Courtemanche v. General Services Admin.
| Citation | 172 F.Supp.2d 251 |
| Decision Date | 26 September 2001 |
| Docket Number | No. Civ.A. 00-10879-DPW.,Civ.A. 00-10879-DPW. |
| Parties | Catherine COURTEMANCHE, et al., Plaintiffs, v. GENERAL SERVICES ADMINISTRATION, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Chester Darling, Michael Williams, Boston, MA, for Catherine Courtemanche, Individually, and as the Coordinator of "Americans to Keep Elian Free", Americans to Keep Elian Free.
Anne G. Depew, Assistant U.S. Attorney, United States Courthouse, Boston, MA, for David J. Barram, Administrator, General Services Administration, Karen Palladino, Director, Program Operations Division of the General Services Administration.
One who wishes to use federal property administered by the General Services Administration ("GSA") must first obtain a license. Federal Property Management Regulations direct disapproval of any license application if the proposed use is "intended to influence or impede any pending judicial proceeding." The application itself requires that the applicant agree to "indemnify and save harmless the United States, its agents and employees against any and all loss, damage, claim or liability whatsoever" due to exercise of the license.
The plaintiff applied for such a license in May 2000 to use space immediately outside the John F. Kennedy federal office building in Boston as part of a loosely organized national effort to protest the impending return of Elian Gonzalez to Cuba. A subordinate GSA official initially denied the application on grounds that the intent was to influence a federal appellate court hearing scheduled for the next day in Atlanta. On administrative appeal within GSA, the judicial proceedings ground was abandoned by a senior GSA official, who nevertheless declined to grant the license because the plaintiff refused to sign the indemnification/hold harmless provision. The plaintiff thereafter conducted her protest on City of Boston property adjacent to the JFK Building.
The plaintiff continues to press the declaratory judgment action she initiated before the protest to contest GSA's denial of her application. She characterizes that denial as an unconstitutional burden on her First Amendment rights. Following completion of discovery, the defendants now seek summary judgment on grounds that (1) plaintiff's challenge to the judicial proceedings provision is not ripe; (2) plaintiff lacks standing to challenge that provision or the indemnification/hold harmless provision; and (3) plaintiff's challenge to the indemnification/hold harmless provision is moot. In the event plaintiff is found to survive their ripeness, standing and mootness challenges, the defendants seek summary judgment determining the application requirements constitutional, even if, as the defendants are willing to concede solely for purposes of this motion, the space immediately outside the JFK Building constitutes a public forum.
Plaintiff Catherine Courtemanche,1 a resident of Brookline, Massachusetts, was the Boston Coordinator for Americans to Keep Elian Free. Americans to Keep Elian Free was a grassroots organization formed for the purpose of organizing nationwide demonstrations on one particular day to support the rights of Elian Gonzalez in an effort to prevent his return to Cuba. The organization no longer exists.
The defendant GSA is the federal agency that administers much of the property owned by the United States. The National Administrator of GSA and the Director of the Program Operations Division at the office of the GSA Regional Administrator in Boston are also named as defendants.
1. The License Terms — To request a license to use federal property administered by GSA, parties must fill out a GSA application, detailing various aspects of the proposed use, including the time, date, and number of people expected. Every applicant must also execute an indemnification/hold harmless provision, which is on the second page of GSA's application form and requires a separate signature assenting to the terms. The provision states that:
The licensee shall indemnify and save harmless the United States, its agents and employees against any and all loss, damage, claim or liability whatsoever, due to personal injury or death, or damage to property of others directly or indirectly due to the exercise by the licensee of the privilege granted by the obligations of said license.
The application also provides:
The applicant assumes all responsibility for clean-up of the grounds, for providing trash containers, and for arranging disposal of the trash. The Federal Government cannot provide electricity for operation of the applicant's equipment, nor are restrooms and similar facilities available. If necessary, portable restroom facilities may be authorized, at the applicant's expense, if the applicant arranges for the removal before the beginning of the next workday.
All licenses issued for the use of space immediately outside the JFK Building in Boston have contained an applicant's signature on the indemnification/hold harmless provision.
2. The "Elian" Application — On May 1, 2000, Courtemanche filed an application for a permit to hold a demonstration regarding Elian Gonzalez on the plaza surrounding the JFK Building on May 10, 2000. The United States Court of Appeals for the Eleventh Circuit was scheduled to hear oral argument in the Elian Gonzalez matter in Atlanta, Georgia on May 11, 2000. Under "Description of Proposed Activity," Courtemanche's application stated, As part of her initial application, Courtemanche signed the indemnification/hold harmless provision.
On Wednesday, May 3, 2000, Michael Franzese, the Building Manager of the JFK Building, notified Courtemanche by letter that her request for a permit was denied, stating:
In accordance with the Federal Property Management Regulations, Section 101-20.404 Paragraph 4 `GSA shall disapprove or cancel any application if ... [t]he proposed use is intended to influence or impede any pending judicial proceeding.' Based on the information provided with your application and conatined [sic] on your web page the event was scheduled to be held the day before the 11th Circuit Court of Appeals Hearing.
On Friday, May 5, 2000, Courtemanche faxed a letter to the defendant Karen Palladino, the Director of Program Operations for GSA in Boston, appealing the denial of the May 3rd application. Also on May 5, 2000, Courtemanche informed the GSA Office of Regional Counsel that she was withdrawing her assent to the indemnification/hold harmless provision originally submitted with her permit application.
By letter dated Monday, May 8, 2000, Palladino notified Courtemanche that GSA would be able to issue a permit for the rally but that Courtemanche's rescission of her agreement to the indemnification/hold harmless provision rendered the permit application defective. Accordingly, Palladino informed Courtemanche that GSA was denying her permit application because of her refusal to sign the indemnification/hold harmless provision. GSA's Regional Counsel informed Courtemanche's counsel that day, however, that GSA would grant the permit provided that the defect— the refusal to sign the indemnification/hold harmless provision — was remedied.
Courtemanche filed this complaint seeking declaratory and injunctive relief against the judicial proceedings and indemnification/hold harmless provisions on May 8, 2000. I allowed her motion for a preliminary injunction requiring issuance of the license on May 9, 2000, on condition that, without prejudice to her challenge, she assent to the indemnification/hold harmless provision in order to maintain the respective positions of the parties pending this litigation. Courtemanche unsuccessfully appealed that ruling on an interlocutory basis to the United States Court of Appeals for the First Circuit.
Because Courtemanche continued to refuse to assent to the indemnification/hold harmless requirement, Americans to Keep Elian Free was unable to hold its rally on the federal property surrounding the JFK Building.
In conjunction with her application to GSA, however, Courtemanche had applied for, and received, a permit from Boston City Hall to use City Hall Plaza as "spill-over space" for the rally. She also received a permit from the Boston Transportation Department to use the sidewalk in front of City Hall. The May 10, 2000 rally in Boston was ultimately held in front of City Hall on property owned by the City of Boston adjacent to the JFK Building Plaza.
The defendants seek to avoid review of the merits of plaintiff's claims by presenting three threshold challenges to her complaint: ripeness, standing and mootness. I address each of these arguments in turn.
The ripeness doctrine is designed to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Ernst & Young v. Depositors Economic Protection Corp., 45 F.3d 530, 535 (1st Cir.1995) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). The ripeness doctrine exists primarily to avoid adjudication of merely hypothetical disputes. Mass Ass'n of Afro-American Police, Inc. v. Boston Police Dept., 973 F.2d 18, 20 (1st Cir.1992).
A two-part test has been established to assess ripeness in the context of a declaratory judgment action. See Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507. The court must consider (1) "the fitness of the issue for immediate review," and (2) "the hardship to the litigant should review be postponed." Riva v. Commonwealth of...
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