Robert Rosebrock v. Ronald Mathis , 745 F.3d 963 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT ROSEBROCK, No. 11-56256
Plaintiff-Appellant,
D.C. No.
v. 2:10-cv-01878-
SJO-SS
RONALD MATHIS, Chief of Police of
The Veterans Administration Greater
Los Angeles Healthcare System, in OPINION
his official capacity; DONNA BEITER,
Director of The Veterans
Administration Greater Los Angeles
Healthcare System, in her official
capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
April 8, 2013—Pasadena, California
Filed March 14, 2014
Before: Ferdinand F. Fernandez, Johnnie B. Rawlinson,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Dissent by Judge Rawlinson
2 ROSEBROCK V. MATHIS
SUMMARY*
Mootness
The panel affirmed the district court’s denial of plaintiff’s
request for injunctive relief after determining that the request
was moot due to the Department of Veterans Affairs’
recommitment to consistently enforce an existing regulation,
38 C.F.R. § 1.218, which prohibited the posting of materials
on Veterans Affairs property except when authorized by the
head of the Veterans Affairs facility in question or a designee
of that individual, or when the posting of materials is part of
authorized Government activities.
Plaintiff alleged that defendants failed to enforce the
regulation when he and his fellow protestors hung the
American flag union up on a fence surrounding VA property,
but enforced the regulation when the protestors hung the
American flag union down on the fence. The panel
determined that, based on the record, this inconsistent
enforcement stopped when an associate director of the VA
Greater Los Angeles Healthcare System sent an e-mail to the
VA police instructing them to consistently enforce the
prohibition in the regulation.
The panel agreed with the district court that the
Government’s voluntary cessation of its inconsistent
enforcement of § 1.218(a)(9) mooted the request for
injunctive relief. The panel held that the Government
satisfied its heavy burden of demonstrating mootness.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ROSEBROCK V. MATHIS 3
Presuming that the Government acts in good faith, the panel
determined that the presumption was especially strong in this
case, where the Government was merely recommitting to
consistent enforcement of one of its own longstanding
regulations.
Dissenting, Judge Rawlinson stated that defendants failed
to establish that the new policy regarding enforcement was
the kind of permanent change that proved voluntary cessation
sufficient to moot plaintiff’s claim for injunctive relief. She
stated that the e-mail sent by the associate director was not
protective of First Amendment rights, did not address the
objectionable actions described in plaintiff’s claim for
injunctive relief, and was not publicly disseminated in such
a way as to bind defendants in the future.
COUNSEL
Peter J. Eliasberg (argued), Hector O. Villagra and Jessica G.
Price, ACLU Foundation of Southern California, Los
Angeles, California, for Plaintiff-Appellant.
Indira J. Cameron-Banks (argued), Assistant United States
Attorney, United States Department of Justice, Los Angeles,
California; André Birotte Jr., United States Attorney, and
Leon W. Weidman, Assistant United States Attorney (Chief
of the Civil Division), United States Department of Justice,
Los Angeles, California, for Defendants-Appellants.
4 ROSEBROCK V. MATHIS
OPINION
BYBEE, Circuit Judge:
Since 1973, a regulation promulgated by the Department
of Veterans Affairs (VA), 38 C.F.R. § 1.218, has prohibited
the posting of materials on VA property except when
authorized by the head of the VA facility in question or a
designee of that individual, or when the posting of materials
is part of authorized Government activities. See 38 C.F.R.
§ 1.218(a)(9); see also Security, Law Enforcement, and
Standards of Conduct on Veterans Administration Property,
38 Fed. Reg. 24,364, 24,365 (Sept. 7, 1973) (to be codified at
38 C.F.R. pt. 1). This case arises from the inconsistent
enforcement of § 1.218 as applied to Robert Rosebrock.
Rosebrock is a veteran who objects to the failure of the
VA to use a lawn outside of the Los Angeles Campus (LA
Campus) of the VA Greater Los Angeles Healthcare System
(VAGLA) for the benefit of veterans, and particularly
homeless veterans. Since March 2008, Rosebrock and a
group of like-minded veterans have protested weekly outside
of the locked fence that surrounds the LA Campus lawn to
draw public attention to the VA’s failure to use the lawn for
veterans. Although neither VAGLA nor the VA has ever had
a general policy of inconsistent enforcement of the
prohibition on posting materials in § 1.218, VAGLA and its
police force inconsistently enforced the regulation in response
to these protests. In particular, over a period of at least eight
months, VAGLA and its police failed to enforce the
regulation when Rosebrock and his fellow protestors hung the
American flag union up on the fence surrounding the LA
Campus lawn, but enforced the regulation when the protestors
hung the American flag union down on the fence. Based on
ROSEBROCK V. MATHIS 5
the record before us, this inconsistent enforcement stopped on
June 30, 2010, when a VAGLA associate director sent an e-
mail to the VAGLA police instructing them to consistently
enforce the prohibition in the regulation.
While the inconsistent enforcement was ongoing,
Rosebrock filed a complaint in the United States District
Court for the Central District of California, bringing a cause
of action under the First Amendment, and seeking declaratory
and injunctive relief. The district court ultimately granted
summary judgment to Rosebrock with regard to declaratory
relief, holding that the VA defendants violated Rosebrock’s
First Amendment rights by engaging in viewpoint
discrimination, but the district court denied Rosebrock any
injunctive relief. Rosebrock v. Beiter, 788 F. Supp. 2d 1127,
1140–49 (C.D. Cal. 2011). One of the rationales given by the
district court for denying injunctive relief was that the request
for injunctive relief had been mooted by the June 30, 2010 e-
mail instructing the VAGLA police to enforce § 1.218
consistently. Id. at 1143–45.
Before us now is Rosebrock’s appeal from the district
court’s denial of injunctive relief. We agree with the district
court that Rosebrock’s requests for injunctive relief are moot,
and thus we affirm.
I
Pursuant to its authority to “make all needful rules and
regulations for the governing of the property under [the
Secretary of Veterans Affairs’] charge and control” under the
National Cemeteries Act of 1973, Pub. L. No. 93-43, § 4,
87 Stat. 75, 79 (codified as amended at 38 U.S.C. § 901), the
VA promulgated 38 C.F.R. § 1.218 in 1973. See Security,
6 ROSEBROCK V. MATHIS
Law Enforcement, and Standards of Conduct on Veterans
Administration Property, 38 Fed. Reg. at 24,364–65. This
subsection has not materially changed in the nearly forty
years since its promulgation. Compare Security, Law
Enforcement, and Standards of Conduct on Veterans
Administration Property, 38 Fed. Reg. at 24,365 (subsection
(i)), with 38 C.F.R. § 1.218(a)(9). Today’s version reads as
follows:
Distribution of handbills. The distributing of
materials such as pamphlets, handbills, and/or
flyers, and the displaying of placards or
posting of materials on bulletin boards or
elsewhere on property is prohibited, except as
authorized by the head of the facility or
designee or when such distributions or
displays are conducted as part of authorized
Government activities.
38 C.F.R. § 1.218(a)(9). According to a declaration from the
VAGLA police chief who is a defendant in this suit, VAGLA
policy has always been strict enforcement of the prohibition
on posting in § 1.218(a)(9). There is no evidence in the
record suggesting that VAGLA or the VA has ever had a
general policy of inconsistent enforcement. Accordingly, this
case arises not from the regulation itself, or from a general
VAGLA or VA policy with regard to its enforcement, but
rather from inconsistent enforcement of the regulation by
VAGLA and its police officers on the ground in this
particular case.
ROSEBROCK V. MATHIS 7
II
VAGLA is one of the largest and most complex VA
healthcare systems in the country. The LA Campus is the
only VAGLA location in the Los Angeles region where
complex medical, surgical, and psychiatric care is offered.
Rosebrock and other veterans protest for three to four hours
each Sunday outside of the locked fence that surrounds the
LA Campus lawn to draw public attention to the VA’s failure
to use the lawn for veterans. During these protests, which
began on March 9, 2008, Rosebrock initially hung the
American flag union up on the fence, along with a POW/MIA
banner. Sometimes, Rosebrock would also hang a Vietnam
unit flag and a “Support Our Troops” banner on the fence.
When Rosebrock hung the American flag union up, he
intended to express patriotism, and a message of honor and
support for the U.S. military. VAGLA police had informed
Rosebrock that the posting of materials on the LA Campus
fence was prohibited by federal regulations, but, in spite of
the broad prohibition in § 1.218(a)(9), they had also informed
him, incorrectly, that there was an exception covering the
American flag and POW/MIA banner.1
VAGLA police and staff did not confront Rosebrock
about hanging the Vietnam unit flag and “Support Our
Troops” banner—neither of which was covered by the stated
exception—until November 30, 2008, when a VAGLA police
sergeant asked Rosebrock to remove them. Consistent with
the stated exception, the VAGLA police sergeant told
1
Nothing in the record suggests that any of the VAGLA police officers
involved were “designees” of the head of the LA Campus who could
authorize Rosebrock to hang the American flag or POW/MIA banner
under § 1.218(a)(9).
8 ROSEBROCK V. MATHIS
Rosebrock that the union-up American flag and POW/MIA
banner, which were right next to the flag and banner that had
to be removed, could remain on the fence. For the seven
months following this confrontation, Rosebrock continued to
hang the union-up American flag and the POW/MIA banner
on the fence, and the VAGLA police did not interfere.
According to VAGLA, VAGLA and its police refrained from
citing Rosebrock to avoid confrontation with demonstrators,
which VAGLA feared could escalate the fervor of the
protests. VAGLA and its police, many of whom were
veterans themselves, were also reluctant because many of the
demonstrators were elderly veterans.
Rosebrock grew increasingly upset with the situation
involving the lawn, and, as a result, beginning on June 14,
2009, he started to hang the American flag union down rather
than union up. In hanging the flag union down, Rosebrock
meant to convey an entirely different message than the
message he had intended to convey by hanging the flag union
up. Specifically, the union-down flag was intended to convey
a “distress call” regarding the VA’s use of land that, in
Rosebrock’s opinion, rightfully should be used for veterans.2
A week after he first hung the flag union down, VAGLA
police approached Rosebrock and ordered him to hang the
flag union up or remove it, and Rosebrock complied by
removing the flag. Shortly thereafter, on June 26, 2009,
Rosebrock received an e-mail from a VAGLA associate
director saying that he could “not attach the American flag,
2
Under 4 U.S.C. § 8, which is intended to guarantee that the American
flag is treated with respect, “[t]he flag should never be displayed with the
union down, except as a signal of dire distress in instances of extreme
danger to life or property.” 4 U.S.C. § 8(a).
ROSEBROCK V. MATHIS 9
upside down, anywhere on VA property including [the]
perimeter gates,” and that doing so “is considered a
desecration of the flag and is not allowed on VA property.”
This e-mail did not authorize Rosebrock to post any materials
on VA property.3
On July 24, 2009, a VAGLA police patrol captain sent an
e-mail to VAGLA police officers instructing them to issue
citations to Rosebrock under § 1.218(a)(9) if they observed
him hanging any signs or flags on the fence. According to
VAGLA, it began taking action once Rosebrock began
hanging the flag union down, because VAGLA received
complaints from patients who were upset at seeing the union-
down flag and Rosebrock himself complained that he had
been threatened by individuals offended at the display.
Believing that the VA was attempting to impermissibly
restrict his speech, Rosebrock continued to hang the flag
union down during his Sunday protests. Between July 2009
and September 2009, a period during which Rosebrock hung
the American flag only union down on the fence, Rosebrock
received six citations in the mail pursuant to § 1.218(a)(9).
Four of the citations explicitly mentioned that the flag was
hung union down. Presumably, the VAGLA police officers
who had previously felt uncomfortable confronting
Rosebrock felt less uncomfortable now that they were
confronting him for hanging the flag union down, a sign of
disrespect to our flag and country or a signal of immediate
distress, and now that Rosebrock’s actions had led to
3
Because this e-mail merely told Rosebrock that he could not post
certain materials on VA property, and did not authorize Rosebrock to post
any other materials, we do not view this as evidence of a general VAGLA
policy of inconsistent enforcement of § 1.218(a)(9).
10 ROSEBROCK V. MATHIS
complaints from patients and threats to Rosebrock’s safety.4
All of the citations were dismissed at the request of an
Assistant United States Attorney.
In February 2010, Rosebrock prominently hung American
flags union up on the fence with VAGLA police nearby, but
they did not interfere with Rosebrock’s display or cite him.
That same month, after Rosebrock had not hung the
American flag union down on the fence for some time to
avoid being cited, Rosebrock hung the flag union down again
and was told by the VAGLA police to remove the flag and his
POW/MIA banner from the fence. When Rosebrock refused,
the VAGLA police removed the flag and banner.
In sum, based on the record before us, for at least eight
months after Rosebrock began sometimes hanging the flag
union down on the fence, and even after a VAGLA police
patrol captain told VAGLA police officers to cite Rosebrock
under § 1.218(a)(9) if he hung any sign or flag on the fence,
VA representatives only cited Rosebrock or interfered with
his activity if he hung the flag union down.5
4
Though the decision by VAGLA to refrain from enforcing § 1.218
against Rosebrock until he began hanging the flag union down
demonstrates that VAGLA elected to enforce its regulation inconsistently
in this instance, VAGLA’s actions in this particular case do not
demonstrate that VAGLA’s general policy was inconsistent enforcement.
As we say elsewhere in this opinion, the only evidence regarding
VAGLA’s general policy suggests that the policy has been strict
enforcement of the prohibition on posting in § 1.218.
5
The dissent argues that 38 C.F.R. § 1.218(a)(9), by its plain terms, may
not “even apply to Mr. Rosebrock’s act of hanging the American flag”
because Rosebrock did not distribute anything and a “flag” differs from
a “pamphlet” “flyer” or “handbill.” Dissent at 26–27. We agree that the
words of a governing text are a paramount concern, but unlike the dissent,
ROSEBROCK V. MATHIS 11
In March 2010, Rosebrock filed a complaint in the United
States District Court for the Central District of California,
bringing a cause of action under the First Amendment, and
seeking declaratory and injunctive relief. Rosebrock filed a
motion seeking a preliminary injunction against the VAGLA
police that would prevent them from citing him for hanging
the American flag union down on the LA Campus fence. The
district court denied the motion, and we affirmed in an
unpublished decision. See Rosebrock v. Mathis, 400 F.
App’x 261 (9th Cir. 2010).
On June 30, 2010, the VAGLA associate director who had
previously sent Rosebrock the e-mail about hanging the flag
union down sent an e-mail directive to the VAGLA police,
which said the following:
I would like to confirm my office’s previous
instructions to you and your department.
Please ensure that VA Regulation 38 CFR
1.218 is enforced precisely and consistently.
we consider the whole text and give effect to every word therein. Int’l
Ass’n of Machinists & Aerospece Workers v. BF Goodrich Aerospace
Aerostructure Group, 387 F.3d 1048, 1051 (9th Cir. 2004) (“[i]n
analyzing a statutory text, we do not look at its words in isolation.”); In re
Cervantes, 219 F.3d 955, 961 (9th Cir. 2000) (“[w]e have consistently . . .
reject[ed] interpretations that would render a statutory provision . . . a
nullity”). Here, § 1.218(a)(9) prohibits individuals from distributing
written materials, and it prohibits “displaying of placards or posting of
materials on bulletin boards or elsewhere on property.” See, e.g.,
Webster’s II New Riverside University Dictionary 388, 918 (describing
display as “[t]o put forth for viewing : EXHIBIT” and post as “[to put up
(an announcement) in a place of public view.”) So, even though
Rosebrock did not distribute written materials, § 1.218(a)(9) still applies
because he “displayed” and “posted” “materials”—including various flags
and banners—on the VAGLA’s property .
12 ROSEBROCK V. MATHIS
As we discussed, this means that NO outside
pamphlets, handbills, flyers, flags or banners,
or other similar materials may be posted
anywhere on VA Property (including the
outside fence/gates). This includes any flags
displayed in any position. Further, the
regulation only extends to VA Property.
Therefore, it does NOT include the public
sidewalk outside of VA Property.
Accordingly, protests and/or demonstrations
(including flags in any position) that take
place off VA Property (on the public
sidewalk) should not be interfered with. Also,
please make sure that this information is
disseminated to all officers who patrol the VA
grounds and to the rest of your department. If
you have any questions or concerns, please
contact me. Thanks.
In a declaration, the VAGLA police patrol captain who
sent the July 2009 e-mail to VAGLA police officers about
Rosebrock said it was her understanding that the VAGLA
police have been strictly enforcing § 1.218(a)(9) since the
associate director’s June 30, 2010 e-mail.
A few months after the June 30, 2010 e-mail, the parties
filed cross-motions for summary judgment with regard to
declaratory relief and permanent injunctive relief. In his
motion for summary judgment, Rosebrock sought two forms
of injunctive relief: (1) a “preventive injunction” forbidding
the defendants from committing viewpoint discrimination
against Rosebrock going forward, and (2) a “reparative
injunction” requiring the defendants to allow Rosebrock to
hang the American flag union down on the LA Campus fence
ROSEBROCK V. MATHIS 13
for 66 weeks—the amount of time, according to Rosebrock,
that VA officials allowed Rosebrock to hang the flag union
up on the fence without interference.
The district court granted summary judgment to
Rosebrock with regard to declaratory relief, holding that the
VA defendants violated Rosebrock’s First Amendment rights
by engaging in viewpoint discrimination, Rosebrock, 788 F.
Supp. 2d at 1140–43, but denied Rosebrock any injunctive
relief, id. at 1143–49. The district court denied injunctive
relief on two independent bases: first, it held that the request
for a permanent injunction was mooted by the VAGLA
associate director’s June 30, 2010 e-mail closing the fence to
all forms of speech, id. at 1143–45; and second, it held that a
permanent injunction was not appropriate because the balance
of equities did not tip in Rosebrock’s favor and a permanent
injunction would not be in the public’s interest, id. at
1145–49.6 The district court entered a declaratory judgment
in favor of Rosebrock on his First Amendment claim.
6
Rosebrock points out that the district court’s order was not clear as to
whether both grounds for its decision—mootness, and the appropriateness
of permanent injunctive relief—applied to both requests for injunctive
relief. He reads the district court’s order as denying the preventive
injunction based on mootness and denying the reparative injunction on the
merits. We disagree with Rosebrock’s reading of the district court’s order.
Nothing in the order suggests that the mootness analysis was limited to the
request for a preventive injunction. Because we agree with the district
court that Rosebrock’s requests for both types of injunctive relief are
moot, we need not reach the merits of the requests, and thus we need not
comment on the district court’s consideration of the merits.
14 ROSEBROCK V. MATHIS
Rosebrock timely appealed, and seeks the two types of
permanent injunctive relief denied him by the district court.7
III
The district court held that the June 30, 2010 e-mail
instructing the VAGLA police force to enforce § 1.218(a)(9)
precisely and consistently mooted Rosebrock’s request for a
permanent injunction by closing the LA Campus fence as a
forum for all speech. That is, the district court held that the
Government’s voluntary cessation of its inconsistent
enforcement of § 1.218(a)(9) mooted the request for
injunctive relief. We agree with the district court.8
A
“A case becomes moot—and therefore no longer a ‘Case’
or ‘Controversy’ for purposes of Article III—‘when the issues
presented are no longer “live” or the parties lack a legally
cognizable interest in the outcome.’” Already, LLC v. Nike,
Inc., 133 S. Ct. 721, 726 (2013) (quoting Murphy v. Hunt,
455 U.S. 478, 481 (1982) (per curiam)). “The voluntary
cessation of challenged conduct does not ordinarily render a
case moot because a dismissal for mootness would permit a
7
The defendants did not appeal the summary judgment against them
with respect to Rosebrock’s request for declaratory relief, so we need not
consider the district court’s holding with regard to viewpoint
discrimination.
8
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the
district court’s mootness determination de novo. Smith v. Univ. of Wash.,
Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). Factual determinations
underlying the district court’s mootness determination are reviewed for
clear error. Wolfson v. Brammer, 616 F.3d 1045, 1053 (9th Cir. 2010).
ROSEBROCK V. MATHIS 15
resumption of the challenged conduct as soon as the case is
dismissed.” Knox v. Serv. Emps. Int’l Union, Local 1000,
132 S. Ct. 2277, 2287 (2012); see also Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000) (“It is well settled that a defendant’s voluntary
cessation of a challenged practice does not deprive a federal
court of its power to determine the legality of the practice.”
(internal quotation marks omitted)). But voluntary cessation
can yield mootness if a “stringent” standard is met: “A case
might become moot if subsequent events made it absolutely
clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth,
528 U.S. at 189. The party asserting mootness bears a “heavy
burden” in meeting this standard. Id.
We presume that a government entity is acting in good
faith when it changes its policy, see Am. Cargo Transp., Inc.
v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010), but
when the Government asserts mootness based on such a
change it still must bear the heavy burden of showing that the
challenged conduct cannot reasonably be expected to start up
again. White v. Lee, 227 F.3d 1214, 1243–44 (9th Cir. 2000);
see also Bell v. City of Boise, 709 F.3d 890, 898–99 & n.13
(9th Cir. 2013).
“[A] case is not easily mooted where the government is
otherwise unconstrained should it later desire to reenact the
[offending] provision.” Coral Constr. Co. v. King County,
941 F.2d 910, 928 (9th Cir. 1991). “A statutory change . . .
is usually enough to render a case moot, even if the
legislature possesses the power to reenact the statute after the
lawsuit is dismissed.” Chem. Producers & Distribs. Ass’n v.
Helliker, 463 F.3d 871, 878 (9th Cir. 2006). By contrast,
“repeal or amendment of an ordinance by a local government
16 ROSEBROCK V. MATHIS
or agency does not necessarily deprive a federal court of its
power to determine the legality of the practice” at issue, Bell,
709 F.3d at 899 (internal quotation marks omitted), though it
may do so in certain circumstances, see Santa Monica Food
Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1031–32
(9th Cir. 2006) (holding that amendments to city ordinances
had rendered facial challenges to those ordinances moot).
Particularly relevant to this case, a policy change not
reflected in statutory changes or even in changes in
ordinances or regulations will not necessarily render a case
moot, see, e.g., Bell, 709 F.3d at 899–901, but it may do so in
certain circumstances, see, e.g., White, 227 F.3d at 1242–44.9
9
The dissent argues this case is more like Bell than White because the
policy change in Bell, like the recommitment to the regulation here,
“‘could be easily abandoned or altered in the future.’” Dissent at 24–25
(quoting Bell, 709 F.3d at 900–01). The dissent also argues that this case
differs from White because the policy change here prohibited expressive
activity, whereas the permanent policy change in White protected First
Amendment rights. Dissent at 27.
The comparison to Bell is flawed. The plaintiff there challenged an
ordinance that criminalized sleeping in public, and the Government argued
the claim was moot because the Chief of Police issued a Special Order that
prohibited law enforcement from enforcing the ordinance under certain
circumstances. 709 F.3d at 893–95. But the Special Order could not
repeal the ordinance. The ordinance remained in effect, so law
enforcement could have legally enforced the ordinance after Plaintiff
Bell’s case was dismissed. By contrast, here, there is no issue with the
established law, and the goal is for VAGLA police to enforce the law as
they should have been doing all along. In other words, the goal is
following the law as written, whereas in Bell the officers were instructed
not to follow the law under poorly defined circumstances.
Further, the policy change here is substantially similar to the change
in White. There, a high-ranking official issued a memorandum that
addressed problematic Government conduct and instructed them about
First Amendment concerns related to an already-existing law. 227 F.3d
ROSEBROCK V. MATHIS 17
We have not set forth a definitive test for determining
whether a voluntary cessation of this last type—one not
reflected in statutory changes or even in changes in
ordinances or regulations—has rendered a case moot. But we
have indicated that mootness is more likely if (1) the policy
change is evidenced by language that is “broad in scope and
unequivocal in tone,” Id. at 1243; (2) the policy change fully
“addresses all of the objectionable measures that [the
Government] officials took against the plaintiffs in th[e]
case”, id.; (3) “th[e] case [in question] was the catalyst for the
agency’s adoption of the new policy,” id.; (4) the policy has
been in place for a long time when we consider mootness, see
id. at 1243–44 & nn. 25, 27; and (5) “since [the policy’s]
implementation the agency’s officials have not engaged in
conduct similar to that challenged by the plaintiff[ ],” id. at
1243.10 On the other hand, we are less inclined to find
mootness where the “new policy . . . could be easily
abandoned or altered in the future.” Bell, 709 F.3d at 901.
Ultimately, the question remains whether the party asserting
mootness “has met its heavy burden of proving that the
challenged conduct cannot reasonably be expected to recur.”
White, 227 F.3d at 1244.
at 1243. Here, the associate director’s e-mail resolves the conduct that
harmed Rosebrock because the message instructed officers to apply the
existing regulation consistently, so as to avoid content-based
discrimination. Further, like the memorandum in White, id. at 1242, the
e-mail emphasized the importance of First Amendment rights: “ protests
and/or demonstrations . . . that take place off VA Property . . . should not
be interfered with.” In this situation, the associate director could not have
done anything more to trumpet the superiority of the Constitution. After
all, she could not legally encourage First Amendment activity on
VAGLA’s property that would violate 38 C.F.R. § 1.218(a)(9).
10
We emphasize that the considerations discussed here do not provide
an exhaustive or definitive list.
18 ROSEBROCK V. MATHIS
B
In this case, the VA action in question—the June 30, 2010
e-mail—did not effect a policy change in the typical sense
because 38 C.F.R. § 1.218 has been in place, virtually
unchanged, for nearly forty years, and the only evidence in
the record addressing VAGLA’s or the VA’s policy regarding
enforcement of the regulation suggests that VAGLA’s policy
has been consistent enforcement. The June 30 e-mail seems
more aptly described as reemphasizing, or recommitting to,
an existing policy. In fact, by its own terms, the e-mail
“confirm[ed] . . . previous instructions” to the VAGLA
police. Of course, in a world of limited resources, such a
reemphasis or recommitment can always be fairly
characterized as a policy change, but we do not think this a
distinction without a difference. In fact, we see this
distinction as cutting both ways.
On the one hand, this distinction highlights that this was
really a problem of enforcement, and problems of
enforcement may persist in spite of an announced
recommitment to a policy. If VAGLA and its police allowed
its regulation to be violated in the past without any response,
the announced recommitment to a policy may not prevent
similar decisions from being made in the future. Similarly, if
VAGLA and the veterans on the VAGLA police force were
not comfortable interfering with elderly veterans’ proper
display of the American flag before, perhaps that will not
change even if the brass has announced a recommitment to
consistent enforcement. On the other hand, the concern with
policy changes that are not cemented by statute or some other
inertial form—that the purported change in policy may be
gamesmanship—is not present here. Inconsistent
enforcement of § 1.218(a)(9) was never general VAGLA or
ROSEBROCK V. MATHIS 19
VA policy in the first place, and VAGLA’s recommitment to
strict enforcement makes it particularly unlikely that VAGLA
will change its policy in the future.
On balance, we find the latter point more compelling. We
have little concern that the VA is engaged in gamesmanship
where, as here, the VA states that it will be more vigilant in
following a previously existing policy of consistent
enforcement of a longstanding regulation. Our confidence in
the Government’s voluntary cessation, see Am. Cargo
Transp., 625 F.3d at 1180, is at an apex in this context. The
fact that the Government’s “voluntary cessation” is more
aptly described as reemphasizing, or recommitting to, an
existing policy of consistent enforcement of a longstanding
regulation—not as a policy change—increases our confidence
that “the challenged conduct cannot reasonably be expected
to recur.” White, 227 F.3d at 1244. Nonetheless, the
considerations we have previously emphasized in cases
involving policy changes not embodied in statutes or
otherwise procedurally protected are instructive here, so we
proceed to examine this case within that loose framework.
C
All of the factors that suggest mootness in “policy
change” cases are present here. First, the June 30, 2010 e-
mail was a clear statement, broad in scope, and unequivocal
in tone. See id. at 1243. The e-mail insisted that § 1.218 be
“enforced precisely and consistently,” emphasizing that this
directive meant that “NO outside pamphlets, handbills, flyers,
flags or banners, or other similar materials may be posted
anywhere on VA Property.” The e-mail also asked its
recipients to “make sure that [the directive would be]
20 ROSEBROCK V. MATHIS
disseminated to all officers who patrol the VA grounds and to
the rest of [their] department.”
Second, the e-mail fully “addresse[d] all of the
objectionable measures that [the Government] officials took
against the plaintiff[ ] in this case.” See id. With the fence
effectively closed as a forum for speech, the VA cannot
engage in viewpoint discrimination with regard to the speech
allowed in this forum.11
Third, although the record does not demonstrate
definitively that Rosebrock’s case was the “catalyst” for
VAGLA’s recommitment to strict enforcement of § 1.218,
see id., the record strongly suggests that this is so. In
particular, the e-mail was sent shortly after Rosebrock filed
his suit, and it mentions “flags in any position,” “flags
displayed in any position,” and the “outside fence/gates,”—
seemingly references to Rosebrock’s case.
Fourth, at this point, the VA’s recommitment to strict
enforcement of its longstanding regulation occurred a fairly
11
Rosebrock contends that the discretion allowed to the “head of the
facility or designee” under § 1.218(a)(9) to authorize displays on VA
property prevents the e-mail from mooting his request for permanent
injunctive relief. But there is no evidence in the record suggesting that the
head of the LA Campus or any designee will use this discretion to commit
viewpoint discrimination now that VAGLA has recommitted to strict
enforcement of the prohibition in § 1.218. Especially in light of the fact
that VAGLA’s general policy has never been inconsistent enforcement,
and in light of the faith we place in the Government, see Am. Cargo
Transp., 625 F.3d at 1179–80, we do not take the June 30, 2010 e-mail as
a cagy recommitment to strict enforcement of a regulation made with the
knowledge that the discretion afforded by the regulation will serve as a
loophole allowing ongoing viewpoint discrimination through inconsistent
enforcement.
ROSEBROCK V. MATHIS 21
long time ago. See id. at 1243–44 & nn. 25, 27. The
VAGLA associate director sent the e-mail on June 30, 2010,
more than three years ago.
Finally, based on the record before us, “since [the
recommitment] the agency’s officials have not engaged in
conduct similar to that challenged by the plaintiffs.” See id.
at 1243.
D
We recognize that there are no procedural safeguards in
place preventing VAGLA from changing course, a factor that
countenances against mootness. See Bell, 709 F.3d at
900–01. But there is little reason to doubt VAGLA’s
recommitment to a preexisting policy in favor of consistently
enforcing a longstanding regulation. Moreover, in light of the
presumption that the Government acts in good faith, we have
previously found the heavy burden of demonstrating
mootness to be satisfied in “policy change” cases without
even discussing procedural safeguards or the ease of changing
course. See, e.g., Am. Cargo Transp., 625 F.3d at 1179–80.
In the end, we hold that the VA has satisfied its heavy
burden of demonstrating mootness. We presume that the
Government acts in good faith, and that presumption is
especially strong here, where the Government is merely
recommitting to consistent enforcement of one of its own
longstanding regulations. In light of this and the other
considerations outlined above, we do not think it reasonably
likely that the objectionable conduct will recur. If it does,
Rosebrock is well-armed with his declaratory judgment and
can pursue relief in a new suit.
22 ROSEBROCK V. MATHIS
IV
Rosebrock’s requests for injunctive relief were properly
dismissed as moot. The judgment of the district court is
AFFIRMED.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from the majority’s conclusion that
Mr. Rosebrock’s First Amendment claim for injunctive relief
has been rendered moot by an e-mail “instructing” the
Veteran Affairs Greater Los Angeles Healthcare System
[VAGLA] police “to consistently enforce” the regulation
governing posting of materials. Majority Opinion, p. 4–5.
As the majority opinion acknowledges, voluntary
cessation of challenged conduct renders a case moot only if
the party asserting mootness meets the “heavy burden” of
establishing that “subsequent events [have] made it absolutely
clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Majority Opinion, p. 15
(quoting Friends of the Earth Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 189) (emphasis added).
The majority opinion also concedes that when the
government asserts mootness as a result of a change in policy,
it is unlikely to prevail if the “government is otherwise
unconstrained should it later desire to reenact the [offending]
provision,” or more accurately in this case, later desire to
permit discriminatory enforcement. Majority Opinion, p. 15
(quoting Coral Constr. Co. v. King Cnty, 941 F.2d 910, 928
(9th Cir. 1991)) (alterations omitted). Indeed, the majority
ROSEBROCK V. MATHIS 23
and I agree that a determination of mootness is inappropriate
if a newly adopted policy “could be easily abandoned or
altered in the future.” Majority Opinion, p. 17 (quoting Bell
v. City of Boise, 709 F.3d 890, 901 (9th Cir. 2013)). But we
part company in our respective applications of these agreed
upon principles. The majority is of the view that the
Department of Veteran Affairs (VA) met its “heavy burden”
and I am of the view that it did not.
From where I sit, the history of this case aligns more
closely with Bell than it does with White v. Lee, 227 F.3d
1214 (9th Cir. 2000), the case most heavily relied upon by the
majority for its substantive analysis. See Majority Opinion,
pp. 19–21. In White, we concluded that federal officials from
the Department of Housing and Urban Development (HUD)
had met their “heavy burden” of establishing mootness due to
a “permanent change” by HUD in the way investigations are
conducted. White, 227 F.3d at 1244.
The plaintiffs in White brought an action against HUD
officials, alleging that they were harassed and investigated
solely because they exercised their rights under the First
Amendment to protest against the conversion of a hotel into
housing for homeless persons. See id. at 1220–21, 1225. As
a direct result of the lawsuit filed by the Plaintiffs, the
Assistant Secretary of HUD for Fair Housing and Equal
Opportunity issued a memorandum entitled “Substantive and
Procedural Limitations on Filing and Investigating Fair
Housing Act Complaints That May Implicate the First
Amendment.” Id. at 1242. The memorandum was
accompanied by a press release explaining that the plaintiffs’
activities were protected by the First Amendment and that the
guidelines set forth in the memorandum were developed in
response to plaintiffs’ protected activities. See id.
24 ROSEBROCK V. MATHIS
Importantly, the memorandum trumpeted the supremacy of
First Amendment rights, stating that “where [Fair Housing
Act] concerns intersect with First Amendment protections,
HUD officials must defer to the latter: the Department
chooses to err on the side of the First Amendment.” Id. at
1243 (internal quotation marks omitted). We concluded that
this public, detailed, contrite and emphatic renunciation of its
past policy represented “a permanent change” by HUD that
mooted the plaintiff’s request for injunctive relief. Id. at
1243.
The facts of the case we decide today are closer to those
we considered in Bell. Bell involved a city ordinance that
criminalized sleeping in a public or private structure or motor
vehicle, without the permission of the owner. See 709 F.3d
at 893. Plaintiffs filed an action pursuant to 42 U.S.C. § 1983
asserting that the ordinance “ha[d] the effect of criminalizing
homelessness and constitutes cruel and unusual punishment
. . .” Id. (internal quotation marks omitted). The district
court determined that Plaintiffs’ claims for prospective
injunctive relief were mooted due to the issuance of a Special
Order by the Chief of Police that prohibited enforcement of
the ordinance “when a person is on public property and there
is no available overnight shelter. . . .” Id. at 895.
We contrasted the Special Order in Bell with the
“entrenched and permanent policy issued in White. . . .” Id.
at 900 (citation omitted). We noted that the new policy in
White “was designed to protect the First Amendment rights
of parties subject to HUD investigations . . .” Id. “[T]he new
policy . . . was fully supportive of First Amendment rights,
addressed all of the objectionable measures that HUD
officials took against the plaintiffs, and . . . confessed that
plaintiffs’ case was the catalyst for the agency’s adoption of
ROSEBROCK V. MATHIS 25
the new policy. . . .” Id. (quoting White, 227 F.3d at 1243 &
n.25) (alterations and internal quotation marks omitted).
We distinguished the Special Order at issue in Bell,
concluding that the Special Order “lack[ed] the assurances
present in White.” Id. We noted the significance of the new
policy in White “address[ing] all of the objectionable
measures that HUD officials took against the plaintiffs.” Id.
(citation and internal quotation marks omitted) (emphasis in
the original). “In contrast, the Special Order fail[ed] to fully
address Plaintiffs’ allegations . . . Moreover, . . . the authority
to establish policy . . . [was] vested entirely in the Chief of
Police, such that the new policy regarding enforcement of the
Ordinances could be easily abandoned or altered in the
future.” Id. at 900–01. We concluded: “Simply put,
Defendants have failed to establish with the clarity present in
White that the new policy is the kind of permanent change
that proves voluntary cessation.” Id. at 901.
The change in policy upon which the majority opinion
relies is an e-mail from the associate director of VAGLA.
See Majority Opinion, pp. 11–12. As noted in the majority
opinion, the e-mail directed the VAGLA police to “ensure
that VA Regulation 38 C.F.R. 1.218 is enforced precisely and
consistently.” Id., p. 11.1
1
38 C.F.R. § 1.218(a)(9) provides in pertinent part:
Distribution of handbills. The distributing of materials
such as pamphlets, handbills, and/or flyers, and the
displaying of placards or posting of materials on
bulleting boards or elsewhere on property is prohibited,
26 ROSEBROCK V. MATHIS
As a preliminary matter, it could be convincingly argued
that 38 C.F.R. 1.218(a)(9) does not even apply to Mr.
Rosebrock’s act of hanging the American flag. This portion
of the regulation is directed by title toward the distribution of
handbills, and its content prohibits distributing handbills and
similar items such as pamphlets, flyers, and placards, all of
which are written materials. See, e.g., Webster’s Ninth New
Collegiate Dictionary 550, 849 (1984) (describing a handbill
as “a small printed sheet” and a pamphlet as “an unbound
printed publication”) (emphases added).
It is an elementary principle of legislative interpretation
that words of a feather flock together. See In re W. States
Wholesale Nat. Gas Antitust Litig., 715 F.3d 716, 734 n.13
(9th Cir. 2013) (“Noscitur a sociis means that a word is
known by the company it keeps . . .” (citation and internal
quotation marks omitted); see also United States v. Kimsey,
668 F.3d 691, 701 (9th Cir. 2012) (holding that statutory
terms “grouped in a list should be given related meaning”and
“[t]hat several items in a list share an attribute counsels in
favor of interpreting the other items as possessing that
attribute as well”) (citations omitted). One would be hard
pressed to group “flag” with the other words included in the
regulation provision. In fact, these words could readily be
adapted to an elementary school vocabulary exercise:
except as authorized by the head of the facility or
designee.
(Emphasis Added).
This is the provision that was enforced against Mr. Rosebrock.
ROSEBROCK V. MATHIS 27
flyer handbill flag pamphlet
Which of these words does not belong?
This exercise underscores the likely inapplicability of the
regulation provision to Mr. Rosebrock’s conduct, especially
when one considers that he was not actually distributing
anything. And if the provision did not apply to
Mr. Rosebrock’s activities, the violation of this Vietnam
Veteran’s First Amendment rights would be even more
egregious, and could not be mooted by an e-mail “ensuring”
enforcement of an inapplicable regulation provision.
Even if the provision did apply to Mr. Rosebrock’s
activities, his claim for injunctive relief was not mooted by
the referenced e-mail. In White, we relied on the fact that the
formal memorandum (not e-mail) changing the policy was
issued by the Assistant Secretary for the Department of
Housing and Urban Development. See White, 227 F.3d at
1242. In this case, the e-mail (not formal memorandum) was
authored by a local associate director. In White, the policy
change protected First Amendment rights. See id. at 1243.
Here, the e-mail prohibited all expressive activity. In White,
the change in policy was publicized in the media, with
positive remarks about the importance of First Amendment
rights. See id. The e-mail in this case took great pains to
squelch the exercise of First Amendment activity and was
distributed only to the VAGLA police.
Like the Special Order in Bell, the e-mail in this case
“lacks the assurances present in White.” Bell, 709 F.3d at
900. The e-mail was not protective of First Amendment
rights, did not address the objectionable actions described in
Mr. Rosebrock’s claim for injunctive relief, and was not
28 ROSEBROCK V. MATHIS
publicly disseminated in such a way as to bind VAGLA in the
future. See id. As in Bell, “Defendants have failed to
establish with the clarity present in White that the new policy
is the kind of permanent change that proves voluntary
cessation” sufficient to moot Mr. Rosebrock’s claim for
injunctive relief. Id. at 901.
It is beyond dispute that this Vietnam-era veteran has
earned the right to exercise the full panoply of First
Amendment protections available in this country. We should
not whisk away those rights with the flick of a pen. I
respectfully dissent.