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Rosebrock v Mathis

Case No. 11-56256 (C.A. 9, Mar. 14, 2014)

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 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.
 

 

Judge(s): Jay S. Bybee
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Administrative Law , Constitutional Law , Government / Politics
 
Circuit Court Judge(s)
Jay Bybee
Ferdinand Fernandez
Johnnie Rawlinson

 
Trial Court Judge(s)
James Otero

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Peter Eliasberg ACLU Foundation of Southern California
Jessica Price ACLU Foundation of Southern California
Hector Villagra ACLU Foundation of Southern California

 
Defendant Lawyer(s) Defendant Law Firm(s)
André Birotte Jr. U.S. Department of Justice
Indira Cameron-Banks U.S. Department of Justice
Leon Weidman U.S. Department of Justice

 

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la campus lawn to draw public attention to the va’s failure engage in viewpoint discrimination with regard to the speech injunction based on mootness and denying the reparative injunction on the on balance, we find the latter point more compelling. we 38 c.f.r. § 1.218(a)(9) provides in pertinent part: differs from white because the policy change here prohibited expressive chooses to err on the side of the first amendment.” id. at publicly disseminated in such a way as to bind vagla in the analyzing a statutory text, we do not look at its words in isolation.”); in re will change its policy in the future. a “permanent change” by hud in the way investigations are hung union down. presumably, the vagla police officers present in white.” id. we noted the significance of the new particular, the e-mail was sent shortly after rosebrock filed group of like-minded veterans have protested weekly outside mootness rosebrock is well-armed with his declaratory judgment and rosebrock’s opinion, rightfully should be used for veterans.2 policy of inconsistent enforcement of § 1.218(a)(9). rosebrock and other veterans protest for three to four hours 709 f.3d at 899 (internal quotation marks omitted), though it department of veteran affairs (va) met its “heavy burden” again. white v. lee, 227 f.3d 1214, 1243–44 (9th cir. 2000); against the plaintiff[ ] in this case.” see id. with the fence previously found the heavy burden of demonstrating because 38 c.f.r. § 1.218 has been in place, virtually 4 american flag union down on the fence for some time to of parties subject to hud investigations . . .” id. “[t]he new v. city of boise, 709 f.3d 890, 901 (9th cir. 2013)). but we angeles, california, for plaintiff-appellant. (internal quotation marks omitted)). but voluntary cessation similar items such as pamphlets, flyers, and placards, all of therefore, it does not include the public certain circumstances, see, e.g., white, 227 f.3d at 1242–44.9 generalpolicyof inconsistent enforcement. accordingly, this has been consistent enforcement. the june 30 e-mail seems the comparison to bell is flawed. the plaintiff there challenged an months, vagla and its police failed to enforce the injunctive relief. rosebrock v. beiter, 788 f. supp. 2d 1127, please ensure that va regulation 38 cfr established law, and the goal is for vagla police to enforce the law as altered in the future.” majority opinion, p. 17 (quoting bell vagla, it began taking action once rosebrock began protests. vagla and its police, many of whom were enforcement of the prohibition in § 1.218. especially in light of the fact 7 district court’s mootness determination de novo. smith v. univ. of wash., authorized by the head of the va facility in question or a though the decision by vagla to refrain from enforcing § 1.218 guidelines set forth in the memorandum were developed in the panel affirmed the district court’s denial of plaintiff’s implementation the agency’s officials have not engaged in assistant secretary of hud for fair housing and equal particular case. hanging the flag union down, because vagla received helliker, 463 f.3d 871, 878 (9th cir. 2006). by contrast, following a previously existing policy of consistent rosebrock v. mathis 13 to recur.” white, 227 f.3d at 1244. nonetheless, the hung the american flag union down on the fence. based on va police instructing them to consistently enforce the who had previously felt uncomfortable confronting rosebrock v. mathis8 rosebrock v. mathis 19 regulation when rosebrockandhis fellowprotestorshungthe associate director’s june 30, 2010 e-mail closing the fence to mooted the plaintiff’s request for injunctive relief. id. at c (quoting friends of the earth inc. v. laidlaw envtl. servs., more than three years ago. 668 f.3d 691, 701 (9th cir. 2012) (holding that statutory fact that the government’s “voluntary cessation” is more legislature possesses the power to reenact the statute after the at 900 (citation omitted). we noted that the new policy in satisfied its heavy burden of demonstrating mootness. american flag union down on the fence. the panel change even if the brass has announced a recommitment to and banners—on the vagla’s property . filed march 14, 2014 disseminated to all officers who patrol the va each sunday outside of the locked fence that surrounds the enforcement of § 1.218(a)(9) mooted the request for long time ago. see id. at 1243–44 & nn. 25, 27. the enforcement could have legally enforced the ordinance after plaintiff at 1243. here, the associate director’s e-mail resolves the conduct that finally, based on the record before us, “since [the intended to express patriotism, and a message of honor and egregious, and could not be mooted by an e-mail “ensuring” 1243 (internal quotation marks omitted). we concluded that viewpoint discrimination now that vagla has recommitted to strict court for the central district of california, bringing a cause wholesale nat. gas antitust litig., 715 f.3d 716, 734 n.13 i would like to confirm my office’s previous relief on two independent bases: first, it held that the request especially strong here, where the government is merely ronald mathis, chief of police of follows: the dissent argues this case is more like bell than white because the e-mail—did not effect a policy change in the typical sense regulation when he and his fellow protestors hung the recommitment] the agency’s officials have not engaged in flyer handbill flag pamphlet likely that the objectionable conduct will recur. if it does, [offending] provision.” coral constr. co. v. king county, asserting that the ordinance “ha[d] the effect of criminalizing the veterans administration greater assistant united states attorney. hud officials must defer to the latter: the department inc. v. laidlaw envtl. servs. (toc), inc., 528 u.s. 167, 189 had rendered facial challenges to those ordinances moot). states district court for the central district of california, cessation of a challenged practice does not deprive a federal aptly described as reemphasizing, or recommitting to, an enforcement of the regulation suggests that vagla’s policy future. see id. as in bell, “defendants have failed to against rosebrock until he began hanging the flag union down whether a voluntary cessation of this last type—one not the broad prohibition in § 1.218(a)(9), theyhad also informed we consider the whole text and give effect to every word therein. int’l strict enforcementmakes it particularlyunlikelythat vagla determined that, based on the record, this inconsistent has been rendered moot by an e-mail “instructing” the “[t]hat several items in a list share an attribute counsels in words of a governing text are a paramount concern, but unlike the dissent, on va property.3 addressed all of the objectionable measures that hud vagla or va policy with regard to its enforcement, but discrimination. further, like the memorandum in white, id. at 1242, the relief, id. at 1143–49. the district court denied injunctive rights, did not address the objectionable actions described in enforcement of the prohibition on posting in § 1.218. peter j. eliasberg (argued), hector o. villagra and jessica g. argued and submitted head of the veterans affairs facility in question or a designee vagla police and staff did not confront rosebrock va representatives only cited rosebrock or interfered with not whisk away those rights with the flick of a pen. i because this e-mail merely told rosebrock that he could not post all of the factors that suggest mootness in “policy consistently. id. at 1143–45. abandoned or altered in the future.” bell, 709 f.3d at 901. his official capacity; donna beiter, see id., the record strongly suggests that this is so. in past policy represented “a permanent change” by hud that on the fence, and the vagla police did not interfere. rosebrock grew increasingly upset with the situation harmed rosebrock because the message instructed officers to apply the for the central district of california a way as to bind defendants in the future. for 66 weeks—the amount of time, according to rosebrock, according to vagla, vagla and its police refrained from rosebrock is a veteran who objects to the failure of the characterized as a policy change, but we do not think this a enforcement of an inapplicable regulation provision. bringing a cause of action under the first amendment, and this public, detailed, contrite and emphatic renunciation of its presuming that the government acts in good faith, the panel cessation” sufficient to moot mr. rosebrock’s claim for as “a small printed sheet” and a pamphlet as “an unbound district court for denying injunctive relief was that the request rosebrock v. mathis 15 in the end, we hold that the va has satisfied its heavy his activity if he hung the flag union down.5 (i)), with 38 c.f.r. § 1.218(a)(9). today’s version reads as infebruary2010,rosebrockprominentlyhungamerican policy changes that are not cemented by statute or some other mr. rosebrock’s activities, the violation of this vietnam we emphasize that the considerations discussed here do not provide clear error. wolfson v. brammer, 616 f.3d 1045, 1053 (9th cir. 2010). vagla and its police officers on the ground in this injunctive relief. but there is no evidence in the record suggesting that the the plaintiffs in white brought an action against hud involving the lawn, and, as a result, beginning on june 14, vagla’s property that would violate 38 c.f.r. § 1.218(a)(9). no. 11-56256 leon w. weidman, assistant united states attorney (chief it is beyond dispute that this vietnam-era veteran has permit discriminatory enforcement. majority opinion, p. 15 because rosebrock did not distribute anything and a “flag” differs from enforcement, and standards of conduct on veterans otherwise unconstrained should it later desire to reenact the permanent injunction by closing the la campus fence as a precisely and consistently mooted rosebrock’s request for a and/or demonstrations . . . that take place off va property . . . should not months following this confrontation, rosebrock continued to rosebrock filed a complaint in the united states district hang the american flag union down on the la campus fence “[a] case is not easily mooted where the government is of veterans affairs (va), 38 c.f.r. § 1.218, has prohibited fence was prohibited by federal regulations, but, in spite of prohibition in the regulation. los angeles healthcare system, in display as “[t]o put forth for viewing : exhibit” and post as “[to put up earned the right to exercise the full panoply of first injunctive relief. we agree with the district court.8 the change in policy was publicized in the media, with filed cross-motions for summary judgment with regard to written materials, and it prohibits “displaying of placards or posting of aerostructure group, 387 f.3d 1048, 1051 (9th cir. 2004) (“[i]n head of the la campus or any designee will use this discretion to commit change” cases are present here. first, the june 30, 2010 e- administration greater los angeles involving policy changes not embodied in statutes or ordinances or regulations will not necessarily render a case reasonably be expected to recur.” majority opinion, p. 15 that “the challenged conduct cannot reasonably be expected (9th cir. 1991)) (alterations omitted). indeed, the majority when rosebrock hung the american flag union up, he record suggesting that vagla or the va has ever had a is part of authorized government activities. see 38 c.f.r. b him hanging any signs or flags on the fence. according to upon principles. the majority is of the view that the vagla’s recommitment to strict enforcement of § 1.218, in white. there, a high-ranking official issued a memorandum that seemingly references to rosebrock’s case. (quoting bell, 709 f.3d at 900–01). the dissent also argues that this case policy in white “address[ing] all of the objectionable regulations. veteran affairs greater los angeles healthcare system importantly, the memorandum trumpeted the supremacy of appeal from the united states district court might become moot if subsequent events made it absolutely where, as here, the va states that it will be more vigilant in rosebrock felt less uncomfortable now that they were grounds and to the rest of your department. if merits. we disagree withrosebrock’s readingofthe district court’s order. enforce the prohibition in the regulation. terms “grouped in a list should be given related meaning”and “a case becomes moot—and therefore no longer a ‘case’ this summary constitutes no part of the opinion of the court. it has housing and urban development. see white, 227 f.3d at inc., 133 s. ct. 721, 726 (2013) (quoting murphy v. hunt, white “was designed to protect the first amendment rights property prevents the e-mail from mooting his request for permanent va policy in the first place, and vagla’s recommitment to avoid being cited, rosebrock hung the flag union down again i respectfully dissent from the majority’s conclusion that rosebrock v. mathis 25 response to plaintiffs’ protected activities. see id. veterans. although neither vagla nor the va has ever had particularly relevant to this case, a policy change not i authored by a local associate director. in white, the policy on posting in § 1.218(a)(9). there is no evidence in the began on march 9, 2008, rosebrock initially hung the establishingthat“subsequentevents[have]madeit absolutely reasonably be expected to recur.” friends of the earth, rosebrock v. mathis14 the defendants did not appeal the summary judgment against them rosebrock v. mathis28 recommitment to a preexisting policy in favor of consistently of the regulation is directed by title toward the distribution of stated that the e-mail sent by the associate director was not really a problem of enforcement, and problems of opinion by judge bybee; relies is an e-mail from the associate director of vagla. onjune30, 2010, the vagla associatedirectorwhohad objectionable actions described in plaintiff’s claim for if a newly adopted policy “could be easily abandoned or confronting him for hanging the flag union down, a sign of american flag union up on a fence surrounding va property, consistent enforcement of one of its own longstanding facility or designee” under § 1.218(a)(9) to authorize displays on va is the kind of permanent change that proves voluntary sufficient to moot plaintiff’s claim for injunctive relief. she an existing policy. in fact, by its own terms, the e-mail the vagla police removed the flag and banner. concluding that the special order “lack[ed] the assurances “entrenched and permanent policy issued in white. . . .” id. in this case, the va action in question—the june 30, 2010 the referenced e-mail. in white, we relied on the fact that the effectively closed as a forum for speech, the va cannot displayed in any position,” and the “outside fence/gates,”— amendment.” id. at 1242. the memorandum was that words of a feather flock together. see in re w. states under § 1.218(a)(9) if he hung any sign or flag on the fence, v. united states, 625 f.3d 1176, 1180 (9th cir. 2010), but distinction without a difference. in fact, we see this majority for its substantive analysis. see majority opinion, to be removed, could remain on the fence. for the seven change it still must bear the heavy burden of showing that the in march 2010, rosebrock filed a complaint in the united 38 c.f.r. pt. 1). this case arises from the inconsistent police. of course, in a world of limited resources, such a government asserts mootness as a result of a change in policy, white that the new policy is the kind of permanent change rosebrock v. mathis 11 be interfered with.” in this situation, the associate director could not have rosebrock points out that the district court’s order was not clear as to unconstrained should it later desire to reenact the [offending] rosebrock v. mathis2 handbills, and its content prohibits distributing handbills and court of its power to determine the legality of the practice.” (an announcement) in a place of public view.”) so, even though is usually enough to render a case moot, even if the vagla police chief who is a defendant in this suit, vagla clear that the allegedly wrongful behavior could not at 893. plaintiffs filed an action pursuant to 42 u.s.c. § 1983 supp. 2d at 1140–43, but denied rosebrock any injunctive with respect to rosebrock’s request for declaratory relief, so we need not 1.218 is enforced precisely and consistently. definitively that rosebrock’s case was the “catalyst” for rosebrock’s requests for injunctive relief were properly that vagla’s general policy has never been inconsistent enforcement, it is an elementary principle of legislative interpretation 1140–49 (c.d. cal. 2011). one of the rationales given by the 941 f.2d 910, 928 (9th cir. 1991). “a statutory change . . . the change in policy upon which the majority opinion that 38 c.f.r. 1.218(a)(9) does not even apply to mr. course. see, e.g., am. cargo transp., 625 f.3d at 1179–80. rosebrock’s act of hanging the american flag. this portion we distinguished the special order at issue in bell, a few months after the june 30, 2010 e-mail, the parties considerations outlined above, we do not think it reasonably 3 before: ferdinand f. fernandez, johnnie b. rawlinson, a “distress call” regarding the va’s use of land that, in part company in our respective applications of these agreed 38 c.f.r. § 1.218(a)(9). according to a declaration from the 11 attribute as well”) (citations omitted). one would be hard proceed to examine this case within that loose framework. citing rosebrock to avoid confrontation with demonstrators, quotation marks omitted); see also united states v. kimsey, va defendants violated rosebrock’s first amendment rights a week after he first hung the flag union down, vagla agency’s adoption of the new policy,” id.; (4) the policy has burden of demonstrating mootness. we presume that the against rosebrock going forward, and (2) a “reparative please make sure that this information is anywhere on va property (including the conduct similar to that challenged by the plaintiffs.” see id. support for the u.s. military. vagla police had informed pp. 19–21. in white, we concluded that federal officials from complex medical, surgical, and psychiatric care is offered. resumption of the challenged conduct as soon as the case is police have been strictly enforcing § 1.218(a)(9) since the union down, except as a signal of dire distress in instances of extreme change protected first amendment rights. see id. at 1243. designee of that individual, or when the posting of materials vagla associate director sent the e-mail on june 30, 2010, a “pamphlet” “flyer” or “handbill.” dissent at 26–27. we agree that the transp., 625 f.3d at 1179–80, we do not take the june 30, 2010 e-mail as (9th cir. 2013). certain materials on va property, and did not authorize rosebrock to post subsection has not materially changed in the nearly forty affirmed. dismissed as moot. the judgment of the district court is nullity”). here, § 1.218(a)(9) prohibits individuals from distributing complaints from patients who were upset at seeing the union- policy has always been strict enforcement of the prohibition defendants-appellees. as we say elsewhere in this opinion, the only evidence regarding in a declaration, the vagla police patrol captain who rosebrock v. mathis4 regulation only extends to va property. the ordinance “when a person is on public property and there similar decisions from being made in the future. similarly, if all, she could not legally encourage first amendment activity on enforcement of § 1.218(a)(9) mooted the request for of equities did not tip in rosebrock’s favor and a permanent circumstances. 709 f.3d at 893–95. but the special order could not court determined that plaintiffs’ claims for prospective for publication ordinances could be easily abandoned or altered in the can pursue relief in a new suit. court that rosebrock’s requests for injunctive relief are moot, rosebrock v. mathis26 amendment protections available in this country. we should this exercise underscores the likely inapplicability of the union down sent an e-mail directive to the vagla police, (citation and internal quotation marks omitted) (emphasis in regulation—not asapolicychange—increasesourconfidence burden” in meeting this standard. id. that va officials allowed rosebrock to hang the flag union unequivocal in tone,” id. at 1243; (2) the policy change fully cessation of challenged conduct renders a case moot only if provision,” or more accurately in this case, later desire to homelessness and constitutes cruel and unusual punishment future.” id. at 900–01. we concluded: “simply put, reject[ed] interpretations that would render a statutory provision . . . a him, incorrectly, that there was an exception covering the not “even apply to mr. rosebrock’s act of hanging the american flag” (2000) (“it is well settled that a defendant’s voluntary american flag union up on the fence surrounding the la and september 2009, a period during which rosebrock hung permanentinjunction wasnot appropriatebecausethebalance cognizable interest in the outcome.’” already, llc v. nike, involved were “designees” of the head of the la campus who could injunctive relief. the panel held that the government perimeter gates,” and that doing so “is considered a capacity, [vagla] police “to consistently enforce” the regulation authorized government activities. this e-mail did not authorize rosebrock to post anymaterials 8 protective of first amendment rights, did not address the rosebrock v. mathis20 the dissent argues that 38 c.f.r. § 1.218(a)(9), by its plain terms, may moot, see, e.g., bell, 709 f.3d at 899–901, but it may do so in counsel rosebrock v. mathis 27 mail to the vagla police instructing them to consistently rosebrock contends that the discretion allowed to the “head of the american flag and pow/mia banner.1 of the locked fence that surrounds the la campus lawn to greater los angeles healthcare system sent an e-mail to the such as pamphlets, handbills, and/or flyers, and the government] officials took against the plaintiffs in th[e] plaintiffs’ case was the catalyst for the agency’s adoption of enforcement stopped when an associate director of the va “repeal or amendment of an ordinance by a local government the posting of materials on va property except when the panel agreed with the district court that the presumption that the government acts in good faith, we have bell’s case was dismissed. by contrast, here, there is no issue with the its regulation to be violated in the past without any response, 1 ordinancethatcriminalized sleepinginpublic,andthegovernmentargued second, the e-mail fully “addresse[d] all of the or ‘controversy’ for purposesofarticle iii—‘when the issues the rest of [their] department.” accompanied by a press release explaining that the plaintiffs’ otherwise procedurally protected are instructive here, so we fourth, at this point, the va’s recommitment to strict white, 227 f.3d at 1244. recommitment to consistently enforce an existing regulation, the district court entered a declaratory judgment rosebrock with regard to declaratory relief, holding that the motion for summary judgment, rosebrock sought two forms instructing the vagla police force to enforce § 1.218(a)(9) and injunctive relief. the district court ultimately granted 1214 (9th cir. 2000), the case most heavilyrelied upon bythe been in place for a long time when we consider mootness, see materials on bulletin boards or elsewhere on property.” see, e.g., request for a preventive injunction. because we agree with the district anywhere on va property.” the e-mail also asked its iv rosebrock that the posting of materials on the la campus a flyers, and the displaying of placards or underlying the district court’s mootness determination are reviewed for becausehe“displayed”and “posted”“materials”—includingvariousflags rosebrock v. mathis16 law sch., 233 f.3d 1188, 1193 (9th cir. 2000). factual determinations cervantes, 219 f.3d 955, 961 (9th cir. 2000) (“[w]e have consistently . . . unchanged, for nearly forty years, and the only evidence in months after rosebrock began sometimes hanging the flag was moot due to the department of veterans affairs’ discrimination. on veterans affairs property except when authorized by the danger to life or property.” 4 u.s.c. § 8(a). not bombs v. city of santa monica, 450 f.3d 1022, 1031–32 injunction would not be in the public’s interest, id. at you have any questions or concerns, please united states court of appeals at 1243. (vagla) for the benefit of veterans, and particularly dismissed.” knox v. serv. emps. int’l union, local 1000, vagla and the veterans on the vagla police force were regulation provision. in fact, these words could readily be squelch the exercise of first amendment activity and was flag is treated with respect, “[t]he flag should never be displayed with the message he had intended to convey by hanging the flag union distribution of handbills. the distributing of materials prohibition on posting materials in § 1.218, vagla and its injunctive relief were mooted due to the issuance of a special materials such as pamphlets, handbills, and/or we considered in bell. bell involved a city ordinance that banner, which were right next to the flag and banner that had reflected in statutory changes or even in changes in distribution of handbills. the distributing of robert rosebrock, n.25) (alterations and internal quotation marks omitted). years since its promulgation. compare security, law to establish policy . . . [was] vested entirely in the chief of solely because they exercised their rights under the first place off va property (on the public disrespect to our flag and country or a signal of immediate the american flag only union down on the fence, rosebrock act] concerns intersect with first amendment protections, draw public attention to the va’s failure to use the lawn for regulation provision to mr. rosebrock’s conduct, especially governing posting of materials. majority opinion, p. 4–5. homeless veterans. since march 2008, rosebrock and a all of the citations were dismissed at the request of an opinion third, although the record does not demonstrate (emphasis added). s. james otero, district judge, presiding of that individual, or when the posting of materials is part of lawsuit is dismissed.” chem. producers & distribs. ass’n v. los angeles, california, for defendants-appellants. and thus we affirm. for the ninth circuit sergeant asked rosebrock to remove them. consistent with and jay s. bybee, circuit judges. establish with the clarity present in white that the new policy price, aclu foundation of southern california, los rawlinson, circuit judge, dissenting: demonstrators were elderly veterans. indira j. cameron-banks (argued), assistant united states housing for homeless persons. see id. at 1220–21, 1225. as webster’s ii new riverside university dictionary 388, 918 (describing the party asserting mootness meets the “heavy burden” of patrol captain told vagla police officers to cite rosebrock 1145–49.6 case, where the government was merely recommitting to unit flag and a “support our troops” banner on the fence. rather from inconsistent enforcement of the regulation by criminalized sleeping in a public or private structure or motor in tone. see id. at 1243. the e-mail insisted that § 1.218 be inertial form—that the purported change in policy may be bybee, circuit judge: which are written materials. see, e.g., webster’s ninth new issued by the assistant secretary for the department of rosebrock v. mathis18 officials, alleging that they were harassed and investigated not to follow the law under poorly defined circumstances. cessation of challenged conduct does not ordinarily render a we presume that a government entity is acting in good forum for all speech. that is, the district court held that the prohibited law enforcement from enforcing the ordinance under certain whether bothgrounds for its decision—mootness, and the appropriateness june 30, 2010, when a vagla associate director sent an e- first amendment concerns related to an already-existing law. 227 f.3d for injunctive relief had been mooted by the june 30, 2010 e- existing regulation consistently, so as to avoid content-based seeking declaratory and injunctive relief. rosebrock filed a we contrasted the special order in bell with the 132 s. ct. 2277, 2287 (2012); see also friends of the earth, rights. see id. the e-mail in this case took great pains to 455 u.s. 478, 481 (1982) (per curiam)). “the voluntary police approached rosebrock and ordered him to hang the may do so in certain circumstances, see santa monica food of action under the first amendment, and seeking declaratory reemphasis or recommitment can always be fairly this is the provision that was enforced against mr. rosebrock. known by the company it keeps . . .” (citation and internal district court denied the motion, and we affirmed in an healthcare systems in the country. the la campus is the collegiate dictionary 550, 849 (1984) (describing a handbill had met their “heavyburden” of establishing mootness due to see also bell v. city of boise, 709 f.3d 890, 898–99 & n.13 nothing in the record suggests that any of the vagla police officers vagla’s general policy suggests that the policy has been strict va to use a lawn outside of the los angeles campus (la mootness “has met its heavy burden of proving that the dissenting, judge rawlinson stated thatdefendantsfailed 38 fed. reg. 24,364, 24,365 (sept. 7, 1973) (to be codified at (9th cir. 2006) (holding that amendments to city ordinances determined that the presumption was especially strong in this police that would prevent them from citing him for hanging 10 they did not interfere with rosebrock’s display or cite him. director of the veterans a direct result of the lawsuit filed by the plaintiffs, the loophole allowing ongoing viewpoint discrimination through inconsistent amendment to protest against the conversion of a hotel into challenged conduct cannot reasonably be expected to start up respectfully dissent. and in light of the faith we place in the government, see am. cargo amendment rights. dissent at 27. unpublished decision. see rosebrock v. mathis, 400 f. discrimination, but the district court denied rosebrock any restrict his speech, rosebrock continued to hang the flag the facts of the case we decide today are closer to those outside fence/gates). this includes any flags been prepared by court staff for the convenience of the reader. display of the american flag before, perhaps that will not like the special order in bell, the e-mail in this case rosebrock v. mathis10 government acts in good faith, and that presumption is all forms of speech, id. at 1143–45; and second, it held that a bulleting boards or elsewhere on property is prohibited, removing the flag. shortly thereafter, on june 26, 2009, 1242. in this case, the e-mail (not formal memorandum) was positive remarks about the importance of first amendment * plaintiff-appellant, displayed in any position. further, the change is evidenced by language that is “broad in scope and sidewalk outside of va property. previously sent rosebrock the e-mail about hanging the flag (including flags in any position) that take 87 stat. 75, 79 (codified as amended at 38 u.s.c. § 901), the housing act complaints that may implicate the first officials took against the plaintiffs, and . . . confessed that distributed only to the vagla police. injunctive relief. id. at 901. “confirm[ed] . . . previous instructions” to the vagla of injunctive relief: (1) a “preventive injunction” forbidding first amendment rights, stating that “where [fair housing e-mail to vagla police officers instructing them to issue for a permanent injunction was mooted by the vagla associate director’s june 30, 2010 e-mail. rosebrock that the union-up american flag and pow/mia longstanding regulations. in light of this and the other enforcinga longstanding regulation. moreover,in light of the the defendants from committing viewpoint discrimination which of these words does not belong? order by the chief of police that prohibited enforcement of rosebrock v. mathis24 ordinances or regulations—has rendered a case moot. but we rosebrock v. mathis6 and i agree that a determination of mootness is inappropriate to use the lawn for veterans. during these protests, which union down during his sunday protests. between july 2009 recipients to “make sure that [the directive would be] first amendment rights by engaging in viewpoint desecration of the flag and is not allowed on va property.” summary* case arises not from the regulation itself, or from a general which vagla feared could escalate the fervor of the more aptly described as reemphasizing, or recommitting to, mr. rosebrock’s first amendment claim for injunctive relief campus lawn,but enforcedtheregulation whentheprotestors displaying of placards or posting of materials on “lacks the assurances present in white.” bell, 709 f.3d at distress, and now that rosebrock’s actions had led to (9th cir. 2013) (“noscitur a sociis means that a word is instructions to you and your department. flags or banners, or other similar materials may be posted as we discussed, this means that no outside plaintiff alleged that defendants failed to enforce the the majority opinion also concedes that when the 2009, he started to hang the american flag union down rather when the government asserts mootness based on such a further, the policy change here is substantially similar to the change rosebrock said it was her understanding that the vagla rosebrock v. mathis 17 when one considers that he was not actually distributing any other materials, we do not view this as evidence of a general vagla anything. and if the provision did not apply to pamphlets, handbills, flyers, flags or banners, case”, id.; (3) “th[e] case [in question] was the catalyst for the displays are conducted as part of authorized rosebrock v. mathis 3 pressed to group “flag” with the other words included in the than union up. in hanging the flag union down, rosebrock considerations we have previously emphasized in cases dissent by judge rawlinson § 1.218(a)(9); see also security, law enforcement, and secretaryof veterans affairs’] charge and control” under the the department of housing and urban development (hud) va promulgated 38 c.f.r. § 1.218 in 1973. see security, favor of interpreting the other items as possessing that 9 measures that hud officials took against the plaintiffs.” id. government’s voluntary cessation of its inconsistent demonstrates that vagla elected to enforce its regulation inconsistently posting of materials on bulletin boards or in this instance, vagla’s actions in this particular case do not contact me. thanks. relief, holding that the va defendants violated rosebrock’s veterans themselves, were also reluctant because many of the nothing in the order suggests that the mootness analysis was limited to the we have not set forth a definitive test for determining “enforced precisely and consistently,” emphasizing that this administration property, 38 fed. reg. at 24,365 (subsection enforcement of § 1.218 as applied to robert rosebrock. we have jurisdiction pursuant to 28 u.s.c. § 1291. we review the sjo-ss moot, we need not reach the merits of the requests, and thus we need not existing policy of consistent enforcement of a longstanding procedural limitations on filing and investigating fair mootness where the “new policy . . . could be easily mail was a clear statement, broad in scope, and unequivocal that proves voluntary cessation.” id. at 901. countenances against mootness. see bell, 709 f.3d at court’s denial of injunctive relief. we agree with the district formal memorandum (not e-mail) changing the policy was enforcement of a longstanding regulation. our confidence in allowed in this forum.11 id. at 1243–44 & nn. 25, 27; and (5) “since [the policy’s] 1243. director saying that he could “not attach the american flag, on july 24, 2009, a vagla police patrol captain sent an about hanging the vietnam unit flag and “support our case moot because a dismissal for mootness would permit a presented are no longer “live” or the parties lack a legally objectionable measures that [the government] officials took request for injunctive relief after determining that the request of the civil division), united states department of justice, knowledge that the discretion afforded by the regulation will serve as a pow/mia banner from the fence. when rosebrock refused, vehicle, without the permission of the owner. see 709 f.3d four of the citations explicitly mentioned that the flag was consider the district court’s holding with regard to viewpoint only vagla location in the los angeles region where pursuant to its authority to “make all needful rules and . . .” id. (internal quotation marks omitted). the district ultimately, the question remains whether the party asserting of permanent injunctive relief—applied to both requests for injunctive the announced recommitment to a policy may not prevent from where i sit, the history of this case aligns more (quoting coral constr. co. v. king cnty, 941 f.2d 910, 928 recommitment to a policy. if vagla and its police allowed policy change in bell, like the recommitment to the regulation here, the american flag union down on the la campus fence. the injunctive relief, and was not publicly disseminated in such exception—until november30,2008,whenavaglapolice place preventing vagla from changing course, a factor that defendants have failed to establish with the clarity present in relief. he reads the district court’s order as denying the preventive in sum, based on the record before us, for at least eight since 1973, a regulation promulgated by the department addressed problematic government conduct and instructed them about 1243.10 complaints from patients and threats to rosebrock’s safety.4 the district court held that the june 30, 2010 e-mail conducted. white, 227 f.3d at 1244. as the majority opinion acknowledges, voluntary clear that the allegedly wrongful behavior could not following the law as written, whereas in bell the officers were instructed 6 on the one hand, this distinction highlights that this was policeforceinconsistentlyenforcedtheregulation in response summary judgment to rosebrock with regard to declaratory as a preliminary matter, it could be convincingly argued except as authorized by the head of the facility or 528 u.s. at 189. the party asserting mootness bears a “heavy opportunity issued a memorandum entitled “substantive and distinction as cutting both ways. authorize rosebrock to hang the american flag or pow/mia banner v. under § 1.218(a)(9). directivemeantthat“nooutside pamphlets,handbills, flyers, have indicated that mootness is more likely if (1) the policy demonstrate that vagla’s general policy was inconsistent enforcement. up on the fence without interference. or agency does not necessarily deprive a federal court of its police, such that the new policy regarding enforcement of the by engaging in viewpoint discrimination, rosebrock, 788 f. the original). “in contrast, the special order fail[ed] to fully his suit, and it mentions “flags in any position,” “flags “‘could be easily abandoned or altered in the future.’” dissent at 24–25 here, the e-mail prohibited all expressive activity. in white, campus) of the va greater los angeles healthcare system vagla is one of the largest and most complex va activities, his claim for injunctive relief was not mooted by rosebrock v. mathis 23 mr. rosebrock’s claim for injunctive relief, and was not 5 enforcement of its longstanding regulation occurred a fairly iii that same month, after rosebrock had not hung the printed publication”) (emphases added). activity, whereas the permanent policy change in white protected first permanent injunctive relief denied him by the district court.7 and was told bythe vagla police to remove the flag and his e-mail emphasized the importance of first amendment rights: “ protests even if the provision did apply to mr. rosebrock’s challenged conduct cannot reasonably be expected to recur.” declaratory relief and permanent injunctive relief. in his rosebrock did not distribute written materials, § 1.218(a)(9) still applies meant to convey an entirely different message than the evendiscussingproceduralsafeguards ortheeaseofchanging under 4 u.s.c. § 8, which is intended to guarantee that the american but enforced the regulation when the protestors hung the on the other hand, we are less inclined to find is no available overnight shelter. . . .” id. at 895. mootness to be satisfied in “policy change” cases without 900–01. but there is little reason to doubt vagla’s faith when it changes its policy, see am. cargo transp., inc. an exhaustive or definitive list. which said the following: 2 national cemeteries act of 1973, pub. l. no. 93-43, § 4, rosebrock v. mathis12 healthcare system, in her official attorney, united states department of justice, los angeles, american flag union up on the fence, along with a pow/mia april 8, 2013—pasadena, california rosebrock v. mathis 5 inc., 528 u.s. 167, 189) (emphasis added). rosebrock v. mathis 21 upside down, anywhere on va property including [the] activities were protected bythe first amendment and that the elsewhere on property is prohibited, except as conduct similar to that challenged by the plaintiff[ ],” id. at rosebrock v. mathis 7 it is unlikely to prevail if the “government is otherwise app’x 261 (9th cir. 2010). veteran’s first amendment rights would be even more consistently.” id., p. 11.1 banner. sometimes, rosebrock would also hang a vietnam regulations for the governing of the property under [the citations to rosebrock under § 1.218(a)(9) if they observed have little concern that the va is engaged in gamesmanship we recognize that there are no procedural safeguards in a general policy of inconsistent enforcement of the not comfortable interfering with elderly veterans’ proper while the inconsistent enforcement was ongoing, or other similar materials may be posted up. specifically, the union-down flag was intended to convey government’s voluntary cessation of its inconsistent address plaintiffs’ allegations . . . moreover, . . . the authority flag union up or remove it, and rosebrock complied by the kind of permanent change that proved voluntarycessation designee or when such distributions or that va regulation 38 c.f.r. 1.218 is enforced preciselyand policy . . . was fully supportive of first amendment rights, flags union up on the fence with vagla police nearby, but 900. the e-mail was not protective of first amendment rosebrock v. mathis22 the new policy. . . .” id. (quoting white, 227 f.3d at 1243 & they should have been doing all along. in other words, the goal is designee. gamesmanship—is not present here. inconsistent believing that the va was attempting to impermissibly hang the union-up american flag and the pow/mia banner the claim was moot because the chief of police issued a special order that disseminated to all officers who patrol the va grounds and to before us now is rosebrock’s appeal from the district accordingly, protests and/or demonstrations recommitting to consistent enforcement of one of its own comment on the district court’s consideration of the merits. union down on the fence, and even after a vagla police law enforcement, and standards of conduct on veterans d.c. no. the record addressingvagla’s or the va’s policyregarding consistent enforcement. on the other hand, the concern with sidewalk) should not be interfered with. also, “addresses all of the objectionable measures that [the the district court granted summary judgment to adapted to an elementary school vocabulary exercise: sent the july 2009 e-mail to vagla police officers about a cagy recommitment to strict enforcement of a regulation made with the down flag and rosebrock himself complained that he had to these protests. in particular, over a period of at least eight and i am of the view that it did not. d standards of conduct on veterans administration property, ass’n of machinists & aerospece workers v. bf goodrich aerospace reflected in statutory changes or even in changes in government activities. troops” banner—neither of which was covered by the stated been threatened by individuals offended at the display. motion seeking a preliminary injunction against the vagla opinion power to determine the legality of the practice” at issue, bell, california; andré birotte jr., united states attorney, and administration property, 38 fed. reg. at 24,364–65. this see majority opinion, pp. 11–12. as noted in the majority enforcement may persist in spite of an announced to establish that the new policy regarding enforcement was done anything more to trumpet the superiority of the constitution. after court that rosebrock’s requests for both types of injunctive relief are enforcement of § 1.218(a)(9) was never general vagla or rosebrock timely appealed, and seeks the two types of repeal the ordinance. the ordinance remained in effect, so law 38 c.f.r. § 1.218, which prohibited the posting of materials the stated exception, the vagla police sergeant told injunction” requiring the defendants to allow rosebrock to authorized by the head of the facility or the government’s voluntary cessation, see am. cargo transp., 625 f.3d at 1180, is at an apex in this context. the received six citations in the mail pursuant to § 1.218(a)(9). opinion, the e-mail directed the vagla police to “ensure can yield mootness if a “stringent” standard is met: “a case 2:10-cv-01878- in favor of rosebrock on his first amendment claim. ii 1 mail instructing the vagla police to enforce § 1.218 rosebrock received an e-mail from a vagla associate closely with bell than it does with white v. lee, 227 f.3d therecordbeforeus, this inconsistent enforcementstopped on enforcement. rosebrock v. mathis 9


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