United States Court of Appeals, District of Columbia Circuit
Act Now to Stop War and End Racism Coalition and Muslim American Society Freedom Foundation, Appellees
District of Columbia, Appellant
March 24, 2016
from the United States District Court for the District of
Columbia (No. 1:07-cv-01495)
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.
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
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.
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.
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
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.
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
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
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.
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
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.
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.
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.
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.
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).
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.
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
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.
MASF Has Standing to Challenge the District's Lamppost
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
Evidence Shows MASF Exists.
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.
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.
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.
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 ...