A.N.S.W.E.R. v. Norton ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
A.N.S.W.E.R. COALITION, )
)
Plaintiff, )
)
v. ) Civil Action No. 05-0071 (PLF)
)
KEN SALAZAR, Secretary, )
United States Department of the Interior, et al., )
)
1
Defendants. )
__________________________________________)
OPINION
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 (“NPS”), and the Director of the 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. This matter is now before
the Court on the Secretary of the Interior’s motion on behalf of NPS to dismiss ANSWER’s
Supplemental Pleading in part, for lack of subject matter jurisdiction. The Secretary claims that
ANSWER lacks standing to challenge the regulations governing access to the parade route to the
extent that the regulations apply to areas outside of Freedom Plaza on Pennsylvania Avenue.
After carefully considering the parties’ papers, the relevant legal authorities, and the entire record
1
Jonathan Jarvis, the current Director of the National Park Service, has been
substituted for former Director Mary Bomar, and Mark Sullivan, the current Director of the
Secret Service, has been substituted for former Director W. Ralph Basham pursuant to Rule
25(d) of the Federal Rules of Civil Procedure.
in this case, the Court concludes that ANSWER has met its burden of showing standing at the
pleadings stage, such that ANSWER may pursue its claim in full.2 The Court therefore denies
the Secretary’s motion to dismiss.
I. BACKGROUND
The pending motion stems 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, Civil Action No. 05-0071, at 2-4
(D.D.C. March 5, 2012) (“ANSWER III”). 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 attempted to organize a mass demonstration along Pennsylvania
Avenue to engage in political dissent during the Presidential Inaugural Parade. Id.; Supp.
Pleading ¶ 1. This dispute arises from National Park Service regulations, as now amended, that
grant the Presidential Inaugural Committee (“PIC”) exclusive access to some of these same areas
2
The papers reviewed in connection with the pending motion include: plaintiff’s
amended complaint (“Am. Compl.”) [Dkt. No. 17]; plaintiff’s supplemental pleading (“Supp.
Pleading”) [Dkt. No. 144]; defendant’s motion to dismiss in part for lack of subject matter
jurisdiction (“Def.’s Mot.”) [Dkt. No. 146]; plaintiff’s brief in opposition to defendant’s motion
(“Pl.’s Opp.”) [Dkt. No. 155] including Exhibit 1, Affidavit of Brian Becker (“Becker Decl.”);
and defendant’s reply brief in support of its motion to dismiss in part (“Def.’s Reply”) [Dkt. No.
158].
2
on and in connection with events relating to the Presidential Inauguration. See 36 C.F.R.
§ 7.96(g)(4)(iii) (2012).
A. Statutory and Regulatory Framework
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 16 U.S.C. §§ 1, 3. 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
has additional statutory authority under the Presidential Inaugural Ceremonies Act to “grant to
the Inaugural Committee a permit to use [federal] reservations or grounds during 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 the
PIC for inaugural activities. 36 C.F.R. § 7.96(g)(4)(i)(F) (2005).3 The regulations provided that
permits for demonstrations and special events for other areas would be issued on a first-come,
first-served basis, id. at § 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 the PIC over one-third of the sidewalk space on Pennsylvania
3
In 1996, the sidewalks abutting Pennsylvania Avenue were designated as federal
lands and became subject to NPS’ regulatory authority. See ANSWER II, 537 F. Supp. 2d at
198.
3
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 first claim (“Count I”) challenged NPS’ actions to exempt itself and
the 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 the
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 the 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[.]” Id. at 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
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judgment on Count I. See ANSWER II, 537 F. Supp. 2d at 192-93.4 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 ANSWER II, 537 F. Supp. 2d 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 regarding 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).
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
4
Neither party moved for summary judgment on Count II, see ANSWER II, 537 F.
Supp. 2d at 191, and the parties are currently engaged in discovery regarding Count II before
Magistrate Judge Kay.
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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 before
the Inaugural Parade is scheduled to pass the bleacher's
block[.]
36 C.F.R. § 7.96(g)(4). The referenced maps show reserved PIC bleacher space on portions of
Pennsylvania Avenue between 7th Street and 15th Street, Northwest, including most of Freedom
Plaza (located on Pennsylvania Avenue between 13th Street and 14th Street), and parts of
Sherman Park (located at 15th Street and Pennsylvania Avenue). 36 C.F.R. § 7.96(g)(4)(iii)(E).
According to NPS, these regulations grant the PIC additional priority and exclusive use of
approximately fourteen percent of Pennsylvania Avenue along the Inaugural Parade route.
ANSWER III at 10 (citing Defendant’s Opposition to Plaintiff’s Motion to Enforce Injunction,
Dkt. No. 111 at 8, 25).
ANSWER subsequently filed a motion to enforce the injunction against NPS on
the grounds that the amended regulations violated the Court’s March 20, 2008 Order. See Dkt.
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No. 105. The Court denied that motion. ANSWER III at 16. Although the amended regulations
expanded the reach of the regulatory set-aside, the Court found that they did not contravene the
terms of the Court’s injunction, which merely enjoined NPS’ practice of deviating from its
regulations and established policies in order to discriminate in favor of PIC. ANSWER III at
12-14. Although the Court concluded that the injunction did not preclude the expansion of the
regulatory set-aside,“[t]hat conclusion does not mean that NPS’ amended regulations are
constitutional; it just means that the Court has not addressed the issue.” Id. at 14-15. The Court
then granted ANSWER leave to file a supplemental pleading containing facial and as-applied
challenges to 36 C.F.R. § 7.96(g)(4)(iii)(B). Id. at 16; see also Plaintiff’s Unopposed Motion for
Leave to File Supplemental Complaint, Dkt. No. 132.
C. ANSWER’s Supplemental Pleading
ANSWER presents a fourth claim in its Supplemental Pleading, which alleges
that the expanded regulatory set-aside, 36 C.F.R. § 7.96(g)(4)(iii)(B)(1), does not constitute a
reasonable time, place, and manner restriction, and favors individuals affiliated with the
administration while disfavoring others, in violation of the First Amendment and the Equal
Protection Clause (“Count IV”). Supp. Pleading ¶¶ 10, 14, 21-23. ANSWER challenges the
regulations on their face and as applied to ANSWER and its members. Id. ¶ 15.
Along with the Supplemental Pleading, ANSWER enclosed its application for a
permit to conduct a demonstration relating to the 2013 Inauguration at and around Freedom
Plaza. See Supp. Pleading Attachment 1. ANSWER also included NPS’ confirmation of its
first-in-time application, in which NPS informed ANSWER of the regulatory priority for certain
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designated areas at Freedom Plaza relating to the Inaugural Parade. See Supp. Pleading
Attachment 2. Under the regulatory priority, although ANSWER’s application was “deemed
granted,” NPS retained authority to revoke ANSWER’s permit for any parts of Freedom Plaza
that the PIC intended to use once the PIC formed in November 2012. Id.ANSWER now requests declaratory and permanent injunctive relief and asks the
Court to hold 36 C.F.R. § 7.96(g)(4)(iii)(B)(1) unconstitutional, enjoin its operative effect, and
order NPS to remove from the incorporated regulatory maps those areas reserved for the “PIC
Bleacher area.” Supp. Pleading ¶ 26(a).
D. The Government’s Motion to Dismiss
The Secretary of the Interior filed the instant motion to dismiss the Supplemental
Pleading in part for lack of standing, arguing that ANSWER impermissibly seeks relief that is far
broader than its injury. Because ANSWER’s permit application was limited to Freedom Plaza,
NPS contends that ANSWER has standing “only to the extent that the regulation grants a
regulatory preference to PIC’s Bleacher Area at Freedom Plaza.” Def.’s Mot. at 6 (emphasis
added). Moreover, to the extent that ANSWER asserts injury related to other areas along
Pennsylvania Avenue, NPS contends that ANSWER alleged such injury only in its opposition
papers and failed to include such allegations in its pleadings. See Reply at 2.
II. LEGAL STANDARDS
A. Motion to Dismiss Under Rule 12(b)(1)
On a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the
plaintiff bears the burden of establishing that the Court has jurisdiction. See Sierra Club v.
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Jackson, 813 F. Supp. 2d 149, 154 (D.D.C. 2011) (citing Brady Campaign to Prevent Gun
Violence v. Ashcroft, 339 F. Supp. 2d 68, 72 (D.D.C. 2004)). “While the burden of production
to establish standing is more relaxed at the pleading stage than at summary judgment, a plaintiff
must nonetheless allege “‘general factual allegations of injury resulting from the defendant’s
conduct.’” Nat’l Ass’n of Home Builders v. E.P.A., 667 F.3d 6, 12 (D.C. Cir. 2011); see also
NB ex. rel. Peacock v. District of Columbia, 682 F.3d 77, 82 (D.C. Cir 2012) (noting that “at the
pleadings stage, ‘the burden imposed’ on plaintiffs to establish standing ‘is not onerous’”). The
Court must accept all well-pled factual allegations in the complaint as true, but may in
appropriate cases consider certain materials outside the pleadings. See Jerome Stevens Pharms.,
Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). The Court must construe the complaint
liberally in the plaintiff’s favor, but the Court need not accept factual inferences drawn by the
plaintiff if those inferences are not supported by facts alleged in the complaint, nor must the
Court accept the plaintiff's legal conclusions. See Sierra Club v. Jackson, 813 F. Supp. 2d at 154
(citing Primex Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43, 47 (D.D.C. 2003)).
B. Standing
“Because Article III limits the constitutional role of the federal judiciary to
resolving cases and controversies, a showing of standing ‘is an essential and unchanging’
predicate to any exercise of [the Court’s] jurisdiction.” Nat’l Assn. of Home Builders v. E.P.A.,
667 F.3d at 11. To establish standing, plaintiff must show “at an irreducible constitutional
minimum”: (1) that it has suffered an injury in fact; (2) that the injury is fairly traceable to
defendant’s conduct; and (3) that a favorable decision on the merits likely will redress the injury.
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See ANSWER I, 493 F. Supp. 2d at 42 (citing Friends of the Earth v. Laidlaw Envtl. Serv.
(TOC) Inc., 528 U.S. 167, 180-81 (2000)); see also Worth v. Jackson, 451 F.3d 854, 857-58
(D.C. Cir. 2006). The alleged injury must be concrete and particularized, and actual or
imminent, not conjectural, hypothetical, or speculative. See Friends of the Earth v. Laidlaw
Envtl. Serv. (TOC) Inc., 528 U.S. at 180-81; Worth v. Jackson, 451 F.3d at 858. “The standing
inquiry is particularly rigorous when a court is considering the asserted unconstitutionality of
actions taken by another branch of the government.” Nat’l Fed’n of Indep. Business v.
Architectural & Transp. Barriers Compliance Bd., 461 F. Supp. 2d 19, 23 (D.D.C. 2006) (citing
Raines v. Byrd, 521 U.S. 811, 819 (1997)).
To sue on its own behalf, an organizational plaintiff must “demonstrate that it has
suffered injury in fact” that concretely and demonstrably injures the organization’s resources,
constituting “more than simply a setback to the organization’s abstract social interests.” Nat’l
Ass’n of Home Builders v. E.P.A., 667 F.3d at 11 (internal quotations omitted). An association
also may have representational standing to sue on behalf of its members when “(a) its members
would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are
germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” Id. at 12.
III. DISCUSSION
The government does not dispute that ANSWER has standing to challenge the
regulatory preference in the amended regulations for the PIC bleacher area at Freedom Plaza.
Def.’s Mot. at 5-6. As detailed above, NPS contends that ANSWER can challenge only the
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bleacher area within Freedom Plaza because ANSWER’s injury is limited to the effect of the
Freedom Plaza permit denial. Id. at 5. According to NPS, ANSWER “cannot demonstrate
standing to challenge the Park Service’s amended regulations as they pertain to areas other than
the PIC Bleacher Area at Freedom Plaza, because such provisions have no concrete effect on
plaintiff.” Id. To the extent that ANSWER intends to use space in areas other than Freedom
Plaza, NPS argues that ANSWER did not state this intention in its Supplemental Pleading and is
thus barred from relying upon its intention to show injury. Def.’s Reply at 5.
NPS’ arguments against ANSWER’s recently added claim – which challenges the
regulations both on their face and as applied – fail. By alleging in its Supplemental Pleading that
its permit application was denied because of the challenged regulations, ANSWER has made the
requisite showing of injury to establish organizational and representational standing for purposes
of a facial challenge. In addition, by alleging in its Amended Complaint and Supplemental
Pleading that it plans to engage in protests along Pennsylvania Avenue at the upcoming Inaugural
Parade, ANSWER has shown the requisite injury (at least at the pleadings stage of this litigation)
to establish organizational and representational standing to challenge the regulations as applied to
sidewalk areas outside of Freedom Plaza.
A. ANSWER Has Alleged Injury Sufficient to Establish Standing for Facial Challenge
ANSWER challenges the regulations on their face and as-applied. See Supp.
Pleading ¶ 15. In a facial challenge, the plaintiff seeks to invalidate a statute or regulation, or
portions thereof, and obtain a permanent injunction against its enforcement. See, e.g., Gonzales
v. Carhart, 550 U.S. 124, 127 (2007) (reviewing facial challenge to abortion law); McConnell v.
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Federal Election Comm’n, 540 U.S. 93, 134 (2003) (reviewing facial challenge to campaign
finance law). By definition, the relief sought in a facial challenge sweeps more broadly than the
relief required to redress the particular plaintiff’s injury. As a result, the plaintiff must show that
the law is invalid not only as applied to plaintiff, but also as applied in many or all other
circumstances, even though the plaintiff is not subject to every possible application. See United
States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (“To succeed in a typical facial attack, [plaintiff]
would have to establish ‘that no set of circumstances exists under which [the law] would be
valid’”) (internal citations omitted); Gonzales v. Carhart, 550 U.S. at 167 (noting cases requiring
plaintiff to show that law would be invalid “in a large fraction of the cases in which [it] is
relevant”).
A plaintiff presenting a facial challenge still must show an injury to establish
Article III standing. See Anderson v. Holder, 647 F.3d 1165, 1172 (D.C. Cir. 2011). But there is
no question that ANSWER has made that showing here, as defendants agree that ANSWER has
demonstrated injury with regard to Freedom Plaza. Def.’s Mot. at 5-6 (“Plaintiff has standing to
challenge the Park Service’s 2008 amended regulation . . . only to the extent that the regulation
grants a regulatory preference to PIC’s Bleacher Area at Freedom Plaza.”). Furthermore, the
Court previously held that ANSWER had organizational and representational standing to litigate
claims with respect to denials of permit applications for areas along the 2009 Inaugural Parade
route. See ANSWER I, 493 F. Supp. 2d at 45 (D.D.C. 2007).
Accordingly, the Court finds that plaintiff’s facial challenge survives defendant’s
motion to dismiss plaintiff’s supplemental pleading in part. If ANSWER were to prevail on its
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facial challenge to 36 C.F.R. § 7.96(g)(4)(iii)(B)(1), that regulatory provision would be enjoined
in its entirety.
B. ANSWER Has Adequately Pled its Intent to Use Space Outside of Freedom Plaza
NPS’ motion seems to attack ANSWER’s as-applied challenge on two grounds.
NPS argues that ANSWER, in its supplemental complaint, never alleged that it planned to use
areas outside of Freedom Plaza, and thus cannot show injury. See, e.g., Def.’s Mot. at 2-3; Def.’s
Reply at 2. NPS also suggests that a permit denial is necessary for plaintiff to demonstrate
standing. See id. at 2. The Court disagrees and finds that ANSWER has pled an interest in
accessing sidewalk space outside of Freedom Plaza, and that ANSWER has sufficiently shown
injury resulting from the application of the regulations to that area.
The Supplemental Pleading must be viewed in conjunction with the Amended
Complaint. See 6A CHARLES ALAN WRIGHT , ARTHUR R. MILLER, MARY KAY KANE , AND
RICHARD L MARCUS, Federal Practice and Procedure § 1504 at 254 (3d ed. 2010) (Supplemental
pleadings, in contrast to amended pleadings, “deal with events subsequent to the pleading to be
altered and represent additions to or continuations of the earlier pleadings.”) (emphasis added).
Read together, these pleadings indicate that ANSWER and its members and affiliates intend to
access the entirety of the parade route along Pennsylvania Avenue at each Inaugural Parade. See
e.g. Am. Compl. ¶ 1 (“ANSWER Coalition has concrete plans to organize mass demonstration
activity for the 2009 Inaugural Parade route and for the foreseeable future, and seeks to line the
Inaugural Parade route with protesters and activists.”) (emphasis added); id. ¶ 77 (“ANSWER’s
interests lie both in securing space for use as a rally and assembly site(s) and to ensure that
ANSWER and those affiliated with ANSWER or who support its political message have the
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ability to line the parade route with a mass demonstration of collective action.”); id. ¶ 105 (“The
intended expressive activity of the demonstrators is to collectively line the parade route with
their signs, their bodies and to amplify their presence with their collective voices.”) (emphasis in
original). Although the Supplemental Pleading focuses primarily on the restrictions on
ANSWER’s access to Freedom Plaza, which ANSWER plans to use as a rally and assembly site,
this pleading does not indicate that ANSWER had abandoned its intention to line the parade
route at the 2013 Presidential Inaugural Parade.
While the Court finds ANSWER’s pleadings sufficient, it may also consider
materials outside of the pleadings to resolve a motion to dismiss for lack of subject matter
jurisdiction. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d at 1253-54; ANSWER I, 493
F. Supp. 2d at 46 (considering affidavit attached to opposition brief when analyzing standing);
Vietnam Veterans of Am. v. Peake, Civil No. 08-1934, 2009 WL 6179013 at *2 (D.D.C. June
23, 2009) (same). NPS has submitted no evidence to counter ANSWER’s assertion that it
intends to use space beyond Freedom Plaza during the 2013 Inauguration. In contrast, ANSWER
has filed a declaration of the organization’s National Director, Brian Becker, who states that
ANSWER anticipates that ten thousand or more members and affiliates will come to Washington
for the Inauguration, intending to engage in free expression activities along the route. See Becker
Decl. According to ANSWER, “[t]he sheer number of ANSWER coalition constituents
anticipated to be present along the Inaugural Route will exceed the capacity of Freedom Plaza,
and will necessitate the presence of persons in locations along the route including in areas
designated as ‘PIC Bleacher Areas on NPS regulatory maps.’” Id. ¶ 10. These members, along
with others who may not make it to Freedom Plaza because of pedestrian traffic and security
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checkpoints, will instead “fill[] in along the parade route on a first come first serve basis.” Pl.’s
Opp. at 9.
For the foregoing reasons, the Court concludes that ANSWER has pleaded facts
sufficient to demonstrate its interest in accessing portions of the Inaugural Parade route beyond
Freedom Plaza.
C. ANSWER’s Lack of Permit for Areas Outside of Freedom Plaza Does Not Deprive ANSWER
of Standing to Challenge the Set-Aside in those Areas
This Court noted in ANSWER I that plaintiff had organizational and
representational standing to litigate claims related to an anticipated permit denial in 2008, as “the
courts ‘have consistently treated a license or permit denial pursuant to a state or federal
administrative scheme as an Article III injury.’” ANSWER I, 493 F. Supp. 2d at 45, 47 (citing
Parker v. District of Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007)). A permit denial, however,
is not a prerequisite to establish standing. See, e.g., Dearth v. Holder, 641 F.3d 499, 502 (D.C.
Cir. 2011) (upholding plaintiff’s claim against standing challenge in the absence of permit
denial). The fact that ANSWER did not apply for, and thus was not denied, a permit for
sidewalk space along Pennsylvania Avenue does not bar ANSWER from establishing standing
with respect to its lack of access to those areas.
ANSWER maintains, and NPS does not contest, that ANSWER is not required to
obtain a permit to engage in its intended conduct along Pennsylvania Avenue, which includes
lining the parade route on a first-come, first-served basis, and peacefully distributing leaflets and
literature. Pl.’s Opp. at 4 n.4; Becker Decl. ¶¶ 6-12. A permit generally is not needed to engage
15
in this kind of conduct; in fact, ANSWER asserts that it has previously attempted to file permit
applications for non-exclusive use of public sidewalks, but that these applications have been
rejected by NPS on the grounds that “no permit or request is needed for such assembly.” Pl.’s
Opp. at 4 n.4. But for the presence of the reserved PIC bleachers, ANSWER and its members
would be able to join other members of the public in lining the parade route along Pennsylvania
Avenue.5
ANSWER has sufficiently alleged that the challenged regulation injures both
ANSWER’s members and the organization itself—specifically, that the regulation interferes with
their asserted First Amendment and Fourteenth Amendment rights to assemble and engage in
political dissent along the Inaugural Parade route. This injury is “concrete and particularized.”
See In re Navy Chaplaincy, 697 F.3d 1171, 1175 (D.C. Cir 2012); Am. Compl. ¶ 1 (“ANSWER
Coalition has concrete plans to organize mass demonstration activity for the 2009 Inaugural
Parade route and for the foreseeable future, and seeks to line the Inaugural Parade route with
protesters and activists.”); Becker Decl. ¶¶ 2-3 (ANSWER “anticipates in excess of ten thousand
persons, and potentially tens of thousands of persons” to come to Washington with the intent to
“collectively line the parade route.”). The alleged injury is “fairly traceable” to NPS’ conduct –
5
ANSWER notes that NPS filed its own permit application for Freedom Plaza and
other portions of Pennsylvania Avenue on behalf of the PIC and pursuant to the Presidential
Inaugural Ceremonies Act, after ANSWER submitted its application. Supp. Pleading ¶ 5. Thus,
while ANSWER had the first-in-time application for Freedom Plaza, NPS may have had the
first-in-time application for other portions of Pennsylvania Avenue. NPS does not address
whether this application exists, and it is unclear whether it was submitted to provide a separate
and independent basis for granting the PIC exclusive use of certain areas on Pennsylvania
Avenue (an action that arguably falls within the scope of ANSWER’s third claim against NPS),
or whether NPS’ permit application is merely the implementation of the revised regulations
(conduct that would fall within the scope of ANSWER’s fourth and newest claim).
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specifically, NPS’ anticipated enforcement of regulations that reserve portions of Pennsylvania
Avenue for exclusive PIC use – and a favorable declaration from this Court would “likely . . .
redress” ANSWER’s injury. See In re Navy Chaplaincy, 697 F.3d at 1175 (citing Lujan v.
Defenders of Wildlife, 504 U.S. at 560-61). NPS has not provided any evidence or legal authority
to the contrary. The Court therefore concludes that ANSWER has met its burden of presenting
factual allegations of injury resulting from NPS’ conduct sufficient to support its as-applied
challenge to the regulatory set-aside of both Freedom Plaza and other portions of the Inaugural
Parade route.
IV. CONCLUSION
The facts as alleged in ANSWER’s pleadings, and supported in its briefs and
declaration, suffice to show that ANSWER has standing to challenge the PIC regulatory set-aside
in 36 C.F.R. § 7.96(g)(4)(iii)(B)(1), on its face and as applied to ANSWER and its members.
Accordingly, the Court will deny the Secretary’s motion to dismiss in part for lack of subject
matter jurisdiction.
An Order consistent with this Opinion will issue this same day.
SO ORDERED.
/s/____________________________
PAUL L. FRIEDMAN
DATE: January 14, 2013 United States District Judge
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