Department of Justice Response to Opposition To Motion to Dismiss Smithsonian Free Speech Lawsuit

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JULIAN MARCUS RAVEN,

) ) Plaintiff, ) ) v. ) Civil Action No. 17-1240 (TNM) ) KIM SAJET, Director, ) National Portrait Gallery, ) Smithsonian Institution, et al., ) ) Defendants. ) ______________________________) MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PRELIMINARY STATEMENT Plaintiff pro se brought this case under Bivens1 against defendants in their individual capacities, as employees of the Smithsonian Institution or its National Portrait Gallery (“Portrait Gallery”), because the Portrait Gallery rejected plaintiff’s request to hang his portrait of thenpresidential candidate Donald J. Trump in the Gallery in connection with the 2017 Inauguration.

Amended Complaint, Dkt. No. 16, p. 23, line 7.2 Plaintiff claims defendants violated his rights under the First and Fifth Amendments to the U.S. Constitution.

Defendants moved to dismiss on several grounds. As an initial matter, plaintiff’s claims are moot. Plaintiff conceded that his offer to loan his Trump portrait to the Portrait Gallery was for the purpose of having it displayed during the 2017 Inauguration festivities. That inauguration

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See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”).

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Plaintiff’s Amended Complaint contains no paragraph numbers, only page and line numbers.

has long since terminated, and thus plaintiff’s claims should be dismissed as moot. Plaintiff’s attempt to rewrite his offer to one that survives the termination of the 2017 Inauguration bears no relation to the facts and should be rejected.

Plaintiff’s claims are also subject to dismissal for failure to state a claim and on qualified immunity grounds. Defendants previously demonstrated that plaintiff has no First Amendment right to have his request to loan his Trump portrait considered by the Portrait Gallery. Instead, the displays at the Gallery constitute government speech, which is not subject to the First Amendment. Plaintiff’s Fifth Amendment claim fails as well because he has no due process right to have his request considered by the Portrait Gallery, and he was not treated differently than other similarly situated individuals without a rational basis.

Plaintiff does not contest the fact that the government may engage in its own speech without implicating the First Amendment. Instead, he argues that the Portrait Gallery, a component of the Smithsonian, cannot engage in government speech because it is not the type of governmental entity to which this doctrine applies. Plaintiff cites no authority that supports this position. By contrast the Court of Appeals for this Circuit has stated, albeit in dicta, that the curator of a museum may decide which art to exhibit, including the head of the National Art Gallery, and the First Amendment is inapplicable to such decisions. This same reasoning dooms plaintiff’s Fifth Amendment claims as well. By statute only the Smithsonian’s Board of Regents, through delegees such as the National Portrait Gallery Commission and the Director of the Portrait Gallery, may decide which portraits or statues to display in the Portrait Gallery.

Moreover, plaintiff was not treated differently than any similarly situated individuals, and the Director of the Portrait Gallery and the Acting Provost of the Smithsonian Institution rejected his offer on a rational basis.

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Consequently, defendants violated no clearly established rights of plaintiff’s, and therefore they are entitled to qualified immunity.

Thus, for all the reasons set forth in defendants’ opening memorandum, and for those set forth below, this case should be dismissed.

ARGUMENT I.

Plaintiff’s Request for Relief that His Trump Portrait be Hung in the Portrait Gallery is Moot

In defendants’ opening memorandum, defendants observed that plaintiff sought to have the Portrait Gallery hang his Trump painting in connection with the 2017 Inauguration.

Defendants’ Mem. at 28, citing Amended Complaint, p. 23, lines 3-7. Defendants then demonstrated that because that inauguration has concluded, plaintiff’s claims are moot. Id. Plaintiff responds as follows: “Def.s contend that since the 2017 Inauguration is over, Pl.’s application for the Inauguration is mooted, since relief specific to that event cannot be granted! This is ridiculous! Pl. never confined the application just to the Inauguration of 2017; that was just the beginning!” Plaintiff’s Opp. at 19. Plaintiff’s attempt to rewrite history should be rejected.

In his Amended Complaint, plaintiff alleged that he only requested to have the portrait hung during the 2017 Inauguration festivities. Amended Complaint, p. 23, lines 3-7. He also told defendant Kurin that he was “not offering my work as a gift or requiring that you purchase or even consider my work for purchase, it is simply to show the work for the inauguration.”

Plaintiff’s Ex. G at 2 (emphasis added).

It is undisputed that the inauguration concluded well more than a year ago. Plaintiff offers no response to defendants’ citations showing that when relief is sought with respect to a specific event, and that event has concluded, the claim becomes moot. Compare Defendants’ 3

Mem. at 28 (citing, e.g. Mahoney v. Babbitt, 113 F.3d 219, 220-21 (D.C. Cir. 1997) (passage of inauguration parade day rendered appeal of First Amendment issue moot), and People for the Ethical Treatment of Animals v. Gittens, 396 F.3d 416, 420 (D.C. Cir. 2005) (after conclusion of art display, the First Amendment claims were moot)), with Plaintiff’s Opp. at 19-20.

As the Court of Appeals has observed, “[d]ignified silence is a dangerous tactic at best; here it proves fatal”. Taylor v. FDIC, 132 F.3d 753, 763 (D.C. Cir. 1997). The same is true here. The undisputed facts show that plaintiff sought only to have his Trump portrait hung in the Portrait Gallery for a limited time period coinciding with the 2017 Inauguration, which has long since ended. The fact that he would like his portrait to still be hung now is beside the point – that is not the request he made to the Portrait Gallery that is the subject of this suit.

Accordingly, this case should be dismissed on mootness grounds, and this Court need not resolve any of plaintiff’s claims.

II.

Plaintiff’s Bivens Claims Fail to Allege a Constitutional Claim

Even if this Court concludes that plaintiff’s claims are not moot, they are subject to dismissal for failure to state a claim and on qualified immunity grounds.

A. Plaintiff’s First Amendment Claims.

1. Government Speech In defendants’ opening memorandum, defendants demonstrated that plaintiff has no First Amendment rights with respect to his desire to display his Trump portrait at the Portrait Gallery, because to the extent that portrait displays in the Gallery constitute some kind of speech, it is government speech, which is not subject to the First Amendment. Defendants’ Mem. at 10-19.

Plaintiff responds that there can be no government speech where the government merely acts as a trustee for a public trust instrumentality such as the Smithsonian. Plaintiff’s Opp. at 6. Although

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plaintiff concedes that the Smithsonian is a government entity, plaintiff argues that the Smithsonian is simply a guardian over trust property and its “trustees” operate to carry out the private will of James Smithsonian, who established the Smithsonian Institution. Plaintiff’s Opp. at 3-4. In this role, plaintiff reasons that the “trustees” are not exercising any governmental mandate, and thus nothing they do can constitute government speech. Id. at 4-5. Plaintiff cites no authority for this proposition. See generally Plaintiff’s Opp. Moreover, in making this argument, plaintiff fails to appreciate that it dooms from the outset his reliance on the First Amendment.

The First Amendment applies only to the government; it does not regulate private speech or parties acting in a non-government capacity. E.g., Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (“constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains”) (emphasis in original); Sharp Corp. v. Hisense USA Corp., 292 F. Supp.3d 157, 175 (D.D.C. 2017) (in order for the First Amendment to apply, there must be governmental action). Thus, for plaintiff to advance any First Amendment claim, he has to have conceded that the actor allegedly denying him his First Amendment rights is the government, acting in a government role. If plaintiff’s position is that the Smithsonian, while a government entity, does not operate in a governmental fashion in carrying out its responsibilities, then plaintiff has no First Amendment rights in connection with decisions made on by the Smithsonian.

However, it is clear that the Smithsonian is a governmental entity, and the First Amendment applies to the Smithsonian. See Crowley v. Smithsonian Institution, 636 F.2d 738, 740-44 (D.C. Cir. 1980) (holding the Smithsonian did not violate the First Amendment’s establishment clause in connection with a museum display). If the First Amendment applies to

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the Smithsonian, and therefore to the Portrait Gallery which is a component of the Smithsonian, then First Amendment jurisprudence applies, in all of its forms, including the doctrine of government speech that is excluded from the First Amendment.

Plaintiff cites no authority for the untenable position that the First Amendment applies to his alleged benefit because the Smithsonian is a governmental entity but the Smithsonian cannot engage in government speech because it is not a governmental entity. Moreover, plaintiff’s argument is inconsistent because he vacilates between claiming the Smithsonian is just a “’trust instrumentality’, and nothing more[,]” Plaintiff’s Opp. at 2, while later he concedes that “[t]here is no question that the SI [Smithsonian Institution] is a Gov. [governmental] ‘entity’”. Plaintiff’s Opp. at 3.

According to plaintiff, however, whatever kind of governmental entity the Smithsonian is, it cannot engage in government speech, and thus the Court should ignore defendants’ reliance on Walker v. Tex. Div., Sons of Confederate Veterans Inc., 135 S. Ct. 2239 (2015), Pleasant Grove City v. Summum, 555 U.S. 460 (2009), People for the Ethical Treatment of Animals v.

Gittens, 414 F.3d 23 (D.C. Cir. 2005), and Pulphus v. Ayers, 249 F. Supp.3d 238, 254 (D.D.C. 2017). See Defendants’ Mem. at 10-19. Plaintiff argues that defendants’ reliance is misplaced because the governmental entities in each of these cases were entities with officials subject to the voting electorate. Plaintiff’s Opp. at 6. As support for this claim, plaintiff cites Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217, 235 (2000), for the proposition that an entity that may engage in government speech is an entity whose officials may be voted out. Plaintiff’s Opp. at 7 (quoting Southworth, 529 U.S. at 235 (stating in dicta that constraints on government speech come from electorate’s voting abilities)). Plaintiff claims that

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Smithsonian “trustees” and high-level assistants cannot be voted out, and thus, presumably, they may not engage in government speech. Id. Plaintiff is wrong. As an initial matter, the Southworth decision did not consider, and does not hold, that there can be government speech only if the government entity is directly subject to the voting electorate. Nonetheless, the Smithsonian’s Board of Regents, whose members are the “trustees” to whom plaintiff refers, see Plaintiff’s Opp. at 4, is comprised primarily of either Members of Congress or private individuals selected by a joint resolution of the Congress (two members of the Board of Regents are ex officio members, the Chief Justice of the United States and the Vice President). In particular, 20 U.S.C. § 43 provides that: The regents to be selected shall be appointed as follows: The Members of the Senate by the President thereof; the Members of the House by the Speaker thereof; and the nine other persons by joint resolution of the Congress. The Members of the House so appointed shall serve for the term of two years; and on every alternate fourth Wednesday of December a like number shall be appointed in the same manner to serve until the fourth Wednesday in December, in the second year succeeding their appointment. The Senators so appointed shall serve during the term for which they shall hold, without re-election, their office as Senators. Vacancies, occasioned by death, resignation, or otherwise, shall be filled as vacancies in committees are filled. The regular term of service for the other nine members shall be six years; and new elections thereof shall be made by joint resolutions of Congress. Vacancies occasioned by death, resignation, or otherwise may be filled in like manner by joint resolution of Congress.

Thus, even if the test for government speech includes whether it is being exercised by an entity with officials who may be subject to impact from the voting electorate, which is not a requirement set forth in Southworth or any other case cited by plaintiff, the Smithsonian would nonetheless fall within that umbrella. In addition to the Chief Justice, the members of the Board of Regents are either Members of Congress, members of the public chosen by Members of Congress, or the Vice President, and Congressional Members (and the Vice President) are subject to the voting electorate.

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Plaintiff cites to Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), and argues that because that case involved Amtrak, a government-created corporation, the Court concluded that the First Amendment applied to Amtrak’s refusal to display Lebron’s advertisement. Plaintiff attempts to distinguish Lebron from Walker, in which the Court upheld the state’s ability to refuse to accept a proposed slogan for a license plate, on the basis of government speech, by arguing that the difference is the type of governmental entity involved.

Plaintiff’s Opp. at 8. According to plaintiff, in Walker the state could decide what slogan to display on its license plates because it was a lawfully elected government. By contrast, plaintiff claims, in Lebron Amtrak could not control the advertisements displayed on its billboard areas for lease, because Amtrak is a governmental entity not subject to being elected. Id. Plaintiff, however, completely misreads the Lebron opinion.

In Lebron, there was no claim that Amtrak, found to be a governmental entity, was engaged in government speech with respect to the space it leased to members of the public for commercial advertising. Id., 513 U.S. at 376-378, 394. Instead, Amtrak provided a space to the public for commercial advertising at Penn Station in New York City, and rejected a request to post a political advertisement. Id. at 376-378. Plaintiff relies on a portion of the Supreme Court’s decision in Lebron reciting the procedural history of the case, in which the district court had concluded that Amtrak’s rejection of Lebron’s political advertisement violated his First Amendment rights. Plaintiff’s Opp. at 8 (quoting Lebron, 513 U.S. at 377). The district court’s decision, however, was ultimately reversed. Lebron v. Amtrak, 69 F.3d 650, 660 (2d Cir. 1995).

Thus, the Lebron district court decision gets plaintiff nowhere.

Plaintiff argues that the First Amendment protects him against viewpoint discrimination.

Plaintiff’s Opp. at 9. This argument, however, presupposes that plaintiff has a First Amendment

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right with respect to the Portrait Gallery. Notwithstanding his attempts to draw parallels to Lebron, plaintiff points to no evidence that the Portrait Gallery makes space on its walls available to members of the general public for lease or in any other fashion. Thus, the Lebron decision is simply inapplicable, because in that case Amtrak gave private entities the opportunity to engage in a certain type of speech on Amtrak property, thereby implicating the First Amendment, whereas here, private parties have no such rights with respect to the Portrait Gallery.

It bears repeating that the Court of Appeals for this Circuit stated in in People for the Ethical Treatment of Animals v. Gittens, 414 F.3d 23 (D.C. Cir. 2005) (“PETA”): The curator of a stateowned museum, for example, may decide to display only busts of Union Army generals of the Civil War, or the curator may decide to exhibit only busts of Confederate generals. The First Amendment has nothing to do with such choices.

Id. at 28. Additionally: If the head of the government's National Gallery of Art solicited corporate sponsorship to defray the costs of an exhibition, this would hardly transform the National Gallery into a limited public forum [for First Amendment purposes]. We think the same would be true if the National Gallery gave the sponsor some role in selecting which works of art the museum would exhibit and the curator rejected the sponsor's choice, for subjective and arbitrary reasons.

Id. at 30. Thus, the First Amendment has nothing to do with the decisions made by the Portrait Gallery as to which portraits or statues to exhibit.

Plaintiff does not dispute that under 20 U.S.C. § 75e, the Board of Regents for the Smithsonian, through its designees, is responsible for acquiring items for the Portrait Gallery consistent with Congress’s statutory factors, displaying them, storing them, disposing of them, and similar activities. See Defendants’ Mem. at 14. The fact that the Portrait Gallery is designated as a “‘free public museum’” under 20 U.S.C. § 75b does not transform it into a

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designated or limited public forum for First Amendment purposes, as plaintiff claims. Plaintiff’s Opp. at 11 (quoting 20 U.S.C. § 75b). It simply means that it is a museum for the benefit of the public where no fee will be changed. 20 U.S.C. § 75b. That conveys no rights to members of the public to be part of the decisionmaking process as to what will be exhibited in the Portrait Gallery.

Plaintiff also argues that a certain type of art display cannot constitute government speech because it involves controversial displays which may not be funded by the National Endowment of the Arts (“NEA”). Plaintiff’s Opp. at 13-14. But as plaintiff points out, in National Endowment for the Arts v. Finley, 524 U.S. 569, 610-11 (1998), when the government is engaged in government speech, it may engage in viewpoint discrimination. Plaintiff’s Opp. at 14 (quoting Finley, 524 U.S. at 610-11). Thus, with respect to government speech, the Supreme Court has made clear that the government as a funder, or the government as a speaker, may engage in contradictory positions that are not implicated by the First Amendment. Id. In the end, plaintiff simply cannot escape the fact that the Portrait Gallery, as part of the Smithsonian, a governmental entity, has never designated its space as available to members of the general public in which to display their portraits or statues. The Portrait Gallery makes all decisions regarding which portraits and statues will be displayed. Accordingly, the Portrait Gallery is not a forum for First Amendment activity, and plaintiff has no First Amendment rights associated with his Trump portrait loan request.

B. Plaintiff’s Fifth Amendment Claims.

1. Due Process Plaintiff does not dispute that in order to raise a Fifth Amendment due process claim he must show that the government has deprived him of life, liberty or property without due process

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of law. Compare Defendant’s Mem. at 19 with Plaintiff’s Opp. at 29-30. Notably, plaintiff’s insistence at pursuing his Fifth Amendment claim is yet another concession that the Portrait Gallery’s actions he seeks to challenge constitute government action. Id. at 30 (no provision exempts “federal employees” at the Smithsonian from following written standards “in any federal institution[.]”).

Plaintiff alleges that the source of his due process claim is a property right. Plaintiff’s Opp., at 36. Plaintiff’s theory, to the extent it can be ascertained, appears to be that as a member of the general public he is a beneficiary of the property accepted by the U.S. Congress under the Will of James Smithson, which is held in trust at the Smithsonian by the United States government, which is a trustee of the property bequeathed by the Smithson will. Id. Plaintiff argues that the Fifth Amendment protects him from being deprived of his property rights in the trust. Id. Plaintiff identifies those rights as “participatory rights” which he describes as the right of “citizen beneficiaries [] to ‘benefit’ and partake of the ‘property,’ by contributing to the intention of the will, either actively or passively.” Id. As the purported source of his alleged property right to participate in the Portrait Gallery’s selection process for deciding what to exhibit, plaintiff cites to 20 U.S.C. § 75b.

Plaintiff’s Op. at 36. As plaintiff notes, this statutory section states that: (b) The Gallery shall function as a free public museum for the exhibition and study of portraiture and statuary depicting men and women who have made significant contributions to the history, development, and culture of the people of the United States and of the artists who created such portraiture and statuary.

20 U.S.C. § 75b. Plaintiff claims that this statutory section grants “free access to ‘public’ property” for the purpose of “artistic, historical and pictorial public speech in the form of twodimensional portraiture and three-dimensional statuary, by the artists who create the art . . . .”

Plaintiff’s Opp. at 11-12.

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On the contrary, the word “speech” is not mentioned in 20 U.S.C. § 75b, nor does this section grant any property rights, or rights of any kind, to any artists seeking to display their work in an exhibition in the Gallery. Instead, it merely states that the purpose of the Portrait Gallery is to function as a free museum where people may come to see and study the portraits and statues of significant men and women and the artists who created such works. There is nothing in this section that accords artists any right to exhibit their art in the Gallery, or even have their art considered for exhibition. Plaintiff clearly confuses the right to go to the Portrait Gallery, as any member of the general public may do, with the right to participate in what will be exhibited, or considered for exhibition, at the Portrait Gallery, which no member of the general public has the right to do.

Given that plaintiff’s due process argument rests upon such a faulty premise, the rest of his argument falls for lack of foundation. Plaintiff argues that the Portrait Gallery has “written, reasonable, legally-constituted, binding standards and procedures” for the “processing of trust beneficiary participation for portraiture considerations” but failed to adhere to its own standards for deciding whether to display an artistic piece of work. Plaintiff’s Opp. at 31. But nothing plaintiff cites demonstrates that the Portrait Gallery is compelled to accept every portrait meeting such standards, id. at 28, and, as plaintiff’s filing acknowledges, Director Sajet informed plaintiff that his portrait did not in fact meet the Gallery’s criteria. Id. at 22.

Plaintiff also cites to a website of frequently asked questions, including the question: “I Would Like to Donate an Object to the SI [Smithsonian Institution]. What Should I do?”

Plaintiff’s Opp. at 30, purporting to quote from https://www.si.edu/FAQs. Plaintiff alleges that the response used to be: The Smithsonian acquires thousands of objects and specimens each year for its collection holdings through donation, bequest, purchase, exchange, and field 12

collecting. The Institution accepts only items that truly fill a gap in the collection and only after careful consideration by museum curators and directors. Because of this rigorous selection process, the SI adds to its collection only a tiny percentage of what it is offered.”

Id. Plaintiff appears to argue that the “rigorous selection process” of “careful consideration by museum curators and directors” applies to every request to donate a piece of work, and that this was not applied in his case. Id. at 30-31.

Plaintiff, however, was not offering to donate his work to the Portrait Gallery. He specifically informed defendant Kurin: “I am not offering my work as a gift or requiring that you purchase or even consider my work for purchase, it is simply to show the work for the inauguration.” Plaintiff’s Ex. G at 2; Plaintiff’s Opp. at 19 (“. . . the next step in the life of the painting was up for grabs. Maybe the Trump portrait would have been donated to the SI?”).

Therefore, plaintiff’s reliance on this website quote regarding how requests to donate are handled is misplaced.

Nonetheless, plaintiff’s website quote does not state that a “rigorous selection process” will be applied to every offer received. Even for objects offered to the Smithsonian as a donation, plaintiff’s quote makes clear that an item is accepted by the Smithsonian only after careful consideration by museums curators and directors. That does not mean that a rejection can occur only after careful consideration by museum curators and directors. Indeed, it is easy to imagine that the Smithsonian must get numerous requests to donate an object that at first glance can be rejected as not needed or inappropriate. It would make no sense to require every single request, no matter how redundant or bizarre, be carefully reviewed by a curator and director.

Indeed, any confusion in this regard has been addressed in the current version of the answer to this question, which states:

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The Smithsonian acquires thousands of objects and specimens each year for its collection holdings through donation, bequest, purchase, exchange, and field collecting. Each museum and curatorial department decides on a case-by-case basis which objects to add to its collections. Donations are accepted only when the item truly complements the collection. We also consider whether we can properly care for an intended donation, as our collections are held in trust for the American people.

In order to make such decisions, our curators will need a few images of the objects you wish to donate, along with as much background information as you have. Please submit your donation request with the images included as attachments in one single e-mail to info@si.edu. If you wish to sell your item to the Smithsonian, you must also include your asking price. Once you provide the images and information in a single e-mail, we will forward your offer to the appropriate staff for consideration. Museum staff will contact you directly if they are interested in your offer. https://www.si.edu/FAQs. This current answer makes clear that requesters may submit an image of a suggested donation but they are entitled to no process with respect to that submission and will only hear from the Smithsonian if the Smithsonian is interested in the offer. Id. Plaintiff received more process for his offer of a loan then the average person offering a donation would receive, because he received a call from the Director of the Portrait Gallery regarding his offer and also had it considered by the Acting Provost of the Smithsonian.

Plaintiff, however, argues that if he had no right to apply to have his Trump portrait considered, then it makes no sense that his application received any response. Plaintiff’s Opp. at 35, 37. Plaintiff confuses the courtesy of a response, albeit one he did not like, with the establishment of a right. Unsurprisingly, he cites no authority that equates the two. Id. It would be an unfortunate day indeed if the government were to conclude that it must decline to respond to a citizen request out of fear that any such response will give rise to a legal right in the requester.

Plaintiff simply has failed to demonstrate any legally cognizable right that would give rise to an entitlement to constitutional due process.

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2. Equal Protection As noted in defendants’ opening memorandum, the Equal Protection Clause of the Fifth Amendment recognizes the existence of a claim concerning a “class of one” in cases “where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Defendant’s Mem. at 20-22. The requirement that the comparators be “similarly situated” is “not a mere formality. Rather, it serves to distinguish claims to the treatment that was afforded others, which can be cognizable under principles of equal protection, from bare complaints of governmental unfairness, which cannot.” Quezada v.

Marshall, 915 F. Supp.2d 129, 135 (D.D.C. 2013). Thus, “’class of one’ plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.” Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010).

Plaintiff argues that he is similarly situated to Bill Cosby, Tony Podesta, and Ian and Annette Cummings, all of whom plaintiff alleges had their art accepted and hung in the Smithsonian. Plaintiff’s Opp. at 24. As an initial matter, according to the website cited by plaintiff in his Amended Complaint, Bill Cosby’s art was exhibited in the National Museum of African-Art, not the Portrait Gallery. Amended Complaint, p. 52, lines 11-14. Additionally, plaintiff alleges that the Podesta “Hope” poster was donated, not loaned, to the Portrait Gallery.

Id. at p. 86, lines 18-21. Thus, neither of these individuals could be considered similarly situated to plaintiff, who sought only to loan his Trump portrait to the Portrait Gallery.

Nonetheless, according to plaintiff, Director Sajet considered his painting and rejected it because it was too big, too partisan, too political, not neutral enough, not created from life and no good. Amended Complaint, p. 25, line 14 – p. 26, line 19. In order to make a case that he was

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treated differently, without a rational basis, than other similarly situated individuals, plaintiff had to have alleged that the art from Bill Cosby, Tony Podesta and/or Ian and Annette Cummings, was accepted and displayed as a loan or a donation, despite being found by a Smithsonian official to be, at a minimum, one of the following: too big, too partisan, too political, not neutral enough, not created from life or no good. Vill. of Willowbrook, 528 U.S. at 564 (a “class of one” Equal Protection claim must involve similarly situated individuals). The Amended Complaint raises no such claims. Thus, plaintiff has failed to allege that he was treated differently than similarly situated individuals.

Plaintiff also argues that he was singled out for disparate treatment because he is a Trump supporter. Plaintiff’s Opp. at 25. Yet the Amended Complaint concedes that the Portrait Gallery owns four portraits of Mr. Trump, Amended Complaint, p. 31, line 16, and in fact displayed one such portrait during the inauguration. See id., p. 47, line 19. Thus plaintiff’s own Amended Complaint demonstrates that the Portrait Gallery has accepted and displayed other portraits of Mr. Trump.

Additionally, plaintiff does not dispute that the government’s decision to decline his offer to display another Trump portrait at the Gallery enjoys a presumption of rationality, and a complaint may plead facts that provide a rational basis for the decision. Compare Defendants’ Mem. at 21 with Plaintiff’s Opp. at 25. Here, plaintiff’s Amended Complaint has done exactly that, by alleging a multitude of rational reasons for rejecting his offer, as described above. Supra at 16.

Nonetheless, in his opposition plaintiff seizes on one reason allegedly given for the denial of his loan offer – that his portrait was not “appropriate” for display – and claims that reason was irrational because the Portrait Gallery allegedly has a practice of hanging portraits of presidents

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and “politically inspired, campaign art, by grassroots artists, for Presidential inaugural festivities.” 3 Plaintiff’s Opp. at 25. Plaintiff ‘s Amended Complaint, however, alleges several other grounds for the rejection of his offer, including the determination that his Trump portrait was simply no good. A finding that a portrait offered as a loan is not good enough for the Portrait Gallery clearly presents a rational basis for its rejection, regardless of the offeror’s disagreement with that conclusion.

Thus, plaintiff’s own Amended Complaint pleads facts that present a plausible basis for the rejection of his offer. Under such circumstances, plaintiff’s Equal Protection claim must be dismissed. See Hettinga v. United States, 677 F.3d 471, 479 (D.C. Cir. 2012) (dismissing equal protection claim after finding a rational basis).

C. Defendants are Entitled to Qualified Immunity.

Plaintiff does not dispute that qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); compare Defendants’ Mem. at 22-24 with Plaintiff’s Opp. at 19.

Plaintiff argues, without support, that a jury must decide this issue. Plaintiff’s Opp. at 20.

On the contrary, qualified immunity is decided by a factfinder only when there are disputed facts concerning a constitutional right of which a reasonable person would have known.

See Barham v. Ramsey, 556 F.3d 844, 849 (D.C. Cir. 2009). Plaintiff points to no law that even suggests that First Amendment or Fifth Amendment rights exist with respect to selection

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Plaintiff’s own brief further demonstrates the mootness of his case, given that with respect to this argument he discusses a Portrait Gallery practice during “Presidential inaugural festivities,” Plaintiff’s Opp. at 25. This further demonstrates his offer was limited to that time period, which has long since ended.

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decisions made at the Portrait Gallery, let alone that they were clearly established at the time defendants acted. See Plaintiff’s Opp. at 20-21. Moreover, the only allegedly disputed fact plaintiff points to is whether defendants’ decisions were motivated by anti-Trump bias and animus. Id. at 21. But even assuming for purposes of this motion plaintiff’s argument that defendants were motivated by such a subjective state of mind, subjective intent is irrelevant for qualified immunity purposes. Ashcroft v. al-Kidd, 563 U.S. 731, 736-37 (2011).

Plaintiff has failed to demonstrate that defendants violated any clearly established constitutional right. Accordingly, this Court should dismiss plaintiff’s Bivens claims against the individual defendants.

CONCLUSION For the reasons set forth herein, and those set forth in defendants’ prior memorandum, plaintiff’s Amended Complaint should be dismissed.

Respectfully submitted, JESSIE K. LIU, D.C. D.C. Bar # 472845 United States Attorney for the District of Columbia DANIEL VAN HORN, D.C. Bar #924092 Chief, Civil Division /s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL, D.C. Bar #416587 Assistant United States Attorney, U.S. Attorney’s Office - Civil Division 555 4th Street, N.W. Washington, D.C. 20530 Tel: (202) 252-2561 Marina.Braswell@usdoj.gov

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CERTIFICATE OF SERVICE I hereby certify that service of the foregoing reply brief has been made by email, and by mailing copies thereof to: Mr. Julius Marcus Raven 2524 Co. Rt. 60 Elmira, NY 14901 on May 21, 2018.

/s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL, Assistant United States Attorney, U.S. Attorney’s Office - Civil Division 555 4th Street, N.W. Washington, D.C. 20530