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

United States District Court, D. Columbia.

January 28, 2016

A.N.S.W.E.R. COALITION, Plaintiff,
v.
SALLY JEWELL, Secretary, United States Department of the Interior, et al., Defendants

          For A.N.S.W.E.R., (Act Now to Stop War and End Racism) Coalition, GRAYLAN S. HAGLER, Pastor, Plymouth Congregational Church, MUSLIM AMERICAN SOCIETY FREEDOM FOUNDATION, NATIONAL COUNCIL OF ARAB AMERICANS, Plaintiffs: Carl L. Messineo, Mara E. Verheyden-Hilliard, LEAD ATTORNEYS, PARTNERSHIP FOR CIVIL JUSTICE, INC., Washington, DC; Carol A. Sobel, Santa Monica, CA.

         For W. RALPH BASHAM, In official capacity as Director, U.S. Secret Service, SALLY JEWELL, Secretary, United States Department of the Interior, Defendants: Marina Utgoff Braswell, LEAD ATTORNEY, Jane M. Lyons, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

          OPINION

         PAUL L. FRIEDMAN, United States District Judge.

         Plaintiff A.N.S.W.E.R. (Act Now to Stop War and End Racism) Coalition (" ANSWER" ) filed this lawsuit in January 2005 against the Secretary of the Interior, the Director of the National Park Service (collectively " NPS" ), and the Director of the Secret Service, an agency within the Department of Homeland Security (" Secret Service" ), challenging the constitutionality of certain policies that restrict ANSWER's ability to engage in expressive activity during the Presidential Inaugural Parade in Washington, D.C. [1] This matter is before the Court on the Secretary of the Interior and National Park Service's motion to dismiss Count I and for summary judgment on Counts III and IV, the Secretary of Homeland Security's motion for summary judgment on Count II, plaintiff ANSWER's cross-motions for summary judgment on Counts II, III, and IV, and plaintiff ANSWER's motion to strike.[2]

         The Court heard oral argument on these motions on October 22, 2015. After carefully considering the parties' papers, the relevant legal authorities, the arguments presented by counsel, and the history of and record in this case, the Court grants summary judgment to the defendants on Counts II, III, and IV. The Court also denies defendants' motion to dismiss Count I and grants ANSWER's motion to strike.

         I. BACKGROUND

         The pending motions stem from ANSWER's ongoing efforts to secure sufficient space for its members and affiliates to engage in political dissent during the Presidential Inaugural Parade. This Court has previously described the factual and procedural background of this case. See A.N.S.W.E.R. Coalition v. Kempthorne, 493 F.Supp.2d 34, 37-41 (D.D.C. 2007) (" ANSWER I" ); A.N.S.W.E.R. Coalition v. Kempthorne, 537 F.Supp.2d 183, 186-93 (D.D.C. 2008) (" ANSWER II" ); A.N.S.W.E.R. Coalition v. Salazar, No. 05-0071, 2012 WL 8667570, at *1-3 (D.D.C. March 5, 2012) (" ANSWER III" ); and A.N.S.W.E.R. Coalition v. Salazar, 915 F.Supp.2d 93, 96-99 (D.D.C. 2013) (" ANSWER IV" ). It therefore will limit its discussion accordingly.

         ANSWER is an unincorporated grassroots organization that engages in political organizing and activism in opposition to war and racism. Am. Compl. ¶ 1. Every four years since 2005, ANSWER has organized or attempted to organize a mass demonstration along Pennsylvania Avenue or in Freedom Plaza to engage in political dissent during the Presidential Inaugural Parade. Id.; Supp. Pleading ¶ 1. Counts III and IV of the complaint and supplemental pleading concern National Park Service regulations, as now amended, that grant the Presidential Inaugural Committee (" PIC" ) exclusive access to some of these same areas in connection with events relating to the Presidential Inauguration. See 36 C.F.R. § 7.96(g)(4)(iii) (2012). Count II of the complaint challenges the United States Secret Service's ban on allowing physical supports for signs into the secure areas of Pennsylvania Avenue along the Presidential Inaugural Parade route.

         A. Statutory and Regulatory Framework

         The Secret Service, a federal law enforcement agency within the Department of Homeland Security, is charged with protecting the President, the Vice President, the President-elect, the Vice President-elect, and the immediate families of those individuals. 18 U.S.C. § 3056(a). Because the Secretary of the Department of Homeland Security designated the Presidential Inaugural Parade a National Special Security Event, the Secret Service has the responsibility " to ensure the overall operational security of the day." Coyer Decl ¶ 4.

         The Department of the Interior has the authority to issue and implement, through NPS, rules and regulations that oversee the use of federal grounds within the National Park System. See 54 U.S.C. § § 100101, 100751. Pursuant to this authority, NPS has promulgated regulations for a permitting system that allows the use of National Park System land around the national capital region for special events and demonstrations. See generally 36 C.F.R. § 7.96(g). The Secretary of the Interior has additional statutory authority under the Presidential Inaugural Ceremonies Act (" PICA" ) to " grant to the Inaugural Committee a permit to use [federal] reservations or grounds during the inaugural period, including a reasonable time before and after the inaugural period." 36 U.S.C. § 503(a).

         When ANSWER initiated this suit in 2005, the relevant NPS regulations set aside only the White House sidewalk and three-quarters of Lafayette Park for the exclusive use of PIC for inaugural activities. 36 C.F.R. § 7.96(g)(4)(i)(F) (2005). The regulations provided that permits for demonstrations and special events in other areas would be issued on a first-come, first-served basis, 36 C.F.R. § 7.96(g)(4)(i), and NPS had a " strict policy" to not " accept any permit applications submitted more than one year in advance of the start date for any event on Park Services land." ANSWER II, 537 F.Supp.2d at 186-87. In practice, however, NPS deviated from its policy and submitted permit applications for itself over a year in advance of Inauguration Day activities to reserve for PIC over one-third of the sidewalk space on Pennsylvania Avenue between 4th Street and 15th Street, Northwest, in addition to the Lafayette Park and White House sidewalk areas set aside by regulation. See id. at 187, 190.

         B. Procedural History

         ANSWER's amended complaint contained three counts. The first claim (Count I) challenged NPS' actions to exempt itself and PIC from the relevant permitting regulations. Am. Compl. ¶ ¶ 87-97. ANSWER's second claim (Count II) challenged the Secret Service's prohibition on supports for signs and placards. Id. ¶ ¶ 98-102. ANSWER's third claim (Count III) challenged NPS' policy of granting to PIC exclusive use of space along the parade route, regardless of whether such policy was inconsistent with NPS' regulations. Id. ¶ ¶ 103-08. ANSWER asserted that the conduct described in each count violated the First Amendment and the Equal Protection Clause, and requested declaratory and injunctive relief, including a " [d]eclaratory judgment that the NPS policy and practice of granting to PIC exclusive use of the public space abutting the Inaugural Parade route is unconstitutional; an injunction prohibiting such discriminatory conduct in the future; and a mandatory injunction that the NPS make the sidewalks abutting the Inaugural Parade generally open for the public for use[.]" Am. Compl. ¶ 27. ANSWER did not challenge the regulatory set-aside of the White House sidewalk and Lafayette Park. Id. ¶ 104.

         The Court addressed the justiciability of ANSWER's claims in an Opinion and Order dated June 13, 2007, in which the Court held that ANSWER had both organizational and representational standing to challenge NPS' then-uncodified policy and practice of granting PIC exclusive use of public space along the parade route. See ANSWER I, 493 F.Supp.2d at 42-48. NPS then moved for summary judgment on Counts I and III, and ANSWER moved for summary judgment on Count I. See ANSWER II, 537 F.Supp.2d at 192-93.[3] In an Opinion and Order dated March 20, 2008, the Court denied NPS' motion for summary judgment and granted ANSWER's motion for summary judgment on Count I. See id. at 206. The Court held that NPS' " policy and practice of exempting itself and/or the [PIC] from compliance with the generally applicable permitting regulations, 36 C.F.R. § 7.96(g), [was] unconstitutional" and enjoined NPS from doing so " with respect to events relating to the Inauguration." Id. The Court also denied NPS' motion for summary judgment on Count III. Noting that the Inauguration is a public event at which protestors have a right to engage in political speech, the Court rejected the government's argument that ANSWER was " not entitled to 'insert itself into PIC's permitted activities.'" Id. at 204 (internal citation omitted). The Court did not reach the question of " [h]ow much, if any, of the Pennsylvania Avenue sidewalks can be reserved for the exclusive use of the government and its ticketed guests on Inauguration Day." Id. at 205-06.

         Following the Court's decision, NPS amended its regulations governing permits for demonstrations and special events for Inaugural activities. See Areas of the National Park System, National Capitol Region, 73 Fed.Reg. 67,739 (Nov. 17, 2008); 36 C.F.R. § 7.96(g)(4) (2012). The regulations now provide, in relevant part:

(i) NPS processes permit applications for demonstrations and special events in order of receipt. NPS will not accept applications more than one year in advance of a proposed continuous event (including set-up time, if any). Use of a particular area is allocated in order of receipt of fully executed applications, subject to the limitations in this section.
...
(iii) In connection with Presidential Inaugural Ceremonies the following areas are reserved for priority use as set forth in this paragraph.
(A) The White House sidewalk and Lafayette Park, exclusive of the northeast quadrant for the exclusive use of the Presidential Inaugural Committee on Inaugural Day.
(B) Portions of Pennsylvania Avenue, National Historic Park and Sherman Park, as designated in the maps included in paragraph (g)(4)(iii)(E) of this section, for the exclusive use of the Presidential Inaugural Committee on Inaugural Day for: (1) Ticketed bleachers viewing and access areas, except that members of the public may use a ticketed bleacher seat that has not been claimed by the ticket holder 10 minutes before the Inaugural Parade is scheduled to pass the bleacher's block[.]

36 C.F.R. § 7.96(g)(4). The referenced maps show reserved PIC bleacher space on portions of Pennsylvania Avenue between 7th Street and 15th Street, Northwest, including approximately three-quarters of Freedom Plaza (located on Pennsylvania Avenue between 13th Street and 14th Street), and parts of Sherman Park (located at 15th Street and Pennsylvania Avenue). 36 C.F.R. § 7.96(g)(4)(iii)(E). According to NPS, these regulations grant PIC additional priority and exclusive use of approximately fourteen percent of Pennsylvania Avenue along the Inaugural Parade route. ANSWER III, 2012 WL 8667570 at *5.

         ANSWER subsequently filed a motion to enforce this Court's injunction against NPS on the ground that the amended regulations violated the Court's March 20, 2008 Order. The Court denied that motion. ANSWER III, 2012 WL 8667570 at *8. Although the amended regulations expanded the reach of the regulatory set-aside, the Court found that they did not contravene the terms of the Court's injunction, which merely enjoined NPS' practice of deviating from its then-existing regulations and established policies in order to discriminate in favor of PIC. Id. at *6-7. Although the Court concluded that the injunction did not preclude the expansion of the regulatory set-aside, " [t]hat conclusion does not mean that NPS' amended regulations are constitutional; it just means that the Court has not addressed the issue." Id. at *7. The Court then granted ANSWER leave to file a supplemental pleading containing facial and as-applied challenges to 36 C.F.R. § 7.96(g)(4)(iii)(B). Id. at *8.

         C. ANSWER's Supplemental Pleading

         In addition to the three claims set forth in its Amended Complaint, see supra at 4-5, ANSWER presents a fourth claim in its Supplemental Pleading. It alleges that enforcement of the regulatory set-aside contained in the amended regulations, 36 C.F.R. § 7.96(g)(4)(iii)(B), constitutes identity-based, viewpoint-based and/or content-based discrimination; that there is no compelling purpose served by favoring PIC or the Administration and disfavoring others; and that the challenged exemption does not constitute a reasonable time, place, and manner restriction, all in violation of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment (Count IV). Supp. Pleading ¶ ¶ 10, 14, 21-23. ANSWER challenges the regulations on their face and as applied to ANSWER and its members. Id. ¶ 15. Along with the Supplemental Pleading, ANSWER enclosed its application for a permit to conduct a demonstration relating to the 2013 Inauguration, seeking a permit for " Freedom Plaza, [and] sidewalks adjacent to Freedom Plaza." See id., Attachment 1. ANSWER also included NPS' confirmation of ANSWER's first-in-time application, in which NPS informed ANSWER of the regulatory priority for certain designated areas at Freedom Plaza relating to the Inaugural Parade, but authorized ANSWER to use a 160-foot by 35-foot-wide segment of the western portion of Freedom Plaza. See id., Attachment 2. Although ANSWER's application was " deemed granted," NPS claimed to retain authority to revoke ANSWER's permit for " certain designated areas at Freedom Plaza relating to the Inaugural Parade" that PIC intended to use once it was formed in November 2012. Id. ANSWER now requests declaratory and permanent injunctive relief and asks the Court to hold 36 C.F.R. § 7.96(g)(4)(iii)(B)(1), as amended, unconstitutional, enjoin its operative effect, and order NPS to remove from the incorporated regulatory maps those areas reserved for the " PIC Bleacher area." Supp. Pleading ¶ 26(a).

         In an Opinion and Order dated January 14, 2013, the Court denied NPS' motion to dismiss ANSWER's Supplemental Pleading for lack of standing. See ANSWER IV, 915 F.Supp.2d at 100-04. The Court held that ANSWER has standing to challenge the PIC regulatory set-aside in 36 C.F.R. § 7.96(g)(4)(iii)(B)(1), on its face and as applied to ANSWER and its members. Id.[4]

         II. PLAINTIFF'S MOTION TO STRIKE

         Before reaching the parties' cross-motions, the Court must resolve an initial matter -- ANSWER seeks to strike from the record one sentence from the Owen Declaration, submitted by NPS in support of its motion, and a related paragraph in NPS' accompanying statement of material facts as to which there is no genuine issue. Pl.'s Reply in Support of its Mot. to Strike at 1. The sentence at issue states: " I understand that PIC traditionally sells tickets for their bleacher seats to help recoup some of their expenses that they incur as being in charge of the Presidential inaugural ceremony and functions and activities connected with the ceremony under 36 U.S.C. [§ 501(1)]." Owen Decl. ¶ 10.[5] Because this statement is not based on the declarant's personal knowledge as required for a declaration submitted in support of a motion for summary judgment under Rule 56(c)(4) of the Federal Rules of Civil Procedure, the Court will grant plaintiff's motion. The first sentence of paragraph 10 of the Owen Declaration and paragraph 17 of NPS' Statement of Material Facts therefore are stricken from the record and will not be considered with respect to the pending motions.

         III. LEGAL FRAMEWORK

         A. Summary Judgment Standard

         Summary judgment is appropriate only if " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Baumann v. Dist. of Columbia, 795 F.3d 209, 215 (D.C. Cir. 2015); Fed.R.Civ.P. 56(a), (c). In making that determination, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Baumann v. Dist. of Columbia, 795 F.3d at 215; see Tolan v. Cotton, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; Talavera v. Shah, 638 F.3d 303, 308, 395 U.S.App.D.C. 7 (D.C. Cir. 2011). A disputed fact is " material" if it " might affect the outcome of the suit under the governing law." Talavera v. Shah, 638 F.3d at 308 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). A dispute over a material fact is " genuine" if it could lead a reasonable jury to return a verdict in favor of the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Grimes v. Dist. of Columbia, 794 F.3d 83, 94-95 (D.C. Cir. 2015); Paige v. DEA, 665 F.3d 1355, 1358, 398 U.S.App.D.C. 492 (D.C. Cir. 2012). " Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge at summary judgment. Thus, [the court] do[es] not determine the truth of the matter, but instead decide[s] only whether there is a genuine issue for trial." Barnett v. PA Consulting Group, Inc., 715 F.3d 354, 358, 404 U.S.App.D.C. 439 (D.C. Cir. 2013) (quoting Pardo-Kronemann v. Donovan, 601 F.3d 599, 604, 390 U.S.App.D.C. 178 (D.C. Cir. 2010)); see also Tolan v. Cotton, 134 S.Ct. at 1866; Baumann v. Dist. of Columbia, 795 F.3d at 215; Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015).

         B. The Free Speech Clause of the First Amendment

         The First Amendment provides, in relevant part, that " Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. Const. amend. I. Demonstration activities such as those in which plaintiff seeks to engage are expressive activities involving " speech" protected by the First Amendment. See United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). Indeed, the activities at issue are core political speech. See Initiative and Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1311, 368 U.S.App.D.C. 50 (D.C. Cir. 2005) (citing Meyer v. Grant, 486 U.S. 414, 421-22, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988)). And, as the D.C. Circuit has observed, the " general concepts of First Amendment freedoms are given added impetus as to speech and peaceful demonstrations in Washington, D.C., by the clause of the Constitution which assures citizens of the right to assemble peaceably at the seat of government and present grievances." A Quaker Action Group v. Morton, 460 F.2d 854, 859, 148 U.S.App.D.C. 346 (D.C. Cir. 1971) (" Quaker Action III" ).

         There are three types of forums that may be implicated in a First Amendment analysis: (1) the traditional public forum, (2) the designated public forum, and (3) the nonpublic forum. A traditional public forum is one that has traditionally been available for public expression, assembly, and debate, such as public streets and parks. See United States v. Grace, 461 U.S. at 177; Perry Educ. Ass'n v. Perry Local Educators' Ass'n,460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). These places " have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Pleasant Grove City v. Summum,555 U.S. 460, 469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). Such use of the streets and public places is " a part of the privileges, immunities, rights, and liberties of citizens." White House Vigil for the ERA Comm. v. Clark,746 F.2d 1518, 1526 n.66, 241 U.S.App.D.C. 201 (D.C. Cir. 1984) (citation omitted). Freedom Plaza and the sidewalks of Pennsylvania Avenue are " quintessential ...


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