MEMORANDUM OPINION
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.
I.
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,
https://siarchives.si.edu/history/featured-topics/stories/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.
II.
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 ...