Make the Road by Walking, Inc. v. Turner

• Decision Date: 04 August 2004
• Docket Number: Docket No. 02-7876.
• Citation: 378 F.3d 133
• Parties: MAKE THE ROAD BY WALKING, INC., Plaintiff-Appellant, Irania Sanchez and Emilio Vega, on behalf of themselves and all others similarly situated, Plaintiffs, v. Jason A. TURNER, as Administrator of the Human Resources Administration of the City of New York, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 133

378 F.3d 133

MAKE THE ROAD BY WALKING, INC., Plaintiff-Appellant Irania Sanchez and Emilio Vega, on behalf of themselves and all others similarly situated, Plaintiffs, v. Jason A. TURNER, as Administrator of the Human Resources Administration of the City of New York, Defendant-Appellee.

Docket No. 02-7876.

United States Court of Appeals, Second Circuit.

Argued: April 7, 2003.

Decided: August 4, 2004.

Appeal from the United States District Court for the Southern District of New York, Allen G. Schwartz, J.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Laura K. Abel (David S. Udell, on the brief), Brennan Center for Justice, New York, New York (Constance P. Carden and Laura Davis, New York Legal Assistance Group, New York, New York, Thomas McGanney and David Hille, White & Case LLP, New York, New York, Marc Cohan, Rebecca Scharf, Welfare Law Center, New York, New York, on the brief), for Plaintiff-Appellant.

Elizabeth I. Freedman, Assistant Corporation Counsel of the City of New York (Michael A. Cardozo, Corporation Counsel of the City of New York, and Leonard Koerner and Janice Birnbaum, Assistant Corporation Counsel of the City of New York, on the brief), Corporation Counsel's Office, New York, New York, for Defendant-Appellee.

Before: WALKER, Chief Judge, OAKES, and WINTER, Circuit Judges.

WINTER, Circuit Judge.

Make the Road by Walking ("MRBW") appeals from Judge Schwartz's grant of summary judgment to the Human Resources Administration ("HRA"). The district court held that exclusion of MRBW from welfare office waiting rooms (sometimes "Job Center waiting rooms") when MRBW was not there to transact "official business" did not violate appellant's First Amendment, due process, or equal protection rights. Judge Schwartz also granted summary judgment to MRBW on its claim that a portion of the HRA policy on admission to Job Center waiting rooms was unconstitutionally vague. MRBW appeals from only the district court's First Amendment ruling; HRA does not cross-appeal.

The dispositive issue is whether the Job Center waiting rooms are nonpublic fora or limited public fora for First Amendment purposes. We hold that the waiting rooms are nonpublic fora and that the exclusion of MRBW was reasonable and viewpoint neutral. We therefore affirm, albeit on grounds different from those expressed by the district court.

BACKGROUND

MRBW is an advocacy organization incorporated in 1998 and located in Bushwick, Brooklyn. It seeks to provide "information, assistance, and representation with respect to public assistance benefits" to welfare claimants in Job Centers. Specifically, MRBW advocates inform claimants of their rights, help them complete application and recertification forms, translate for non-English-speaking claimants, and represent individual claimants during meetings with caseworkers. In addition, advocates may "quickly encourage Welfare Center personnel to follow proper procedures so that erroneous decisions are not made" and can "remain on site to address any remaining ambiguities or resistance by the Welfare Center employees." In the long run, according to MRBW, advocates "can observe and identify chronic or systemic problems and request that HRA employees rectify those problems."

MRBW is staffed by lawyers and non-lawyers, and its members are community residents who volunteer for four hours or pay dues of two dollars each month. MRBW employs four full time attorneys, one law school graduate, and four staff organizers. One lawyer is assigned to the project responsible for the MRBW programs at issue in this case, the Equal Justice Project ("EJP"). The parties dispute whether the two non-lawyer EJP staff advocates — out of the three EJP advocates in all — are trained for their jobs. HRA claims that one of the two non-lawyers has received no training, while the other has attended only a day-long seminar about benefits. MRBW responds that advocates perform only those tasks for which they have been trained, and that this training consists of discussions at meetings, one-on-one conversations, role-playing, and practicing. MRBW has successfully advocated for numerous welfare claimants, mainly by filing complaints with HRA.

The Job Center waiting rooms are operated by HRA, the social services district charged with administering and dispensing benefits to residents of New York City. The Family Independence Administration ("FIA") is the largest division of HRA and administers many welfare benefits programs, including public assistance (cash subsidies to recipients), Medicaid, and food stamps. Claimants apply for these benefits or are recertified to receive them at Job Centers, which are operated by FIA, except that claimants who are eligible only for Medicaid are referred to another division of HRA. FIA is solely responsible for operating Job Center waiting rooms.

Each Job Center has a waiting room, and each also has separate areas containing "cubicles of eligibility specialists and financial planners" who interview and process forms for claimants. The business serving claimants at Job Centers takes place mainly in these separate areas; the parties agree that the purpose of providing waiting room access to claimants is "to facilitate the Claimants' business with FIA."

In debating whether the Job Centers are limited public or nonpublic fora, the parties have looked to HRA policies from the 1970s to the present date. During this period, federal and state law have required HRA to allow claimants to select and bring an advocate into Job Centers. 45 C.F.R. § 206.10(a)(1)(iii); 18 N.Y. Comp.Codes R. & Reg. tit. 18, § 351.1(d). While accompanying a claimant to a Job Center, an advocate can inform, assist, and represent that claimant, and can help other claimants who ask for the advocate's assistance. However, retained advocates may not solicit new clients in Job Center waiting rooms. Advocates brought by claimants need not have prior permission or training, or meet any other criteria to gain entry. Id.

In 1974, we held that the Albany welfare office could not totally prohibit peaceful leafletting about, and discussion of, the legal rights of welfare recipients and the welfare rights movement in welfare office waiting rooms by advocacy groups. Albany Welfare Rights Org. v. Wyman, 493 F.2d 1319, 1322 (2d Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974). We indicated that the waiting rooms were not traditional public fora but that some expression was permissible. Id. at 1324. In light of this decision, from 1974 through approximately 1991, HRA allowed unretained advocates to enter Job Centers and provide information, representation, and assistance to claimants. New York City Unemployed & Welfare Council v. Brezenoff, 677 F.2d 232, 235 (2d Cir.1982) (describing access policy). In 1977, HRA promulgated regulations allowing "[o]rganizations desiring to converse with clients and distribute literature" to sit at tables in Job Centers, id.; such "Community Tables" were referred to in the HRA Procedure Manual as late as 1983. After the district court decision in Brezenoff struck down regulations requiring advocates to stay behind tables, HRA also began allowing one advocate from any group present in a Job Center to walk around the waiting room. Id. at 235 n. 4.

Several advocacy organizations took advantage of this access to Job Centers. During the 1970s, HRA admitted the Food Law Project; in the 1980s, it admitted the New York City Unemployed and Welfare Council; and in the late 1980s and early 1990s, HRA admitted other advocates. Id. at 234; id. at 241 (Murphy, J., concurring in part and dissenting in part).

In 1985, the Supreme Court decided Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), and in 1992 it decided International Society for Krishna Consciousness, Inc. v. Lee (Lee I), 505 U.S. 672, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). These cases built upon the tripartite forum analysis developed in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), and clarified that a designated public forum, including a limited public forum, arises only where the government intends to create one. Lee I, 505 U.S. at 680, 112 S.Ct. 2701; Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. This reliance upon governmental intent substantially differed from the analysis used in Albany Welfare and Brezenoff, and, beginning in the early 1990s, HRA began enforcing a policy first enacted in its Code of Conduct in 1974, and included in each subsequent Code of Conduct, that was at odds with Albany Welfare and Brezenoff. That policy provided that

The Use of [HRA] Premises shall be limited to the transaction of official business and such other activities as may be specifically authorized by the HRA/ [Department of Social Services] Administrator/Commissioner.... Distribution of written material on Agency premises is limited to releases issued or sponsored by [HRA], releases of recognized staff organizations or clubs approved for distribution by [HRA] ... and releases of certified labor organizations pursuant to collective bargaining agreements.

HRA Code of Conduct.¹ According to HRA, its official business "is delineated by federal and state law, as well as local law," and, under this policy, HRA limits "third party access to Centers and their waiting rooms to those individuals who are part of the transaction of HRA's official business." In recent years, retained advocates, contractors providing managed health care and homelessness intervention services, the U.S. Census Bureau, and the New York State Department of Health have been admitted under this policy. These entities, except for the homelessness intervention contractors, may deal with claimants in the Job Center waiting rooms. Academics and government officials also occasionally tour the Job Centers by...