United States District Court, D. Columbia.
A.N.S.W.E.R. COALITION, Plaintiff,
SALLY JEWELL, Secretary, United States Department of the Interior, et al., Defendants
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,
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.
FRIEDMAN, United States District Judge.
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.  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.
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.
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.
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.
Statutory and Regulatory Framework
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.
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).
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.
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.
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. 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.
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
(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
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.
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.
ANSWER's Supplemental Pleading
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).
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.
PLAINTIFF'S MOTION TO STRIKE
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. 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.
Summary Judgment Standard
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).
The Free Speech Clause of the First Amendment
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" ).
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 "