Van Arnam v. General Services Admin., No. CIV.A.00-10879-DPW.
| Decision Date | 27 August 2004 |
| Docket Number | No. CIV.A.00-10879-DPW. |
| Citation | 332 F.Supp.2d 376 |
| Parties | Catherine VAN ARNAM, et al., Plaintiffs, v. GENERAL SERVICES ADMINISTRATION, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Chester Darling, Boston, MA, Michael Williams, Lawson & Weitzen, LLP, Boston, MA, for Plaintiffs.
Anne G. Depew, United States Attorney's Office, Boston, MA, Michael J. Pineault, United States Attorney's Office, Boston, MA, Michael P. Sady, United States Attorney's Office, Boston, MA, for Defendants.
MEMORANDUM OF FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT
Having previously addressed the claims in this action in summary judgment practice and found trialworthy issues regarding (a) procedural questions of standing and mootness and (b) the substantive question of the constitutionality of conditioning permits to demonstrate at Boston's John F. Kennedy Federal Building upon the execution of an indemnification/hold harmless provision, Courtemanche v. GSA, 172 F.Supp.2d 251 (D.Mass.2001), I now address the remaining claims following trial. In order to make the findings and conclusions in this Memorandum self-sufficient and comprehensive in their own right without the need to cross-reference the earlier summary judgment decision, I have imported portions of the summary judgment opinion verbatim in this Memorandum. With apologies for some necessary repetition between the two opinions, I turn to the findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.
One who wishes to use federal property administered by the General Services Administration ("GSA") must first obtain a license. The license application requires that the applicant agree to "indemnify and save harmless the United States, its agents and employees against any and all loss, damage, claim or liability whatsoever" due to exercise of the license.
Plaintiff Catherine Van Arnam, nee Courtemanche,1 applied for such a license in May 2000 to use space immediately outside the John F. Kennedy Federal Building ("JFK Building") in Boston as part of a loosely organized national effort to protest the impending return of Elian Gonzalez to Cuba. A subordinate GSA official initially denied the application on grounds that the intent of the proposed event was to influence a federal appellate court hearing scheduled for the next day in Atlanta. On administrative appeal within GSA, the judicial proceedings ground was abandoned by a senior GSA official, who nevertheless declined to grant the license because Van Arnam refused to sign the indemnification/hold harmless clause. Van Arnam thereafter conducted her protest on City of Boston property adjacent to the JFK Building.
After the protest, Van Arnam continued to press the declaratory judgment action that she had initiated before the protest to contest GSA's denial of her application. She initially challenged both the judicial proceedings provision and the indemnification/hold harmless provision as unconstitutional burdens on her First Amendment rights. Defendants, in addition to defending the provisions on the merits, also asserted that the challenge by the individual plaintiff and her co-plaintiff, Americans to Keep Elian Free, were procedurally defective.
I granted the government's motion for summary judgment as to the judicial proceedings provision, but denied it as to the procedural and the indemnification/hold harmless clause issues. I then conducted a two-day bench trial, on the basis of which I enter the following Findings of Fact and Conclusions of Law in support of judgment for Van Arnam.
Plaintiff Van Arnam was the Boston Coordinator for Americans to Keep Elian Free. Plaintiff Americans to Keep Elian Free was a grassroots organization formed for the purpose of organizing nationwide demonstrations on one particular day to support the rights of Elian Gonzalez in an effort to prevent his return to Cuba. The organization no longer exists.
The defendant General Services Administration is the federal agency that administers much of the property owned by the United States. GSA's National Administrator and the Director of the Program Operations Division at the Boston office are also named as defendants. For simplicity, I will refer to the defendants collectively as "GSA" or "the government."
To request a license to use federal property administered by GSA, parties must fill out a standard GSA application, Form 3453 ("Application/Permit for Use of Space in Public Buildings and Grounds"), detailing various aspects of the proposed use, including the time, date, and number of people expected. Every applicant must also execute an indemnification/hold harmless clause ("the Clause"), which is on the second page of GSA's application form and requires a separate signature assenting to the terms. The Clause states that:
The licensee shall indemnify and save harmless the United States, its agents and employees against any and all loss, damage, claim or liability whatsoever, due to personal injury or death, or damage to property of others directly or indirectly due to the exercise by the licensee of the privilege granted by the obligations of said license.
The application also provides that:
The applicant assumes all responsibility for clean-up of the grounds, for providing trash containers, and for arranging disposal of the trash. The Federal Government cannot provide electricity for operation of the applicant's equipment, nor are restrooms and similar facilities available. If necessary, portable restroom facilities may be authorized, at the applicant's expense, if the applicant arranges for the removal before the beginning of the next workday.
All licenses issued for the use of space immediately outside the JFK Building have contained an applicant's signature on the Clause.
The JFK Building is a large federal office building complex, oriented roughly southwest-northeast, at the northern end of the Government Center section of downtown Boston.2 Its southeastern side faces the expansive City Hall Plaza, and its southwestern side faces Cambridge Street.3
Between the building's front entrance and Cambridge Street, there is a small open plaza. Only part of this property is federally owned. The distance from the building's lobby-level windows to the southwestern federal property boundary is approximately eighty-six feet. A portion of that distance is actually under the building's upper floors, which extend farther to the west than the lobby level and which are supported by ten columns. The distance from the northwestern property line to the southeastern property line in this area is approximately 263 feet, most of which is occupied by the building itself. The building lies very close to the southeastern property line.
The area of the plaza southwest of the JFK Building and on federal property ("JFK Plaza") is approximately half an acre. Some 3,000-4,000 people per day enter the JFK Building via the Cambridge Street exit; as of December 2000, the average was 3,500 people per day.
No clear barrier marks the federal property line, but in most sections it is discernible to the trained eye. Along the southwestern (Cambridge Street) side, approximately half of the 263 foot boundary coincides with two raised planter beds, approximately waist high, at either end of the boundary, though the central portion of the property line is unobstructed.4 Along the southeastern (City Hall Plaza) side, the boundary coincides with a change in surface and a series of widely-spaced waist-high cylindrical barriers, although both these features are also found within the western portion of the federal property and there do not delineate any boundary. Within the federal property, the plaza facing Cambridge Street is generally open except for the planter beds and two large ventilation cones approximately six feet tall and considerably larger in diameter.
The property bordering JFK Plaza is owned by the City of Boston. City Hall Plaza is administered by the City's Assistant Commissioner of Real Property, and the sidewalk between Cambridge Street and the southwestern federal property line is administered by the City's Transportation Department.
Before the planned Americans to Keep Elian Free demonstration that Van Arnam sought to conduct, a variety of public events had taken place at JFK Plaza with GSA permission. Between October 1997 and February 2002 GSA granted applications for permission to use the site for at least six political or expressive events: a "cultural event" organized by the American Friends Service Committee; a press conference regarding trade bills in the Senate organized by the Union of Needletrades, Industrial, and Textile Employees; a public demonstration for a solution to the conflict between Eritrea and Ethiopia; an art exhibition; a rally relating to the United States policy toward the Congo; and a fast and press conference supporting "the Louis Gutierrez bill."5
Through the permits, GSA imposed numerous "special conditions" on the groups organizing these events. The AFSC was required to "remove all debris and trash." The UNITE press conference was "limited to the north west corner of the plaza area on the black top" and required to "not interfere with the entrance or exit of employees or the public." The Eritrea-Ethiopia demonstration was similarly "restricted to the northwest corner," required "not to block [the] entrance," and limited to 200 people. The Congo policy rally was limited to the "north west corner of Cambridge & New Sudbury Street on the black top area only," and the applicant was expressly made "responsible for all clean up, and any damage to Federal Property."
On May 1, 2000 Van Arnam filed an application for a permit to hold a...
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