Mahoney v. United States Capitol Police Board ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PATRICK J. MAHONEY,
Plaintiff,
v. Civil Action No. 21-2314 (JEB)
UNITED STATES CAPITOL POLICE
BOARD, et al.,
Defendants.
MEMORANDUM OPINION
After the January 6, 2021, assault on the Capitol, Defendant U.S. Capitol Police Board
imposed heightened restrictions upon entry on to the Capitol Grounds, many of which persist
today. As most relevant here, the Board established various limitations on demonstration
activity. Those limits range from crowd-size caps in certain areas to blanket prohibitions on
demonstrations in others. The Board also has a policy predating January 6 that groups of over
twenty people must apply for and secure a permit before demonstrating on the Capitol Grounds.
Plaintiff Patrick J. Mahoney, a clergyman who would like to hold large group vigils on
the Grounds for a range of occasions, brought this suit challenging those limitations and the
Board’s practices as unconstitutional. He named the Board and its individual members as
Defendants. After a long and winding procedural journey marked by repeated motions for
preliminary injunctions and a partial dismissal by this Court of his First Amended Complaint, he
returns now with his Third Amended Complaint. Defendants have moved to dismiss and, in the
alternative, for summary judgment. The Court will grant the Motion to Dismiss in part, and it
will deny summary judgment in full.
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I. Background
As the backdrop to this drama was painted in detail in an earlier Opinion, Mahoney v.
U.S. Capitol Police Bd. (Mahoney I), 566 F. Supp. 3d 1 (D.D.C. 2022), the Court here will take a
somewhat higher-level approach, but hardly a cursory one.
A. Legal Background
It will first lay out the pre-2021 regulations governing demonstrations around the Capitol
before proceeding to additional ones imposed after the January 6 insurrection.
Traffic Regulations
The Board regulates traffic within the Capitol Grounds. See ECF No. 69 (3d Am.
Compl.), ¶ 20. Pursuant to its statutory authority, it has promulgated a set of regulations — the
Traffic Regulations — that govern, among other things, “demonstration activity” on those
Grounds. Id., ¶¶ 20–21; Exh. A to 3d Am. Compl. (Traffic Regulations). Demonstration activity
is “any protest, rally, march, vigil, gathering, assembly, projecting of images or similar conduct
engaged in for the purpose of expressing political, social, religious or other similar ideas, views
or concerns protected by the First Amendment.” Traffic Regs. § 12.1.10.
Demonstration activity is permitted in some parts of the Capitol Grounds and prohibited
in others. The Regulations reference the U.S. Capitol Grounds Demonstration Areas Map, which
is reproduced below, to differentiate among those areas. Id. § 12.2.10.
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Id. App’x G.
Demonstration activity is completely prohibited in areas designated “No Demonstration
Permitted,” including a 250-foot buffer zone around the Capitol building. See 3d Am. Compl.,
¶ 22. It is also prohibited on the steps of the Capitol and on the steps of any building on the
Grounds. Id., ¶ 25. Demonstrations are permitted — though subject to some limitations — in
“Demonstration Permit Areas.” Id., ¶¶ 26–27. As relevant here, the nature of those limits
depends on the size of the group. Groups of fewer than twenty people may demonstrate without
a permit. See Traffic Regs. § 12.3.10. Larger groups, by contrast, must secure one. Id.
§ 12.4.10. “The Board shall issue a permit authorizing peaceable and orderly demonstration
activity upon proper and timely application.” Id. § 12.4.30. Applications for permits must be
received at least ten days before the demonstration. Id. § 12.4.20.
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That is not all, though. Under 40 U.S.C. § 5104(f), “a person may not (1) parade, stand,
or move in processions or assemblages in the [Capitol] Grounds; or (2) display in the Grounds a
flag, banner, or device designed or adapted to bring into public notice a party, organization, or
movement.” The President of the Senate and Speaker of the House may suspend that
prohibition, however, to “allow the observance . . . of occasions of national interest.” Id.§ 5106(a). The Traffic Regulations, citing § 5104(f), thus prohibit “[p]arades, assemblages and
display of flags, banners or devices designed to bring into public notice a party, organization or
movement” without authorization by the President of the Senate and the Speaker of the House.
See Traffic Regs. § 12.1.30(a).
The Regulations do not contain criminal-enforcement provisions. See 3d Am. Compl.,
¶ 31. The U.S. Capitol Police, however, are authorized to enforce federal and D.C. law on the
Capitol Grounds, including, for example, § 5104(f), violation of which may be punishable by a
fine and imprisonment. Id., ¶¶ 31, 34. D.C. law, moreover, makes the Regulations indirectly
enforceable by rendering it unlawful to “engage in a demonstration in an area where it is
otherwise unlawful to demonstrate and to continue or resume engaging in a demonstration after
being instructed by a law enforcement officer to cease engaging in a demonstration.” Id., ¶ 32
(quoting D.C. Code § 22-1307(b)(1)). Violation of that provision is similarly punishable by a
fine and imprisonment. Id., ¶ 33.
January 6 Closures
After the insurrection on January 6, 2021, security around the Capitol changed
substantially and remains a topic of review. As relevant here, the Board began by erecting an
outer and inner fence around the Capitol Grounds and prohibiting all demonstration activity
within fenced areas. Id., ¶ 35. In late March 2021, the outer fence was removed, and the Board
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opened some areas to pedestrian traffic, demonstrations in groups of fewer than twenty people,
and demonstrations with permits by groups between twenty and fifty people. Id., ¶ 36. In July
of that year, the inner fence was also removed, although the Board did not then “formally open
any additional areas to demonstration activity.” Id., ¶ 37. The result was that as of July 2021 —
which is when our story begins — the only areas formally open to demonstrations were Areas 3,
5, 6, 12, 15–18, and 23 on the Demonstration Area Map. Id., ¶ 36.
B. Factual Background and Procedural History
Mahoney is a Presbyterian minister who would like to hold prayer vigils for various
occasions on the Capitol Grounds. Id., ¶¶ 3, 46. The Board and its Traffic Regulations,
however, continue to stand in his way.
September 11, 2021, Vigil
His troubles began when he decided to hold a vigil on the West Front Lawn (Area 1) to
commemorate the twentieth anniversary of the September 11th attacks. Id., ¶¶ 48, 51, 54.
Because he expected the vigil to attract more than twenty people, he applied for a permit around
July 2021. Id., ¶ 51. A month or so after he had submitted the application, the Board informed
him that it would not be processing his application because the West Front Lawn was closed.
Id., ¶ 52. According to Mahoney, however, that was not really the case. In the summer of 2021,
the Board had allowed at least three events to occur in areas that were purportedly closed to
demonstrations, including the West Front Lawn. Id., ¶ 38. First, the Board issued a permit for a
300-person rally on the West Front Lawn on July 27, 2021. Id., ¶ 39. That rally was organized
by a group “seeking action by the Biden Administration against the oppressive communist
dictatorship in Cuba.” Id. Second, the Board issued a permit to the group “Marked by COVID-
19” for another West Front Lawn event that took place that same day and that attracted twenty or
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more people. Id., ¶ 40. And third, the Board allowed Representative Cori Bush to hold a large
demonstration without a permit in a “No Demonstration Permitted Area.” Id., ¶ 41. The
demonstration, which sought an extension of the COVID-19 eviction moratorium, was attended
by “scores of people, day and night.” Id. Mahoney alleges that the Board allowed those events
to go forward because, unlike his own proposed vigil, they were “sponsored, organized, or
advocated for by a member of Congress (or their staff).” Id., ¶ 42 (internal quotations omitted).
The Board’s refusal to process his application prompted him to file this lawsuit on
August 31, 2021. Id., ¶ 56. On the same day, he moved for a temporary restraining order and
preliminary injunction directing Defendants to allow him to hold the September 11th prayer vigil
on the West Front Lawn. Id., ¶¶ 56–57. On September 2, 2021, before the Court could rule on
the Motion, the Board reopened Area 1 (which, recall, includes the West Front Lawn) and Areas
8–11 to demonstration activity in groups of fewer than twenty. Id., ¶ 59. It also reopened a
number of other areas to permitted demonstrations for larger groups. Id. A week later, this
Court denied Mahoney’s motion for a temporary restraining order. Mahoney I, 566 F. Supp. 3d
at 7. On September 11, he therefore “went forward with a prayer vigil on the West Front Lawn
with just his wife, as he was allowed to do.” Id. “He then filed a six-count Amended Complaint
in November 2021, contending that Defendants had violated his First Amendment rights to
freedom of speech, freedom of association and assembly, and free exercise of religion; his Fifth
Amendment right to due process; his Fifth and Fourteenth Amendment rights to equal protection,
and the Religious Freedom Restoration Act.” Id. at 7–8. Defendants moved to dismiss.
In an Opinion issued in February 2022, this Court granted the motion in part. For now, it
is sufficient to understand that the Court dismissed four of the counts in the Amended Complaint
(including all religion counts) and allowed two speech counts to go forward. Mahoney v. U.S.
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Capitol Police Bd. (Mahoney (Good Friday 2022)), No. 22-760, 2022 WL 1014791, at *1
(D.D.C. Apr. 5, 2022) (summarizing, in related case, Opinion on first motion to dismiss in this
case). Later, this Court granted Mahoney’s motion for reconsideration in part and allowed one
more claim to proceed to discovery. Mahoney v. U.S. Capitol Police Bd. (Mahoney II), 566 F.
Supp. 3d 22, 25 (D.D.C. 2022).
2022 Vigils
In the meantime, as he awaited a decision on his First Amended Complaint, Mahoney
pressed on in his quest to hold a vigil on the West Front Lawn. On January 31, 2022, he applied
for a permit to hold a Good Friday event there on April 15, 2022. See 3d Am. Compl., ¶¶ 61, 64.
He expected that this vigil would attract 25 people. Id., ¶ 63. The Board responded in
accordance with its regulations as of September 2, 2021: “[H]is permit application could not be
processed because the West Front Lawn was restricted to groups of twenty or more people.” Id.,
¶ 65 (internal quotations and alterations omitted). Mahoney therefore proceeded to conduct that
vigil with just three others. Id., ¶ 66. He had also filed a separate suit and motion for a
preliminary injunction to compel the Board to grant him the Good Friday 2022 permit. Mahoney
(Good Friday 2022), 2022 WL 1014791, at *1. This Court denied that motion and the D.C.
Circuit affirmed. Mahoney v. U.S. Capitol Police Bd. (Mahoney (Good Friday 2022 Appeal)),
No. 22-5094, 2022 WL 1177313 (D.C. Cir. Apr. 15, 2022). While neither the denial nor the
affirmance is directly relevant here, Judge Millett’s concurrence in the latter raising selective-
enforcement concerns could certainly become relevant down the road in any merits
determination.
In May 2022, the Board shifted its position. After declining to process Mahoney’s
application, it allowed a group of more than 100 people to conduct a gun-control demonstration
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in Area 8, which is in Capitol Square. See 3d Am. Compl., ¶ 68. Like the West Front Lawn,
Area 8 was at that point closed to groups larger than twenty. Id., ¶¶ 59, 68. The Board
apparently permitted that demonstration to go forward because it was “sponsored, organized, or
advocated for by a member of Congress (or their staff).” Id., ¶ 69 (internal quotations omitted).
Mahoney continued his quest, seeking to hold two prayer vigils — one on September 10
in the Southeast Grassy Front (Area 10) and one on October 9 on the West Front Lawn — in
relation to the 2022 Midterm Elections. Id., ¶ 70. Those locations were important to him
primarily for their proximity to the Capitol and other congressional buildings. Id., ¶ 71. He
expected the vigils to attract 25 participants and submitted applications in May so stating. Id.,
¶¶ 73–75. The Board denied both applications on June 10, 2022. Id., ¶ 76.
That prompted Mahoney to file a Second Amended Complaint and yet another motion for
preliminary injunction to compel issuance of those permits. Id., ¶ 77; ECF No. 52 (2d Am.
Compl.). Before this Court could hold a hearing on that motion, however, the Board changed its
restrictions once more in light of the “security posture of the Capitol complex.” 3d Am. Compl.,
¶ 77. It expanded the group-size limits for demonstrations from twenty to 250 for the West Front
Lawn and from twenty to 150 for the East Grassy Front (Areas 8–11). Id. The Board
accordingly began processing Plaintiff’s two permit applications, and this Court held Mahoney’s
motion in abeyance pending a decision on those permits. See ECF No. 57 (Notice of Mootness)
at 2; Minute Order of July 28, 2022.
The Board eventually granted him a permit for his September 10 vigil but denied him a
permit for his October 9 one because the West Front Lawn would be closed for a turf-restoration
project. See ECF No. 62 (Joint Status Report of Sept. 8, 2022) at 1. Mahoney accordingly
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withdrew his motion and his application for the October 9 vigil. See 3d Am. Compl., ¶ 79. He
then moved to amend his Complaint once more. See ECF No. 63 (Mot. to File 3d Am. Compl.).
2023 Vigils
He filed his Third Amended Complaint — which, at least as of now, is the operative one
— last December. See 3d Am. Compl. According to that pleading, Mahoney has many plans to
hold vigils in 2023 and in years to come. For example, “on Good Friday 2023 and every Good
Friday of every year for the foreseeable future,” he would like to engage in prayer vigils alone or
with his wife in certain areas of the Grounds that are designated “no-demonstration zone[s].” Id.,
¶¶ 80–81. Also on Good Friday 2023 and on “every Good Friday of every year for the
foreseeable future,” he would like to hold prayer vigils with twenty or more people on the West
Front Lawn. Id., ¶ 83. Mahoney is in luck for now: his application for a permit for his Good
Friday 2023 vigil was recently granted. See ECF No. 77-1 (Supp. Decl. of Scott Grossi), ¶ 20.
But he has yet to file applications for future vigils because the Board does not permit
applications to be submitted more than a year before the proposed event. See 3d Am. Compl.,
¶ 27.
On top of his Good Friday vigils, Mahoney also plans to hold a 5,000-person
demonstration on the West Front Lawn around June 24, 2023, to celebrate the one-year
anniversary of the Supreme Court’s decision in Dobbs. See 3d Am. Compl., ¶ 85. Recall that
the Board currently restricts demonstrations on the West Front Lawn to 250 people. Id., ¶ 77.
Mahoney, believing it to be futile to apply for a permit to hold his event there, applied for and
obtained a permit to hold the event on Union Square (Area 15) instead. Id., ¶¶ 87–88; but see
Supp. Grossi Decl., ¶ 21 (suggesting this application is still pending). He would still like to hold
the event on the West Front Lawn if allowed, however, as “Union Square . . . is not an adequate
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substitute for the West Front Lawn.” 3d Am. Compl., ¶ 88. He also “desires to hold
demonstration of a similar nature . . . on or about June 24th of every year for the foreseeable
future.” Id., ¶ 90. He anticipates such events attracting more than 250 participants. Id.
Third Amended Complaint
The operative Complaint contains four causes of action. Because Plaintiff takes a
kitchen-sink approach and crams various and sundry claims and sub-claims into each count, the
contours of those causes of action are difficult to make out. Generally, however, they are as
follows. Count I alleges violations of Mahoney’s free-speech rights under the First Amendment.
He contends that the Traffic Regulations, the Board’s permitting scheme, and its temporary
closures of various parts of the Grounds are both facially invalid and invalid as applied to him.
Id., ¶¶ 100–11, 118–20. He also challenges § 5104(f) as facially overbroad and
unconstitutionally vague. Id., ¶¶ 113–17.
In Count II, Plaintiff alleges that the Regulations as well as the Board’s permitting
scheme, temporary closures, and other acts and practices violated his First Amendment rights to
assembly and association. Id., ¶¶ 132–41. Count III claims that the Regulations, the Board’s
practices, and § 5104(f) are unconstitutionally vague and overbroad in violation of the Fifth
Amendment. Id., ¶¶ 148–55. It also challenges the Board’s failure to publish or otherwise make
known temporary limitations on demonstrations on the Capitol Grounds. Id., ¶ 150. Finally, in
Count IV, Mahoney alleges that the Board’s refusal to grant him a permit to demonstrate in
certain areas while allowing demonstrations sponsored by members of Congress to move
forward is a violation of his rights to equal protection as protected by the Fifth and Fourteenth
Amendments. Id.¸¶¶ 160–66.
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The Complaint names as Defendants the Capitol Police Board and four of its members in
their official capacity: Karen H. Gibson, William J. Walker, J. Brett Blanton, and J. Thomas
Manger. Id. at 1–2. Plaintiff seeks declaratory and injunctive relief. On the former, he would
like a declaratory judgment holding that § 5104(f), the Regulations, the Board’s permitting
scheme, its temporary closures of the Grounds, and its other challenged practices are
unconstitutional on their face and as applied to his permit applications. Id. at 45. He also seeks
an injunction barring the Board from enforcing any of those practices and its Regulations and
directing it to permit him to conduct his proposed vigils and demonstration activity. Id. at 45–
46. He also asks the Court to require the Board to publish its restrictions on speech on the
Capitol Grounds. Id. at 46.
Defendants have moved to dismiss and, in the alternative, for summary judgment.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) permits dismissal of a complaint for lack of
subject-matter jurisdiction. In general, courts must first address jurisdictional arguments before
turning to the merits. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Co., 549 U.S. 422, 430–
31 (2007). A plaintiff bears the burden of proving that a court has subject-matter jurisdiction to
hear her claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v.
U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation to
ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of the
Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘the
[p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in resolving a
12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13–14
(quoting 5A Charles A. Wright & Arthur R. Miller, Fed. Practice & Procedure § 1350 (2d ed.
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1987)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), a court “may consider
materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of
jurisdiction.” Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C.
Cir. 2005); see also Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
Federal Rule of Civil Procedure 12(b)(6), on the other hand, permits dismissal of a
complaint for failure to state a claim upon which relief may be granted. In evaluating such a
motion to dismiss, courts must “treat the complaint’s factual allegations as true . . . and must
grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979)). Although “detailed factual allegations” are not
necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570) — that is, the facts alleged in the complaint “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A court
need not accept as true, then, “a legal conclusion couched as a factual allegation,” Trudeau v.
FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)),
nor “inferences . . . unsupported by the facts set out in the complaint.” Id. (quoting Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). And it may consider not only “the
facts alleged in the complaint,” but also “any documents either attached to or incorporated in the
complaint[,] and matters of which [courts] may take judicial notice.” Equal Emp. Opportunity
Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
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Finally, summary judgment may be granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986);
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of
affecting the substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby,
Inc., 477 U.S. at 248. A dispute is “genuine” if the “evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Liberty Lobby, Inc., 477 U.S. at 248.
III. Analysis
Defendants assert three threshold theories for dismissal, which the Court will address in
separate sections. It will last consider the Motion for Summary Judgment.
A. Sovereign Immunity
Defendants first posit that this Court lacks jurisdiction to hear Plaintiff’s claims because
they are barred by sovereign immunity. See ECF No. 71-1 (MTD) at 9. Mahoney responds that
his suit falls within the Ex parte Young exception to sovereign immunity. See ECF No. 73 (Pl.
Opp.) at 13–18. The Court agrees in large part.
“The Ex parte Young doctrine allows suits for declaratory and injunctive relief against
government officials in their official capacities — notwithstanding the sovereign immunity
possessed by the government itself.” Vann v. U.S. Dep’t of Interior, 701 F.3d 927, 929 (D.C.
Cir. 2012). The exception applies only to suits alleging that government officials acted
unconstitutionally or beyond their statutory authority. Clark v. Libr. of Cong., 750 F.2d 89, 102
(D.C. Cir. 1984); Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645
(2002) (noting that Ex parte Young inquiry is “straightforward” and requires only an allegation
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of violation of federal law) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296
(1997)).
For the most part, Plaintiff’s suit falls comfortably within the Ex parte Young exception.
His Complaint alleges a litany of ongoing violations of the Constitution. See 3d Am. Compl.,
¶¶ 96–169. And he seeks only injunctive and declaratory relief, not damages. Vann, 701 F.3d at
929 (permitting suit for declaratory and injunctive relief under Ex parte Young). The one
exception is that Mahoney also names the U.S. Capitol Police Board, which is an entity and not
an official sued in her official capacity. See 3d Am. Compl. at 1; Papasan v. Allain, 478 U.S.
265, 276 (1986) (noting that where an agency or department is named as a defendant, Ex parte
Young cannot apply). The Court will therefore dismiss the Board as a Defendant and allow the
suit to proceed only as against the individually named officers.
Defendants, for their part, address the Ex parte Young doctrine for the first time in their
Reply, raising several half-baked objections to its application. First, they contend that the
exception applies only to state officers, not federal ones. See ECF No. 77 (Reply) at 9, 11.
While Ex parte Young was indeed a case about state officials, the Supreme Court has recognized
that doctrine’s applicability to “violations of federal law by federal officials,” too. Armstrong v.
Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015).
Second, Defendants suggest that Ex parte Young cannot apply here because “Plaintiff is
alleging that the Board is acting in accordance with the authorities delegated to it by Congress,”
as opposed to in contravention of federal law, as the doctrine requires. See Reply at 11; see also
id. at 10 (“Plaintiff has not alleged . . . that the Board or its individual members . . . is not
exercising the powers delegated to [it/them] by the sovereign.”) (internal quotations omitted).
The Board may well be acting within its statutory authority, but Defendants have apparently
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forgotten that statutes are not the only source of federal law. Pollack v. Hogan, 703 F.3d 117,
120 (D.C. Cir. 2012). Plaintiff’s Complaint is replete with allegations that the Board and its
officials acted and continue to act outside the scope of what the U.S. Constitution permits. See
generally 3d Am. Compl. And to the extent that Defendants mean to dispute the merits of those
allegations, those arguments would be misplaced at this juncture: “The inquiry into whether suit
lies under Ex parte Young does not include an analysis of the merits of the claim.” Verizon, 535
U.S. at 636–37. A mere allegation of extra-legal action is sufficient. The Court therefore
concludes that sovereign immunity does not bar the suit against individual officers in their
official capacities.
One final argument is worth a brief mention. Defendants suggest in passing that this
Court may lack jurisdiction because “Plaintiff cannot bring an action for declaratory and
injunctive relief directly under the . . . Constitution,” and so subject-matter jurisdiction cannot
exist under 28 U.S.C. § 1331. See MTD at 9. Both that premise and its conclusion are incorrect.
For one, Ex parte Young and other cases stand for the proposition that suits for equitable relief
may indeed be brought directly under the Constitution. See, e.g., Free Enter. Fund v. Pub. Co.
Acct. Oversight Bd., 561 U.S. 477, 491 n.2 (2010); Reuber v. United States, 750 F.2d 1039,
1061 (D.C. Cir. 1984). Second, the text of § 1331 could not be clearer that district courts have
jurisdiction over claims “arising under the Constitution.” This jurisdictional argument therefore
falls flat.
B. Justiciability
Defendants next contend that Mahoney’s suit is non-justiciable for various reasons. To
analyze this portion of the Motion, the Court finds it useful to split Plaintiff’s claims into three
categories: first, as-applied challenges to the Board’s past denials of his permit applications;
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second, as-applied challenges to anticipated future denials; and third, facial challenges to the
Regulations and the Board’s practices.
As-Applied Challenges: Past Denials
Begin with claims premised on past denials of his permit applications — namely, those
for “September 11th [of 2021] and Good Friday 2022 vigils.” Pl. Opp. at 25. Mahoney alleges
that the denials were unconstitutional for two reasons: (a) they were based on overbroad crowd-
size restrictions that interfered with his speech and assembly rights, and (b) they were based on a
practice of more favorably treating speech endorsed by a member of Congress. See id. at 25–26.
As for the remedy, he seeks only a “declaration that [those] denials were impermissible.” Id. at
26; see also 3d Am. Compl. at 45.
Defendants respond that these claims are moot because the dates of the vigils have long
passed, rendering this Court powerless to affect Mahoney’s rights by issuing a decision on his
claim. See Reply at 14; DeFunis v. Odegaard, 416 U.S. 312, 317 (1974) (finding claim moot in
case where it was clear that “in no event will the status of [plaintiff] now be affected by any view
this Court might express on the merits of this controversy”).
Article III of the Constitution limits federal courts’ jurisdiction to “actual, ongoing
controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). If “events have so transpired that [a
judicial] decision will neither presently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future,” the case is moot, and this Court lacks
jurisdiction to entertain the suit. Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 534
(D.C. Cir. 2015) (internal quotations omitted). However, “[i]n at least two kinds of cases the fact
that the specific conduct that gave rise to the case has ceased does not mean that the challenge to
the legality of that conduct is moot.” Del Monte Fresh Produce Co. v. United States, 570 F.3d
16316, 321 (D.C. Cir. 2009). First, a plaintiff may seek declaratory relief as to an “ongoing
policy.” Id. Second, a claim for declaratory relief will not be moot if the claim “fits the
exception for cases that are capable of repetition, yet evading review, or falls within the
voluntary cessation doctrine.” Id. (internal quotations omitted). The Court will consider the
mootness of his two substantive challenges in turn.
a. Crowd-Size Restrictions
As for his objection to the crowd-size restrictions, Plaintiff contends that his challenge is
not moot, largely citing the “capable of repetition, yet evading review” exception. See Pl. Opp.
at 28–30. The Court disagrees.
The “capable of repetition” exception “applies if (1) the challenged action was in its
duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party would be subjected to the same action
again.” J. T. v. D.C., 983 F.3d 516, 523 (D.C. Cir. 2020). Plaintiff has not shown that the
second requirement is satisfied. As this Court explained in its prior Opinion in this case, there is
(a) no good reason to expect that Mahoney’s pending or future permit applications would be
subjected to the closures in place in September 2021, or to the 20-person limit in place in April
2022, and (b) no reason, in any event, for this Court to prematurely intervene in anticipation of
the Board’s reinstatement of long-rescinded restrictions:
Because the Board implemented the restrictions at issue in this case
“[i]n response to the events of January 6, 2021,” and the restrictions
have been progressively eased since then, there is no reasonable
expectation that the old restrictions will be reinstated absent a
change in security conditions at the Capitol. While a novel security
threat always remains a possibility, it would be premature for the
Court to evaluate the potential return of narrower restrictions on
speech at the Capitol in response to a future, hypothetical threat,
which may implicate different government interests. Instead, should
such a contingency come to pass, Mahoney could bring a new
17
challenge to any newly implemented restrictions that prevent him
from demonstrating in his desired manner, and a court could then
evaluate such a challenge based on the particular restrictions and
conditions present at that time.
Mahoney II, 566 F. Supp. 3d at 27. Indeed, that is exactly what Mahoney does in the operative
Complaint: he challenges newly implemented restrictions on crowd size. See 3d Am. Compl.,
¶¶ 85–88 (alleging that 250-person restriction on West Front Lawn precludes him from
conducting vigils of desired size there).
Plaintiff retorts that the restrictions from September 2021, at least, have in fact recurred:
on January 6, 2023, the Board closed Capitol Square (which includes the West Front Lawn) to all
demonstration activity. See Pl. Opp. at 29–30. Such a position entirely disregards the distinctive
nature of the date January 6. As this date marked the two-year anniversary of a violent
insurrection and unprecedented security breach of the Capitol Grounds, the Board’s security
concerns are obviously greater on January 6 than on an average date, and by a considerable
margin. As a result, this is not some random closure that Mahoney can invoke. His mootness-
exception argument thus gains no traction.
b. Preferential Treatment of Congress
Consider next Plaintiff’s as-applied challenges to the Board’s past denials of his
applications while simultaneously giving preferential treatment to speech by (or sponsored by) a
member of Congress. While Mahoney invokes the “capable of repetition yet evading review”
exception, that does not apply here. See Pl. Opp. at 26. Instead, this set of claims is best
analyzed through the lens of the exception for challenges to ongoing policies. Del Monte, 570
F.3d at 321.
Once again, the Court cannot go back to September 2021 or to April 2022 and relieve
Mahoney from the harm caused by the prior denials of his applications; his chances to hold those
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vigils have come and gone, and his as-applied challenges stemming from those denials are moot.
That is not the end of the issue, however. The Complaint also alleges that the Board currently
interprets the Traffic Regulations in the same way as it did back then: to mean that “members of
Congress — and those whose speech they favor — are not subject to the limitations” that the
Regulations impose. See 3d Am. Compl., ¶ 45. Nowhere in their briefs do Defendants disavow
this practice. The Court must therefore assume at this stage that their preferential-treatment
policy is an ongoing one.
Circuit precedent dictates that, in such a context, while Mahoney’s “challenge to the
standards as applied to [his] specific [permit applications] is, in fact, moot,” there is “no question
that [his] other arguments concerning the facial validity of the [policy] [are] not moot.” Better
Gov’t Ass’n v. Dep’t of State, 780 F.2d 86, 91 (D.C. Cir. 1986) (formatting altered); see also id.(reaching same conclusion in case where plaintiffs’ as-applied challenges to certain DOJ
standards for FOIA had been mooted because “the Government clearly intends to apply these . . .
standards . . . in the future”). The proper vehicle for challenging the Board’s preferential
treatment of members of Congress, then, is through such facial challenge, not an as-applied one.
The Court will thus address that claim later in this Opinion.
As-Applied Challenges: Future Denials
To the extent that Mahoney wishes to make as-applied challenges predicated on future
denials of his permit applications, those claims are for the most part not yet ripe.
“Jurisdiction requires that a claim be ripe for decision,” Colorado Wild Horse & Burro
Coal., Inc. v. Salazar, 890 F. Supp. 2d 99, 102 (D.D.C. 2012), as “Article III does not allow a
litigant to pursue a cause of action to recover for an injury that is not ‘certainly impending.’”
Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 48 (D.C. Cir. 1999) (citation
19
omitted); see also Full Value Advisors, LLC v. SEC, 633 F.3d 1101, 1107 (D.C. Cir. 2011) (“A
claim is not ripe where the ‘possibility that further consideration will actually occur before
[implementation] is not theoretical, but real.’”) (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club,
523 U.S. 726, 735 (1998)). The doctrine’s purpose is “to prevent the courts, through avoidance
of premature adjudication, from entangling themselves in abstract disagreements . . . until [a] . . .
decision has been formalized and its effects felt in a concrete way by the challenging parties.”
Abbott Laboratories v. Gardner, 387 U.S. 136, 148–49 (1967).
“In testing whether the facts of a particular case meet th[e] standard of ripeness, we have
often applied a two-part analysis, evaluating [1] the fitness of the issues for judicial decision and
[2] the hardship to the parties of withholding court consideration.” Devia v. Nuclear Regul.
Comm’n, 492 F.3d 421, 424 (D.C. Cir. 2007) (internal quotations omitted). “Among other
things, the fitness of an issue for judicial decision depends on whether it is purely legal, whether
consideration of the issue would benefit from a more concrete setting, and whether the agency’s
action is sufficiently final.” Id. (citations and internal quotations omitted). But “if a plaintiff’s
claim, though predominantly legal in character, depends on future events that may never come to
pass, or that may not occur in the form forecasted, then the claim is unripe.” Id. at 425 (quoting
McInnis–Misenor v. Maine Medical Ctr., 319 F.3d 63, 72 (1st Cir. 2003)); see Chamber of Com.
of U.S. v. Reich, 57 F.3d 1099, 1100 (D.C. Cir. 1995) (claim not ripe “when deferring
consideration might eliminate the need for review altogether”). Given that resolution of this first
fitness factor is controlling, the Court need not assess the hardship factor.
Mahoney would like to conduct a prayer vigil on Good Friday of 2023 and on Good
Friday of every successive year, as well as on June 24, 2023, and on June 24 of every successive
year, to celebrate the anniversary of Dobbs. See Pl. Opp. at 19. He brings as-applied challenges
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to anticipated denials of permits. But those challenges hinge entirely on future events that may
never come to pass — i.e., Board decisions to reject his applications. After all, the Board could
grant any given requested permit and obviate the need for judicial intervention as to that vigil.
Factual developments that have transpired during the briefing of this Motion prove that point. In
the time between when Mahoney filed his Opposition and Defendants filed their Reply, the
Board approved Plaintiff’s permit application for his Good Friday 2023 vigil. See Supp. Grossi
Decl., ¶ 20. Had the Court unwittingly weighed in before said action, its decision would have
been entirely advisory. Waiting would have been the prudent approach. So, too, for the
remaining future vigils. The permit application for June 24th is pending before the Board, and
Mahoney is still in the planning stages for that vigil. Id., ¶ 21; 3d Am. Compl., ¶¶ 85-89. The
other permit applications have yet to be filed. The “[r]esolution of [his] challenge to” the denial
of those permits thus “has all the earmarks of a decision that we may never need to make.”
Devia, 492 F.3d at 425 (internal quotations omitted). These claims are unripe.
To the extent that Mahoney wishes to bring as-applied challenges to denials based on
futility, however, the Court will allow those to go forward to the extent they do not collapse into
the facial challenges discussed below. Specifically, he alleges that he did not bother applying for
a permit to (a) hold his Dobbs 2023 event on the West Front Lawn, as he anticipates it will
attract 5,000 participants and the Board has imposed a 250-person limit; and (b) demonstrate in a
no-demonstration zone, as doing so would be futile. See Pl. Opp. at 21–22. He would still like
to bring as-applied challenges to both the crowd-size restriction and the no-demonstration zone.
The Court will allow him to do so. It agrees that applying for both permits would have been
futile. Unlike with the just-discussed applications, the claims thus do not depend on events that
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may never come to pass; the denial of such permits is all but certain, and so the claims are ripe
for review.
Facial Challenges
That leaves the bulk of Mahoney’s Complaint, which is composed of facial challenges to
various regulations, policies, and practices. Specifically, he objects to: existing crowd-size
limitations for the West Front Lawn; the Board’s preferential treatment of speech from or
sponsored by members of Congress; the creation of “no demonstration zones”; limitations on the
display of flags and banners imposed by § 5104(f) and § 12.1.30(a); and the Board’s failure to
publish its temporary restrictions on speech. See Pl. Opp. at 21–22, 25–26. These claims are
ripe.
“A purely legal claim in the context of a facial challenge . . . is presumptively
reviewable.” Sanchez v. Off. of the State Superintendent of Educ., 959 F.3d 1121, 1124 (D.C.
Cir. 2020) (quoting Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 440 F.3d 459,
464 (D.C. Cir. 2006)). Mahoney’s facial challenges here are purely legal. That is, they rest “not
on the assumption that the agency will exercise its discretion unlawfully in applying the
regulation[s or practices] but on whether [their] faithful application would carry the agency
beyond” constitutional limitations on its authority. Nat’l Ass’n of Home Builders, 440 F.3d at
465 (citation and internal quotations omitted). Waiting for the point at which Plaintiff has
applied for a permit and been denied one under these policies, or waiting until he has been
punished for violating those regulations separate from the permitting scheme, would thus not
render these challenges any more concrete or fit for judicial review. Unlike the bulk of his as-
applied challenges, moreover, the facial challenges do not depend on events that may never come
to pass.
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Defendants do not intimate otherwise. They never argue that the legality of their crowd-
size limitations, preferential treatment of Congress, and other policies would “change from case
to case or become clearer in a concrete setting.” Id. at 464. Nor do they dispute that the
practices to which Mahoney objects are ongoing. Finally, Defendants make no suggestion that
the Board is or ever will be declining to enforce these policies, or even that enforcement is
discretionary. Cf. Sanchez, 959 F.3d at 1124 (implying that challenge to administration of
discretionary rule would not be purely legal question that is presumptively reviewable); see, e.g.,
ECF No. 71-2 (Decl. of Scott Grossi), ¶ 20 (“Traditionally events sponsored or organized by
Members of Congress are not subject to the rules regarding demonstrations on Capitol
Grounds.”). Instead, they suggest only that the Court should wait until the “effects” of the
challenged policies are felt by Mahoney. See Reply at 13. According to Plaintiff, however,
those effects have been and continue to be felt, as the regulations and practices to which he
objects affect his ability to speak and demonstrate freely. See, e.g., Pl. Opp. at 24 (describing
deterrent effect of Regulations). In sum, Defendants offer no good reason for this Court to
depart from the presumption of reviewability of Plaintiff’s purely legal challenges.
The hardship prong of the ripeness test points in the same direction. As Defendants make
no mention of hardship and none is otherwise apparent, see, e.g., Reply at 13–15 (citing no
hardships to agency), the Court assumes that there is none for them. Where, as here, “there are
no significant agency or judicial interests militating in favor of delay,” the balance is likely to
favor judicial review. Nat’l Ass’n of Home Builders, 440 F.3d at 465 (citation and internal
quotations omitted). Mahoney, moreover, asserts that the hardship to him of delaying review is
substantial because “the statutes and regulations [he] is challenging both inhibit and deter his
constitutionally protected speech.” Pl. Opp. at 24. The Court agrees with him that the
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alternatives to resolving his claims now are unpalatable. As to any challenges stemming from
the permitting regime, he must either apply for a permit under what he believes to be an unlawful
regime or be penalized for demonstrating without a permit. As to challenges stemming from
regulations that bar certain activities altogether — e.g., the creation of no-demonstration zones
— he must either engage in the futile exercise of applying for a permit he knows will be denied
or risk being punished for not abiding by the restrictions. In sum, both ripeness prongs militate
in favor of reviewability.
C. Law of the Case
Defendants next invoke the law-of-the-case doctrine. They argue that many of
Mahoney’s remaining claims — viz., those not being dismissed here — appeared in his First
Amended Complaint, and this Court dismissed them in its 2022 Opinion. They insist that the
Court should not revisit those decisions.
The law-of-the-case doctrine dictates that absent “extraordinary circumstances,” “the
same issue presented a second time in the same case in the same court should lead to the same
result.” Al Bahlul v. United States, 967 F.3d 858, 875 (D.C. Cir. 2020) (citations and internal
quotations omitted). “[W]hile the law of the case doctrine does not necessarily apply to
interlocutory orders, district courts generally consider the doctrine’s underlying rationale when
deciding whether to reconsider an earlier decision.” Malewicz v. City of Amsterdam, 517 F.
Supp. 2d 322, 328 (D.D.C. 2007). “Effective trial-court management . . . demands that parties
be able to rely on the rulings that progressively direct proceedings toward trial,” and judges must
also protect judicial resources and those of the parties from delay and burden. See 18B Charles
A. Wright & Arthur R. Miller, Fed. Practice & Procedure § 4478.1 (3d ed. 2022).
24
For purposes of this analysis, it is helpful to place Mahoney’s extant claims into three
categories: (1) those that are in the operative Complaint but that were not in the First Amended
Complaint; (2) those that were included in both Complaints and that the 2022 Opinion permitted
to go forward; and (3) those that were included in both Complaints but that the 2022 Opinion
dismissed.
Causes of action that fall into the first category survive because the law-of-the-case
doctrine does not extend to previously undecided issues. These clearly include: (a) challenges to
§ 5104(f) and to § 12.1.30(a) of the Traffic Regulations, see Pl. Opp. at 11–12 (breaking out his
four counts into nine claims and labeling this one Claim 7), and (b) challenges to current crowd-
size restrictions on the West Front Lawn. Id. at 12 (Claim 9); see also id. at 35–36 (explaining
why these claims should proceed). Similarly, law of the case cannot stand in the way of counts
that fall into the second category since they were never dismissed. These include: (a) the
challenge to no-demonstration zones, Mahoney II, 566 F. Supp. 3d at 30–31 (reinstating this
claim on reconsideration); Pl. Opp. at 11 (Claim 3), and (b) the freedom-of-assembly claims, to
the extent that they have not been dismissed for other reasons like mootness. Mahoney I, 566 F.
Supp. 3d at 16. Finally, claims that fall into the third category, which the Court will identify
shortly, are the only ones that may be barred by law of the case.
Now on to the less straightforward exercise. Some of Mahoney’s causes of action
straddle the line between the first and third category; in other words, while Defendants believe
that the Court has previously decided these issues, Plaintiff would distinguish his new iterations
of the claims from the original ones. The Court considers these arguably in-between claims in
turn.
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First up are Mahoney’s facial Speech Clause challenges to the permitting regime. In
2022, this Court dismissed his counts alleging that the Traffic Regulations are “facially
unconstitutional because they both fail intermediate scrutiny and constitute an impermissible
prior restraint on speech.” Id. at 8–13 (emphasis omitted). The Third Amended Complaint
reasserts numerous facial Speech Clause challenges to the Board’s permitting framework. See
Pl. Opp. at 11 (Claims 1, 5–6). Mahoney contends that these counts are materially different from
those that were dismissed in 2022, largely because this Court evaluated the original claims in the
context of Mahoney’s admission that the Regulations are content neutral. Id. at 33. In his Third
Amended Complaint, Mahoney makes no such admission. Quite the opposite. He specifically
alleges that the Regulations are content based and challenges them on that ground. Id. at 11
(“The Traffic Regulations are facially invalid . . . because . . . [they are] impermissibly content
based.”). In light of his new factual and legal allegations, the Court will decline to rely on law of
the case to dispose of these counts.
His related facial challenges under the Equal Protection Clause may go forward, too. Id.
(Claim 2, alleging facial invalidity of Regulations under Equal Protection Clause because
allowing speech “based on whether it is ‘organized,’ ‘sponsored,’ or ‘advocated’ for by a
member of Congress . . . does not comport with the concept of equal protection of the laws”).
Defendants try to prevent him from invoking the Equal Protection Clause on the ground that this
Court previously dismissed his as-applied equal-protection challenge in 2022. See MTD at 17.
That is inaccurate. In fact, that claim, which this Court construed as a selective-enforcement
challenge, was one of the few that survived the motion to dismiss the First Amended Complaint.
Mahoney I, 566 F. Supp. 3d at 13–16.
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Consider next Mahoney’s vagueness and discretion-based challenges to the Regulations,
a version of which this Court previously dismissed. Id. at 20–21. In his First Amended
Complaint, Plaintiff alleged that “the Traffic Regulations . . . allow the Government ‘unfettered
discretion’ over permitting decisions[] and are unconstitutionally vague.” Id. at 20. He invoked
both the Due Process Clause and the First Amendment in support of these claims. Id. At first
blush, these allegations seem to reappear in a very similar form in his Third Amended
Complaint. See, e.g., 3d Am. Compl., ¶¶ 100, 104, 148–50. In his Opposition, however,
Mahoney argues otherwise. He clarifies that the current iterations take a different, narrower
approach than did his previously dismissed ones. Whereas his First Amended Complaint alleged
that the Board provided “no standards regarding how it determines which areas of the Capitol
Grounds will be open,” Mahoney I, 566 F. Supp. 3d at 12 (emphasis added), his operative
Complaint takes issue only with the fact that allowing speech based on whether it is “organized,
sponsored, or advocated for by a member of Congress” is vague and confers too much discretion
on the Board. See Pl. Opp. at 33 (internal quotations omitted).
The Court accepts that distinction and rejects Defendants’ contention that the new claims
are “nearly identical in purpose” to the old ones. See Reply at 18. The analysis in this Court’s
2022 Opinion, which focused on Mahoney’s theory that the Board’s permitting decisions were
standardless, is completely unresponsive to a challenge that objects to the open-endedness of
existing standards. The Court will therefore allow the vagueness and discretion-based claims to
go forward. It also clarifies that to the extent Mahoney’s vagueness challenges pertain to
§ 5104(f) and to § 12.1.30(a) of the Regulations, those may go forward, too, as this is the first
time in this case that Plaintiff has raised those provisions. See, e.g., 3d Am. Compl., ¶¶ 113–17.
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Finally, there is one claim that plainly falls into the third category and is therefore barred
from relitigation: Mahoney’s due-process challenge to the Court’s failure to publish its
restrictions. In his First Amended Complaint, Plaintiff had alleged that the Regulations were
unconstitutional because the “Board opens and closes areas of the Capitol Grounds through
secret Board Orders, which are not published in such a way that the general public is aware of
them.” Mahoney I, 566 F. Supp. 3d at 21. The Court rejected that contention and dismissed the
claim, reasoning:
[A]n applicant need only ask which areas are available for the
proposed demonstration to understand whether her large
demonstration will be allowed to go forward. It is thus difficult to
argue that such an applicant does not have fair warning of whether
her group can demonstrate in a particular area.
Id. (citations and internal quotations omitted). Plaintiff later moved for reconsideration, and this
Court stood by its prior decision on this count. Mahoney II, 566 F. Supp. 3d at 31. It held that
“[w]hile it is not absurd for Plaintiff to seek public posting of all Board orders[,] . . . Mahoney
has not demonstrated that declining to do so . . . runs afoul of the Constitution.” Id.
In his operative Complaint, Mahoney asks for another bite at the reconsideration apple.
He once again brings a due-process challenge to the Board’s failure to “publish [its] orders . . . or
otherwise make known to the public the temporary limitations on speech it imposes.” 3d Am.
Compl., ¶ 150. For the third time now, the Court rejects this cause of action. In a last-ditch
effort to convince the Court to reverse course, Mahoney argues that his Complaint “alleges new
facts in connection” with the due-process claim. Apparently, Plaintiff was “impermissibly
directed by a United States Capitol Police Officer to disperse when he was engaging in
permissible demonstration activity on Capitol Square in a group of fewer than twenty people. At
that time, Rev. Mahoney did not know — and had no way to learn — whether the Board had
28
imposed new restrictions on speech.” Pl. Opp. at 34 (internal citation omitted). But Mahoney
did have a way to know whether there were new restrictions on the Capitol Grounds: “[A]ll he
(or any other citizen) need[ed] to do [was] contact the Special Event Section of the U.S. Capitol
Police for information about which areas of the Capitol Grounds are available for demonstration
activity.” Mahoney II, 566 F. Supp. 3d at 31. That Plaintiff failed to do so and thereby suffered
an inconvenience does not change the conclusion that the Board’s practices are constitutional.
The Court will therefore dismiss this due-process claim for the same reasons it did so in
2022.
D. Summary Judgment
Defendants’ final argument, which is their basis for summary judgment, is the only one
that attacks Plaintiff’s Complaint on the merits. They submit that Mahoney’s “‘as applied’ claim
fails because Congresspersons are not comparators.” MTD at 17. As a threshold matter, the
Court notes (and Plaintiff also points out) that the Motion never specifies which as-applied claim
must fail. Mahoney infers from the context, however, that Defendants seek summary judgment
on his as-applied claim under the Equal Protection Clause in connection with the September 11th
permit denial. See Pl. Opp. at 37. The Court also believes that this is the correct inference, and
Defendants in their Reply do not dispute this. The Court therefore proceeds on the
understanding that said Motion extends only to that claim. As a reader who has followed along
thus far will recall, however, the Court has already indicated that it will dismiss that as-applied
challenge as moot. See supra section III.B.1. Mahoney’s equal-protection cause of action,
however, goes beyond the September 11th permit denial and challenges the Board’s current
practices as unlawful. That part of his action may proceed for the reasons stated in section
III.B.3.
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Finally, Defendants in their Reply brief seek, for the first time, summary judgment on
Mahoney’s challenge to the no-demonstration zones. The Court declines to consider this new
argument presented for the first time in the Reply. See, e.g., Alston v. D.C., 561 F. Supp. 2d 29,
37 (D.D.C. 2008) (“Generally, arguments raised for the first time in a reply are waived.”). The
argument, it bears noting, is also flawed. Defendants’ sole ground for summary judgment is that
Mahoney’s case can be distinguished from a single D.C. Circuit case, Lederman v. United States,
291 F.3d 36 (D.C. Cir. 2002), which opined on First Amendment demonstration rights around
the Capitol. The Court struggles to understand why making such a distinction would justify
summary judgment for the Defendants when Plaintiff’s claim is based on far more than just an
analogy to Lederman.
IV. Conclusion
For the foregoing reasons, the Court will grant the Motion to Dismiss in part and deny it
in part, and it will deny the Motion for Summary Judgment. A separate Order so stating shall
issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: April 4, 2023
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