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 combined petition for rehearing and 

rehearing en banc for petitioner. 

Jane W. Vanneman, Senior Trial Counsel, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, 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 rejected Mr. Preminger’s facial challenge 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 unauthorized “demonstrations,” 

which the regulation defines to include “partisan activities.” In doing so, we concluded 

that the fora at issue—VA medical centers—are nonpublic in nature, and that the 
restrictions on partisan activities imposed by section 1.218(a)(14) are both reasonable 

and viewpoint neutral. In addition, we noted that many of Mr. Preminger’s arguments 

related to his as-applied challenge to section 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. Cal. 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 untimely his Administrative 

Procedure Act (“APA”) challenge to the promulgation of section 1.218(a)(14). Turning 

to his constitutional challenge, he argues that we erred in classifying VA medical 

centers as nonpublic fora, and in rejecting his contention that the regulation is vague, 

overbroad, and not viewpoint neutral. Finally, Mr. Preminger argues that we erred in 

concluding that the amount of discretion that section 1.218(a)(14) provides to VA 

officials in determining whether to authorize partisan activities is reasonable. 

We deny rehearing with respect to all of these issues except for Mr. Preminger’s 

contention that section 1.218(a)(14) grants excessive discretion to the VA. On that 

issue, Mr. Preminger argues that the regulation does not set forth sufficient standards to 

guide the VA’s exercise of discretion in determining whether to authorize or refuse to 

authorize partisan activities. Mr. Preminger essentially argues that, because the 

regulation does not set forth adequate standards, VA officials possess “unbridled 

discretion” to withhold authorization for any reason at all, including viewpoint 

discrimination. Mr. Preminger contends that the lack of adequate standards in 

section 1.218(a)(14) therefore causes the regulation to violate the First Amendment on 

its face. 

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In 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 discretion to determine whether any particular 

“demonstration” (defined to include “partisan activities”) would 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 mission 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 for 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 attached opinion makes clear, we think that the 

regulation sets forth specific, objective standards to guide the VA’s exercise of 

discretion. We thus see little risk that the VA will be able 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 granting “unbridled discretion” to 

restrict speech. Accordingly, 

IT IS ORDERED THAT: 

(1) The petition for rehearing is granted for 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. 

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(2) In all other respects, the petition for rehearing is denied. 

 FOR THE COURT 

 02/25/08 /s/_Alvin A. Schall______ 

 Date Alvin A. Schall 

 Circuit Judge