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Raven v. Sajet

United States District Court, District of Columbia

September 19, 2018

KIM SAJET, Director, National Portrait Gallery, Smithsonian Institution, et al., Defendants.


          TREVOR N. MCFADDEN, U.S.D.J.

         Artist Julian Raven brought this action against the United States and senior leaders of the National Portrait Gallery over the Gallery's refusal to exhibit his portrait of then-President-elect Donald Trump. Mr. Raven claims that the decision was motivated by political bias, violating his rights under the First and Fifth Amendments. He may be right about the motivation, but he is wrong about the law. The First Amendment's Free Speech Clause does not limit the Gallery's art decisions, because it protects private speech, rather than curtailing government speech. Nor does the Fifth Amendment apply, as Mr. Raven has no legal right to the Gallery's consideration.

         Mr. Raven also seeks to amend his complaint by adding claims under the Federal Tort Claims Act, but the Defendants have committed no cognizable tort, even viewing the allegations in the light most favorable to Mr. Raven. Without expressing any opinion about whether the Defendants' decision was right or good, the Court finds that Mr. Raven has not articulated a plausible violation of the Constitution, or the Federal Tort Claims Act. So the Defendants' Renewed Motion to Dismiss will be granted, and Mr. Raven's Motion for Leave to Amend will be denied.


         In his last will and testament, James Smithson “bequeath[ed]” a large sum of money “to the United States of America, to found at Washington, under the name of the Smithsonian Institution, an Establishment for the increase and diffusion of knowledge among men.” Smithsonian Institution Archives, Last Will and Testament, October 23, 1826,; O'Rourke v. Smithsonian Inst. Press, 399 F.3d 113, 117 (2d Cir. 2005). Congress accepted the money, see David P. Currie, The Smithsonian, 70 U. Chi. L. Rev. 65 (2003), incorporating the Smithsonian Institution by federal statute as “an establishment . . . for the increase and diffusion of knowledge among men.” 20 U.S.C. § 41. A Board of Regents composed of the Vice President, the Chief Justice of the United States, Members of Congress, and others oversees the Smithsonian. Id. § 42.

         The National Portrait Gallery is a bureau of the Smithsonian. 20 U.S.C. § 75b(a). It operates “as a free public museum for the exhibition and study of portraiture and statuary depicting men and women who have made significant contributions to the history, development, and culture of the people of the United States and of the artists who created such portraiture and statuary.” 20 U.S.C. § 75b(b). The Board of Regents “is authorized to accept . . . gifts of any property for the benefit of the Gallery.” 20 U.S.C. § 75d(a).

The Board may purchase, accept, borrow, or otherwise acquire portraiture, statuary, and other items for preservation, exhibition, or study. The Board may acquire any such item on the basis of its general historical interest, its artistic merit, or the historical significance of the individual to which it relates, or any combination of any such factors . . . [and] display, loan, store, or otherwise hold any such item.

20 U.S.C. § 75(e).

         In 2015, Mr. Raven “painted the Donald Trump portrait/painting ‘Unafraid and Unashamed.'” Am. Compl., ECF No. 16, at 10. According to Mr. Raven, “[t]he nearly 8x16 foot painting . . . became the most recognized pro-Trump political portrait/painting during the 2015-2016 campaign.” Id. at 22. After President Trump won the November 2016 election, Mr. Raven sought to have the portrait displayed at the Gallery “as part of the festivities for the 2017 Inauguration.” Id. at 23. Mr. Raven sent an application-over 20 pages in length, id. at 25-by email to the Rockwell Museum, an affiliate of the Smithsonian in Corning, New York. Id. at 23-24. After what Mr. Raven felt was a cold initial meeting, the Rockwell Museum informed him by return email “that the Rockwell Museum was unable to help since [it] did not have the ‘resources'” to do so. Id. at 23-24.

         Mr. Raven “subsequently . . . file[d] an official complaint with the Smithsonian Director of Affiliations Harold Closter” for what Mr. Raven considered the Rockwall Museum's “anti-conservative, anti-Trump bias and for failing to simply assist [him] in submitting his application to the [National Portrait Gallery].” Id. at 24. The complaint provided a copy of Mr. Raven's application, and Director Closter forwarded the application to the Gallery at Mr. Raven's request. Id.

         In December 2016, Mr. Raven called and left a message for Kim Sajet, the Gallery's Director, to ask about the application. Id. at 25. Director Sajet returned Plaintiff's call, beginning what Mr. Raven described as “an eleven minute dialogue and at times argument” during which Director Sajet allegedly stated “her partial, dishonest, arbitrary and personal anti-Trump ‘objections' as to why the . . . Gallery would not even consider plaintiff's painting for the application process[.]” Id. at 26. Director Sajet's “objections ranged from its size being ‘too big[, ]' to partially and incorrectly citing a[] [National Portrait Gallery] standard for acceptance, ” to her claims that the painting was “too ‘Pro-Trump, '” “[t]oo [p]olitical, ” “not neutral enough, ” and “no good.” Id.; see generally id. at 26-38. In Mr. Raven's view, “[t]he [p]ainting was refused even before given a fair and objective consideration according to Smithsonian Institution standards.” Id. at 26. Director Sajet's “final words” to him allegedly were, “I am the Director of the National Portrait Gallery, and this application will go no further, you can appeal my decision all you want.” Id. at 42.

         Mr. Raven then sent a “letter of ‘appeal'” to the Board of Regents. Id. at 46; see Pl.'s Opp. to Defs.' Mot. to Dismiss (Opp.), ECF No. 38 at 84-87 (page numbers designated by ECF). Two days later, Richard Kurin, then Acting Provost of the Smithsonian and Under Secretary for Museums and Research, responded:

Consistent with recent tradition, the Gallery has long planned to hang a portrait of the President-elect before his Inauguration. A portrait of Mr. Trump from the National Portrait Gallery's collection will be on display at the Gallery beginning January 13, 2017.
The decision about whether to acquire or display a work of art at the National Portrait Gallery rests in the first instance with that museum's director, curators and historians. I have spoken with Kim Sajet, director of the National Portrait Gallery, and concur with her decision to decline your offer and continue with the museum's plan to display a portrait of Mr. Trump from our collections.

Pl.'s Opp'n, ECF No. 38 at 89. By concurring with Director Sajet's decision, Mr. Raven contends, Mr. Kurin “made himself accountable and jointly liable for her actions as if they were his own.” Am. Compl. at 48.

         Mr. Raven brings this action against Director Sajet and Mr. Kurin in their personal capacities, under the Supreme Court's decision in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See Am. Compl. 10-11. He alleges that the individual Defendants violated his First and Fifth Amendment rights, id. at 11, 38-44, and seeks declaratory judgment, injunctive relief, and monetary damages. See id. at 55-60. The Amended Complaint also had claims under the Federal Tort Claims Act (FTCA)-against the United States and the Smithsonian's leaders in their official capacity[1]-but Mr. Raven withdrew those claims without prejudice after he learned that administrative exhaustion was required. Mot. Withdraw FTCA Claims, ECF No. 24; Minute Order of Dec. 22, 2017. Once the Smithsonian's General Counsel issued a final denial of the FTCA claims, ECF No. 47 at 7, Mr. Raven sought leave to amend his complaint and reinstitute that cause of action. Opposed Mot. for Leave to Amend (Mot. Amend), ECF No. 47.

         All Defendants moved to dismiss the constitutional claims. Renewed Mot. Dismiss (Mot. Dismiss), ECF No. 33. The Defendants also oppose Mr. Raven's motion to amend his complaint, arguing that amendment would be futile. ECF No. 50.


         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). “A claim crosses from conceivable to plausible when it contains factual allegations that, if proved, would allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (cleaned up). A court must “draw all reasonable inferences from those allegations in the plaintiff's favor, ” but not “assume the truth of legal conclusions.” Id.

         “In determining whether a complaint fails to state a claim, [a court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [a court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). This is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         Because Mr. Raven is pro se, his complaint must be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Courts may “consider supplemental material . . . to clarify the precise claims being urged, ” Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007), “including filings responsive to a motion to dismiss.” Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015). Yet the ultimate standard remains the same. The plaintiff “must plead ‘factual matter' that permits the court to infer ...

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