Appeal from the United States District Court for the Northern District of California Jeremy D. Fogel, District Judge, Presiding D.C. No. 04-CV-02012-JF
The opinion of the court was delivered by: Graber, Circuit Judge
Argued and Submitted June 12, 2008-San Francisco, California
Filed August 8, 2008; Amended December 22, 2008
Before: Michael Daly Hawkins and Susan P. Graber, Circuit Judges, and James V. Selna,*fn1 District Judge.
The petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or for rehearing en banc may be filed.
Plaintiffs Steven R. Preminger and the Santa Clara County Democratic Central Committee appeal the district court's dismissal, for lack of standing, of their First Amendment challenge 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. Nonetheless, 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 System, 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 California resident, returned to Building 331 with the intent to register 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 register voters and said that they should not have been denied access to Building 331. But the group did not attempt to 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 Regulation*fn2 precluded "partisan activities" on VA property.
Plaintiffs then filed this action, challenging on First Amendment grounds the VA's refusal to allow them to register voters on the Menlo Park campus.*fn3 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 preliminary injunction and held that it lacked jurisdiction over Plaintiffs' 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 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 ...