Rosebrock v. Mathis, et al.

If an organization does not have an organization-wide policy to apply a policy inconsistently, and the associate director clearly communicates the organization's consistent stance on the policy, the organization is not applying the rule inconsistently.

Plaintiff Robert Rosebrock, a veteran, objected to the VA Greater Loss Angeles Healthcare System's (VAGLA) failure to use the lawn outside of its facilities for the benefit of veterans, particularly homeless veterans. Beginning in March 2008, Rosebrock and other veterans held weekly protests outside of the fence surrounding VAGLA. For about eight months, VAGLA did not enforce its prohibition against posting materials, under § 1.218, against Rosebrock and his fellow protestors when they hung the American flag union right side up on the fence. However, when Rosebrock and others began hanging the flag upside-down on the fence, VAGLA began consistently enforcing the regulation.

Rosebrock filed a complaint in the United States District Court, claiming that his First Amendment rights were violated and sought declaratory and injunctive relief. The district court granted Rosebrock summary judgment and declaratory relief, stating that the VA had engaged in viewpoint discrimination, but denied him injunctive relief, because of an e-mail instructing VAGLA police to enforce the posting prohibition consistently. Rosebrock appealed the court's denial of injunctive relief. The Ninth Circuit affirmed the district court's denial of injunctive relief, finding that the email instructing consistent enforcement mooted Rosebrock's request for injunctive relief. In finding for VAGLA the panel found that the government overcame the heavy burden of demonstrating mootness by its commitment to preexisting policy. AFFIRMED.