A.N.S.W.E.R. Coalition v. Kempthorne, Civil Action No. 05-0071 (PLF).

• Decision Date: 20 March 2008
• Docket Number: Civil Action No. 05-0071 (PLF).
• Citation: 537 F.Supp.2d 183
• Parties: A.N.S.W.E.R. COALITION, Plaintiff, v. Dirk KEMPTHORNE, Secretary of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

537 F.Supp.2d 183

A.N.S.W.E.R. COALITION, Plaintiff, v. Dirk KEMPTHORNE, Secretary of the Interior, et al., Defendants.

Civil Action No. 05-0071 (PLF).

United States District Court, District of Columbia.

March 20, 2008.

COPYRIGHT MATERIAL OMITTED

Carl L. Messineo, Mara E. Verheyden-Hilliard, Partnership for Civil Justice, Washington, DC, Carol A. Sobel, Santa Monica, CA, for Plaintiff.

Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

Plaintiff A.N.S.W.E.R. (Act Now to Stop War and End Racism) Coalition ("ANSWER") filed this lawsuit against defendants Dirk Kempthorne; Secretary of the Interior, Mary Bomar, Director of the National Park Service ("NPS"),¹ and Mark Sullivan, Director of the United States Secret Service, seeking declaratory and injunctive relief on three claims, all alleging violations of the First Amendment and the Equal Protection Clause of the United States Constitution arising from policies and practices engaged in with respect to the Presidential Inaugural Parade in January 2005.² This matter is before the Court on defendants' motion for summary judgment and plaintiff's cross motion for partial summary judgment.³ The Court previously addressed the justiciability of the claims in this case in an Opinion and Order dated June 13, 2007. See A.N.S.W.E.R. Coalition v. Kempthorne, 493 F.Supp.2d 34 (D.D.C.2007). The Court described the background of this case in that Opinion, so it will repeat only relevant portions here.

I. BACKGROUND

The 2005 Inauguration of President George W. Bush took place on January 20, 2005 here in Washington, D.C. The inaugural parade route included, as it always does, Pennsylvania Avenue between the United States Capitol and the White House. Since 1996, much of the Pennsylvania Avenue corridor, including Pershing Park, Freedom Plaza, the Navy Memorial and John Marshall Park, has been part of the Pennsylvania Avenue National Historic Park. See Declaration of Robbin Owen ("Owen Decl.") ¶ 14. It therefore is under the jurisdiction of the National Park Service, which generally is authorized to promulgate rules and regulations "for the use and management of parks[.]" 16 U.S.C. § 3. NPS issues regulations specifically with respect to the parklands in the National Capital Region and permits relating to activities within them. See generally 36 C.F.R. § 7.96(g). The Presidential Inaugural Ceremonies Act ("PICA"), 36 U.S.C. § 501 et seq., which was enacted in 1956, also governs inaugural events.⁴

Plaintiff purports to represent "tens of thousands of political dissenters, anti-war activists and ordinary people compelled to collective action, among other reasons, by the war policies of the Bush administration and its refusal to bring troops home now from Iraq." Am. Compl. at 3-4. Plaintiff asserts that it has "concrete intentions to demonstrate at the upcoming Presidential Inauguration" on January 20, 2009 regardless of which party's candidate is elected, and that it advances this litigation to "vindicate the rights of all to equal access to the public parade portion of the Inaugural ceremony." Id. at 4.

Plaintiff alleges that it is the strict policy of the NPS not to accept any permit applications submitted more than one year in advance of the start date for any event on Park Services land. See Am. Compl: ¶ 9; PSMFD ¶ 4. Defendants agree that this is their policy. See Owen Decl. ¶ 12. Plaintiff argues that this policy is used to reject permit applications of organizations, "including groups engaged in political dissent." Am. Compl. ¶ 9.⁵ Plaintiff also asserts that the policy is waived or disregarded for the Presidential Inaugural Committee ("PIC"), which is given priority over everyone else by being allowed to submit its permit application earlier than any other group, and that it then is given exclusive use of most of the parade route. See Am. Compl. at 4 and ¶¶ 16, 29, 32, 33.

On November 12, 2003 and December 19, 2003, NPS submitted special event permit applications to itself, on behalf of the yet-to-be-formed PIC, in connection, with the 2005 Inauguration. See Owen Decl., Exh. B ("November 12, 2003 NPS Application"); see also DSMF 111.⁶ The application was "for the parade route from the National Capital Area, 3rd Street to 17th Street including sidewalks on both sides of the street, Lafayette Park, White House sidewalk[.]" DSMF ¶ 5 (citing and quoting the November 12, 2003 NPS Application). Plaintiff argues that the application submission was "outside the one year period and in violation of the generally applicable permitting regulations and policies." Am. Compl. ¶ 29.⁷

Plaintiff notes that the NPS has a policy, codified in the regulations, that permits for special events and demonstrations have a maximum duration of three weeks. See PSMFD ¶ 5; see also 36 C.F.R. § 7.96(g)(5)(iv). The November. 12, 2003 NPS/PIC application was "for the entire length of the Pennsylvania Avenue side-Walks (plus additional areas) for the six-month period from November 1, 2004 to April 1, 2005." Am Compl. ¶ 32 (emphasis added); see also DSMF ¶ 2.⁸ Defendants have submitted a declaration stating that "based on past experience, the Park Service knew that set-up takes a substantial amount of time greater than three weeks for special events. Indeed, it expected that a reasonable anticipated set-up times [sic] would be from November 1, 2004-January 19, 2005 and that a reasonable anticipated dismantling times [sic] would be from January 21, 2005 to April 1, 2005." Owen Decl. ¶ 33.

On January 2, 2004, ANSWER filed a permit application with the NPS for 2005 Inauguration demonstration events and setup, covering a time period from January 1, 2005 to January 20, 2005. See Am. Compl. ¶¶ 10-11; see also DSMF ¶ 12; PSMFD 112. ANSWER's application "was not denied within 24 hours and was consequently `deemed granted' pursuant to regulation." Am. Compl. ¶ 14.⁹

By January 20, 2004, plaintiff alleges, the applications submitted by NPS to itself on behalf of the PIC were visible on the public boards maintained by NPS and on which applicants "can observe whether there are conflicting prior-in-time permit applications for any particular or desired space." Am. Compl. ¶¶ 15-16. Within a month of submitting its permit application, plaintiff therefore was aware of the conflicting NPS/PIC special event application encompassing some or all of the same areas as its own demonstration permit application.

ANSWER alleges that it made repeated requests of the NPS to identify what, if any, part of its permit would be revoked, but received no response. See Am Compl. ¶ 18; see also Owen Decl. ¶ 47. ANSWER requested "that the NPS convene a logistics meeting for their intended activities along the Inaugural Parade route" and "was advised that NPS would not provide information nor schedule the normal predetermination multi-agency logistics meeting with protest organizers until after the Bush-Cheney PIC had determined what space it intended to take along the route . . ." Am Compl. ¶¶ 22, 26. A meeting was held on December 13, 2004 with plaintiff, representatives of the NPS, the United States Park Police and the Secret Service, but no representatives of the Bush-Cheney PIC were present. See id. ¶ 24. At that meeting, ANSWER was advised by NPS representatives that the NPS was meeting separately with and talking to the Bush-Cheney PIC and that "only based on those discussions would they be able to determine the status of the ANSWER Coalition's permit. . . ." Id. ¶ 26. There was a second logistics meeting held on December 20, 2004. See id. ¶¶ 38-39: Meanwhile, on December 15, 2004, NPS issued a permit to the Bush-Cheney PIC "for the parkland along the Inaugural parade route, including Pennsylvania Avenue National Historic Park." DSMF ¶ 8.¹⁰

On December 15, 2004, NPS also sent a letter to plaintiff's counsel in response to a FOIA request for information regarding "all applications seeking the use of Federal parkland along Pennsylvania Avenue for the Presidential Inauguration on January 20, 2005." December 15, 2004 NPS Letter. The NPS letter was accompanied by five "responsive applications, in order of receipt: applications 04-0466 and 04-0634 by the NPS on behalf of the Presidential Inaugural Committee pursuant to the Presidential Inaugural Ceremonies Act, application 05-011 by A.N.S.W.E.R. Coalition, application 05-0004 by D.C. Chapter of Free Republic, and application 05-0005 by the Christian Defense Coalition." Id. At that point at the latest, then, plaintiff must have been aware that NPS deemed there to be an earlier permit application than the one that plaintiff had submitted. But plaintiff alleges that the response to their FOIA request "showed that ANSWER had first in time applications for public space in conformity with NPS regulations. It also showed that NPS had submitted permit applications to itself outside the one year period of the 2005 Inauguration on behalf of the PIC." PSMFD ¶ 18, Plaintiff argues that NPS "violated its own regulations for the benefit of PIC," and was giving PIC a higher priority than ANSWER under their "first come, first serve" policy. Id.

Plaintiff asserts that on December 23, 2004, NPS "revoke[d] ANSWER's permit" and offered ANSWER much more limited space for its use than it had requested in its January 2, 2004 permit application. See Am. Compl. ¶¶ 44-46; see also Owen Decl. ¶¶ 55-59; Exh. L to the Owen Decl. ("December 23, 2004 NPS Letter"). Defendants characterize this determination as the Park Service "grant[ing] in part the plaintiff's permit application." DSMF ¶ 13. Despite defendants' characterization of the action as "granting in part" the permit application, as noted above, applicable regulations provide that "[a]ll demonstration applications . . . are deemed granted, subject to all limitations and restrictions applicable to said park area, unless denied within 24 hours of...