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Act Now to Stop War & End Racism Coalition v. District of Columbia

United States Court of Appeals, District of Columbia Circuit

January 24, 2017

Act Now to Stop War and End Racism Coalition and Muslim American Society Freedom Foundation, Appellees
District of Columbia, Appellant

          Argued March 24, 2016

         Appeals from the United States District Court for the District of Columbia (No. 1:07-cv-01495)

          Carl J. Schifferle, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellant/cross-appellee. With him on the briefs were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.

          Mara E. Verheyden-Hilliard argued the cause for appellees/cross-appellants. With her on the briefs were Carl L. Messineo and Andrea Costello.

          Before: Rogers and Pillard, Circuit Judges, and Sentelle, Senior Circuit Judge.

          Pillard, Circuit Judge

         Like many municipalities around the country, the District of Columbia regulates the manner in which members of the public may post signs on the District's lampposts. District of Columbia law allows a posted sign to remain on a public lamppost for up to 180 days. But a sign relating to an event must be removed within 30 days after the event, whether the 180-day period has expired or not. Thus, the District's rule may in some cases give less favorable treatment to signs that relate to an event than to signs that do not.

         Two nonprofit organizations, the Act Now to Stop War and End Racism Coalition (ANSWER) and the Muslim American Society Freedom Foundation (MASF) (together, the organizations), challenge the District's sign-posting rule. MASF brings a pre-enforcement challenge to the rule as unconstitutional on its face in violation of the First Amendment and due process. MASF first argues that the distinction between event-related and other signs is content based yet cannot meet strict First Amendment scrutiny and that, even if the rule is not content based, it fails the intermediate scrutiny applicable to content-neutral time, place, and manner restrictions. Second, MASF contends that the regulation delegates an impermissible degree of enforcement discretion to the District's inspectors in violation of due process. It further challenges what it contends is strict liability on the originators of posters for any violation of the sign-posting rule, which MASF argues also contravenes its speech and due process rights. ANSWER, unlike MASF, was cited by the District for violations of the regulation. ANSWER seeks damages under section 1983, contending that it did not in fact violate the regulation and that citations were unconstitutional retaliation against it for its postering.

         The district court granted summary judgment to MASF, invalidating the regulation's treatment of event-related posters on both First Amendment and due process grounds, but rejecting MASF's strict-liability objection. The court also sanctioned the District for seeking discovery in the face of an order granting limited discovery to plaintiffs. The district court granted summary judgment to the District on ANSWER's section 1983 damages claim for lack of a showing of a policy, custom, or practice of retaliatory enforcement, as required by Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978). The District and the organizations cross-appealed.

         We conclude that the regulation does not impose a content-based distinction because it regulates how long people may maintain event-related signs on public lampposts, not the content of the signs' messages. The "event-related" category is not itself content based. Under the intermediate First Amendment scrutiny that is therefore applicable, the rule is a reasonable time, place, and manner restriction. It is narrowly tailored to further a well-established, admittedly significant governmental interest in avoiding visual clutter. The regulation's definition of event-based signs also guides officials' enforcement discretion sufficiently to avoid facial invalidation on due process grounds. Accordingly, we reverse the grant of summary judgment in MASF's favor and remand for the district court to enter summary judgment for the District.

         On the organizations' cross-appeal, we affirm the district court's dismissal of ANSWER's section 1983 damages claim that the District retaliated against it in violation of the First Amendment, and MASF's claim that the District's regulation imposes a system of strict liability the First Amendment does not allow. Finally, because discovery is presumptively available to all parties pursuant to the Federal Rules of Civil Procedure in the absence of a court order to the contrary, we vacate the district court's imposition of discovery sanctions against the District for seeking discovery without leave of court.

         I. Background

         The District of Columbia began its regulation of signs on public lampposts with an outright prohibition in 1902. D.C. Police Regulations, Art. XII, § 2 (1902). The District partially relaxed that ban in 1958 to allow for the posting of signs on lampposts only with the permission of the District's Commissioners. D.C. Police Regulations, Art. 20 § 2 (1958). After the District's Corporation Counsel advised that the regulation might be constitutionally infirm for lack of clearly articulated standards, see Letter from Louis P. Robbins, Acting Corporation Counsel, to James W. Hill, Director, Dep't of Licenses, Investigations, and Inspections (October 12, 1978) (Gov't Add. 13) [hereinafter Robbins Letter], the District revised the regulation to add specific criteria to limit enforcing officers' discretion, see Street Sign Regulation Amendment Act of 1979, D.C. Law 3-50, 26 D.C. Reg. 2733 (1979); see also Crime Prevention Sign Posting Act of 1980, D.C. Law 3-148, 27 D.C. Reg. 4884. Following the revisions, signs "not relate[d] to the sale of goods" could be affixed to lampposts for up to 60 days; election signs for District of Columbia candidates for public office were exempt from that overall limit but had to be taken down within 30 days after the election; and signs intended to aid neighborhood crime prevention were exempted from the time limits. See D.C. Mun. Regs. tit. 24 § 108.4-108.6 (1980). Commercial signs could not be affixed to public lampposts at all. See id. § 108.4. The revised rule also articulated specific requirements for the manner in which signs could be posted on a lamppost "or appurtenances of a lamppost" to "minimiz[e] the need to repair lamp posts defaced by signs attached by adhesives or other permanent methods and the need to remove abandoned or improperly secured signs from lamp posts, the sidewalks and the streets." Robbins Letter at 2; see D.C. Mun. Regs. tit. 24, § 108.8-108.9 (1980). During the pendency of this case, the District twice further amended its lamppost rules, as described below.

         In the meantime, ANSWER, a "grassroots civil rights organization" that works to end war and oppose racism, Affidavit of Brian Becker ¶ 2 (Mar. 14, 2008), J.A. at 32, had posted signs advertising rallies in the District, including events in September 2007 and March 2010. MASF, an unincorporated nonprofit association that conducts "civil and human rights advocacy with a focus on empowering the Muslim American community, " Affidavit of Imam Mahdi Bray (Oct. 26, 2013) ¶ 6, Organizations' Add. 2, has in the past and intends in the future to post signs that combine general messages of advocacy and references to specific events, see id. at 6-8. MASF "has sought to engage in postering to the same extent as is afforded others, including those favored within the District of Columbia municipal regulation system." Id. at 9. The District of Columbia has not cited MASF, but in 2007 the District issued multiple citations against ANSWER under the then-current lamppost rule.

         ANSWER and MASF sued the District, seeking a declaratory judgment that the District of Columbia's lamppost rule violates their First Amendment and due process rights, and an injunction barring its enforcement. First Amended Complaint, Act Now To Stop War & End Racism Coal. v. District of Columbia (ANSWER I), 570 F.Supp.2d 72 (D.D.C. 2008) (No. 07-1495). The district court dismissed both ANSWER's and MASF's claims for lack of standing, and in abstention from pending local administrative enforcement proceedings. ANSWER I, 570 F.Supp.2d at 75-78. The organizations appealed.

         This court reversed in part and remanded. Act Now to Stop War & End Racism Coal. v. District of Columbia (ANSWER II), 589 F.3d 433, 434 (D.C. Cir. 2009). The court held that MASF had standing based on "a credible statement of intent to engage in violative conduct, " and had shown sufficient likelihood of enforcement against it because its allegations raised "somewhat more than the 'conventional background expectation that the government will enforce the law.'" Id. at 435 (quoting Seegars v. Gonzales, 396 F.3d 1248, 1253 (D.C. Cir. 2005)). At the motion to dismiss stage, the court reasoned, an affidavit from MASF's director stating an intention to violate the regulation sufficed to establish standing. Id. at 436. As to ANSWER, the court found that the district court had correctly abstained under Younger v. Harris, 401 U.S. 37 (1971), to the extent that charges against ANSWER for violations of the challenged regulation remained pending in the District of Columbia's administrative process. ANSWER II, 589 F.3d at 436.

         While MASF and ANSWER's appeal was pending before this court, the District of Columbia Department of Transportation amended the lamppost regulation. The 2010 final rule made one distinction relevant to the plaintiffs' claims: Signs "not related to a specific event" could be posted for up to 60 days while signs "related to a specific event" could be posted at any time beforehand, but had to be removed within 30 days after the event. 57 D.C. Reg. 528 (January 8, 2010) (amending D.C. Mun. Regs. tit. 24, §§ 108.5 & 108.6). Thus, in theory, event-related signs could be posted for months or years before the event they announced and for an additional 30 days thereafter, while signs that were not event related could be posted for a maximum of 60 days.

         On remand, ANSWER voluntarily dismissed its claims for prospective relief. See Stipulation of Dismissal, Act Now To Stop War & End Racism Coal. v. District of Columbia (ANSWER III), 798 F.Supp.2d 134 (D.D.C. 2011) (No. 07-1495). MASF, the only party still challenging the constitutionality of the District's regulation going forward, amended its complaint in light of the revised rule, adding an as-applied challenge to the "event-related" distinction as content based. See Supplemental Pleading ¶¶ 16-17, ANSWER III, 798 F.Supp.2d 134 (No. 07-1495). Because neither the earlier nor the revised regulation had been enforced against MASF, the district court dismissed MASF's as-applied challenge, leaving only its facial challenges under the First Amendment and the Due Process Clause. ANSWER III, 798 F.Supp.2d at 143. Those claims, the court held, could proceed to discovery. Id. at 150-51.

         Meanwhile, in its supplemental pleading after remand, ANSWER alleged that the District had "attacked" it with ninety-nine enforcement actions in March and April 2010 in retaliation for the content of its postering activity. The court dismissed that claim, holding that ANSWER had failed adequately to allege that the claimed retaliation resulted from a municipal custom or practice. ANSWER III, 798 F.Supp.2d at 154-55. The court also dismissed MASF's claim that the regulation imposes a system of "strict liability" in violation of the First Amendment. Id. at 153.

          In 2012, the District revised the regulation once more, yielding the version now before us. See 59 D.C. Reg. 273 (Jan. 20, 2012). Section 108 currently provides that any sign-including those announcing events-may be affixed to a publicly owned lamppost for a maximum of 180 days, but that signs relating to specific events must be removed within 30 days after the event. D.C. Mun. Regs. tit. 24, §§ 108.5, 108.6. The regulation also continues to restrict the method of affixing signs on public lampposts: All signs must be "affixed securely to avoid being torn or disengaged by normal weather conditions, " id. § 108.8, but cannot "be affixed by adhesives that prevent their complete removal from the fixture, or that do damage to the fixture, " id. § 108.9. Signs may not be posted on "any tree in public space, " id. § 108.2, and no more than three copies of any sign may be posted on either side of the street on a given block, id. § 108.10. The 2012 revision also added subsection 108.13, which defines an "event" as "an occurrence, happening, activity or series of activities, specific to an identifiable time and place, if referenced on the poster itself or reasonably determined from all circumstances by the inspector." See 59 D.C. Reg. 273 (codified at D.C. Mun. Regs. tit. 24, § 108.13).

         After discovery-which we discuss in Part II.E., infra, in connection with the sanctions order-the District and MASF cross-moved for summary judgment. The court granted summary judgment to MASF, reasoning that even if the regulation does not distinguish on the basis of content, subsections 108.5 and 108.6 nevertheless fail intermediate scrutiny under the First Amendment for want of admissible evidence showing how the regulation advances the city's content-neutral purposes. Act Now to Stop War & End Racism Coal. v. District of Columbia (ANSWER IV), 905 F.Supp.2d 317, 340-41 (D.D.C. 2012). It also held that subsection 108.13 was an impermissible delegation of enforcement discretion in violation of the Due Process Clause. Id. at 332. The court sanctioned the District for seeking discovery in violation of the court's scheduling order. Act Now to Stop War & End Racism Coal. v. District of Columbia, 286 F.R.D. 117 (D.D.C. 2012). The District and the organizations cross-appealed.

         We held these appeals in abeyance pending the Supreme Court's resolution of Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), see Order, Act Now to Stop War & End Racism Coal. v. District of Columbia, No. 12-7139 (D.C. Cir. August 20, 2014), and, once Reed was decided, requested supplemental briefing addressing its applicability here.

         II. Analysis

         We begin by addressing the District's contention that MASF lacks standing to sue. Finding standing, we proceed to MASF's First Amendment and due process facial challenges. As to both, we find MASF's challenges fall short, and accordingly reverse the district court's grant of summary judgment in its favor. We affirm the court's dismissal of ANSWER's section 1983 claim for damages and MASF's claim that the District's rule imposes strict liability in violation of the First Amendment. Finally, we vacate the discovery sanctions again the District.

         A. MASF Has Standing to Challenge the District's Lamppost Regulation

         The District argues that MASF ceased operating in 2011, so has "lost standing" during the pendency of its suit. Gov't Br. at 19. Even if MASF exists, the District asserts, it has failed to establish that the regulation causes it to suffer injury in fact. We disagree: An affidavit from MASF's Imam Bray attests that MASF continues to exist as an unincorporated nonprofit association, and the District's submissions raise no real question on that point.

         1. Evidence Shows MASF Exists.

          For a federal court to exercise jurisdiction, "an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Davis v. Fed. Election Comm'n, 554 U.S. 724, 733 (2008); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (plaintiff must support standing "with the manner and degree of evidence required at the successive stages of the litigation"). Thus, "[e]ven where litigation poses a live controversy when filed, we must dismiss a case as moot if events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Chamber of Commerce of U.S. v. E.P.A., 642 F.3d 192, 199 (D.C. Cir. 2011) (alteration in original) (internal quotation marks omitted). The District contends that this case has become moot because MASF no longer exists, thus eliminating it as a party whose rights could be affected.

         MASF, as the party invoking our jurisdiction, "bears the burden of establishing" its standing, Lujan, 504 U.S. at 561, a burden that is "correlative to the burden" to establish the substantive elements of its claims, Sierra Club v. E.P.A., 292 F.3d 895, 900 (D.C. Cir. 2002). Even though the District did not challenge MASF's existence when it moved for summary judgment because it learned of the evidence that it believes calls MASF's existence into question only after noticing its appeal, we consider MASF's standing de novo, as we would had it been challenged at the procedural stage to which the case had progressed in the district court. Scenic America, Inc. v. Anthony Foxx, 836 F.3d 42, 49-50 (D.C. Cir. 2016). Accordingly, on appeal from denial of summary judgment in MASF's favor, there must be no material dispute about the facts that support its standing. We view the evidence and inferences therefrom in the light most favorable to the District as the nonmoving party on MASF's cross-motion for summary judgment. See Dunaway v. Int'l Bhd. of Teamsters, 310 F.3d 758, 761 (D.C. Cir. 2002).

         Imam Bray's affidavit suffices as an authoritative statement of MASF's continued existence as an unincorporated nonprofit association under District of Columbia law. An "unincorporated nonprofit association" is "an unincorporated organization, consisting of 2 or more members joined under an agreement that is oral, in a record, or implied from conduct, for one or more common, nonprofit purposes." D.C. Code § 29-1102(5) (2016). Such a nonprofit is "a legal entity distinct from its members and managers" and has "perpetual duration" unless otherwise provided. Id. § 29-1105(a), (b). To operate as an unincorporated nonprofit association an organization need not be registered with the District, see id. § 29-1102(5), and it has the capacity on a member or manager's initiative to sue in its own name, id. § 29-1109.

         In his affidavit, Imam Bray attested that, "[t]hroughout the period of litigation, there have always been two or more persons (i.e. 'members' as that term is used in the District's Uniform Unincorporated Nonprofit Association Act) who have participated in the management of the affairs of MASF or in the development of the policies and activities of MASF." Bray Affidavit ¶ 4, Organizations' Add. 2. The District has no evidence that the organization in fact lacks "2 or more members, " D.C. Code § 29-1102(5), who have joined together for a "common, nonprofit purpose, " id., namely "to engage in civil ...

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