Smithsonian's Sajet & Dr. Kurin Represented by the DOJ Motion to Dismiss Trump Portrait Law Suit

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 1 of 37

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

) ) Plaintiff, ) ) v. ) Civil Action No. 17-1240 (CKK) ) KIM SAJET, Director, ) National Portrait Gallery, ) Smithsonian Institution, et al., ) ) Defendants. ) ______________________________) DEFENDANTS’ MOTION TO DISMISS Defendants1 hereby move to dismiss this action, pursuant to Rules 12(b)(1), (4), (5) and (6) of the Federal Rules of Civil Procedure, and on qualified immunity grounds. Certain of plaintiff’s claims are also subject to dismissal on mootness grounds and failure to exhaust administrative remedies. The Court is respectfully referred to the accompanying memorandum in support of this motion. A proposed order consistent with the relief requested is attached for the Court=s consideration.

Respectfully submitted, JESSIE K. LIU, D.C. D.C. Bar # 472845 1

According to the Amended Complaint filed on October 3, 2017 (Dkt. No. 16), plaintiff has named the following defendants: 1) Kim Sajet, Director of the National Portrait Gallery of the Smithsonian Institution; 2) Richard Kurin, Acting Provost of the Smithsonian Institution; and 3) the United States of America. Ms. Sajet and Dr. Kurin have been sued only in an individual capacity. See Dkt. No. 16 at 10-11. The United States has been sued under the Federal Tort Claims Act. Id. at 71. Although plaintiff’s Amended Complaint may be seeking to sue other individuals under the FTCA, none are listed as named defendants, compare Dkt. 16 at 1 with id. at 71, nor would they be proper party defendants for such a claim. See, e.g., 28 U.S.C. § 1346(b); FDIC v. Meyer, 510 U.S. 471, 477-79 (1994).

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 2 of 37

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

-2-

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 3 of 37

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

) ) Plaintiff, ) ) v. ) Civil Action No. 17-1240 (CKK) ) KIM SAJET, Director, ) National Portrait Gallery, ) Smithsonian Institution, et al., ) ) Defendants. ) ______________________________) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PRELIMINARY STATEMENT Plaintiff pro se, Julian Marcus Raven, requested that the Smithsonian Institution’s National Portrait Gallery (“Portrait Gallery”) consider hanging a portrait he created of thenpresidential candidate Donald J. Trump in the Gallery “as part of the festivities for the 2017 Inauguration.” Amended Complaint, Dkt. No. 16, p. 23, line 7.1 Plaintiff claims that defendants’ refusal to grant his request, or to allegedly properly consider his request, violated his rights under the First and Fifth Amendments to the U.S. Constitution, for which a Bivens2 action may lie against defendants in their individual capacities. Plaintiff also claims that defendants’ actions in connection with his request were negligent, thereby giving him a cause of action under the Federal Tort Claims Act (“FTCA”). Plaintiff is wrong on all counts.

1 2

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

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

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 4 of 37

Defendants move to dismiss this action on several grounds. With respect to plaintiff’s Bivens claims, plaintiff has failed to state a claim upon which relief may be granted. In light of the Supreme Court’s recent decision in Ziglar v. Abbasi, 137 S. Ct. 1843, 1866-69 (2017) (“Abbasi”), a Bivens action should not be recognized for the alleged First and Fifth Amendment claims set forth in the Amended Complaint.

Nonetheless, even were such claims to be recognized, the named defendants are entitled to qualified immunity regarding such claims because plaintiff has failed to allege any violation of a clearly established right or, for that matter, any legally cognizable right whatsoever. The Smithsonian is a trust instrumentality of the United States, and the decision as to which portraits and statues are chosen for display in the Portrait Gallery constitutes a matter of government speech not subject to the First Amendment. Although the Portrait Gallery is one of the Smithsonian’s public museums, the Court of Appeals for this Circuit has held that the Smithsonian and its museums are part of the United States and constitute governmental entities.

By statute the Portrait Gallery serves as a location for the display of portraits and statues selectively chosen by the government. To the extent that the portraits or statues selected are created by private parties, the Supreme Court has held that the mere fact that a private party creates the art chosen by the government does not render the display of that art private speech subject to First Amendment concerns and limitations. This principle clearly applies to government-run museums. Indeed, were it otherwise, the government would be hamstrung in its ability to achieve the congressionally-mandated purpose for which the Portrait Gallery was created, which is to “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,

2

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 5 of 37

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(b).

Members of the public also have no right under the Fifth Amendment to have any particular piece of work considered by the Portrait Gallery, to participate in the Portrait Gallery’s consideration process, or to appeal a decision made by the Portrait Gallery as to which pieces of work to display or not to display. By statute these decisions are made solely by the Smithsonian’s Board of Regents, as delegated to the National Portrait Gallery Commission or the Director (and staff) of the Portrait Gallery. Thus, plaintiff has no Fifth Amendment Due Process right at stake here.

The same is true for plaintiff’s Fifth Amendment Equal Protection claim. Plaintiff advances a “class of one” Equal Protection claim, which requires an allegation that plaintiff was treated differently than other similarly situated individuals and that there is no possible rational basis for the action taken against him. Plaintiff not only fails to allege that similarly situated individuals were treated differently than he was, but the Amended Complaint shows a rational basis for the decision plaintiff challenges – the Director of the Portrait Gallery and the Acting Provost of the Smithsonian Institution did not think plaintiff’s portrait was appropriate for display.

Thus, the Amended Complaint fails to state a claim for any First or Fifth Amendment violation. Consequently, there has been no violation pled of any clearly established First or Fifth Amendment right that would give rise to a Bivens claim.

Moreover, special factors counsel hesitation in the creation of a Bivens remedy here. The Supreme Court in Abassi has clearly discouraged the creation of new causes of action for a Bivens claim. Additionally, Congress created the Administrative Procedure Act as a

3

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 6 of 37

comprehensive vehicle for addressing violations of law, or arbitrary and capricious conduct, by government agencies and officials; the fact that the Smithsonian is not subject to this Act does not mean that a Bivens cause of action should be recognized here. Finally, there is an inherent problem with this Court weighing in on subjective decisions made by the Portrait Gallery or Smithsonian officials as to which portraits or statues should be displayed in the Portrait Gallery.

All of these considerations operate as special factors counseling against creating a Bivens remedy here.

Plaintiff also has failed to serve the defendants in their individual capacities so dismissal is appropriate on that ground as well. Nonetheless, the Court need not reach this issue because of the numerous alternate grounds for dismissal in this case.

To the extent that plaintiff seeks to have this Court adjudicate whether his portrait should be hung in the Portrait Gallery, plaintiff’s claim is also subject to dismissal on mootness grounds.

Plaintiff alleges that he wanted his portrait hung in connection with the 2017 Inauguration festivities. The 2017 Inauguration is long over and thus plaintiff’s claim for this relief is moot.

Finally, with respect to plaintiff’s claim brought under the FTCA, plaintiff has failed to exhaust his administrative remedies. Thus, this Court lacks jurisdiction to hear such a claim.

Notwithstanding this fatal defect, plaintiff has also failed to state a claim under the FTCA. He alleges the tort of negligence but, as shown below, he fails to identify any duty on which to base such a claim.

For all the reasons set forth below, this case should be dismissed.

FACTUAL BACKGROUND For purposes of this motion to dismiss, plaintiff’s factual allegations are accepted as true.

In 2015, plaintiff alleges that he created an 8x16 foot painting of then-presidential candidate

4

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 7 of 37

Donald J. Trump (the “Trump Portrait”). Amended Complaint, p. 22, lines 14-16. In November of 2016, following the election of President Trump, plaintiff contacted a Smithsonian Affiliate in Corning, New York, to request assistance in submitting an application to the Portrait Gallery in Washington, D.C. to have his Trump Portrait displayed at the Portrait Gallery in connection with the 2017 Inauguration. Id. at 23, lines 3-7. Plaintiff alleges that he was unable to obtain the assistance he wanted and, therefore, on December 1, 2016, he called Kim Sajet, Director of the Portrait Gallery, to inquire about the application process. Id. at p. 23, line 11 – p. 25, line 2.

Plaintiff claims that Director Sajet called him back and informed him that, for various reasons, the Portrait Gallery would not consider his painting for display in the Portrait Gallery. Id. at p.

25, line 14 – p. 26, line 19. Those reasons allegedly included that the portrait was “‘too big’ . . . too ‘Pro Trump’, ‘Too Political’, ‘not neutral enough’ and finally ‘no good.’” Id. at p. 26, lines 17-19. Director Sajet also purportedly said that the portrait “was not created from life, partially citing a Smithsonian Standard for portraiture acceptance.” Id. at p. 30, lines 17-19.

Plaintiff alleges that he appealed Director Sajet’s conclusion to the Smithsonian Board of Regents and that his appeal was decided by Dr. Richard Kurin, Acting Provost of the Smithsonian. Amended Complaint, pp. 42-43, 46-47. Dr. Kurin informed plaintiff that he concurred in Director Sajet’s decision. Id. at p. 48, lines 13-14.

Plaintiff alleges that the Portrait Gallery’s failure to consider his Trump Portrait for display violates his First Amendment right to engage in “political free speech” and consisted of “viewpoint discrimination.” Id. at p. 11, lines 9-14. See also, e.g., pp. 32-36. Plaintiff also claims that he had a Fifth Amendment right to have his Trump Portrait considered by the Portrait Gallery and that the failure to properly consider his portrait violated the Due Process and Equal Protection Clauses of the Fifth Amendment. Id. at p. 38, line 23 – p. 44, line 14.

5

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 8 of 37

Lastly, plaintiff claims that he has a right to bring his claims under the FTCA because of the purported negligence he encountered in connection with his attempts to have his Trump Portrait properly considered by the Portrait Gallery. Id. at p. 71, line 23 – p. 74, line 7. Plaintiff concedes, however, that he did not exhaust his administrative remedies under the FTCA but argues that the fault for that lies with defendants, who failed to tell him that he could bring a claim under the FTCA. Id. at p. 72, line 26 – p. 74, line 4.

ARGUMENT I.

Standard of Review Under Rules (b)(6) and (b)(1)

A Rule 12(b)(6) motion tests a complaint’s legal sufficiency. In ruling on a motion to dismiss, a court “must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations.”

Jovanovic v. US-Algeria Bus. Council, 561 F. Supp. 2d 103, 110 (D.D.C. 2008). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Supreme Court clarified the standard of pleading that a plaintiff must meet in order to survive a motion to dismiss under Rule 12(b)(6).

The Court noted that “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests[.]’” Id., (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 (1957)); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007). Although “detailed factual allegations” are not necessary to survive a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. While there is no “probability requirement at the pleading stage,” id. at 556, “something beyond . . . mere possibility . . . must be alleged[.]” Id. at

6

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 9 of 37

557-58. The facts alleged “must be enough to raise a right to relief above the speculative level,” id. at 555, or must be sufficient “to state a claim for relief that is plausible on its face.” Id. at 570. In clarifying this “plausibility standard,” the Court abandoned the “no set of facts” language from Conley. Id. at 560-61.

The Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009) (“Iqbal”), further clarified the plausibility pleading standard, explaining that it “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Id. at 678. Rather, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. The plausibility standard “asks for more than a sheer possibility that a defendant acted unlawfully. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’– ‘that the pleader is entitled to relief.’” Id. Further, the Court “need not accept inferences drawn by the plaintiff if such inferences are unsupported by the facts set out in the complaint. Moreover, the court is not bound to accept as true a legal conclusion couched as a factual allegation.” Jack’s Canoes & Kayaks, LLC v.

Nat’l Park Serv., 937 F. Supp.2d 18, 27 (D.D.C. 2013) (internal quotation marks and citations omitted). Thus, the plausibility pleading standard demands more than a sheer possibility that the defendant has acted unlawfully. Iqbal, 556 U.S. at 678. A complaint that offers “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “pleads facts that are merely consistent with a defendant’s liability, [] stops short of the line between possibility and plausibility of entitlement to relief,” and is insufficient to withstand a Rule 12(b)(6) motion to dismiss. Id. (quoting Twombly, 550 U.S. at 555, 557) (internal quotation marks omitted).

7

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 10 of 37

On a Rule 12(b)(6) motion to dismiss, the Court may consider, in addition to the facts alleged in the Complaint, documents either attached to, or incorporated into the Complaint by reference, as well as matters of which it may take judicial notice, such as “official court records” and other publicly-available government records. Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006); Ashborne v. Hansberry, 245 F. Supp.3d 99, 103 (D.D.C. 2017); Lipton v.

MCI Worldcom, Inc., 135 F. Supp.2d 182, 186 (D.D.C. 2001) (“[T]he court may consider the defendants’ supplementary material without converting the motion to dismiss into one for summary judgment. This Court has held that ‘where a document is referred to in the complaint and is central to the plaintiff’s claims, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment.’”).

In assessing a motion to dismiss a pro se plaintiff’s Complaint for failure to state a claim, the Court presumes that the factual allegations of the Complaint are true and construes those allegations liberally in the plaintiff’s favor. Hardaway v. D.C. Hous. Auth., 843 F.3d 973, 976 (D.C. Cir. 2016). Nonetheless, “even a pro se plaintiff must meet his burden of stating a claim for relief.” Horsey v. U.S. Dep't of State, 170 F. Supp.3d 256, 263-64 (D.D.C. 2016).

The Complaint=s factual allegations A>will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion[.]=@ Grand Lodge of Fraternal Order of Police v.

Ashcroft, 185 F. Supp.2d 9, 13 (D.D.C. 2001) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure ' 1350 (2d ed. 1990)). Additionally, the Court may consider matters beyond the allegations of the Complaint in disposing of a Rule 12(b)(1) motion.

See, e.g., Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003). A[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in

8

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 11 of 37

the record, or the complaint supplemented by undisputed facts plus the court=s resolution of disputed facts.@ Herbert v. National Academy of Sciences, 974 F. 2d 192, 197 (D.C. Cir. 1992) (citations omitted). See also Coalition for Underground Expansion, 333 F.3d at 198. Thus, the Court may undertake an independent inquiry to determine its subject matter jurisdiction. See Haase v. Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987).

Where a defendant challenges subject matter jurisdiction under Rule 12(b)(1), the plaintiff bears the burden of demonstrating jurisdiction by a preponderance of the evidence. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Dismissal is mandatory when plaintiff fails to meet this burden. E.g., Tyson v. Brennan, -- F. Supp.3d --, 2017 WL 4402387, at *5 (D.D.C. Sept. 30, 2017).

II.

Plaintiff’s Bivens Claims Fail to Allege a Constitutional Claim and, Even if They did, Dismissal is Warranted on Qualified Immunity Grounds.

Put in the light most favorable to plaintiff, he has alleged that his First Amendment and Fifth Amendment rights were violated when his request to have his Trump Portrait hung at the Portrait Gallery in connection with the 2017 Inauguration failed to be properly considered and was denied by the Portrait Gallery. Plaintiff, however, fails to state a claim for relief under these circumstances.

To begin, the Supreme Court recently reiterated in Abbasi that it has only recognized an implied cause of action under Bivens in three circumstances: a Fourth Amendment claim (see Bivens); a Fifth Amendment claim for gender discrimination (Davis v. Passman, 442 U.S. 228 (1979)); and an Eighth Amendment claim for cruel and unusual punishment in the prison context. Carlson v. Green, 446 U.S. 14 (1980). See Abbasi, 137 S. Ct. at 1854-57 (“expanding the Bivens remedy is now considered a ‘disfavored’ judicial activity.”) (citing Iqbal, 556 U.S. at 675). Although other judges on this Court, in other circumstances, have recognized a First 9

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 12 of 37

Amendment Bivens claim, see, e.g., Pinson v. U.S. Department of Justice, 246 F. Supp.3d 211, 220-21 (D.D.C. 2017) (prisoner stated Bivens claim for First Amendment retaliation); Hartley v.

Wilfert, 918 F. Supp.2d 45 (D.D.C. 2013) (Bivens claim recognized for violation of First Amendment rights of demonstrator) (see cases cited therein); Thompson v. District of Columbia, 428 F.3d 283, 286 (D.C. Cir. 2005) (Bivens claim for retaliatory firing of a public employee), none of these cases bear any resemblance to the instant action. Indeed, plaintiff concedes that “[a] First Amendment political free speech ‘Bivens Action’ will be considered a new context and a new cause of action.” Amended Complaint, p. 11, lines 11-12.

Here, plaintiff would have this Court infer a First Amendment cause of action for defendants’ failure to hang a portrait that he had created in the Portrait Gallery. But the decision to hang a particular piece of art in a Smithsonian museum constitutes government speech that fails to implicate the First Amendment in any respect. And because the decision to display a particular piece of art in a Smithsonian museum is made solely by the government, and plaintiff was not treated differently than other similarly situated individuals with no rational basis, plaintiff also fails to state any claim for a violation of the Fifth Amendment’s Due Process or Equal Protection clauses.

A. Plaintiff’s First Amendment Claims.

1. The Factors Establishing Government Speech In order for this Court to assess whether plaintiff has stated a claim under the First Amendment’s Free Speech Clause, the analysis must begin with identifying the type of speech at issue. Although the regulation of private speech is subject to varying levels of First Amendment protection, depending upon the forum in which the speech occurs, the Supreme Court has made clear, repeatedly, that the government is entitled to use government property to engage in

10

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 13 of 37

government speech, as long as such use is within reason. The First Amendment’s Free Speech Clause does not apply to government speech.

In Walker v. Texas Div., Sons of Confederate Veterans Inc., 135 S. Ct. 2239 (2015), the Supreme Court considered a First Amendment challenge to the state’s rejection of a request for a specialty car license plate featuring a Confederate battle flag. The Court began by emphasizing that the government is entitled to engage in its own speech. Id. at 2246. In order to determine whether the speech at issue constituted government speech, the Court looked to three different factors: (1) whether the forum is one which the government traditionally uses to speak to the public; (2) whether a reasonable person observing the speech would interpret it as conveying a message on behalf of the government; and (3) whether the government maintained control over the speech conveyed. Walker; 135 S. Ct. at 2247.

The Court concluded that the history of license plates has traditionally communicated messages from the states, because they contain the name of the state, a state issued vehicle identification number, and a slogan selected by the state to “urge action, to promote tourism, and to tout local industries.” Id. at 2248. The Court next found that license plates are closely associated in the public’s mind with the government, because they are required by the government for vehicle registration and identification; they bear the name of the state; the state dictates the type of designs placed on the license plates; and the state dictates how a driver may dispose of the plate when no longer used. Id. Therefore, any individual looking at a license plate would interpret any language or design on the plate as conveying a message endorsed by the state. Id. at 2249. Finally, the Court held that the state maintains direct control over everything placed on a license plate. Id. Taking these three considerations together, the Court easily concluded that license plates convey government speech. Id. at 2249.

11

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 14 of 37

The Court’s decision in Walker was based in large part on its prior decision in Pleasant Grove City v. Summum, 555 U.S. 460 (2009), in which a religious organization sought permission to erect a permanent monument with religious messages in a public park that already contained other permanent monuments, including a Ten Commandments monument that had been donated by a private organization. Id., 555 U.S. at 464-65. The city had selectively chosen the permanent monuments it wished to display in the park. Id. at 473. The Supreme Court made clear that it has repeatedly held that the government has the right to engage in its own speech.

Id. at 467, citing, e.g., Johanns v. Livestock Marketing Ass’n, 544 U.S. 550, 553 (2005); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 139, n.7 (1973) (Stewart, J., concurring); Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000).

With respect to the three considerations applied in Walker, the Court in Summum concluded that “[p]ermanent monuments displayed on public property typically represent government speech” because “[g]overnments have long used monuments to speak to the public.”

Id. Additionally, the Court found that members of the public associate public parks with the government. 555 U.S. at 470, 472. Finally, the Court noted that the city controlled the messages conveyed by the monuments because it had final approval over which monuments were selected to be placed in the park. Id. at 472-73.

2. The Displays in the Portrait Gallery Meet the Walker/Summum Tests for Government Speech The facts at issue here plainly meet the Walker/Summum test for government speech.

First, the Smithsonian is a part of the United States, created as a trust instrumentality of the United States government. See O’Rourke v. Smithsonian Institution Press, 399 F.3d 113, 114-15 (2d Cir. 2005). The Court of Appeals for this Circuit has held that the Smithsonian museums 12

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 15 of 37

constitute governmental entities. Expeditions Unlimited Aquatic Enter. v. Smithsonian Institution, 566 F.2d 289, 296 (D.C. Cir. 1977) (Smithsonian is an “independent establishment of the United States” covered by the Federal Tort Claims Act); Dodge v. Trustees of the National Gallery of Art, 326 F. Supp.2d 1, 11 (D.D.C. 2004) (“the D.C. Circuit [in Expeditions Unlimited] has specifically found that the Smithsonian Museums qualify as governmental entities”). The Portrait Gallery was created expressly to “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(b). The portraits and statues exhibited by the Gallery are selectively chosen by governmental representatives, whether they be the Board of Regents for the Smithsonian, or their delegees the National Portrait Gallery Commission or the Director (and staff) of the Portrait Gallery. See 20 U.S.C. §§ 75a-f. These portraits and statues are selected based on factors prescribed by Congress in the statute creating the Portrait Gallery. See 20 U.S.C. § 75e(1) (“The Board may acquire any such item on the basis of its general historical interest, its artistic merit, or the historical significance of the individual to which it relates, or any combination of any such factors.”).

As the Court of Appeals for this Circuit recognized 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. When the government runs a museum, it is not regulating private speech subject to the First Amendment. Id. at 29. Instead, it is engaged in government speech which may well include viewpoint discrimination. Id. See Pulphus v. Ayers, 249 F. Supp.3d 238, 254 (D.D.C. 13

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 16 of 37

2017) (Congressional art competition resulting in display on the walls in the Cannon Tunnel on the Capitol Grounds constitutes government speech).

In selecting the portraits to be hung, the Portrait Gallery decides how it desires to encourage such creative endeavors consistent with the appropriate level of decorum for the institution. See Summum, 129 S. Ct. at 1133 (“When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.”). Even if the Portrait Gallery used private funds to help defray some of its costs, or solicited private involvement in its decision-making process, it still would constitute government speech. As the Court of Appeals stated in PETA: 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.

Second, members of the public seeing the display of portraits and statues in the Portrait Gallery would reasonably assume that they are endorsed by the government. The displays are on the walls of a government building, and clearly represent selective choices made by the Portrait Galley. Just like the monuments in the public park in Summum, members of the public would reasonably assume that the Portrait Gallery is conveying a message by its choice of portraits to hang on the walls of the Portrait Gallery. See Summum, 129 S. Ct. at 1133.

Third, there is no dispute that the government maintains control over the displays of portraits and statues in the Portrait Gallery. Under 20 U.S.C. § 75e, the Board of Regents for the Smithsonian, or its designee, is responsible for acquiring items for the Portrait Gallery consistent with Congress’s statutory factors, displaying them, storing them, disposing of them, and similar 14

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 17 of 37

activities. Through all these procedures, the government keeps significant control over the portraits and statues it chooses to display in the Portrait Gallery. See Walker, 135 S. Ct. at 2249 (Texas effectively controlled all the messages on license plates by exercising final approval over their selection); Pulphus, 249 F. Supp.3d at 250 (maintaining editorial control over art selected to be hung on government wall demonstrates government speech in this context).

Thus, the facts presented here easily meet the test set out in Walker/Summum for a finding of government speech.

3. Government Speech that Includes Submissions from Private Parties Remains Government Speech Even if private parties give or loan portraits or statues to the Portrait Gallery, in both Walker and Summum, the Supreme Court made clear that the mere fact that the government speech is aided by actions taken by a private entity does not necessarily destroy the government character of the speech.

In Summum, the permanent monuments that the city accepted for installation in its park were often privately funded or donated. Nonetheless, the Court clearly held that “[a] government entity may exercise the same freedom to express its views when it receives assistance from private sources for the purpose of delivering a government-controlled message.” Id., 555 U.S. at 468. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995). Indeed, “[j]ust as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land.” Summum, 555 U.S. at 470-471.

Similarly in Walker, the fact that a license plate message may be suggested by a private party did not alter the government nature of the message. Id., 135 S. Ct. at 2251. As the Supreme Court stated, “[t]he fact that private parties take part in the design and propagation of a 15

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 18 of 37

message does not extinguish the government nature of the message or transform the government’s role into that of a mere forum-provider.” Id.; Pulphus, 249 F. Supp.3d at 251 (art created by private parties controlled by the government during the exhibit thereby constituting government speech).

These principles are plainly applicable to the government’s choice of portraits and statues to be placed on government property. The fact that the portraits and statues chosen were created by a private party in no way alters the applicability of the government speech doctrine. The government still exercises its discretion to choose the pieces to display in the Portrait Gallery, and the exercise of editorial discretion in selecting and presenting third-party speech is itself a speech activity. Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998).

Indeed, the Court of Appeals for this Circuit addressed this very issue in PETA. In that case, the Court of Appeals considered whether the District of Columbia’s Commission on Arts and Humanities’ program to showcase local artists “‘with creative, humorous art,’” called the “Party Animals Program,” to be displayed on city spaces implicated the First Amendment rights of PETA, a private organization, whose proposed display was rejected by the Commission. The Commission invited artists to submit sculptures of donkeys and elephants for display at various public locations around the city. Id. at 25. The District Court had concluded that the rejection of PETA’s display constituted impermissible viewpoint discrimination in violation of the First Amendment, because the Commission had acted inconsistently in its treatment of art pieces accepted. People for the Ethical Treatment of Animals v. Gittens, 215 F. Supp.2d 120, 131-134 (D.D.C. 2002).

The Court of Appeals reversed. The Court of Appeals concluded that the District’s Commission was engaged in government speech:

16

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 19 of 37

[w]hen it determined which elephant and which donkey models to include in the exhibition and which not to include. In using its ‘editorial discretion in the selection and presentation of’ the elephants and donkeys, the Commission thus ‘engage[d] in speech activity’; ‘compilation of the speech of third parties’ is a communicative act.

PETA, 414 F.3d at 28 (citation omitted).

Similarly, the Court in Pulphus observed that: The federal government has traditionally acted as an arts patron, which does convey a kind of message about the government’s support for art – or at least art the government chooses to sponsor.

Id., 249 F. Supp.3d at 248. Such sponsorship conveys a government message constituting government speech. See id. at 254.

Thus, the fact that private parties are involved in creating the art displayed in the Gallery in no way undermines the nature of the government speech at issue here.

C.

Government Speech Does not Implicate the Free Speech Clause of the First Amendment.

Not only does the government have a right to its own speech, but when it exercises that right the Free Speech Clause of the First Amendment is not implicated. Summum, 555 U.S. at 467. “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.” Id. In Walker the Supreme Court reiterated that “[w]hen the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” Id. at 2245. “[G]overnment statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.”

Id. at 2245-46. The Court emphasized its prior holding in Bd. of Regents of Univ. of Wis. System v. Southworth, that “‘the government can speak for itself[,]’” and need not, when doing so, include alternative views. Walker, 135 S. Ct. at 2246 (quoting Southworth, 529 U.S. at 229).

17

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 20 of 37

In light of the fact that the First Amendment’s Free Speech Clause does not apply to government speech, plaintiff’s allegation that the Portrait Gallery constitutes a limited public forum, Amended Complaint, p. 16, line 20, is misplaced. The forum analysis applies in the First Amendment context when the government regulates private speech. See, e.g., Perry Educational Ass’n v. Perry Local Educators, 460 U.S. 37, 44 (1983). The Court of Appeals in PETA made clear that the forum analysis is inapplicable to government speech.

In PETA the plaintiff argued that the city’s sponsorship of the “Party Animals” program created a limited public forum in which the government could limit the subject of the program but could not discriminate based on viewpoint. PETA, 414 F.3d at 28. The Court of Appeals disagreed. The Court concluded that “public forum principles ‘are out of place in the context of this case.’” Id. (quoting United States v. American Library Ass’n, 439 U.S. 194, 205 (2003) (plurality opinion)). As the Court noted, “[p]ublic forums and designated public forums give private speakers an easement to use public property.” PETA, 414 F.3d at 29. The “Party Animals” Program created no easement for private speakers to use public property. Id. If the Party Animals Program in PETA failed to constitute a designated or limited public forum, then the Portrait Gallery certainly fails to constitute a limited public forum. Any argument to the contrary could wreak havoc on the government’s role as a patron of the arts.

Under plaintiff’s theory in the Amended Complaint, if the National Gallery of Art (the example in PETA) received private funds to help defray the cost of an exhibition, or allowed private parties to help select which pieces of art would be part of an exhibition, this would somehow transform the National Gallery of Art into a limited public forum creating First Amendment rights in artists who arguably fell within the guidelines of a particular exhibition. The Court of Appeals in PETA pointed to this as an example of the natural extension of the plaintiffs’

18

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 21 of 37

argument in that case and rejected such a result. Id., 414 F.3d at 30. The same result is warranted here, given that the natural extension of plaintiff’s argument here would have the same result here with respect to the Portrait Gallery.

As the Court of Appeals held in PETA, “[t]he First Amendment’s Free Speech Clause does not apply to the government as communicator.” Id., 414 F.3d at 30-31. It would be strange indeed to hold that the government may not favor its own expression in a government-owned museum, when it is under a statutory obligation that dictates the type of portraits and statues it may choose to display, and where space necessarily limits the selective choices that can be made.

Thus, plaintiff has failed to state a claim for a violation of the First Amendment.

B. Plaintiff’s Fifth Amendment Claims.

Plaintiff also fails to state a claim for any Fifth Amendment violation. As demonstrated above, the Portrait Gallery is a government entity that displays portraits and statues chosen by the government pursuant to the statutory mandate creating the Portrait Gallery.

The Due Process Clause of the Fifth Amendment prohibits the government from depriving an individual of life, liberty or property without due process of law. But not all interests are protected. As the Supreme Court made clear long ago, “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire” and “more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Plaintiff concedes as much.

Amended Complaint, p. 14, lines 19-25. Such entitlements are not created by the Constitution; the source for such an entitlement must stem from an independent source, such as state or federal law. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005); Paul v. Davis, 424 U.S.

19

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 22 of 37

693, 709 (1976). A benefit is not entitled to Fifth Amendment protection if the government may grant or deny the benefit as a matter of discretion. Town of Castle Rock, Colo., 545 U.S. at 756.

Plaintiff alleges that that he has a “‘property’ right to apply to the Smithsonian” to have his Trump Portrait considered for hanging in the Portrait Gallery. Amended Complaint, p. 15, line 15. Yet he fails to allege that any procedures have been established to govern participation from private parties that would suggest any property right in applying to have a portrait considered for display by the Portrait Gallery.

Nonetheless, even though the absence of a legally cognizable interest to support a Fifth Amendment Due Process Claim by itself warrants dismissal of plaintiff’s claim, the Amended Complaint alleges that plaintiff in fact received senior-level consideration of his offer to display his portrait, satisfying any procedural due process requirement. His offer to display his portrait was considered by the Director of the Portrait Gallery and the Acting Provost of the Smithsonian.

See, supra, at 4-5. The fact that plaintiff does not like the conclusions both individuals reached does not mean that he was denied procedural due process.

Plaintiff has also fails to state a claim for a violation of the Equal Protection Clause of the Fifth Amendment. The Fifth Amendment’s guarantee of equal protection requires the government to treat similarly situated individuals or groups in a similar manner. E.g. Grissom v.

District of Columbia, 853 F. Supp.2d 118, 126 (D.D.C. 2012). Plaintiff seeks here to bring a “class of one” equal protection claim, which the Supreme Court has recognized “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); see, e.g., 3883 Connecticut LLC v. District of Columbia, 336 F.3d 1068, 1075 (D.C. Cir. 2003) (holding that the “two essential elements of [a] ‘class of

20

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 23 of 37

one’ equal protection claim are: (1) disparate treatment of similarly situated parties (2) on no rational basis.”).

The government’s decision, however, enjoys a presumption of rationality and in order to overcome it, a plaintiff must negate “any reasonably conceivable state of facts that could provide a rational basis for the classification[,]” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (internal quotation marks and citation omitted). This standard is “highly deferential” to the government. Dixon v. Dist. of Columbia, 666 F.3d 1337, 1342 (D.C. Cir. 2011). An equal protection claim fails under Rule 12(b)(6) if the Complaint itself suggests a rational basis for the government action. See Miller v. City of Monona, 784 F.3d 1113, 1121 (7th Cir. 2015) (“[I]t is possible for plaintiffs to plead themselves out of court if their complaint reveals a potential rational basis for the actions of local officials.”); cf. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116 (D.C. Cir. 2000) (“In some cases, it is possible for a plaintiff to plead too much: that is, to plead himself out of court by alleging facts that render success on the merits impossible.”).

Here, the Amended Complaint contains allegations that clearly survive a rational basis review. Plaintiff alleges that 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. See, supra at 4. Dr. Kurin concurred in Director Sajet’s decision to decline plaintiff’s offer to display his Trump Portrait. Id. at 5. Even if Director Sajet and Dr. Kurin’s decisions were wrong, those decisions still pass constitutional muster as rational. See Hettinga v. United States, 677 F.3d 471, 479 (D.C. Cir. 2012) (dismissing equal protection claim after finding a rational basis).

Additionally, the Supreme Court in Perry Educ. Ass’n, 460 U.S. at 54, held that when Fifth Amendment claims are related to First Amendment claims, “on government property that has not been made a public forum, not all speech is equally situated, and the state may draw

21

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 24 of 37

distinctions which relate to the special purpose for which the property is used” and such distinctions do not violate the Equal Protection Clause of the Fifth Amendment.” Id. Plaintiff’s allegations in the Amended Complaint claim are that his speech was treated differently than others, see Amended Complaint, p. 30, lines 19-25 (but no allegation the others were similarly situated), on government property which, as a matter of law is not a public forum.

As the

Supreme Court found in Perry, such allegations fail to state a claim for any violation of the Equal Protection Clause of the Fifth Amendment.

Thus, plaintiff has failed to state a claim for a violation of the Due Process or Equal Protection Clauses of the Fifth Amendment, C. Defendants are Entitled to Qualified Immunity.

Even were the Court to conclude that the Amended Complaint stated some First Amendment or Fifth Amendment claim, such a claim would fail because defendants are entitled to qualified immunity. 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). This is an “exacting standard”, City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015), and in applying it, it is well-settled that government officials such as the individual defendants in this case enjoy qualified immunity from constitutional and statutory claims against them. See Saucier v. Katz, 533 U.S. 194, 200-01 (2001); Anderson v. Creighton, 483 U.S. 635, 640 (1987); Cleavinger v. Saxner, 474 U.S. 193, 206 (1985); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Harlow v. Fitzgerald, 457 U.S. at 818. To determine whether a government official’s conduct violates clearly established law, “a court must ask whether it

22

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 25 of 37

would have been clear to a reasonable [] [federal employee] that the alleged conduct was unlawful in the situation he confronted.” Abbasi, 137 S.Ct. at 1867.

The fundamental purpose of qualified immunity is to protect public officials “from the costs associated with the defense of damages actions” by rooting out meritless lawsuits at the earliest point possible in the litigation process. Crawford-El v. Britton, 523 U.S. 574, 590 (1998). As explained in Davis v. Scherer, 468 U.S. 183, 197 (1984), “[a] plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official’s qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue.” Id. Moreover, “[e]ven defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard.” Id. at 190.

Accordingly, a government official is protected by qualified immunity “unless ‘[t]he contours of the right [were] sufficiently clear that a reasonable official would [have] underst[ood] that what he [was] doing violate[d] that right.’” Farmer v. Moritsugu, 163 F.3d 610, 613 (D.C. Cir. 1998); see Abbasi, 137 S. Ct. at 1867. Thus, to be subject to liability, “‘existing precedent’” must have “‘placed the statutory or constitutional question beyond debate.’” Sheehan, 135 S. Ct. at 1774 (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)). Whether a government official is protected from civil damages by qualified immunity depends on “whether the plaintiff has alleged the deprivation of an actual constitutional right,” and “whether that right was clearly established at the time of the alleged violations.” Int’l Action Ctr. v. United States, 365 F.3d 20, 24 (D.C. Cir. 2004) (internal quotation marks and citations omitted). Courts may “exercise their sound discretion in deciding which of the two prongs . . . should be addressed first in light of the circumstances in the particular case at hand.” Pearson v.

23

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 26 of 37

Callahan, 555 U.S. 223, 236 (2009) (removing the requirement of courts to adhere to the linear two-step process previously required by Saucier v. Katz, 533 U.S. 194 (2001)).

Litigants can prevail only if they show “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al–Kidd, 563 U.S. at 735. For a right to have been “clearly established,” it must have been “‘clear to a reasonable officer that the alleged conduct ‘was unlawful in the situation he confronted.’” Abbasi, 137 S. Ct. at 1867 (quoting Saucier v. Katz, 533 U.S. at 202).

The Supreme Court has cautioned not to define the right at too high a level of generality; instead, the right must be examined in its “particularized” context. See Reichle v. Howards, 566 U.S. 658, 665 (2012).

Here, there was no clear and binding authority that addresses plaintiff’s situation, and the Supreme Court has made clear that it is cautious not to create such causes of action where such a claim has not been previously recognized. See Abbasi, 137 S. Ct. at 1856-57. Indeed, as demonstrated above in defendant’s discussion of government speech, the law is contrary to plaintiff’s claims. Under these circumstances, plaintiff cannot establish a violation of a constitutional right and, if such a right could be found, it was not clearly established at the time Director Sajet and Dr. Kurin made their respective decisions. Thus, defendants are entitled to qualified immunity.

D.

Special Factors Counsel Hesitation in the Creation of a Bivens remedy

The courts have recognized that special factors counseling against the creation of an alternative Bivens-type remedy must be recognized where a comprehensive statutory scheme has been established to provide relief in a given area. See Wilson v. Libby, 535 F.3d 697, 704-10 (D.C. Cir. 2008) (concluding that the Privacy Act constitutes a special factor precluding a Bivens 24

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 27 of 37

remedy, even though the statute does not afford complete relief to the plaintiffs); Davis v.

Billington, 681 F.3d 377, 381-82 (D.C. Cir. 2012); Mittleman v. U.S. Treasury, 773 F. Supp.

452, 454 (D.D.C. 1991) (Privacy Act bars plaintiff's constitutional claims); Weiss v.

International Brotherhood of Electrical Workers, 729 F. Supp. 144, 147 (D.D.C. 1990) (to the extent that plaintiff's emotional injuries were the result of the stressful work situation created by the defendant, her claim of intentional infliction of emotional distress must be dismissed as subsumed within Title VII) (and cases cited therein); Spagnola v. Mathis, 859 F.2d 223, 229-30 (D.C. Cir. 1988) (en banc) (recognizing the exclusivity of the Civil Service Reform Act’s remedies); see also Bush v. Lucas, 462 U.S. 367 (1983) (comprehensive procedural and substantive provisions of the Civil Service Reform Act constitute “special factors” counseling hesitation against a Bivens remedy); Schweiker v. Chilicky, 487 U.S. 412 (1988) (Social Security Disability Benefits Reform Act of 1984); see also Brown v. GSA, 425 U.S. 820 (1976) (Title VII is the sole remedy for federal employees complaining of job discrimination on account of sex or race); Gleason v. Malcomb, 718 F.2d 1044, 1048 (11th Cir. 1983) (special factors counsel against a Bivens remedy where plaintiff could have sought equitable relief pursuant to the Administrative Procedure Act (“APA”))3; Isasi v. Office of Atty. Gen., 594 F. Supp.2d 12, 14 (D.D.C. 2009) (Freedom of Information Act operated as a special factor precluding Bivens remedy); GasPlus, L.L.C. v. U.S. Dep’t of Interior, 466 F. Supp.2d 43, 50 (D.D.C. 2006) (APA constitutes special factor warranting dismissal of Bivens claims); Dearsman v. Kurtz, 516 F. Supp. 1255, 1259-60 (D.D.C. 1981) (Civil Service Reform Act and Title VII constituted

3

See also Sloan v. HUD, 231 F.3d 10, 12 (D.C. Cir. 2002) (recognizing the district court’s dismissal of Bivens claims based on APA special factors analysis, but affirming on other grounds).

25

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 28 of 37

exclusive remedies for adverse actions and discrimination in the federal workplace, precluding plaintiff's due process claims); see also United States v. Stanley, 483 U.S. 669, 683-84 (1987) (special factors counselling hesitation include the unique disciplinary structure of the Military Establishment and Congress’ activity in the field).

The Court of Appeals has explained the special factors analysis as follows: One “special factor” that precludes creation of a Bivens remedy is the existence of a comprehensive remedial scheme. In Bush v. Lucas, 462 U.S. 367 (1983), the Court held that the federal civil service laws were a “special factor” that precluded additional Bivens remedies because they constituted “an elaborate remedial system that ha[d] been constructed step by step, with careful attention to conflicting policy considerations” and thereby reflected Congressional judgment about the type and magnitude of relief available. Id. at 388B90. The scheme did not provide “complete relief” to the plaintiff, but the Court held that the special factors inquiry does “not concern the merits of the particular remedy that was sought” or its completeness. Id. at 380, 388. *** Most recently, in Wilkie v. Robbins, 127 S.Ct. 2588 (2007), the Court again held that the creation of a Bivens remedy is not required solely because there is no alternative statutory remedy. In Wilkie, there was no comprehensive scheme demonstrating “that Congress expected the Judiciary to stay its Bivens hand,” but the Court declined to imply a Bivens remedy nonetheless. Id. at 2600. The Court held that a remedy for allegedly harassing conduct of government officials would “come better, if at all, through legislation [because] ‘Congress is in a far better position than a court to evaluate the impact of a new species of litigation’ against those who act on the public=s behalf.” Id. at 2604B05 (quoting Bush, 462 U.S. at 389).

Wilson v. Libby, 535 F.3d 697, 705-06 (D.C. Cir. 2008).

Moreover, those same considerations that caused the Court in Mulligan v. Nichols, 835 F.3d 983 (9th Cir. 2016), to eschew a Bivens action to protect the ability of government actors to present their views of an issue act as special factors that counsel against the creation of a Bivens remedy. See Mulligan, 835 F.3d at 989 (“Retaliation claims involving government speech warrant a cautious approach by courts. Restricting the ability of government decisionmakers to engage in speech risks interfering with their ability to effectively perform their duties. It also 26

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 29 of 37

ignores the competing First Amendment rights of the officials themselves.”) (citing McCullen v.

Coakley, 134 S. Ct. 2518, 2529 (2014) (noting the First Amendment’s purpose to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail) (citing FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984)).

The APA provides a comprehensive remedy for actions by government officials that violate the law or that are arbitrary and capricious or not supported by a record. The fact that it does not cover the Smithsonian museums does not mean that a Bivens claim should be created here. Accord Wilson v. Libby, 535 F.3d at 704-10 (failure of Privacy Act to provide a remedy did not warrant creation of Bivens remedy). Instead, the existence of a comprehensive scheme like the APA is a special factor counselling against the creation of a Bivens remedy.

Moreover, as the Supreme Court stated more recently in Abbasi, “[t]he decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide.” Id., 137 S. Ct. at 1858. The government as a patron of the arts could be stopped in its tracks in such a capacity if every decision as to which piece of art to sponsor in a government museum could expose the government decisionmakers to suits in their personal capacity, with the attendant burdens and costs; such a consequence should clearly constitute a “special factor counseling hesitation” in the creation of the new Bivens remedy that plaintiff seeks here. This is especially true given that any decision to create a Bivens remedy under the facts presented here would also pull the judiciary into micro-managing selection decisions made by the Smithsonian museums. This is yet another “special factor counseling hesitation” in the creation of the new Bivens remedy for the facts alleged in the Amended Complaint.

Based on the foregoing, this Court should decline to extend a Bivens remedy based on the facts alleged in the Amended Complaint.

27

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 30 of 37

E. Plainiff’s Bivens Claims Should be Dismissed for Lack of Proper Service and Personal Jurisdiction This Court is without personal jurisdiction over the individual defendants in the absence of proper service. It is well established that, in an action against a federal employee in an individual capacity, the individually-sued defendant must be served with process in accordance with rules applicable to individual defendants. See Fed. R. Civ. P. 4(e); Simpkins v. District of Columbia Government, 108 F.3d 366, 369 (D.C. Cir. 1997); Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C. 1978); Navy, Marshall & Gordon v. U.S. International Development-Corporation Agency, 557 F. Supp. 484, 489 (D.D.C. 1983); Delgado v. Bureau of Prisons, 727 F. Supp. 24 (D.D.C. 1989); Williams v. GEICO Corp., 792 F. Supp.2d 58, 66 (D.D.C. 2011); Chen v.

District of Columbia, 256 F.R.D. 263, 266 (D.D.C. 2009) (dismissing claim against defendant where the plaintiff merely mailed a copy of the summons and complaint to the defendant=s place of work). And, under Fed. R. Civ. P. 12(b)(5), a party can move to dismiss for insufficient service of process. Id.; Hammond v. Federal Bureau of Prisons, 740 F.Supp.2d 105, 108 (D.D.C. 2010) (“’[T]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law.’” Hammond, 740 F.Supp.2d at 108 (citation omitted).

Where, as here, a plaintiff seeks relief against a defendant in an individual capacity, the Court must acquire personal jurisdiction in order to enter a binding judgment, Reuber v. United States, 750 F.2d 1039, 1049 (D.C. Cir. 1984); Dominguez v. District of Columbia, 536 F. Supp.2d 18, 22 (D.D.C. 2008); Griffith v. Nixon, 518 F.2d 1195 (2d Cir.), cert. denied, 423 U.S. 995 (1975), and the general rule is that a plaintiff has the burden of establishing personal jurisdiction. Reuber, 750 F.2d at 1052. Similarly, the party on whose behalf service is made has 28

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 31 of 37

the burden of establishing its validity when challenged. See Chen v. District of Columbia, 256 F.R.D. at 266; see also Hammond, 740 F. Supp.2d at 108.

Plaintiff has failed to serve either Director Sajet or Dr. Kurin in their individual capacities. See Declaration of Director Kim Sajat, attached, ¶ 2; Declaration of Dr. Richard Kurin, attached, ¶ 2. Accordingly, absent proper service, plaintiff’s claims are subject to dismissal.4 Nonetheless, the Court need not reach this issue based on the arguments above.

III.

Plaintiff’s Claims Under the FTCA Fail for Lack of Exhaustion of Administrative Remedies

The doctrine of sovereign immunity absolutely shields the Government from actions for monetary relief, unless the immunity has been waived. See, e.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994). The Federal Tort Claims Act is one such waiver of sovereign immunity. United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Mitchell, 445 U.S. 535, 538 (1980); Kline v. Republic of El Salvador, 603 F. Supp. 1313, 1316 (D.D.C. 1985).

Under the FTCA: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the 4

Under some circumstances, additional opportunities may be available to a plaintiff to effect proper service on a defendant in a civil action. See Fed. R. Civ. P. 4(i)(4); Moore v. Agency for International Development, 994 F.2d 874 (D.C. Cir. 1993). However, in light of the several other reasons calling for dismissal of plaintiff’s claims, no purpose would be served by the calling for additional efforts to effect proper service in this action. See Simpkins v. District of Columbia Government, 108 F.3d at 370 (dismissing baseless Bivens claims on the merits notwithstanding lack of proper service). Indeed, if the Court were to conclude that plaintiff’s claims are not subject to dismissal on the several other grounds set forth in this memorandum, the individual defendants should be given the opportunity to determine whether they would be willing to waive any defense based upon Fed. R. Civ. P. 12(b)(2), (4) or (5). Defendants Sajet and Kurin, however, are not prepared to do so at this time. Nonetheless, because of the existence of this avenue, and because this case is subject to dismissal on alternate grounds, defendants believe there is no need for this Court to decide plaintiff’s motion for an order of service. See Dkt. No. 17.

29

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 32 of 37

negligent or wrongful act or omission of any employee of the [g]overnment while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency.

28 U.S.C. § 2675(a). Thus, one prerequisite for filing a civil tort action under the FTCA is that the claimant must first file an administrative claim pursuant to 28 U.S.C. ' 2675(a). This provision is jurisdictional and cannot be waived by equitable considerations or otherwise.

Simpkins v. District of Columbia, 108 F.3d at 371; Harris v. Wilson, -- F. Supp.3d --; 2017 WL 4564716, at *4 (D.D.C. Oct. 11, 2017); Young-Bey v. United Medical Healthcare, 217 F. Supp.3d 304, 308-09 (D.D.C. 2016). This statutory requirement requires the putative plaintiff to file with the agency: “(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim.” GAF Corp. v.

United States, 818 F.2d 901, 919 (D.C. Cir. 1987). The purpose of the requirement is to enable the agency “to determine whether settlement or negotiations to that end are desirable” and thus perhaps obviate the need for litigation. Id. at 920.

Plaintiff does not allege compliance with the FTCA’s administrative claim requirements in his Amended Complaint. Furthermore, records from the Office of the General Counsel for the Smithsonian, where FTCA claims against the Smithsonian must be filed, indicate that no administrative claim has been filed by or on behalf of plaintiff. See Declaration of Judith Leonard (copy attached), & 5.

In fact, plaintiff appears to concede that he failed to exhaust his administrative remedies but alleges that it is defendants’ fault for not telling him that the FTCA was a remedy available to him. Amended Complaint, p.73, line 23- p. 74, line 1. Defendants are unaware of any legal obligation to tell plaintiff how he may go about bringing an FTCA claim against the Portrait Gallery.

30

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 33 of 37

Plaintiff has not only failed to exhaust his administrative remedies under the FTCA, but he also has failed to state a claim under the FTCA. The only common law tort plaintiff appears to allege is that of negligence. Amended Complaint, p. 109, line 13.

The FTCA does not create new causes of action. As the Court of Appeals noted in Art Metal-USA, Inc. v. United States, 753 F.2d 1151 (D.C. Cir. 1985), “the FTCA waives the immunity of the United States only to the extent that a private person in like circumstances could be found liable in tort under local law. It is true that negligent performance of (or failure to perform) duties embodied in federal statutes and regulations may give rise to a claim under the FTCA, but only if there are analogous duties under local tort law.” Id. (emphasis in original). Here, plaintiff’s claims consist of “nothing more than asserting a negligence claim against the Government for violating requirements of applicable federal law. Without an available private analog in District of Columbia law, such a claim must fail.” Hornbeck Offshore Transportation, LLC v. United States, 563 F. Supp.2d 205, 212 (D.D.C. 2008).

Therefore, because plaintiff filed no administrative claim under the FTCA, this Court lacks jurisdiction under the FTCA to adjudicate any common law tort claims plaintiff’s Amended Complaint may be seeking to raise. Young-Bey v. United Medical Healthcare, 217 F. Supp.3d at 308-09. There is no point in plaintiff trying to cure this deficiency, because his allegations in the Amended Complaint also fail to state a claim under the FTCA. Accordingly, plaintiff’s tort claims against the United States should be dismissed for lack of subject matter jurisdiction and failure to exhaust administrative remedies, as well as failure to state a claim.

31

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 34 of 37

IV.

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

Finally, plaintiff’s request that his Trump Portrait be hung in the Portrait Gallery is moot, because he concedes that he only requested to have the portrait hung during the 2017 Inauguration festivities, which have been concluded. Amended Complaint, p. 23, lines 3-7.

When “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,” a case becomes moot, and the courts no longer have jurisdiction over the matter. American Bar Ass’n v. FTC, 636 F.3d 641, 645 (D.C. Cir. 2011) (citing Clarke v. United States, 915 F.2d 699, 700-01 (D.C. Cir. 1990) (en banc) (quotation marks omitted)); see also Preiser v. Newkirk, 422 U.S. 395, 401 (1975). Plaintiff’s request to have his Trump Portrait hung in the Portrait Gallery for the 2017 Inauguration festivities comes squarely within the ambit of that rule. See 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); see also 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).

Accordingly, plaintiff’s request to have the Trump Portrait hung in the Portrait Gallery is now moot, given that the time period he wanted this portrait hung has now expired.

CONCLUSION For the reasons set forth herein, 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

32

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 35 of 37

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

33

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 36 of 37

CERTIFICATE OF SERVICE I hereby certify that service of the foregoing Motion To Dismiss, supporting memorandum, exhibits and a proposed order, has been made by mailing copies thereof to: Mr. Julius Marcus Raven 2524 Co. Rt. 60 Elmira, NY 14901 on October 27, 2017.

/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

Case 1:17-cv-01240-CKK Document 18 Filed 10/27/17 Page 37 of 37

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

) ) Plaintiff, ) ) v. ) Civil Action No. 17-1240 (CKK) ) KIM SAJET, Director, ) National Portrait Gallery, ) Smithsonian Institution, et al., ) ) Defendants. ) ______________________________) ORDER Upon consideration of Defendant’s Motion to Dismiss, plaintiff’s responding opposition, and the entire record in this case, and it appearing to the Court that the motion should be granted, it is hereby ORDERED that defendant’s motion to dismiss is granted; and it is further ORDERED that this case is dismissed.

__________________________________ UNITED STATES DISTRICT JUDGE

2