Rosebrock v. Mathis, et al., No. 11-56256 (9th Cir. 2014)
Annotate this CasePlaintiff and others protested weekly outside the locked fence that surrounds the LA Campus of the VAGLA to draw public attention to the VA's failure to use the lawn for veterans. Plaintiff filed suit challenging the inconsistent enforcement of 38 C.F.R. 1.218, which prohibited the posting of materials on VA property except under certain circumstances. The district court granted summary judgment to plaintiff with regard to declaratory relief, but denied any injunctive relief based on mootness. Plaintiff appealed. The district court concluded that a June 2010 e-mail instructing the VAGLA police to enforce section 1.218(a)(9) precisely and consistently mooted plaintiff's request for a permanent injunction by closing the LA Campus fence as a forum for all speech. The court agreed with the district court that the Government's voluntary cessation of its inconsistent enforcement of section 1.218(a)(9) mooted the request for injunctive relief. The court held that the VA satisfied its heavy burden of demonstrating mootness. The court presumed that the Government acted in good faith, and that presumption was especially strong here, where the Government was merely recommitting to consistent enforcement of one of its own longstanding regulations. Accordingly, the court affirmed the judgment of the district court.
Court Description: 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. 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.
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