PUBLISHED
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`PATRICK G. GRIFFIN, III, an
`individual,
`
`Plaintiff-Appellee,
`v.
`DEPARTMENT OF VETERANS AFFAIRS, a
`Department of the United States
`Government; ROGER R. RAPP, Acting
`Under Secretary for Memorial
`Affairs and Head of the National
`Cemetery Administration; ROBIN
`POHLMAN, Director, Point Lookout
`Confederate Cemetery, an
`individual, in her official capacity,
`Defendants-Appellants.
`
`No. 01-1450
`
`Appeal from the United States District Court
`for the District of Maryland, at Baltimore.
`William M. Nickerson, District Judge.
`(CA-00-2837-WMN)
`
`Argued: October 30, 2001
`
`Decided: December 17, 2001
`
`Before WILKINS, LUTTIG, and GREGORY, Circuit Judges.
`
`Reversed by published opinion. Judge Luttig wrote the opinion, in
`which Judge Wilkins and Judge Gregory joined.
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`2
`
`GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
`
`COUNSEL
`
`ARGUED: John Samuel Koppel, Appellate Staff, Civil Division,
`UNITED STATES DEPARTMENT OF JUSTICE, Washington,
`D.C., for Appellants. Michael F. Wright, CASE, KNOWLSON, JOR-
`DAN & WRIGHT, Los Angeles, California, for Appellee. ON
`BRIEF: Stuart E. Schiffer, Acting Assistant Attorney General, Ste-
`phen M. Schenning, United States Attorney, Mark B. Stern, Appellate
`Staff, Civil Division, UNITED STATES DEPARTMENT OF JUS-
`TICE, Washington, D.C., for Appellants. Steven D. Campen, Stephen
`S. Burgoon, CAMPEN & BURGOON, Frederick, Maryland, for
`Appellee.
`
`OPINION
`
`LUTTIG, Circuit Judge:
`
`Patrick Griffin brought suit in federal district court to compel the
`Veterans Administration to permit him to fly the Confederate flag
`daily over Point Lookout Confederate Cemetery, a national cemetery
`administered by the Veterans Administration through the National
`Cemetery Administration. The district court concluded that Griffin’s
`proposed flag display constituted private speech in a nonpublic forum,
`and held that the Veterans Administration’s asserted reasons for
`excluding this speech were neither reasonable nor viewpoint neutral.
`Accordingly, the district court enjoined the Veterans Administration
`to permit Griffin to fly the Confederate flag at Point Lookout daily,
`on a flag pole to be erected and maintained by Griffin. Because we
`hold that the Veterans Administration’s denial of Griffin’s request is
`both reasonable and viewpoint neutral, we reverse.
`
`I.
`
`The National Cemetery Administration ("NCA"), part of the Veter-
`ans Administration ("VA"), operates 119 national cemeteries, includ-
`ing Point Lookout Confederate Cemetery, which
`the federal
`government acquired from the state of Maryland in 1910. Congress
`requires that all national cemeteries "shall be considered national
`
`

`
`GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
`
`3
`
`shrines as a tribute to our gallant dead," 38 U.S.C. § 2403(c), and has
`delegated to the Secretary of Veterans Affairs authority to make "all
`rules and regulations which are necessary or appropriate to carry out"
`this mandate, 38 U.S.C. § 2404(a).
`
`A VA regulation, 38 C.F.R. § 1.218(a), broadly proscribes many
`forms of expression, absent specific authorization, on all VA prop-
`erty. It prohibits all "demonstration[s], except as authorized by the
`head of the facility." This includes the "display of any placards, ban-
`ners, or foreign flags," and also "partisan activities." Id. The VA sup-
`plemented
`this general regulation with several more specific
`directives related to flag displays at national cemeteries. Of particular
`relevance to this case, the VA issued a formal directive, "Flags in VA
`National Cemeteries" ("Old Flag Manual"), in 1995. J.A. 165-72. A
`new directive ("New Flag Manual"), issued on April 30, 2001, after
`the district court decided the case now before us, superseded the Old
`Flag Manual.
`
`Griffin requested permission to fly an historically accurate Confed-
`erate flag over Point Lookout on August 30, 2000, and daily thereaf-
`ter. J.A. 95-96. The VA refused Griffin’s requests, explaining that,
`although its rules (set forth in the Old Flag Manual) allowed for dis-
`play of the Confederate flag two days a year, it did not "believe that
`additional displays of the Confederate flag at Point Lookout [were] in
`keeping with the NCA’s mission." J.A. 97-98.
`
`Dissatisfied, Griffin brought suit in district court, alleging that the
`VA’s various flag restrictions were facially unconstitutional and
`unconstitutional as applied to his specific request. Griffin moved for
`a preliminary injunction, and the VA moved for summary judgment.
`See Griffin v. Dep’t of Veterans Affairs, 129 F. Supp. 2d 832, 834 (D.
`Md. 2001). The district court proceeded directly to a trial on the mer-
`its, pursuant to Federal Rule of Civil Procedure 65. Id. at 837.
`
`The court concluded that it lacked jurisdiction to hear Griffin’s
`facial attack on 38 C.F.R. § 1.218(a)(14). Griffin, 129 F. Supp. 2d at
`837 (citing 38 U.S.C. § 502, which allows for judicial review of VA
`rulemaking, but only in the Federal Circuit). It concluded, however,
`that it did have jurisdiction over Griffin’s challenge to the regulation
`as applied to his request through the Old Flag Manual. Id. at 838.
`
`

`
`4
`
`GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
`
`The district court thereafter held that Point Lookout is a nonpublic
`forum, id. at 839, and that the VA’s restrictions were neither reason-
`able in light of the purpose of the forum nor viewpoint neutral, id. at
`841-44. Accordingly, the district court entered a permanent injunc-
`tion, ordering the VA to permit Griffin to fly the Confederate flag
`daily, using his own equipment and labor. Id. at 839 n.9. This appeal
`followed.
`
`II.
`
`The district court concluded, Griffin, 129 F. Supp. 2d at 840, and
`the parties agree, that Point Lookout is a nonpublic forum. Restric-
`tions on speech in such a forum must be both reasonable in light of
`the purpose of the forum and viewpoint neutral. See, e.g., Cornelius
`v. NAACP Legal Def. & Ed. Fund, Inc., 473 U.S. 788, 806 (1985).
`As noted, the district court held that the VA’s restrictions meet neither
`requirement. We address each in turn.1
`
`A.
`
`In order to assess the reasonableness of the Secretary’s restrictions,
`we must first determine the purpose of Point Lookout, the relevant
`forum. We agree with the VA that that purpose is to honor, as Ameri-
`cans, in tranquil and nonpartisan surroundings, those who have given
`
`1Preliminarily, we note that the district court decided this case under
`the Old Flag Manual. The parties agree, as do we, however, that the
`appeal is not mooted by the adoption of the New Flag Manual. Griffin
`claims a constitutional right to his requested display. The New Flag Man-
`ual, like its predecessor, provides no mechanism by which Griffin could
`seek such blanket approval. And the fact that the VA persists in litigating
`this case confirms that it has no intention of acceding to Griffin’s
`request. Moreover, Griffin’s claim, at least before this court, is that 38
`C.F.R. § 1.218(a)(14) is unconstitutional as applied to him through the
`Flag Manual, old or new. Because that regulation remains in effect and
`the VA continues to deny his request, the appeal is not moot. See North-
`ern Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jack-
`sonville, 508 U.S. 656, 662 (1993) ("There is no mere risk that [the VA]
`will repeat its allegedly wrongful conduct; it has already done so."); cf.
`Valero Terrestrial Corp. v. Paige, 211 F.3d 112 (4th Cir. 2000) (holding
`that substantial statutory revisions mooted case).
`
`

`
`GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
`
`5
`
`their lives to the Nation. We also conclude that the Secretary’s restric-
`tions are reasonable both as a means of ensuring the integrity of the
`VA’s own message (which, in this case, coincides with the purpose)
`and, relatedly, as an effort to maintain the nature of the forum.
`
`1.
`
`The VA contends that the purpose of Point Lookout is to pay "trib-
`ute to [the Confederate soldiers] as citizens of the United States,"
`Appellant’s Reply Br. at 7. In confirmation of this purpose, the VA
`directs us to 38 U.S.C. § 2403(c), in which Congress provided that
`
`[a]ll national [cemeteries] shall be considered national
`shrines as a tribute to our gallant dead and, notwithstanding
`the provision of any other law, the Secretary is hereby
`authorized to permit appropriate officials to fly the flag of
`the United States of America at such cemeteries twenty-four
`hours each day.
`
`(Emphasis added). Congress’ evident concern that such cemeteries
`"shall be considered national shrines" and its focus on "our gallant
`dead," combined with its emphasis on the flying of the "flag of the
`United States of America," all but inexorably lead to the conclusion
`that Congress did, as the VA maintains, intend national cemeteries to
`be places in which we honor "our gallant dead" as Americans.
`
`Further, to implement and effectuate this statutory mandate, the
`VA has promulgated various regulations designed to preserve these
`cemeteries as quiet places in which to honor the American dead, free
`from controversy and partisan conflict. See, e.g., New Flag Manual
`(stating that "flags may not be displayed on NCA property as a means
`of political activity or similar conduct that promotes any particular
`viewpoint or ideology other than to commemorate military service");
`38 C.F.R. § 1.218(a)(14) (limiting most forms of expression on VA
`property).
`
`Griffin, not surprisingly, argues that the purpose of Point Lookout
`is to honor the Confederates buried at the Cemetery as Confederates
`and that the district court made factual findings to that effect, which
`
`

`
`6
`
`GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
`
`we may review only for clear error. The district court did note that
`Point Lookout was "established for the sole purpose of honoring Con-
`federate dead," Griffin, 129 F. Supp. 2d at 842, and went on to state
`that the proposed positioning of the Confederate flag "simply repre-
`sents an unpretentious recognition that those who are buried there
`died as members of the Confederate Army," id.
`
`Critically, however, nothing in the district court’s opinion rejects
`or even refutes the VA’s position that the purpose of Point Lookout
`is to honor those Confederate soldiers who are buried there as Ameri-
`cans. To say that the purpose is to honor the Confederate dead, as the
`district court did, is not at all to say that the purpose is not to honor
`them as Americans. That is, even if we assume that the district court’s
`comments amount to findings of fact (and ignore the district’s failure
`to comply with Federal Rule of Civil Procedure 52(a), which requires
`the court to "find the facts specially and state separately its conclu-
`sions of law thereon") we would still conclude, as the VA urges, that
`the purpose of Point Lookout is to honor, as Americans, those who
`are buried within that cemetery.
`
`Stated another way, the district court’s purported findings are sim-
`ply irrelevant to the disposition of this case. As discussed below, the
`reasonableness of the VA’s restrictions turns on whether the purpose
`of Point Lookout is to honor the Confederates as Confederates or as
`Americans. Griffin insists that it is the former, and the VA insists that
`it is the latter, but the district court’s opinion is silent as to which it
`is. Because there is no factual finding by the district court on this piv-
`otal distinction to which we must defer, and because the statute com-
`pels us to accept the VA’s position, we hold that the purpose of Point
`Lookout is to honor the soldiers buried there as Americans.2
`
`2Griffin attempts to support his position by noting that the VA has
`retained the original name, "Point Lookout Confederate Cemetery." Grif-
`fin also points to various inscriptions on Point Lookout’s monuments,
`such as "At the call of Patriotism and duty they encountered the perils
`of the field, endured the trials of a Prison, and were faithful, even unto
`death," J.A. 157, and "Dulce et decorum est pro Patria Mori." We need
`not, however, decide whether the name of the Cemetery or its inscrip-
`tions could ever determine its purpose for First Amendment analysis,
`because each of these is consistent with honoring the Confederates bur-
`ied at Point Lookout as Americans.
`
`

`
`GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
`
`7
`
`2.
`
`Griffin asserts, and the district court held, that the VA’s restrictions
`are unreasonable in light of the purpose of the forum. We note at the
`outset that the VA’s restrictions "need only be reasonable; [they]
`need not be the most reasonable or the only reasonable limitation[s]."
`Cornelius, 473 U.S. at 808. We have no trouble concluding that the
`restrictions meet this deferential test.
`
`The government is entitled to promote particular messages, Rosen-
`berger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 833
`(1995), and to "take legitimate and appropriate steps to ensure that its
`message[s] [are] neither garbled nor distorted," id.; see Rust v. Sulli-
`van, 500 U.S. 173, 194-95 (1991) ("[W]hen the Government appro-
`priates funds to establish a program [that includes speech] it is
`entitled to define the limits of that program.").
`
`The district court missed the thrust of this argument, stating that the
`"[d]efendants are not being asked to expend their money or act at all
`but, rather, merely to ‘step back and allow the third parties to use the
`government property without interference,’" Griffin, 129 F. Supp. 2d
`at 842 (quoting PMG Int’l Div., LLC v. Cohen, 57 F. Supp. 2d 916,
`920 (N.D. Cal. 1999)). Requiring the VA to allow the Confederate
`flag to fly daily over Point Lookout certainly "garble[s] [and] dis-
`tort[s]" the VA’s chosen message that "Point Lookout does not com-
`memorate fallen Confederates as such[, but, rather,] . . . pays tribute
`to them as citizens of the United States who died in service of the
`Confederacy during a national conflict." Appellant’s Reply Br. at 7
`(emphasis added).
`
`The First Amendment does not compel the VA to subsidize Grif-
`fin’s speech by allowing him to use the federally-owned Cemetery,
`particularly when that speech undermines the VA’s own message.
`The VA "is not denying a benefit to anyone, but is instead simply
`insisting that public funds [in the form of use of land] be spent for the
`purposes for which they were authorized." Rust, 500 U.S. at 196.
`
`Griffin next argues that, because the VA permits the Confederate
`flag to be flown two days a year, the purpose of the forum would best
`be fulfilled by flying the flag daily. Griffin actually states that in order
`
`

`
`8
`
`GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
`
`to avoid this conclusion, "the VA would have to show that diminish-
`ing returns set in after two days of display, thereby adding no addi-
`tional honor and respect to the Confederate dead." Appellee’s Br. at
`34 & n.5. Even ignoring the fundamental mathematical error, this
`statement is simply incorrect. There is nothing unreasonable about the
`VA’s decision to accommodate those, like Griffin, who wish to honor
`the soldiers as Confederates, only twice a year. And, in fact, the two
`days on which the VA automatically allows the flag to fly are Memo-
`rial Day and Confederate Memorial Day. It is not unreasonable to
`believe that limiting the display to those two days reinforces the VA’s
`objective of honoring "our gallant dead," 38 U.S.C. § 2403(c), with-
`out unduly disturbing or distorting the VA’s overall message of hon-
`oring the dead as American citizens.
`
`Perhaps flying the Confederate flag does, as the district court
`believed, "affirm[ ] the statutory mandate that national cemeteries
`shall be ‘shrines as a tribute to our gallant dead,’" Griffin, 129 F.
`Supp. at 841 (quoting 38 U.S.C. § 2403(c)), though, as expressed
`above, we doubt it. But Congress delegated this determination not to
`the district court or to Griffin, but, rather, to the Secretary. We hold
`that the Secretary’s restrictions are reasonable in light of the purpose
`of Point Lookout.
`
`3.
`
`The district court also rejected the VA’s argument that the restric-
`tions were reasonable in light of the VA’s desire to preserve the tran-
`quility of national cemeteries. The district court noted that the
`Confederate flag had flown for several years at Point Lookout (until
`the VA became aware of it), apparently without incident. And
`although the district court was "hard put to imagine a rationally think-
`ing person attributing a racial or discriminatory message" to the pro-
`posed display, Griffin, 129 F. Supp. 2d at 841, certainly the VA could
`reasonably believe that the Confederate flag could cause controversy
`and that such controversy could undermine the VA’s goal of keeping
`the cemeteries free from partisan conflict. The First Amendment does
`not preclude the VA from taking steps to preserve the nature of this
`nonpublic forum. See, e.g., Perry Educ. Ass’n v. Perry Local Educa-
`tors’ Ass’n, 460 U.S. 37, 46 (1983) ("[T]he State, no less than a pri-
`vate owner of property, has power to preserve property under its
`
`

`
`GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
`
`9
`
`control for the use to which it is lawfully dedicated.") (quoting United
`States Postal Serv. v. Greenburgh Civic Ass’n, 453 U.S. 114, 129-30
`(1981)); id. at 52 n.12 (noting that government need not prove disrup-
`tions will occur); see also International Soc’y for Krishna Conscious-
`ness, Inc. v. Lee, 505 U.S. 672, 685 (1992) (ISKCON).
`
`The VA also points to the logical consequences of the district
`court’s holding, worrying reasonably that other groups would demand
`that their own flags be flown over the Cemetery. The VA may also
`have to contend with counterspeech that the Confederate flag encour-
`ages. Griffin characterizes this concern as a "baseless scare tactic."
`Appellee’s Br. at 48. But the Supreme Court has counseled that justi-
`fications for restrictions "should not be measured by the disorder that
`would result from granting an exemption solely to" one group. ISK-
`CON, 505 U.S. at 685 (internal quotation omitted). Rather, the VA
`can legitimately consider the probable effects of demands made by
`other groups.
`
`Griffin seeks to distinguish his speech from possible counter
`speech. The former, he insists, is compatible with the purpose of the
`forum, while the latter is not. But this is true only if the purpose of
`the forum is honoring the Confederate dead as Confederates, a view
`we have already rejected. Nor is it by any means clear that the First
`Amendment tolerates favoritism of the kind Griffin apparently advo-
`cates. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992)
`("[The VA] has no such authority to license one side of the debate to
`fight freestyle, while requiring the other to follow Marquis of Queens-
`berry rules.").
`
`We conclude that the VA’s restrictions are reasonable in light of
`the nature of this particular forum, a cemetery dedicated to honoring,
`as Americans, the Nation’s war dead.
`
`B.
`
`The district court believed, as Griffin had argued, that the VA’s
`persistent references to the Confederate flag as "a symbol of racial
`intolerance and divisiveness clearly demonstrate[d] that [the VA is]
`choosing, and advancing the viewpoint of those offended by the flag
`over the viewpoint of those proud of the flag." Griffin, 129 F. Supp.
`
`

`
`10
`
`GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
`
`2d at 843 (citations omitted). While it is not clear that the VA has
`done any such thing, as discussed above, the VA is allowed to choose
`sides as far as its own message is concerned.
`
`The only issue is how the VA treats what little private speech it
`does allow at the Cemetery. The VA argues that the flag restrictions
`now in place limit private flag displays in national cemeteries without
`regard to the speaker’s viewpoint. Griffin contends that the VA dis-
`criminates based on viewpoint, because it "allow[s] a group to display
`Confederate flags far less than other flags." Appellee’s Br. at 51 (not-
`ing that viewpoint discrimination occurs "when government seeks to
`suppress speech because it disapproves of the message or ideas
`expressed") (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 391
`(1992)).
`
`But a review of the New Flag Manual reveals that groups that wish
`to fly the Confederate flag actually enjoy an advantage over other
`groups. Such groups may fly the Confederate flag two days a year
`without seeking special permission. See New Flag Manual, at ¶ 7.a
`(included as exhibit to Appellee’s Brief). Any further displays of the
`Confederate flag must be authorized pursuant to paragraph 2.b, but
`this merely places those wanting additional days on which to fly the
`Confederate flag in the same position as private parties seeking to dis-
`play any other flag on a given day.3 Far from demonstrating any spe-
`cial distaste for the Confederate flag, the New Flag Manual expresses,
`if anything, we suppose, a preference.
`
`Griffin believes that R.A.V. supports his position. But this is not a
`case in which the government "impose[s] special prohibitions on
`those speakers who express views on disfavored subjects." R.A.V.,
`505 U.S. at 391 (emphasis added). If anything, the VA grants groups
`
`3Griffin makes much of the fact that the New Flag Manual does not
`affirmatively prohibit the display of other flags, like the POW/MIA flag,
`by private parties. This simply misses the structure of the rules laid out
`in the New Flag Manual. Paragraph 2.b requires that any deviation from
`the default rules must be approved by the appropriate authorities. Para-
`graph 8.b states that at cemeteries without permanent staffing, such as
`Point Lookout, the POW/MIA flag flies only on the six days required by
`statute.
`
`

`
`GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
`
`11
`
`that wish to fly the Confederate flag special permission. It confers a
`similar advantage on the advocates of no other flag, except the two
`flags specifically addressed by federal law (the flag of the United
`States and the POW/MIA flag). On this record, it is not possible to
`conclude that the VA discriminates against those who seek to display
`the Confederate flag or even that the VA is motivated by animosity
`toward that flag.
`
`The district court erred by concluding that the VA discriminates
`against Griffin’s message on the basis of viewpoint. The VA’s restric-
`tions are not only reasonable in light of the purpose of the forum, but
`also viewpoint neutral.
`
`III.
`
`Griffin contends, finally, that we should strike down the New Flag
`Manual as facially unconstitutional, because, among other reasons, it
`amounts to an unconstitutional prior restraint. But Griffin’s facial
`attack faces several immediate obstacles. Arguably, it fails for the
`simple reason that the New Flag Manual is constitutional as applied
`to Griffin. See Rust, 500 U.S. at 183 (approving of the test announced
`in United States v. Salerno, 481 U.S. 738 (1987), even in the First
`Amendment context). But see Grayned v. City of Rockford, 408 U.S.
`104, 114-15 (1972). Next, it is not completely clear that we have
`jurisdiction over the claim. It is quite possible that the New Flag Man-
`ual is an interpretive regulation under 5 U.S.C. § 553, judicial review
`of which "may be sought only in the United States Court of Appeals
`for the Federal Circuit." 38 U.S.C. § 502. Finally, the district court
`did not rule on this. Rather, it held that the Old Flag Manual was
`unconstitutional as applied. Griffin, 129 F. Supp. 2d at 844.
`
`At any rate, Griffin’s prior restraint claim is meritless. In support
`of this claim, Griffin musters up a cite to an Eleventh Circuit case,
`Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1362
`(11th Cir. 1999), where the court stated that "statutes may not give
`public officials ‘unbridled’ discretion to deny permission to engage in
`constitutionally protected expression." But the precise form of expres-
`sion in which Griffin wishes to engage — daily display of a Confed-
`erate flag in a nonpublic forum not open to such — is, by definition,
`not constitutionally protected expression. See Greer v. Spock, 424
`
`

`
`12
`
`GRIFFIN v. DEPARTMENT OF VETERANS AFFAIRS
`
`U.S. 828, 838 (1976) (finding no First Amendment problem with
`vesting commanding officer of base with power to exclude civilians
`seeking to speak); United States v. Kokinda, 497 U.S. 720, 729 (1990)
`(plurality); see also Arkansas Educ. Television Comm’n v. Forbes,
`523 U.S. 666, 682-83 (1998) (upholding exclusion of candidate from
`presidential debate, despite lack of procedural protections, because
`decision was reasonable and viewpoint neutral).
`
`CONCLUSION
`
`For the reasons stated, the judgment of the district court is reversed
`and the case is remanded with instructions to vacate the injunction
`and enter judgment for the VA.
`
`REVERSED