Ferguson v. Owen

• Decision Date: 08 July 2022
• Docket Number: Civil Action 21-02512 (RC)
• Parties: JACOB N. FERGUSON, Plaintiff, v. ROBBIN M. OWEN, Defendant.
• Court: U.S. District Court — District of Columbia

JACOB N. FERGUSON, Plaintiff, v. ROBBIN M. OWEN, Defendant.

Civil Action No. 21-02512 (RC)

United States District Court, District of Columbia

July 8, 2022

MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION TO DISMISS

RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

There are two questions in this case. The first is whether there can be a substantial burden under the Religious Freedom Restoration Act (“RFRA”) when a government restriction of an individual's religiously motivated activity does not prevent the individual from fulfilling a central religious practice and provides the individual with alternative means of conducting the religiously motivated activity. The second is whether the Court should extend the Bivens remedy to the First Amendment context for a denied demonstration permit application. The answer to both questions is no.

Jacob N. Ferguson, proceeding pro se, brings a RFRA claim and a Bivens action against Robbin M. Owen, the Chief of the Division of Permits Management for the National Park Service (“NPS”), in her individual capacity for alleged deprivations of his right to religious free exercise under the First Amendment and RFRA arising from NPS's denial of his permit application for a 4-month long demonstration at the Lincoln Memorial in Washington D.C. in 2021. Mr. Ferguson brings his lawsuit under RFRA, 42 U.S.C § 2000bb et seq., and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Mr. Ferguson seeks an unspecified amount of nominal, compensatory, and punitive damages and attorney's fees and costs from Ms. Owens.

II. FACTUAL BACKGROUND

Mr. Ferguson is a musician, a demonstrator, and a street performer. Compl. ¶¶ 13, 54, 64, ECF No. 1-1. Mr. Ferguson came to Washington “to prophesy in the heart of the nation's capital and convey a sincerely held religious belief in free exercise of religion.” Id. ¶ 47. Since Mr. Ferguson's arrival in Washington, he has sought to hold musical demonstrations to “attract a crowd with music and convey a religious/political message.” Id. ¶¶ 13, 47. Mr. Ferguson's decision to demonstrate in Washington has religious significance for him because D.C. “is the political subject of [his] religious message” and he believes “that great parallels can be drawn between the present time and that of the transition of Rome's government from republic to empire, before the coming of Christ.” Id. ¶ 93.

Mr. Ferguson also specifically wanted to demonstrate at the Lincoln Memorial Reflecting Pool area. Id. ¶¶ 27-28, 93-96. Mr. Ferguson had general religious motivations to reach a large audience to spread his religious message and to confront his fear of public speaking, as well as a particular religious motivation to demonstrate in the heart of the nation's capital, and the Lincoln Memorial Reflecting Pool area satisfied these religious criteria. Id. ¶¶ 93-96. But Mr. Ferguson, while presenting a religious reasoning for his choice of location, claiming that the Lincoln Memorial “represents the appropriate and symbolic epicenter for [his] religious/political message,” id. ¶ 95, specifically disclaims the notion that his religious beliefs made demonstrating at the Lincoln Memorial a religious necessity, id. ¶ 96 (expressing Mr. Ferguson's belief that the location he selected “was acceptable to God”); see also Opp'n to Mot. to Dismiss (“Opp'n”) at 17, ECF No. 9-1 (“Plaintiff did not know which site God wanted him to demonstrate at, or even if God was so pedantic at all.”).

Mr. Ferguson has more than three years' worth of grievances against Ms. Owen, but this case concentrates on a single permit denial. Id. ¶¶ 11-12. As a result of previous denials, Mr. Ferguson developed an increasingly sophisticated understanding of the regulations that govern the NPS permit application process, and he began to plan his musical demonstrations further and further in advance. Id. ¶ 4. Mr. Ferguson's greater sophistication and planning, however, did not result in successful permit approvals, compounding his disappointments and frustrations, and leading to this lawsuit. Id. ¶¶ 74-82. Mr. Ferguson has brought this suit pro se, having invested considerable time and energy in bringing the present case. Id. ¶ 74; Opp'n at 3.

The present controversy begins on April 9, 2020. Id. ¶ 18.^[1] On April 9, 2020, Mr. Ferguson submitted an application to demonstrate from April 9 through August 9, 2021, at the Lincoln Memorial Reflecting Pool area. Id. ¶ 18. NPS uses a first-come, first served system to issue permits. Compl. ¶ 20; see also 36 C.F.R. § 7.96(g)(4)(i) (“NPS processes permit applications for demonstrations and special events in order of receipt .... Use of a particular area is allocated in order of receipt of fully executed applications, subject to the limitations in this section.”). One year is the maximum amount of time that an applicant can apply in advance. Compl. ¶ 20; see also 36 C.F.R. § 7.96(g)(4)(i) (“NPS will not accept applications more than one year in advance of a proposed continuous event (including set-up time, if any).”). And yet, despite applying exactly one year in advance for 123 dates at the Lincoln Memorial Reflecting Pool area, NPS issued Mr. Ferguson zero permits to demonstrate at that location. Compl. ¶ 28.^[2]Mr. Ferguson speculates that NPS denied his applications because of religious prejudice, but he admits that he has no evidence for this claim. Compl. ¶¶ 42-44.

After Ms. Owen correctly filed Mr. Ferguson's application, she still refused to grant Mr. Ferguson any dates to demonstrate at the Lincoln Memorial Reflecting Pool area, claiming that other applicants had filed before him. Id. ¶ 28. Mr. Ferguson monitored the Reflecting Pool and did not see any demonstrations on several of the dates that NPS denied his application. Compl. ¶¶ 29-30. He alerted Ms. Owen of this observation. Id. ¶ 31. Ms. Owen responded that the approved permit applicants must have failed to appear on those dates. Id. Mr. Ferguson alleges that, despite Ms. Owen's assertion to him of the contrary, there were no other applicants on some of the dates that he requested. Id. ¶¶ 29-31.

Mr. Ferguson sought redress through several channels. Mr. Ferguson tried to call Deputy Superintendent Sean Kennealy but was unable to reach him. Compl. ¶ 32. He reached out to Congresswoman Eleanor Holmes Norton, who sent multiple inquiries to NPS on his behalf. Id. ¶ 34. He filed a complaint with the NPS Office of Professional Responsibility and a separate complaint with the Inspector General of the U.S. Department of the Interior, but both declined to pursue further action. Id. ¶ 34. He submitted a Freedom of Information Act request, but he did not receive any information from it.^[3] Id. ¶ 35.

On May 21, 2021, Mr. Ferguson filed a petition for a writ of mandamus in District of Columbia District Court, requesting that the court immediately order NPS to issue him “a public gathering permit to conduct 1st Amendment demonstrations on the lower plaza of the Lincoln Memorial” on the dates requested by his April 9, 2020, application. Pet. for Writ of Mandamus, Ferguson v. National Park Service, Civ. A. No. 21-1425 (D.D.C. Sept. 9, 2021), ECF No. 1-1; Compl. ¶ 36. On June 9, 2021, the court informed Mr. Ferguson that he had not filed a proposed summons. Min. Order, Ferguson, Civ. A. No. 21-1425, ECF No. 4 (June 9, 2021). On June 17, 2021, the court electronically issued a summons to NPS. Summons, Ferguson, Civ. A. No. 211425, ECF No. 5. On July 6, 2021, Mr. Ferguson filed an amended petition for a writ of mandamus. Am. Pet. for Writ of Mandamus, Ferguson, Civ. A. No. 21-1425, ECF No. 7. On August 30, NPS requested to move its deadline to respond to October 1, 2021, and the court granted the motion the next day. Mot. for Extension of Time, Ferguson, Civ. A. No. 21-1425, ECF No. 11; Ferguson Decl. ¶ 32, ECF No. 9-2. The permit application at issue had been for demonstrations from April 9 through August 9, 2021. Compl. ¶ 18. On September 8, 2021, Mr. Ferguson voluntarily dismissed the suit, August 9 having already passed without injunctive relief. Notice of Voluntary Dismissal, Ferguson, Civ. A. No. 21-1425, ECF No. 12.^[4]

Mr. Ferguson has continued to seek NPS permits. While Mr. Ferguson has succeeded in receiving permits from NPS, he claims that NPS is not granting him the permits he wants. Ferguson Decl. ¶¶ 35-39. Mr. Ferguson and Ms. Owen have continued not to see eye to eye on the NPS permitting process and the regulations that govern it. Id. ¶ 40. Those disputes, however, which postdate the April 9, 2020, permit application, are not at issue in the present case.

On September 27, 2021, Mr. Ferguson filed a complaint against Ms. Owen, bringing a RFRA claim and a Bivens action against her in her individual capacity for alleged deprivations of his right to religious free exercise under the First Amendment and RFRA. Compl. ¶¶ 83-116. Ms. Owen moved to dismiss pursuant to Rule 12(b)(6). Def.'s Mot. at 26. Alternatively, Ms. Owen requested summary judgment. Id.^[5]

III. LEGAL STANDARD

In order to survive a Rule 12(b)(6) motion to dismiss, the plaintiff must state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). “[A] Rule 12(b)(6) motion does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.” Coulibaly v Kerry, 213 F.Supp.3d 93, 123 (D.D.C. 2016). At the motion to dismiss stage, a court must assume the veracity of the complaint's factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 696 (2009) (“[A] court must take the allegations as true, no matter how skeptical the court may be.”). A court need not, however, accept conclusory assertions or legal conclusions. Id. at 678; Bell...