Initiative v. United States Postal Serv.

• Decision Date: 08 September 2010
• Docket Number: Civil Action No. 00–1246 (RWR).
• Citation: 741 F.Supp.2d 27
• Parties: INITIATIVE AND REFERENDUM INSTITUTE et al., Plaintiffs,v.UNITED STATES POSTAL SERVICE, Defendant.
• Court: U.S. District Court — District of Columbia

741 F.Supp.2d 27

INITIATIVE AND REFERENDUM INSTITUTE et al., Plaintiffs,

v.UNITED STATES POSTAL SERVICE, Defendant.

Civil Action No. 00–1246 (RWR).

United States District Court, District of Columbia.

Sept. 8, 2010.

David F. Klein, Orrick, Herrington & Sutcliffe, LLP, Washington, DC, for Plaintiffs/Defendant.Arthur B. Spitzer, American Civil Liberties Union, Washington, DC, for Plaintiffs.Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.

Plaintiffs challenge the constitutionality of an amended United States Postal Service (“USPS”) regulation that prohibits collecting signatures for petitions, polls or surveys on certain USPS sidewalks, arguing that the restriction is overbroad because the regulation applies to a substantial number of postal sidewalks that are public forums. The parties conducted a survey of postal facilities in an attempt to quantify the extent of expressive activity on USPS sidewalks and have filed renewed cross-motions for summary judgment. Because material facts are not in dispute, the regulation no longer applies to exterior USPS sidewalks that are indistinguishable from public sidewalks, and the plaintiffs have not shown that the interior sidewalks to which the regulation still applies are public forums or that the regulation is unreasonable or void for vagueness, the defendant's motion will be granted and the plaintiffs' motion will be denied.

BACKGROUND

The background of this case is set out in Initiative & Referendum Inst. v. U.S. Postal Serv., 116 F.Supp.2d 65 (D.D.C.2000) (“ IRI I ”), Initiative & Referendum Inst. v. U.S. Postal Serv., 297 F.Supp.2d 143 (D.D.C.2003) (“ IRI II ”), and Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299 (D.C.Cir.2005) (“ IRI III ”). Briefly, USPS regulations restrict certain conduct on postal property. The relevant regulation had stated at the time this action was brought:

Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, soliciting and vending for commercial purposes (including, but not limited to, the vending of newspapers and other publications), displaying or distributing commercial advertising, soliciting signatures on petitions, polls, or surveys (except as otherwise authorized by Postal Service regulations), and impeding ingress to or egress from post offices are prohibited.

39 C.F.R. § 232.1(h)(1) (2002) (emphasis added). The underlined language, added in 1998, gave rise to this suit in which the plaintiffs challenge the regulation's application to exterior postal property. See IRI I, 116 F.Supp.2d at 67–68. After summary judgment was granted in favor of USPS on the grounds that the regulation was content neutral, promoted a significant governmental interest, and left open ample alternative channels of communication, IRI II, 297 F.Supp.2d at 147, the plaintiffs appealed. On appeal, the D.C. Circuit concluded that USPS' ban on soliciting signatures could not be upheld as a time, place, or manner restriction if applied to a public forum. IRI III, 417 F.3d at 1312. The court of appeals further concluded that a facial challenge did not require proof that all exterior postal properties constitute public forums. Rather, the regulation would be overbroad “if a substantial number of external postal properties constitute public forums.” Id. at 1313. The court of appeals opined that it “seem[ed] likely that many urban post offices do [have Grace¹ sidewalks], and that the regulation's restraint on protected speech is thus substantial [.]” Id. at 1314. The court of appeals remanded the case for a determination of “whether the Postal Service's regulation ‘abridges protected speech ... in a good number of cases.’ ” Id. (alteration in original) (quoting Ruggiero v. FCC, 317 F.3d 239, 248 (D.C.Cir.2003) (Randolph, J., concurring)).

Following the court of appeals' decision, USPS amended § 232.1(h)(1) and it now states:

Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, soliciting and vending for commercial purposes (including, but not limited to, the vending of newspapers and other publications), displaying or distributing commercial advertising, collecting signatures on petitions, polls, or surveys (except as otherwise authorized by Postal Service regulations), are prohibited.

39 C.F.R. § 232.1(h)(1) (2010) (emphasis added). USPS also modified § 232.1 such that it no longer applies to “sidewalks along the street frontage of postal property falling within the property lines of the Postal Service that are not physically distinguishable from adjacent municipal or other public sidewalks, and any paved areas adjacent to such sidewalks that are not physically distinguishable from such sidewalks.” 39 C.F.R. § 232.1(a)(ii) (2010).

Also after the remand, the parties conducted a survey of selected postal properties to determine the type and extent of expressive activity that takes place on various postal sidewalks. They sent questionnaires to the facility manager at each retail post office in twelve postal Districts,² constituting 4,513 of the 32,621 retail postal facilities nationwide that existed at the time of the survey. (Def.'s Stmt. ¶¶ 22–23.) Seventy-nine percent of these surveyed postal facilities responded, yielding 3,566 completed questionnaires. (Def.'s Mem. of P. & A. in Supp. of Def.'s Renewed Mot. for Summ. J. (“Def.'s Mem.”), Decl. of Gregory M. Whiteman ¶ 12.) Although the “Districts selected are representative of postal Districts nationwide[,]” they “were not chosen on a statistical basis and therefore the survey was not designed to be a valid statistical representation of postal Districts nationwide.” (Def.'s Stmt. ¶ 23.) The survey divided postal sidewalks into four categories:

A. Sidewalks at the border of the postal property that are continuations of and/or indistinguishable from adjacent municipal or public sidewalks....

B. Sidewalks within, but not at the border of, postal property that run along any side of the post office building....

C. Sidewalks that provide ingress/egress to the post office, i.e. pathways from the street or parking lot to the front door....

D. Other

(Def.'s Mem., Ex. B., Postmaster Questionnaire ¶¶ 3, 10.) For each type of sidewalk, the survey asked about the type and frequency of expressive activity. ³ The survey instructed the facility manager to report not only on the manager's current facility, but on all facilities that the manager had managed in the past. ( Id. § 2.) There were 6,053 facilities in the final data set. (Pls.' Mem. of P. & A. in Supp. of Pls.' Renewed Mot. for Summ. J. (“Pls.' Mem.”), Decl. of Joseph B. Kadane ¶ 3.) As to the ultimate number of sidewalks on which expressive activity took place, the plaintiffs assert that there are 518 records showing responsive activity ( id. ¶ 4(e)), and USPS asserts that there are 562 sidewalks “where expressive activity was indicated [.]” ⁴ ( See Def.'s Mem., Decl. of Gregory M. Whiteman ¶ 15.)

The plaintiffs have moved for summary judgment, arguing that the amended § 232.1(h)(1) is facially unconstitutional because a substantial number of Kokinda⁵ sidewalks are public forums, the regulation is not reasonable even if the Kokinda sidewalks are nonpublic forums, and the regulation is void for vagueness.⁶ The plaintiffs also seek to enjoin USPS from applying the regulation to Grace sidewalks. USPS has also moved for summary judgment, arguing that the non- Grace sidewalks are not public forums, and that the amended § 232.1(h)(1) is valid because it is reasonable.

DISCUSSION

Summary judgment is appropriate where the record shows that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). A party seeking summary judgment must provide the district court with a factual record sufficient to demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may support its motion successfully if it “ ‘inform[s] the district court of the basis for its motion, and identif[ies] those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ” Frito–Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C.Cir.1988) (quoting Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548) (internal citation omitted).

Ordinarily, a litigant has standing to vindicate only his own constitutional rights. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). However, a plaintiff can seek to invalidate all enforcement of a law that abridges speech protected by the First Amendment—such that it cannot be applied to the plaintiff or to others—by “showing that [the] law punishes a ‘substantial’ amount of protected free speech, ‘judged in relation to the statute's plainly legitimate sweep[.]’ ” Virginia v. Hicks, 539 U.S. 113, 118, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). Cf. New York v. Ferber, 458 U.S. 747, 773, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (concluding that statute with a “tiny fraction” of “arguably impermissible applications” was not overbroad). Facial invalidation is “strong medicine” and should be applied “only as a last resort.” Broadrick, 413 U.S. at 613, 93 S.Ct. 2908.

I. FORUM ANALYSIS

Because “[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of...