A.N.S.W.E.R. Coal. v. Jewell

Citation153 F.Supp.3d 395
Decision Date28 January 2016
Docket NumberCivil Action No. 05-0071 (PLF)
Parties A.N.S.W.E.R. Coalition, Plaintiff, v. Sally Jewell, Secretary, United States Department of the Interior, et al., Defendants.
CourtU.S. District Court — District of Columbia

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

Marina Utgoff Braswell, Jane M. Lyons, U.S. Attorney's Office, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN

, United States District Judge

Plaintiff A.N.S.W.E.R. (Act Now to Stop War and End Racism) Coalition (“ANSWER”) filed this lawsuit in January 2005 against the Secretary of the Interior, the Director of the National Park Service (collectively “NPS”), and the Director of the Secret Service, an agency within the Department of Homeland Security (“Secret Service”), challenging the constitutionality of certain policies that restrict ANSWER's ability to engage in expressive activity during the Presidential Inaugural Parade in Washington, D.C.1 This matter is before the Court on the Secretary of the Interior and National Park Service's motion to dismiss Count I and for summary judgment on Counts III and IV, the Secretary of Homeland Security's motion for summary judgment on Count II, plaintiff ANSWER's cross-motions for summary judgment on Counts II, III, and IV, and plaintiff ANSWER's motion to strike.2

The Court heard oral argument on these motions on October 22, 2015. After carefully considering the parties' papers, the relevant legal authorities, the arguments presented by counsel, and the history of and record in this case, the Court grants summary judgment to the defendants on Counts II, III, and IV. The Court also denies defendants' motion to dismiss Count I and grants ANSWER's motion to strike.

I. BACKGROUND

The pending motions stem from ANSWER's ongoing efforts to secure sufficient space for its members and affiliates to engage in political dissent during the Presidential Inaugural Parade. This Court has previously described the factual and procedural background of this case. See A.N.S.W.E.R. Coalition v. Kempthorne , 493 F.Supp.2d 34, 37–41 (D.D.C.2007)

(“ANSWER I ”); A.N.S.W.E.R. Coalition v. Kempthorne , 537 F.Supp.2d 183, 186–93 (D.D.C.2008) (“ANSWER II ”); A.N.S.W.E.R. Coalition v. Salazar , No. 05–0071, 2012 WL 8667570, at *1–3 (D.D.C. March 5, 2012) (“ANSWER III ”); and A.N.S.W.E.R. Coalition v. Salazar , 915 F.Supp.2d 93, 96–99 (D.D.C.2013) ( “ANSWER IV ”). It therefore will limit its discussion accordingly.

ANSWER is an unincorporated grassroots organization that engages in political organizing and activism in opposition to war and racism. Am. Compl. ¶ 1. Every four years since 2005, ANSWER has organized or attempted to organize a mass demonstration along Pennsylvania Avenue or in Freedom Plaza to engage in political dissent during the Presidential Inaugural Parade. Id. ; Supp. Pleading ¶ 1. Counts III and IV of the complaint and supplemental pleading concern National Park Service regulations, as now amended, that grant the Presidential Inaugural Committee (“PIC”) exclusive access to some of these same areas in connection with events relating to the Presidential Inauguration. See 36 C.F.R. § 7.96(g)(4)(iii) (2012)

. Count II of the complaint challenges the United States Secret Service's ban on allowing physical supports for signs into the secure areas of Pennsylvania Avenue along the Presidential Inaugural Parade route.

A. Statutory and Regulatory Framework

The Secret Service, a federal law enforcement agency within the Department of Homeland Security, is charged with protecting the President, the Vice President, the President-elect, the Vice President-elect, and the immediate families of those individuals. 18 U.S.C. § 3056(a)

. Because the Secretary of the Department of Homeland Security designated the Presidential Inaugural Parade a National Special Security Event, the Secret Service has the responsibility “to ensure the overall operational security of the day.” Coyer Decl ¶ 4.

The Department of the Interior has the authority to issue and implement, through NPS, rules and regulations that oversee the use of federal grounds within the National Park System. See 54 U.S.C. §§ 100101

, 100751. Pursuant to this authority, NPS has promulgated regulations for a permitting system that allows the use of National Park System land around the national capital region for special events and demonstrations. See generally 36 C.F.R. § 7.96(g). The Secretary of the Interior has additional statutory authority under the Presidential Inaugural Ceremonies Act (“PICA”) to “grant to the Inaugural Committee a permit to use [federal] reservations or grounds during the inaugural period, including a reasonable time before and after the inaugural period.” 36 U.S.C. § 503(a).

When ANSWER initiated this suit in 2005, the relevant NPS regulations set aside only the White House sidewalk and three-quarters of Lafayette Park for the exclusive use of PIC for inaugural activities.

36 C.F.R. § 7.96(g)(4)(i)(F) (2005)

. The regulations provided that permits for demonstrations and special events in other areas would be issued on a first-come, first-served basis, 36 C.F.R. § 7.96(g)(4)(i), and NPS had a “strict policy” to not “accept any permit applications submitted more than one year in advance of the start date for any event on Park Services land.” ANSWER II , 537 F.Supp.2d at 186–87. In practice, however, NPS deviated from its policy and submitted permit applications for itself over a year in advance of Inauguration Day activities to reserve for PIC over one-third of the sidewalk space on Pennsylvania Avenue between 4th Street and 15th Street, Northwest, in addition to the Lafayette Park and White House sidewalk areas set aside by regulation. See id . at 187, 190.

B. Procedural History

ANSWER's amended complaint contained three counts. The first claim (Count I) challenged NPS' actions to exempt itself and PIC from the relevant permitting regulations. Am. Compl. ¶¶ 87-97. ANSWER's second claim (Count II) challenged the Secret Service's prohibition on supports for signs and placards. Id. ¶¶ 98-102. ANSWER's third claim (Count III) challenged NPS' policy of granting to PIC exclusive use of space along the parade route, regardless of whether such policy was inconsistent with NPS' regulations. Id. ¶¶ 103-08. ANSWER asserted that the conduct described in each count violated the First Amendment and the Equal Protection Clause, and requested declaratory and injunctive relief, including a [d]eclaratory judgment that the NPS policy and practice of granting to PIC exclusive use of the public space abutting the Inaugural Parade route is unconstitutional; an injunction prohibiting such discriminatory conduct in the future; and a mandatory injunction that the NPS make the sidewalks abutting the Inaugural Parade generally open for the public for use [.] Am. Compl. ¶ 27. ANSWER did not challenge the regulatory set-aside of the White House sidewalk and Lafayette Park. Id. ¶ 104.

The Court addressed the justiciability of ANSWER's claims in an Opinion and Order dated June 13, 2007, in which the Court held that ANSWER had both organizational and representational standing to challenge NPS' then-uncodified policy and practice of granting PIC exclusive use of public space along the parade route. See ANSWER I , 493 F.Supp.2d at 42–48

. NPS then moved for summary judgment on Counts I and III, and ANSWER moved for summary judgment on Count I. See ANSWER II , 537 F.Supp.2d at 192–93.3 In an Opinion and Order dated March 20, 2008, the Court denied NPS' motion for summary judgment and granted ANSWER's motion for summary judgment on Count I. See id . at 206. The Court held that NPS' “policy and practice of exempting itself and/or the [PIC] from compliance with the generally applicable permitting regulations, 36 C.F.R. § 7.96(g), [was] unconstitutional” and enjoined NPS from doing so “with respect to events relating to the Inauguration.” Id. The Court also denied NPS' motion for summary judgment on Count III. Noting that the Inauguration is a public event at which protestors have a right to engage in political speech, the Court rejected the government's argument that ANSWER was “not entitled to ‘insert itself into PIC's permitted activities.’ Id. at 204 (internal citation omitted). The Court did not reach the question of [h]ow much, if any, of the Pennsylvania Avenue sidewalks can be reserved for the exclusive use of the government and its ticketed guests on Inauguration Day.” Id. at 205–06

.

Following the Court's decision, NPS amended its regulations governing permits for demonstrations and special events for Inaugural activities. See Areas of the National Park System, National Capitol Region, 73 Fed. Reg. 67,739 (Nov. 17, 2008)

; 36 C.F.R. § 7.96(g)(4) (2012). The regulations now provide, in relevant part:

(i) NPS processes permit applications for demonstrations and special events in order of receipt. NPS will not accept applications more than one year in advance of a proposed continuous event (including set-up time, if any). Use of a particular area is allocated in order of receipt of fully executed applications, subject to the limitations in this section.

...

(iii) In connection with Presidential Inaugural Ceremonies the following areas are reserved for priority use as set forth in this paragraph.
(A) The White House sidewalk and Lafayette Park, exclusive of the northeast quadrant for the exclusive use of the Presidential Inaugural Committee on Inaugural Day.
(B) Portions of Pennsylvania Avenue, National Historic Park and Sherman Park, as designated in the maps included in paragraph (g)(4)(iii)(E) of this section, for the exclusive use of the Presidential Inaugural Committee on Inaugural Day for: (1) Ticketed bleachers viewing and access areas, except that members of the public may use a ticketed bleacher seat that has not been claimed by the ticket holder 10 minutes
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