The opinion of the court was delivered by: Sporkin, District Judge.
This matter is before the Court on Defendants' Motion to
Dismiss, or in the Alternative, for Summary Judgment. Plaintiffs
Augustine David Henderson and Gregory Francis Phillips challenge
a National Park Service regulation limiting commercial activity
on federal parkland in the National Capital Region to the sale of
"books, newspapers, leaflets, pamphlets, buttons and bumper
stickers." 36 C.F.R. § 7.96(k)(2). Plaintiffs protest the
regulation's proscription against the sale of message-bearing
t-shirts as a violation of the First and Fifth Amendments, the
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.,
and the Administrative Procedures Act, 5 U.S.C. § 501 et seq.
On September 12, 1995, this Court in a related case concluded
that the regulation was in violation of the First Amendment and
enjoined defendants from enforcing the regulation. Friends of
the Vietnam Veterans Memorial v. Kennedy, 899 F. Supp. 680
(D.D.C. 1995). The defendants in that case appealed. While the
appeal was pending, the parties entered into a stipulation
permitting the plaintiffs in that case, along with other
non-party t-shirt vendors, to continue such sales until the
appeal was decided.
The Court of Appeals found the amended regulation to be
constitutionally valid and reversed this Court's ruling. Friends
of Vietnam Veterans Memorial v. Kennedy (Friends I),
116 F.3d 495 (D.C.Cir. 1997). Following the Court of Appeals' decision,
the National Park Service issued four notices dated August 18,
1997, August 21, 1997, August 22, 1997, and September 5, 1997,
apprising the public that the constitutionality of the regulation
had been upheld and that the regulation would be enforced on a
The plaintiffs in this case had each filed their respective
complaints against defendants approximately one month subsequent
to the filing of the complaint in Friends. After the Court of
Appeals rendered its decision, plaintiffs moved for leave to
amend and supplement their complaints to add new claims under the
Religious Freedom Restoration Act, the Administrative Procedures
Act, and the First and Fifth Amendments. This Court granted
plaintiffs' motion. Defendants moved for reconsideration of the
Court's decision and for dismissal of plaintiffs' cases in light
of the Court of Appeals' decision. Upon reconsideration, this
Court denied plaintiffs' request for leave to amend on the basis
that the amendment would be futile, in view of the Court of
Appeals' far-reaching and comprehensive decision in Friends I,
and granted defendants' motion to dismiss plaintiffs' cases.
Friends of the Vietnam Veterans Memorial v. Kennedy,
984 F. Supp. 18 (D.D.C. 1997). In an unpublished opinion, the Court of
Appeals remanded and directed this Court to consider plaintiffs'
claims. Henderson v. Stanton, 172 F.3d 919 (D.C.Cir. 1998).
Defendants have since withdrawn their opposition to plaintiffs'
motion to amend the complaint so that the
amended complaint could be filed and the case decided on the
For many years, the National Mall, a tract of federal parkland
situated in the heart of Washington, D.C. and surrounded by a
number of this nation's most prestigious museums, has been a
sightseeing mecca, a place for individuals and groups to
demonstrate and protest, as well as a commercial site for
vendors, both individuals and groups, engaged in the sale of a
variety of items, including message-bearing t-shirts.
On May 18, 1994, the National Park Service ("NPS"), which
oversees the National Mall pursuant to statutory mandate under
16 U.S.C. § 1, issued a notice of proposed rule making to amend
36 C.F.R. § 7.96(k)(2). The NPS sought to amend the regulation to
restrict commercial sales made on the National Mall to "books,
newspapers, leaflets, and pamphlets." National Capital Region
Parks; Sales, 59 Fed.Reg. 25,855, 25,859 (1994). The NPS
initiated the rule making as part of its effort to reduce the
"discordant and excessive commercialism, as well as degraded
aesthetic values," resulting from rampant commercial activity on
the National Mall. Id. at 25,856.
The NPS issued its final regulation on April 7, 1995. The
amended regulation limited commercial sales on federal parkland
in Washington, DC to "books, newspapers, leaflets, pamphlets,
buttons and bumper stickers." National Capital Region Parks;
Special Regulations, 60 Fed. Reg. 17,639 (1995). The NPS
explicitly banned t-shirt sales from the regulation because it
found that "the basic problem of commercialization and attendant
adverse impacts on park values is caused by T-shirt sales. [The
NPS] also concluded that the problem cannot be abated by other
than a ban on such sales on park land." Id. at 17,642.
Plaintiffs are evangelical Christians. Pursuant to their
religious beliefs plaintiffs distribute food and other essentials
to the needy in the city, and conduct ministerial outreaches
through preaching, singing, teaching, and musical and dramatic
performances. In addition, they present the gospel message and
oversee the coordination of these and other religious activities
Their religious activities also include the communication of
the gospel by all available means. To do so they write, print,
and distribute vast numbers of leaflets, handbills, broadsides,
and pamphlets. Plaintiffs rely extensively on the sale of
message-bearing t-shirts to "spread the word." Because of the
expenses associated with printing t-shirts, plaintiffs are unable
to distribute them free of cost.
Pursuant to Rule 56(c) of the Fed.R.Civ. P., summary judgment
"shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law."
A motion to dismiss may be granted if it appears that
plaintiffs can prove no set of facts that would entitle them to
relief. In re Swine Flu Immunization Prods. ...