Community for Creative Non-Violence v. Lujan, N-VIOLENCE
| Decision Date | 17 July 1990 |
| Docket Number | No. 89-5218,NON-VIOLENCE,N-VIOLENCE,89-5218 |
| Citation | 908 F.2d 992 |
| Parties | COMMUNITY FOR CREATIVE, et al., Appellants, v. Manuel LUJAN, Jr., Secretary of the Interior, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John Vanderstar, with whom Neil K. Roman, Washington, D.C., was on the brief, for appellants.
John C. Cleary, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.
Before RUTH B. GINSBURG, SENTELLE, and THOMAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
This case arises from the denial by the National Park Service ("Park Service") of the request of the Community for Creative Non-Violence and its chief spokesman, the late Mitch Snyder (collectively "CCNV"), to include a sculpture owned by CCNV in the 1988 Christmas Pageant of Peace. CCNV appeals from decisions of the District Court for the District of Columbia denying its motion for a preliminary injunction, granting the Park Service's motion for a protective order and granting summary judgment to the Park Service. CCNV asserts that the Park Service's decision to exclude its statue was arbitrary and capricious; that the District Court wrongly interpreted Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), in upholding the Park Service; and that it was entitled to depose the Park Service's Regional Director. Although we agree that the District Court incorrectly applied dicta from Lynch to this case, the District Court correctly held that the Park Service had not violated the Administrative Procedure Act, 5 U.S.C. Sec. 551 et seq., and properly declined to compel discovery from the Regional Director. We affirm.
Each year since 1954 the National Park Service has held the Christmas Pageant of Peace on the Ellipse, behind the White House. In 1981 the Park Service issued guidelines governing, among other things, the administration of several "National Celebration Events," including the Christmas Pageant of Peace. Demonstrations and Special Events in and Around Washington, D.C., 46 Fed.Reg. 55,959, 55,961-62 (1981) ("Policy Statement"). The Policy Statement lays out the purpose of the Christmas Pageant of Peace:
The Christmas Pageant of Peace which is held in the oval portion of the Ellipse during approximately the last three weeks in December is presented as a celebration of the holiday season. This event provides the park visitor an opportunity to view the lighting of the National Christmas tree, attend musical presentations and visit the yuletide displays.
The Policy Statement provides that "[p]ersons and groups offering participation in accord with the event's [theme] and format will be permitted to participate in the program subject to reasonable limitations on number of groups or persons who can be accommodated." Id. at 55,961-62 (missing word added). The Policy Statement also requires that the Park Service hold a public meeting to present its plans for the event, to obtain the views of the public on these proposals, and to solicit additional suggestions "for activities within the theme and format of the Christmas Pageant." Id. at 55,961.
In 1985 CCNV had requested that its statue, alternately titled "Third World America" or "And Still There Is No Room at the Inn," which depicts a life-size homeless family--a man, a woman, and an infant--huddled over a working steam grate, be included in the 1985 Christmas Pageant of Peace. The Park Service refused and CCNV sought a preliminary injunction. The District Court, considering only the allegation that the Park Service had violated the First Amendment's Free Speech Clause, denied CCNV's motion. CCNV v. Hodel, 623 F.Supp. 528 (D.D.C.1985), emergency motion for injunction pending appeal denied, No. 85-6204 (D.C.Cir. Dec. 23, 1985) (order per curiam).
The Park Service also denied CCNV's 1987 request to enter the statue in the 1987 Christmas Pageant of Peace.
Following an announcement in the Federal Register, 53 Fed.Reg. 28,921 (1988), a public meeting on the 1988 Christmas Pageant of Peace was held on October 6, 1988. Only Jack Benjamin, the hearing officer, and Joseph Riley, President of the Christmas Pageant of Peace, a nonprofit civic organization that cosponsors the Christmas Pageant, attended the meeting. Riley announced that the theme for the 1988 Pageant would be "Legacies." Riley's discussion, actually a monologue, at the public meeting mentioned that "Legacies" included strides made toward world peace and stated that the Christmas Pageant had for thirty years sought to promote the spirit and peace of the Christmas season throughout the year. Transcript of Proceedings Before the National Park Service (Oct. 6, 1988) (Joint Appendix at Tab O). In letters dated October 14, 1988, October 24, 1988, and November 1, 1988, CCNV applied for permission to include its sculpture in the 1988 Christmas Pageant of Peace.
On November 10, 1988, the Park Service declined to accept the sculpture. The letter rejecting the sculpture stated that "[t]he Pageant commemorates the celebration of Christmas as a national holiday through the display of traditional symbols of that holiday." Letter from John G. Parsons, Regional Director, to Mitch Snyder (Nov. 10, 1988) ("November 10 letter"). The letter listed the familiar items customarily included in the Christmas Pageant of Peace: "the National Christmas Tree, the smaller trees representing the various states, District of Columbia and the territories, a burning yule log, a pen of live reindeer and a traditional creche," id., and then stated that "[t]he statue ... would not complement the National Park Service displays within the Christmas Pageant of Peace." Id. The letter further concluded that the statue "does not depict a symbol relating to how Americans have traditionally celebrated the Christmas season." Id.
CCNV brought the instant action challenging the exclusion of its statue as unlawful under the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A). In the course of this litigation, CCNV noticed the deposition of the Park Service's Regional Director. The District Court granted the Park Service's motion for a protective order. The District Court subsequently granted the Park Service's motion for summary judgment and CCNV brought this appeal.
CCNV contends that the Park Service's rejection of its sculpture was contrary to the standards set out in the Policy Statement, 46 Fed.Reg. 55,95 9 (1981), and thus should be set aside as arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A). "[W]e must 'consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' " Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983) (quoting Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974)).
The Policy Statement provides that persons will be permitted to participate in the Christmas Pageant of Peace if their participation is consistent with the theme and format of the event. The Park Service rejected CCNV's sculpture, stating that it was not a depiction of "a symbol relating to how Americans have traditionally celebrated the Christmas season." November 10 letter. Both CCNV and the Park Service agree that the theme and format of the Pageant is the depiction of traditional American symbols of Christmas, but CCNV contends that the Park Service erred in concluding that its sculpture was not such a depiction.
In its application letters CCNV urged the Park Service that the sculpture was a creche--a modern manifestation of the original Christmas scene--and that the sculpture, by calling on Americans to be conscious of the poor and needy around them, depicted the traditional Christmas message of peace, goodwill, sharing, and giving: "Inasmuch as ye have done it unto [one of] the least of these my brethren, ye have done it unto me." Letter from Mitch Snyder to Sandra A. Alley (Nov. 1, 1988) (quoting Matthew 25:40 (King James Version)).
CCNV's application made two claims: that the sculpture communicated a traditional Christmas message, and that the sculpture was itself a traditional Christmas symbol. The Park Service addressed only whether the sculpture was consistent with the theme and format of the Christmas Pageant. Because the theme and format of the Pageant is the depiction of traditional American symbols of Christmas, the Park Service did not attempt to determine whether the sculpture did or did not depict the meaning of Christmas. Rather the Park Service determined that the sculpture did not depict a traditional American symbol of Christmas. It was unnecessary for the Park Service to evaluate whether CCNV's sculpture depicted the meaning of Christmas because the theme of the Pageant involved traditional symbols, not the messages underlying those symbols.
The Park Service described the traditional symbols depicted in the Pageant as "the National Christmas Tree, the smaller trees representing the various states, District of Columbia and the territories, a burning yule log, a pen of live reindeer and a traditional creche." November 10 letter. This is consistent with the description in the Policy Statement: "This event provides the park visitor an opportunity to view the lighting of the National Christmas tree attend musical presentations and visit the yuletide displays." 46 Fed.Reg. 55,959, 55,962 (1981). The copious judicial history of the Pageant makes repeated references to the Park Service's longstanding use of traditional and familiar symbols in the Pageant. See, e.g., Women Strike for Peace...
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