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A.N.S.W.E.R. Coalition v. Kempthorne

June 13, 2007

A.N.S.W.E.R. COALITION, PLAINTIFF,
v.
DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR, ET AL.,*FN1 DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

Plaintiff A.N.S.W.E.R. (Act Now to Stop War and End Racism) Coalition ("ANSWER") filed this lawsuit against defendants Dirk Kempthorne, Secretary of the Interior, Fran P. Mainella, Director of the National Park Service ("NPS"), and Mark Sullivan, Director of the United States Secret Service, seeking declaratory and injunctive relief on three claims, all alleging violations of the First Amendment and the Equal Protection Clause of the United States Constitution with respect to policies and regulations relating to the Presidential Inaugural Parade in January 2005.*fn2 This matter is now before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment and plaintiff's motion for partial summary judgment.*fn3

I. BACKGROUND

The 2005 Inauguration of President George W. Bush took place on January 20, 2005 here in Washington, D.C. The inaugural parade route included, as it always does, Pennsylvania Avenue between the United States Capitol and the White House. Since 1996, much of the Pennsylvania Avenue corridor has been part of the Pennsylvania Avenue National Historic Park. It therefore is under the jurisdiction of the National Park Service, which is authorized to promulgate rules and regulations "for the use and management of parks[.]" 16 U.S.C. § 3. NPS issues regulations with respect to the presidential inaugural ceremonies and permits relating thereto. See generally 36 C.F.R. § 7.96(g). The Presidential Inaugural Ceremonies Act ("PICA"), 36 U.S.C. § 501 et seq., which was enacted in 1956, also governs inaugural events.

Plaintiff purports to represent "tens of thousands of political dissenters, anti-war activists and ordinary people compelled to collective action, among other reasons, by the war policies of the Bush administration and its refusal to bring troops home now from Iraq." Am. Compl. at 3-4. Plaintiff asserts that it has "concrete intentions to demonstrate at the upcoming Presidential Inauguration" regardless of which party's candidate is elected, and that it advances this litigation to "vindicate the rights of all to equal access to the public parade portion of the Inaugural ceremony." Id. at 4.

Plaintiff alleges that it is the strict policy of the NPS not to accept any permit applications submitted more than one year in advance of the start date for any event on Park Services land, see Am. Compl. ¶ 9, and that this policy is used to reject permit applications of organizations, "including groups engaged in political dissent." Id. Plaintiff alleges that the policy is waived or disregarded for the Presidential Inaugural Committee, which effectively is permitted to submit its application earlier than other groups and is given exclusive use of most of the parade route. See id. at 4 and ¶¶ 16, 29, 32, 33. On January 2, 2004, ANSWER filed a permit application with the NPS for 2005 Inauguration events and setup, covering a time period from January 1, 2005 to January 20, 2005. See id. ¶¶ 10-11; see also Defendants' Statement of Material Facts as to Which There is No Genuine Issue ("DSMF") ¶ 12. ANSWER's application "was not denied within 24 hours and was consequently 'deemed granted' pursuant to regulation." Am. Compl. ¶ 14.*fn4

Plaintiff alleges that on November 12, 2003 and December 19, 2003, NPS submitted permit applications to itself in connection with the 2005 Inauguration, "outside the one year period and in violation of the generally applicable permitting regulations and policies." Am. Compl. ¶ 29.*fn5 Defendants respond that NPS "has traditionally submitted applications on behalf of PIC [the Presidential Inaugural Committee] because no committee is formed until after a presidential election has been decided." DSMF ¶ 4. The PICA specifically authorizes the Secretary of the Interior to "grant to the Inaugural Committee a permit to use [any of the Federal] reservations or grounds during the inaugural period, including a reasonable time before and after the inaugural period." 36 U.S.C. § 503(a).

By January 20, 2004, plaintiff alleges, the applications submitted by NPS to itself were visible on the public boards maintained by NPS and on which applicants "can observe whether there are conflicting prior-in-time permit applications for any particular or desired space." Am. Compl. ¶¶ 15-16. The November 12, 2003 NPS application was "for the entire length of the Pennsylvania Avenue sidewalks (plus additional areas) for the six-month period from November 1, 2004 to April 1, 2005." Id. ¶ 32; see also DSMF ¶ 2. Plaintiff argues that the December 19, 2003 NPS application was "not limited in scope" and "encompassed the period of December 19, 2004 through March 15, 2005." Am. Compl. ¶ 33. These permits, submitted on behalf of the Presidential Inaugural Committee ("PIC"), reserved some areas for the exclusive use of the PIC and its guests. See id. ¶¶ 47-54; see also DSMF ¶¶ 1, 6. As of January 20, 2004, the sites designated did not include Freedom Plaza or the sidewalks of Pennsylvania Avenue, "among other locations encompassed by the ANSWER permit." Am. Compl. ¶ 16. ANSWER alleges that it made repeated requests of NPS to identify what, if any, part of its permit would be revoked, but received no response. See Am Compl. ¶¶ 17-18.

ANSWER then requested "that the NPS convene a logistics meeting for their intended activities along the Inaugural Parade route" and "was advised that NPS would not provide information nor schedule the normal pre-determination multi-agency logistics meeting with protest organizers until after the Bush-Cheney PIC had determined what space it intended to take along the route . . ." Id. ¶ 22; see also id. ¶ 26. The meeting finally was held on December 13, 2004, with representatives of the NPS, the United States Park Police and the Secret Service. See id. ¶ 24. ANSWER alleges that it was advised at the meeting that NPS was meeting and talking with the Bush-Cheney PIC and that "only based on those discussions would they be able to determine the status of the ANSWER Coalition's permit . . . ." Id. ¶ 26. There was a second logistics meeting on December 20, 2004. See id. ¶¶ 38-39.

Plaintiff alleges that on December 23, 2004, NPS "revoke[d] ANSWER's permit" and offered ANSWER much more limited space for its use than it had requested in its January 2004 permit application. See Am. Compl. ¶¶ 44-46.*fn6 Defendants characterize this determination as the Park Service "grant[ing] in part the plaintiff's permit application." DSMF ¶ 13. Defendants also claim that "[t]he nine park areas for plaintiff's permits were sufficient to fully accommodate the requested numbers of participants for their demonstration activities and in many areas allowed the plaintiff's group to see and be seen from the parade route." Id.

Plaintiff filed this lawsuit on January 14, 2005, seeking an expedited preliminary injunction against the National Park Service and the United States Secret Service "to preclude denial of access to the 2005 Inaugural Parade Route." Complaint at 1. A hearing on the motion for preliminary injunction was held before the undersigned on January 18, 2005. At the conclusion of the hearing, the Court denied the motion, explaining its reasons in an oral opinion. See January 18, 2005 Order; Transcript of Excerpt of January 18, 2005 Preliminary Injunction Hearing ("PI Transcript"). ANSWER filed an amended complaint for declaratory and injunctive relief on July 28, 2005. The parties subsequently briefed the motions that are now before the Court.

Plaintiff states that it "advance[s] this litigation to vindicate the rights of all to equal access to the public parade portion of the Inaugural ceremony," and that it does not "seek to disturb the existing and exclusive system of access to the inaugural ceremony on the U.S. 45. NPS-produced maps reflect that the PIC had over 5,600 linear feet of sidewalk space along the parade route (as compared to the 215 linear feet allotted to the tens of thousands of dissenters assembling under the umbrella of ANSWER's permit).

46. Tall PIC bleachers lined over one mile of space along Pennsylvania Avenue, effectively eliminating the usefulness of any space behind those bleachers for expressive activity directed at parade participants. Am. Compl. ¶¶ 44-46.

Capitol grounds or to Lafayette Park[.]" Am. Compl. at 4. Rather, it seeks "injunctive relief prohibiting NPS from this repeated course of constitutional deprivation[,]" and "a declaratory judgment that their constitutional rights were violated by the ...


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