members of the Confederate Army," id.Critically, however, nothing in the district court’s opinion rejects
or even refutes the VA’s position that the purpose of Point Lookout
is to honor those Confederate soldiers who are buried there as Ameri-
cans. To say that the purpose is to honor the Confederate dead, as the
district court did, is not at all to say that the purpose is not to honor
them as Americans. That is, even if we assume that the district court’s
comments amount to findings of fact (and ignore the district’s failure
to comply with Federal Rule of Civil Procedure 52(a), which requires
the court to "find the facts specially and state separately its conclu-
sions of law thereon") we would still conclude, as the VA urges, that
the purpose of Point Lookout is to honor, as Americans, those who
are buried within that cemetery.
Stated another way, the district court’s purported findings are sim-
ply irrelevant to the disposition of this case. As discussed below, the
reasonableness of the VA’s restrictions turns on whether the purpose
of Point Lookout is to honor the Confederates as Confederates or as
Americans. Griffin insists that it is the former, and the VA insists that
it is the latter, but the district court’s opinion is silent as to which it
is. Because there is no factual finding by the district court on this piv-
otal distinction to which we must defer, and because the statute com-
pels us to accept the VA’s position, we hold that the purpose of Point
Lookout is to honor the soldiers buried there as Americans.2
2
Griffin attempts to support his position by noting that the VA has
retained the original name, "Point Lookout Confederate Cemetery." Grif-
fin also points to various inscriptions on Point Lookout’s monuments,
such as "At the call of Patriotism and duty they encountered the perils
of the field, endured the trials of a Prison, and were faithful, even unto
death," J.A. 157, and "Dulce et decorum est pro Patria Mori." We need
not, however, decide whether the name of the Cemetery or its inscrip-
tions could ever determine its purpose for First Amendment analysis,
because each of these is consistent with honoring the Confederates bur-
ied at Point Lookout as Americans.
GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS 7
2.
Griffin asserts, and the district court held, that the VA’s restrictions
are unreasonable in light of the purpose of the forum. We note at the
outset that the VA’s restrictions "need only be reasonable; [they]
need not be the most reasonable or the only reasonable limitation[s]."
Cornelius, 473 U.S. at 808. We have no trouble concluding that the
restrictions meet this deferential test.
The government is entitled to promote particular messages, Rosen-
berger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 833
(1995), and to "take legitimate and appropriate steps to ensure that its
message[s] [are] neither garbled nor distorted," id.; see Rust v. Sulli-
van, 500 U.S. 173, 194-95 (1991) ("[W]hen the Government appro-
priates funds to establish a program [that includes speech] it is
entitled to define the limits of that program.").
The district court missed the thrust of this argument, stating that the
"[d]efendants are not being asked to expend their money or act at all
but, rather, merely to ‘step back and allow the third parties to use the
government property without interference,’" Griffin, 129 F. Supp. 2d
at 842 (quoting PMG Int’l Div., LLC v. Cohen, 57 F. Supp. 2d 916,
920 (N.D. Cal. 1999)). Requiring the VA to allow the Confederate
flag to fly daily over Point Lookout certainly "garble[s] [and] dis-
tort[s]" the VA’s chosen message that "Point Lookout does not com-
memorate fallen Confederates as such[, but, rather,] . . . pays tribute
to them as citizens of the United States who died in service of the
Confederacy during a national conflict." Appellant’s Reply Br. at 7
(emphasis added).
The First Amendment does not compel the VA to subsidize Grif-
fin’s speech by allowing him to use the federally-owned Cemetery,
particularly when that speech undermines the VA’s own message.
The VA "is not denying a benefit to anyone, but is instead simply
insisting that public funds [in the form of use of land] be spent for the
purposes for which they were authorized." Rust, 500 U.S. at 196.
Griffin next argues that, because the VA permits the Confederate
flag to be flown two days a year, the purpose of the forum would best
be fulfilled by flying the flag daily. Griffin actually states that in order
8 GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
to avoid this conclusion, "the VA would have to show that diminish-
ing returns set in after two days of display, thereby adding no addi-
tional honor and respect to the Confederate dead." Appellee’s Br. at
34 & n.5. Even ignoring the fundamental mathematical error, this
statement is simply incorrect. There is nothing unreasonable about the
VA’s decision to accommodate those, like Griffin, who wish to honor
the soldiers as Confederates, only twice a year. And, in fact, the two
days on which the VA automatically allows the flag to fly are Memo-
rial Day and Confederate Memorial Day. It is not unreasonable to
believe that limiting the display to those two days reinforces the VA’s
objective of honoring "our gallant dead," 38 U.S.C. § 2403(c), with-
out unduly disturbing or distorting the VA’s overall message of hon-
oring the dead as American citizens.
Perhaps flying the Confederate flag does, as the district court
believed, "affirm[ ] the statutory mandate that national cemeteries
shall be ‘shrines as a tribute to our gallant dead,’" Griffin, 129 F.
Supp. at 841 (quoting 38 U.S.C. § 2403(c)), though, as expressed
above, we doubt it. But Congress delegated this determination not to
the district court or to Griffin, but, rather, to the Secretary. We hold
that the Secretary’s restrictions are reasonable in light of the purpose
of Point Lookout.
3.
The district court also rejected the VA’s argument that the restric-
tions were reasonable in light of the VA’s desire to preserve the tran-
quility of national cemeteries. The district court noted that the
Confederate flag had flown for several years at Point Lookout (until
the VA became aware of it), apparently without incident. And
although the district court was "hard put to imagine a rationally think-
ing person attributing a racial or discriminatory message" to the pro-
posed display, Griffin, 129 F. Supp. 2d at 841, certainly the VA could
reasonably believe that the Confederate flag could cause controversy
and that such controversy could undermine the VA’s goal of keeping
the cemeteries free from partisan conflict. The First Amendment does
not preclude the VA from taking steps to preserve the nature of this
nonpublic forum. See, e.g., Perry Educ. Ass’n v. Perry Local Educa-
tors’ Ass’n, 460 U.S. 37, 46 (1983) ("[T]he State, no less than a pri-
vate owner of property, has power to preserve property under its
GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS 9
control for the use to which it is lawfully dedicated.") (quoting United
States Postal Serv. v. Greenburgh Civic Ass’n, 453 U.S. 114, 129-30
(1981)); id. at 52 n.12 (noting that government need not prove disrup-
tions will occur); see also International Soc’y for Krishna Conscious-
ness, Inc. v. Lee, 505 U.S. 672, 685 (1992) (ISKCON).
The VA also points to the logical consequences of the district
court’s holding, worrying reasonably that other groups would demand
that their own flags be flown over the Cemetery. The VA may also
have to contend with counterspeech that the Confederate flag encour-
ages. Griffin characterizes this concern as a "baseless scare tactic."
Appellee’s Br. at 48. But the Supreme Court has counseled that justi-
fications for restrictions "should not be measured by the disorder that
would result from granting an exemption solely to" one group. ISK-
CON, 505 U.S. at 685 (internal quotation omitted). Rather, the VA
can legitimately consider the probable effects of demands made by
other groups.
Griffin seeks to distinguish his speech from possible counter
speech. The former, he insists, is compatible with the purpose of the
forum, while the latter is not. But this is true only if the purpose of
the forum is honoring the Confederate dead as Confederates, a view
we have already rejected. Nor is it by any means clear that the First
Amendment tolerates favoritism of the kind Griffin apparently advo-
cates. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992)
("[The VA] has no such authority to license one side of the debate to
fight freestyle, while requiring the other to follow Marquis of Queens-
berry rules.").
We conclude that the VA’s restrictions are reasonable in light of
the nature of this particular forum, a cemetery dedicated to honoring,
as Americans, the Nation’s war dead.
B.
The district court believed, as Griffin had argued, that the VA’s
persistent references to the Confederate flag as "a symbol of racial
intolerance and divisiveness clearly demonstrate[d] that [the VA is]
choosing, and advancing the viewpoint of those offended by the flag
over the viewpoint of those proud of the flag." Griffin, 129 F. Supp.
10 GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
2d at 843 (citations omitted). While it is not clear that the VA has
done any such thing, as discussed above, the VA is allowed to choose
sides as far as its own message is concerned.
The only issue is how the VA treats what little private speech it
does allow at the Cemetery. The VA argues that the flag restrictions
now in place limit private flag displays in national cemeteries without
regard to the speaker’s viewpoint. Griffin contends that the VA dis-
criminates based on viewpoint, because it "allow[s] a group to display
Confederate flags far less than other flags." Appellee’s Br. at 51 (not-
ing that viewpoint discrimination occurs "when government seeks to
suppress speech because it disapproves of the message or ideas
expressed") (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 391
(1992)).
But a review of the New Flag Manual reveals that groups that wish
to fly the Confederate flag actually enjoy an advantage over other
groups. Such groups may fly the Confederate flag two days a year
without seeking special permission. See New Flag Manual, at ¶ 7.a
(included as exhibit to Appellee’s Brief). Any further displays of the
Confederate flag must be authorized pursuant to paragraph 2.b, but
this merely places those wanting additional days on which to fly the
Confederate flag in the same position as private parties seeking to dis-
play any other flag on a given day.3 Far from demonstrating any spe-
cial distaste for the Confederate flag, the New Flag Manual expresses,
if anything, we suppose, a preference.
Griffin believes that R.A.V. supports his position. But this is not a
case in which the government "impose[s] special prohibitions on
those speakers who express views on disfavored subjects." R.A.V.,
505 U.S. at 391 (emphasis added). If anything, the VA grants groups
3
Griffin makes much of the fact that the New Flag Manual does not
affirmatively prohibit the display of other flags, like the POW/MIA flag,
by private parties. This simply misses the structure of the rules laid out
in the New Flag Manual. Paragraph 2.b requires that any deviation from
the default rules must be approved by the appropriate authorities. Para-
graph 8.b states that at cemeteries without permanent staffing, such as
Point Lookout, the POW/MIA flag flies only on the six days required by
statute.
GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS 11
that wish to fly the Confederate flag special permission. It confers a
similar advantage on the advocates of no other flag, except the two
flags specifically addressed by federal law (the flag of the United
States and the POW/MIA flag). On this record, it is not possible to
conclude that the VA discriminates against those who seek to display
the Confederate flag or even that the VA is motivated by animosity
toward that flag.
The district court erred by concluding that the VA discriminates
against Griffin’s message on the basis of viewpoint. The VA’s restric-
tions are not only reasonable in light of the purpose of the forum, but
also viewpoint neutral.
III.
Griffin contends, finally, that we should strike down the New Flag
Manual as facially unconstitutional, because, among other reasons, it
amounts to an unconstitutional prior restraint. But Griffin’s facial
attack faces several immediate obstacles. Arguably, it fails for the
simple reason that the New Flag Manual is constitutional as applied
to Griffin. See Rust, 500 U.S. at 183 (approving of the test announced
in United States v. Salerno, 481 U.S. 738 (1987), even in the First
Amendment context). But see Grayned v. City of Rockford, 408 U.S.
104, 114-15 (1972). Next, it is not completely clear that we have
jurisdiction over the claim. It is quite possible that the New Flag Man-
ual is an interpretive regulation under 5 U.S.C. § 553, judicial review
of which "may be sought only in the United States Court of Appeals
for the Federal Circuit." 38 U.S.C. § 502. Finally, the district court
did not rule on this. Rather, it held that the Old Flag Manual was
unconstitutional as applied. Griffin, 129 F. Supp. 2d at 844.
At any rate, Griffin’s prior restraint claim is meritless. In support
of this claim, Griffin musters up a cite to an Eleventh Circuit case,
Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1362
(11th Cir. 1999), where the court stated that "statutes may not give
public officials ‘unbridled’ discretion to deny permission to engage in
constitutionally protected expression." But the precise form of expres-
sion in which Griffin wishes to engage — daily display of a Confed-
erate flag in a nonpublic forum not open to such — is, by definition,
not constitutionally protected expression. See Greer v. Spock, 424
12 GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
U.S. 828, 838 (1976) (finding no First Amendment problem with
vesting commanding officer of base with power to exclude civilians
seeking to speak); United States v. Kokinda, 497 U.S. 720, 729 (1990)
(plurality); see also Arkansas Educ. Television Comm’n v. Forbes,
523 U.S. 666, 682-83 (1998) (upholding exclusion of candidate from
presidential debate, despite lack of procedural protections, because
decision was reasonable and viewpoint neutral).
CONCLUSION
For the reasons stated, the judgment of the district court is reversed
and the case is remanded with instructions to vacate the injunction
and enter judgment for the VA.
REVERSED