The opinion of the court was delivered by: James Robertson United States District Judge
Michael Boardley is a professing Christian who believes it is his Christian duty and privilege to inform others about the Gospel of Jesus Christ. Compl. ¶ 7. In the summer of 2007, he and a few others traveled to Mount Rushmore National Memorial to distribute free gospel tracts. Id. ¶ 17. On August 9, Boardley handed out tracts near the entrance to the Memorial without incident. Id. ¶¶ 18-19. When he returned to the same location the next day, he was approached by a park ranger, Les Hanson, who told him that he could not distribute printed material without a permit. Id. ¶ 26. Hanson informed him that he could obtain a permit within two days if he requested one from park officials. Id. ¶¶ 29-30.
Boardley returned to his Minnesota home without distributing any more leaflets or requesting a permit. Soon after, though, he called the Mount Rushmore ranger's office to ask for a permit in anticipation of a return trip to the park the next summer. Id. ¶ 31. He encountered some difficulties. He first spoke with a park official who promised to mail him a permit. Id. ¶ 34. When he did not receive one within a few weeks, he called another park official and left a message requesting a permit for a different date. Id. ¶ 36. The official called back and referred him to the park's chief ranger, Mike Pflaum. Id. ¶ 37. He called Pflaum and requested a permit once more, but in the following weeks, he did not receive a permit, a permit denial, or a permit application. Id. ¶¶ 39-40.
Boardley then filed this suit against the United States Department of the Interior, the National Park Service, and five federal officials. He challenges the validity of 36 C.F.R. § 2.51 and § 2.52 -- two similar regulations that apply to conduct at all national parks. Both regulations authorize park superintendents to designate the locations within each park that are available for certain activities: "[p]ublic assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views" under section 2.51(a), and "[t]he sale or distribution of printed matter" under section 2.52(a). To get a permit for these activities, one must fill out a short application that includes one's name, the date, time, duration, nature, and location of the planned activity, and an estimate of the number of participants. See id. § 2.51(b); id. § 2.52(b). The park superintendent must issue the applicant a permit "without unreasonable delay" unless: a prior application for a permit for the same time and location has been made; it reasonably appears that the activity would present a clear and present danger to public health or safety; or the number of persons engaged in the activity, or the length of the activity, could not reasonably be accommodated. See id. § 2.51(c); id. § 2.52(c).*fn1 If the superintendent rejects the permit application, she must inform the applicant in writing, "with the reason(s) for the denial set forth." Id. § 2.51(d); id. § 2.52(d).
Boardley contends that both regulations are facially invalid under the First Amendment because they are unjustified prior restraints on expression and because they are substantially overbroad, and under the First and Fifth Amendments because they are impermissibly vague. He also claims that section 2.52 is invalid as-applied under the First Amendment, the Fifth Amendment's Equal Protection Clause, and the Religious Freedom Restoration Act (RFRA). He moves for partial summary judgment on his facial challenges.
The defendants cross-move for partial summary judgment on Boardley's facial challenges, and move to dismiss the as- applied challenges. The individual defendants move to dismiss all claims against them on qualified immunity grounds.
Boardley claims that section 2.52 was applied to him twice: in the summer of 2007, when Ranger Hanson told him that he could not distribute printed material without a permit, and again that fall, when park officials did not give him a permit or a permit application despite his repeated requests. He contends that these actions violated the First Amendment because they "constitute[d] impermissible content- and viewpoint-based restrictions on constitutionally protected expression in public fora," compl. ¶ 73, and that they violated the Fifth Amendment because they "treat[ed] [him] differently than other similarly situated individuals and groups on the basis of the content and viewpoint of his speech," id. ¶ 99. Each of these claims must be dismissed.
Boardley does not plead sufficient facts about the first application of section 2.52 to support either of his claims. "While a complaint attacked by a [Federal Rule of Civil Procedure] 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations omitted). The only alleged fact that raises the possibility of content-based discrimination is that, when Boardley's friend, Mark Oehrlein, asked for a permit to distribute religious material, an unnamed Mount Rushmore official told him that he "didn't like that." Compl. ¶¶ 51-52. That allegation is taken as true, but it is not enough to sustain Boardley's claim that Ranger Hansen asked him (and not others) to get a permit because of the religious content of his leaflets. Though Twombly "has produced some uncertainty as to exactly what is required of a plaintiff at the pleading stage," it surely requires a plaintiff to plead enough facts to "suggest a 'plausible' scenario" for his entitlement to relief. Tooley v. Napolitano, 2009 WL 414593, *3 (D.C. Cir. Feb. 20, 2009) (internal citation omitted).
The claims arising from the second application of section 2.52 -- the failure of park officials to respond promptly to Boardley's permit requests -- are moot because Boardley received his requested permit months in advance of his scheduled trip to Mount Rushmore. In the fall of 2007, Boardley asked Mount Rushmore officials for a permit that covered certain days in the summer of 2008. Shortly after he filed this suit in November 2007, Boardley got his permit, see Supp. Decl. of Mike Pflaum, ¶ 4, and, in the summer of 2008, he "handed out printed material, held religious signs, and conducted open air religious preaching at Mount Rushmore" without hindrance. Dkt. 55, at 1. Boardley lacks standing to bring as-applied claims against conduct that caused him no injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Boardley's RFRA claim will also be dismissed. Under RFRA, the government may not "substantially burden a person's exercise of religion" unless it demonstrates that the application of the burden "(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest." 42 U.S.C. § 2000bb-1. A regulation is a substantial burden if it forces a person to engage in conduct that his religion forbids or prevents him from engaging in conduct his religion requires. See Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001). Boardley "hands out gospel tracts in public areas because of his sincerely held religious beliefs concerning Christianity," compl. ¶ 8, but he does not allege that he must distribute his gospel tracts at the United States national parks. Because the challenged regulations are, "at most[,] a restriction of one of a multitude of means" Boardley can use to spread the Gospel, they do not substantially burden his exercise of religion. Henderson, 252 F.3d ...