## United States Court of Appeals for the Federal Circuit

2007-7008

STEVEN PREMINGER, Petitioner,

v.
SECRETARY OF VETERANS AFFAIRS, Respondent.

Scott J. Rafferty , of Washington, DC, filed a comb ined petition for rehearing and rehearing en banc for petitioner. Jane W. Vanneman , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Departm ent of Justice, of Washingt on, DC, filed a response to the petition for respondent. With her on the response were Jeffrey S. Bucholtz , Acting Assistant Attorney General, and Jeanne E. Davidson , Director. Appealed from: Department of Veterans Affairs

## United States Court of Appeals for the Federal Circuit

2007-7008

STEVEN PREMINGER, Petitioner,

v.
SECRETARY OF VETERANS AFFAIRS, Respondent.
On petition for review pursuant to 38 U.S.C. Section 502.

ON PETITION FOR REHEARING

Before LOURIE, Circuit Judge , FRIEDMAN, Senior Circuit Judge , and SCHALL, Circuit Judge

. SCHALL, Circuit Judge

. O R D E R Steven Preminger has petitioned for rehearing of the court’s August 17, 2007 decision in Preminger v. Secretary of Veterans Affairs , 498 F.3d 1265 (Fed. Cir. 2007). In that decision, we reject ed Mr. Preminger’s facial chal lenge to the constitutional validity of 38 C.F.R. § 1.218(a)(14), a Department of Veterans Affairs (“VA”) regulation that prohibits visitors to VA property from engaging in unauthoriz ed “demonstrations,” which the regulation defines to include “partisan activities.” In doing so, we concluded that the fora at issue—VA medical cent ers—are nonpublic in nat ure, and that therestrictions on partisan activities imposed by section 1.218(a)(14) are both reasonable and viewpoint neutral. In addition, we noted that many of Mr. Pr eminger’s arguments related to his as-applied challenge to sect ion 1.218(a)(14), which remains pending in the United States District Court for the Northern District of California. Preminger v. Principi , No. 5:04-cv-02012-JF (N.D. Ca l. filed May 25, 2004). In his petition for rehearing, Mr. Preminger argues that the panel erred in several respects. First, he argues that we erred in rejecting as untimel y his Administrative Procedure Act (“APA”) challenge to the promul gation of section 1.218(a)(14). Turning to his constitutional challenge, he argues t hat we erred in cla ssifying VA medical centers as nonpublic fora, and in rejecting hi s contention that the regulation is vague, overbroad, and not viewpoint neut ral. Finally, Mr. Preminger argues that we erred in concluding that the amount of discretion that secti on 1.218(a)(14) provides to VA officials in determining whether to aut horize partisan activities is reasonable. We deny rehearing with respect to all of these issues except for Mr. Preminger’s contention that secti on 1.218(a)(14) grants excessive di scretion to the VA. On that issue, Mr. Preminger argues t hat the regulation does not set forth sufficient standards to guide the VA’s exercise of discretion in dete rmining whether to author ize or refuse to authorize partisan activities. Mr. Premi nger essentially argues that, because the regulation does not set forth adequate st andards, VA officials possess “unbridled discretion” to withhold authorization for any reason at all, including viewpoint discrimination. Mr. Prem inger contends that the la ck of adequate standards in section 1.218(a)(14) therefore causes the regulation to vi olate the First Amendment on its face.

2007-7008 2In our initial opinion, we considered whether the amount of discretion that section 1.218(a)(14) provides to the VA is reasonable in light of the “function and character” of the nonpublic VA medical centers. Preminger , 498 F.3d at 1279-80. We determined that “[t]he VA must be able to maintain a place of healing and rehabilitation for the veterans for which it provides services.” Id. at 1279. To that end, we concluded that the VA must ultimately have the discr etion to determine whether any particular “demonstration” (defined to incl ude “partisan activities”) woul d be disruptive to the VA’s mission. Id. at 1280. We stated: “[A] s part of the exercise of its discretion, the VA must be able to decide when its mi ssion would be compromised to a level that counsels against granting the request to conduct a demonstration.” Id. at 1280. We grant Mr. Preminger’s petition fo r rehearing for the limited purpose of explaining in further detail our conclusion that section 1.218(a )(14) does not grant unbridled discretion to the VA. As the atta ched opinion makes clear, we think that the regulation sets forth specif ic, objective standards to gui de the VA’s exercise of discretion. We thus see li ttle risk that the VA will be abl e to use the regulation to engage in undetectable viewpoint discrimination. Accordingly, we decline to hold section 1.218(a)(14) facially invalid as a regulation granti ng “unbridled discretion” to restrict speech. Accordingly, IT IS ORDERED THAT: (1) The petition for rehearing is granted fo r the limited purpose of explaining in further detail the panel’s conclusion that section 1.218(a)(14) does not grant unbridled discretion to the VA. Our prior opinion, dated August 17, 2007, is hereby withdrawn, and the opinion attached to this order is substituted in its place.

2007-7008 32007-7008 4 (2) In all other respects, the pet ition for rehearing is denied.

FOR THE COURT

02/ 25/08 /s/

_ Alvin A. Schall

______ Date Alvin A. Schall Circuit Judge