Raven v. Smithsonian (USA) Petition for a Writ of Certiorari to the US Supreme Court

No: _________________

In the Supreme Court of the United States Julian Marcus Raven Petitioner v

The U.S.A., & The Smithsonian Institution’s National Portrait Gallery, Director Kim Sajet, Dr. Richard Kurin, Chief Curator Brandon Brame Fortune Smithsonian Spokesperson Linda St. Thomas The Smithsonian Board of Regents in 2016/2017 Chief Justice John G. Roberts Jr., Vice President Michael R. Pence, Senator John Boozeman Senator Patrick Leahy, Senator David Purdue, Rep. Xavier Becerra, Rep. Tom Cole Rep. Sam Johnson, Mrs. Barbara M. Barret, Mr. Steve Case, Mr. John Fahey, Mrs. Shirley Ann Jackson, Mr. Robert P. Kogod, Mrs. Risa J. Lavizzo-Mourey, Mr. Michael M. Lynton, Mr. John W. McCarter, Jr., Mr. David M. Rubenstein Respondents

On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Julian Marcus Raven, ‘pro se’ P.O. Box 2111 Springfield VA 22152-­‐0111 703-­‐715-­‐7308 julianmarcusraven@gmail.com November 7th, 2019

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QUESTIONS PRESENTED

1. What is the precise entity status definition of the Smithsonian Institution?

“The question before us today is unanswered...” Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 394 (1995) 2. Is the Smithsonian Institution a private institution and a public trust merely run by the Federal Government as trustee to carry out the will of the testator James Smithson or is the Smithsonian Institution an agency of the Federal Government in its execution of a governmental objective with federal funding by its exercise of constituted ‘government speech’ power derived from the electorate?

3. Whether the actions of the Federal Government and its officers when acting as trustee of the will of James Smithson and its expression through the bureau of the Smithsonian National Portrait Gallery are constrained by the 1st Amendment’s free speech clause to the United States Constitution in their selection and acceptance of portraiture voluntarily submitted by an artist to the gallery? 20 USC 75b(a) 75e(1) 4. As a result of the correct Smithsonian Institution’s entity status being defined by the Supreme Court, the question remains as to what type of public free speech forum is the Smithsonian Institution’s National Portrait Gallery?

5. Whether the Federal Government’s actions when acting as trustee of the Smithson trust or any trust are subject to the common law of trusts expressed in either the Uniform Trust Code for the District of Columbia or the Restatement of Trusts and thus constitute breaches of fiduciary duty when violated?

6. Whether the District Court ruling attributing ‘government speech’ powers derived from the electorate to the Smithsonian Board of Regents comprised of elected officials from the executive and legislative branches and the Chief Justice of the Supreme Court violates the Separation of Powers doctrine in the United States Constitution?

7. Whether damages under the Supreme Court created Bivens remedy for constitutional torts committed by federal officers can be recovered by applying Bivens to the 1st Amendment’s preeminent Free Speech clause, 5th Amendment’s Due Process clause and the Equal Protection clause in the United States Constitution?

8. Whether the lower courts denied Petitioner as a ‘pro se’ litigant ‘reasonable accommodations’ by denying Petitioner his right to amend his complaint with breach of trust claims was an abuse of discretion by both the District Court and Court of Appeals? i

PARTIES TO THE PROCEEDING AND CORPORATE STATEMENT

Petitioner Julian Marcus Raven ‘pro se’ Not a corporate party

Respondents

The USA, The Smithsonian National Portrait Gallery Director Kim Sajet & Dr. Richard Kurin & The Board of Regents Are defendants in the District Court And appellees in the Court of Appeals

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PETITION FOR A WRIT OF CERTIORARI Petitioner, ‘pro se’ Julian Marcus Raven respectfully petitions the Supreme Court of the United States for a writ of certiorari to review the judgment of the U.S. Court of Appeals for the District of Columbia Circuit.

OPINIONS BELOW The order granting Summary Affirmance to Respondents is attached at to this filing. A The Denial of Rehearing ‘en banc’ is attached to this filing. B The ‘Mandate’ of the Court is attached. C The District Court Opinion is attached to this filing. D JURISDICTION OF THE COURT This Court has jurisdiction over the instant case pursuant to: 28 U.S.C. Section 1254(1) Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; Supreme Court Rule 10(a) A United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power; The United States Court of Appeals for the District of Columbia Circuit rendered its order granting Respondent’s motion for Summary Affirmance on May 17th, 2019 Petitioner then filed both a Petition for Rehearing by the Appeals Court Panel and a Petition for Rehearing ‘en banc’. The Petition for Rehearing ‘en banc’ was denied on August 12th, 2019.

The Petition for Panel Rehearing received a ‘Mandate’ on the 23 of August 2019 stating that the original order of the court is the formal mandate of this court.

JURISDICTON OF THE COURT OF ORIGINAL INSTANCE Supreme Court Rule 14(g)(ii) Jurisdiction in the court of first instance: U.S. Code § 1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. §11- 501 Civil Jurisdiction (c) relating to the execution or validity of wills devising real property within the District of Columbia, and of wills and testaments properly presented for probate in the United States District Court for the District of Columbia, and the admission to probate and recording of those wills; iv

PROVISIONS OF THE CONSTITUION AND OF LAW This case involves: 1. The ‘FREE SPEECH’ clause to the 1st Amendment to the United States Constitution: “Congress shall make no law…abridging the freedom of speech” 2. The ‘DUE PROCESS’ clause of the 5th Amendment to the United States Constitution: “No person shall be… deprived of life, liberty, or property, without due process of law; “ 5th Amendment to the United States Constitution 3. The ‘EQUAL PROTECTION UNDER THE LAW’ provision in the 5th Amendment to the United States Constitution: “No person shall be… deprived of life, liberty, or property, without due process of law;” 4. The ‘COMMON LAW OF TRUSTS’ expressed in the District of Columbia’s Uniform Trust Code and the Restatement of Trusts.

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TABLE OF CONTENTS QUESTIONS PRESENTED………………………………………………..Page i PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT………………………………………………………………Page ii TABLE OF AUTHORITIES……………………………………………….Page iii PETITION FOR A WRIT OF CERTIORARI……………………………...Page iv OPINIONS BELOW………………………………………………………...Page iv JURISDICTION OF THE COURT…………………………………………Page iv ENTITY STATUS INTRODUCTION………………………………………Page 1 THE NATURE AND HISTORY OF THE SMITHSONIAN INSTITUTION………………………………………Page 1 STARE DECISIS & STEPHEN GIRARD’S TRUST AND THE JAMES SMITHSON TRUST………………………………………….Page 2 SMITHSONIAN INSTITUTION ENTITY STATUS ………………………Page 3 NO LAW APPLIES TO THE SMITHSONIAN INSTITUTION!..................Page 5 UNITED STATES ACTING AS MERELY TRUSTEE…………………….Page 5 UNITED STATES COURT OF APPEALS ORDER: SUMMARY AFFIRMANCE GRANTED!.....................................................Page 8 COMPLETE AND UNFETTERED DISCRETION…………………………Page 12 GOVERNMENT SPEECH, REALLY?...........................................................Page 13 DEFENESTRATION EXTRAVENGANCE………………………………...Page 16 VIOLATION OF THE SEPARATION OF POWERS………………….……Page18 PARALLEL RECOVERY……………………………………………………Page 22 FINALLY……………………………………………………………………..Page 23 TABLE OF CONTENTS CONTINUED

WHERE ARE PETIONER’S ‘REASONABLE ACCOMODATIONS’?.....Page 25 MOTION TO AMEND COMPLAINT COMPORTED WITH PRINCIPLES IN FOMAN v. DAVIS……………………………………....Page 26 PETITIONER OWED NO DUTY, OWED NOTHING……………………Page 28 FINALLY, FINALLY………………………………………………………Page 29 THE FACTS…………………………………………………………………Page 30 DIRECTOR KIM SAJETS OBJECTIONS…………………………….…...Page 32 “TOO BIG”………………………………………………………………….Page 32 “NOT FROM LIFE”………………………………………………………...Page 33 “TOO PRO TRUMP”……………………………………………………….Page 34 “TOO POLITICAL”………………………………………………………...Page 35 “NO GOOD”………………………………………………………………. .Page 36 DR. RICHARD KURIN CONCURS………………………………………..Page 37 REMAINING RESPONDENTS…………………………………………….Page 38 CONCLUSION……………………………………………………………...Page 38 SUPREME ORDER…………………………………....……………………Page 39 APPENDIX TABLE OF CONTENTS COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ‘ORDER’ NO 18-5346, MAY 17TH 2019………………………………………………….………….....………………..A COURT OF APPEALS DENIAL OF PETITION FOR REHEARING EN BANC ‘ORDER’ AUGUST 12TH, 2019……………………………………………………………………………..…...B COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ‘MANDATE’ IN REPLY TO PETIONER’S PETITION FOR PANEL REHEARING

AUGUST 23RD, 2019……………………………………………………………………………………C DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ‘MEMORANDUM OPINION’- 17-CV-01240-TNM JUDGE TREVOR N. MCFADDEN SEPTEMBER 19TH, 2019……...............................................................................................................……..D

TABLE OF AUTHORITIES iii

Act Now to Stop War & End Racism Coal. v. District of Columbia, 905 F. Supp. 2d 317, 329 (D.D.C. 2012)……………………………………………………………….…Page 20 Am. Premier Underwriters, Inc. v. Nat'l R.R. Passenger Corp., 709 F.3d 584, 588 (6th Cir. 2013)……………………………………………………………………………Page 8 Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)……………..……………………….Page 6 Brown v. Board of Education, 347 U.S. 483………….……………………...……..Page 5 City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984).Page 20 Connick v. Myers, 461 U.S. 138, 145 (1983)……………………...……..………..Page 20 Dong v. Smithsonian Institution, 125 F.3d 877, 883 (D.C. Cir. 1997)………..…….Page 4 Ex parte Virginia, 100 U.S. 339, 346 347 (1880)……………………………….…..Page 5 Foman v. Davis, 371 U.S. 178, 182 (1962) ……………………….Pages 3, 25, 26, 27, 28 Hooker v. Edes Home, 579 A.2d 608, 611 n.8 (D.C. 1990) ……………..…Pages 4,10, 23 Hunter v. United States, 30 U.S. 173, 188 (1831) ………………….............…….Page 15 LeBron v. National Railroad Passenger Corporation, 513 U.S. 374……..Pages 1,5,6,9, 13 Lebron v. Washington Metro. Area Transit Auth, 749 F.2d 893, 897 (D.C. Cir. 1984)………………………………………………………….....………………Page 9, 13 Meinhard v. Salmon, 249 N.Y. 458, 464 (N.Y. 1928)……………….……………..Page 8 Mistretta v. United States, 488 U.S. 361, 381 (1989)………………………...……Page 19 Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972)…………………………..Page 6 National Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998)…….....Pages 16,33 Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U. S. 230, 231………………………………………………………..….........……..Pages 1,3,5,11,12

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Pleasant Grove City v. Summum, 555 U.S. 460, 468-69 (2009)…………….…….Page 17 Raven v. Sajet, 334 F. Supp. 3d 22, 28 (D.D.C. 201)…..Pages 10,12, 15,16,17, 18, 19, 28 Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 833 (1995)……………………………………………………………………………....Page 16 San Francisco Arts Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 546 (1987)……………………………………………………………………….……….Page 6 Seminole Nation v. U.S., 316 U.S. 286, 296-97 (1942)……………………………Page 15 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975)………...Pages 13, 29 White Coat Waste Project v. Greater Richmond Transit Co., Civil Action No. 3:17cv719, at *13 n.16 (E.D. Va. Sep. 25, 2018)……………………………….……………….Page 2 WMATribe v. U.S., 249 F.3d 1364, 1377 (Fed. Cir. 2001) ………………..….Pages 4, 28 ADDITIONAL AUTHORITIES

Smithsonian Institution’s Website: https://www.si.edu/content/governance/pdf/Statement_of_Values_and_Code_of_Et hics.pdf………………………………………………………………………..……………………………Page 2 Library of Congress -­‐ https://www.loc.gov/law/help/statutes-­‐at-­‐large/29th-­‐ congress/session1/c29s1ch178.pdf…….……………………..………………………………Page 2 Federal Rules for Civil Procedure Rule 15(a)…………………………………..…Page 3 Smithsonian Act of Congress 1846 ……………………………………….Pages 4, 13,14 Smithsonian Statement of Values and Ethics………………………………………Page 4 The U.S. Department of Justice……………………………………………………Page 4 Smithsonian Programme of Organization, 1847, Joseph Henry…………….……………Page 6

The Cosmos Club http://www.cosmosclub.org/journals/2002/warner.html...Page 7

Smithsonian Archives: https://siarchives.si.edu/history/this-­‐day-­‐smithsonian-­‐ history/december………………………………………………………………………………………..Page 7

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http://voices.washingtonpost.com/reliable-source/2009/01/rs-portrait7.html…..…Page 11 § 19–1310.01. of the Uniform Trust Code of the District of Columbia: Remedies for breach of trust………………………………………………………………….Page 22, 29

Code of Judicial Conduct For The District of Columbia………………………..……….Page 25

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ENTITY STATUS INTRODUCTION

On its face the instant case, Raven v. The Smithsonian National Portrait Gallery, is remarkably similar in fact and principle to LeBron v. National Railroad Passenger Corporation, 513 U.S. 374, that was decided in 1995 in favor of LeBron, with a 8-1 Supreme Court majority including Justices Thomas, Ginsburg and Breyer. The instant case involves a different government run entity that is waiting for a Supreme Court determination as to its entity status and constitutional and legal responsibilities. The instant case is unprecedented, thus making the instant case worthy of the Supreme Court granting a Writ of Certiorari.

The critical national importance of the instant case is crying out for the entity status and constitutional implications to be determined since they are necessary to align the actions of the Federal Government and its officers to the appropriate laws against which Petitioners and any other Citizen’s claims can be tested. “A contrary holding would allow government to evade its most solemn constitutional obligations…,” cf. Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U. S. 230, 231 THE NATURE AND HISTORY OF THE SMITHSONIAN INSTITUTION In the instant case, Petitioner has dug deep into the history, founding documents, Congressional Acts and case law regarding the Smithsonian Institution, which paint a completely different picture compared to the Department of Justice in its arguments in Defense of the Smithsonian Respondents. The District Court and the Appeals Court have not even cited the Smithsonian Act

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of Congress1, the Smithsonian Values and Code of Ethics2 in their decisions. Where as in LeBron v. Amtrak we read: “The Supreme Court considered the history of passenger rail, the history of governmentowned and government-controlled corporations, the congressional statute that created Amtrak, and Amtrak's organizational structure before concluding that Amtrak "is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution." Id. at 394. White Coat Waste Project v. Greater Richmond Transit Co., Civil Action No. 3:17cv719, at *13 n.16 (E.D. Va. Sep. 25, 2018) STARE DECISIS & STEPHEN GIRARD’S TRUST AND THE JAMES SMITHSON TRUST Although the Smithsonian entity status question before the Court remains unanswered, providence had guided Petitioner to discover a parallel case, already decided by this Court. God is particularly interested in last wills and testaments, and the fulfillment of fiduciary duty by trustees as established throughout the Old and New Testaments, which is the basis for the common law of trusts, as expressed in the Magna Charta from the year 1215.

The Smithsonian Institution was established in 1846, Girard College in 1848 so even their similar historical origins are of interest when considering their entity status. Girard was one of the richest men in America, Smithson a very wealthy man from the United Kingdom. The trustees were the United States/Congress/Board of Regents in Smithson’s case and the State of Pennsylvania/Pennsylvania legislature/Board of Directors Of City Trusts in Girard’s case. Both involve legislature appointed boards of governance. The Supreme Court decision in Pennsylvania v. Board of Trusts, 353 U.S. 230, (1957) is controlling in the instant case

1 https://www.loc.gov/law/help/statutes-­‐at-­‐large/29th-­‐congress/session-­‐ 1/c29s1ch178.pdf 2 https://www.si.edu/content/governance/pdf/Statement_of_Values_and_Code_of_Ethics.pd f

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regarding the constitutional accountability the government has when acting as trustee of a private trust.

“Stephen Girard, by a will probated in 1831, left a fund in trust for the erection, maintenance, and operation of a "college." The will provided that the college was to admit "as many poor white male orphans, between the ages of six and ten years, as the said income shall be adequate to maintain." The will named as trustee the City of Philadelphia. The provisions of the will were carried out by the State and City and the college was opened in 1848. Since 1869, by virtue of an act of the Pennsylvania Legislature, the trust has been administered and the college operated by the "Board of Directors of City Trusts of the City of Philadelphia."

Pa. Laws 1869, No. 1258, p. 1276; Purdon's Pa. Stat. Ann., 1957, Tit. 53, § 16365.

Pennsylvania v. Board of Trusts, 353 U.S. 230, (1957) SMITHSONIAN INSTITUTION ENTITY STATUS As a result of the District Court’s denial of Petitioner’s motion to amend his complaint with breach of trust claims and subsequent petition for such claims to be tested against the common law of trusts, that did: “…no more than state an alternative theory for recovery.” and “Rule 15(a) declares that leave to amend "shall be freely given when justice so requires"; this mandate is to be heeded. ” Foman v. Davis, 371 U.S. 178, 182 (1962) The Smithsonian’s trust status was dissolved unlawfully by the District Court.

Petitioner was requesting his breach of trust claims be tested against the common law of trusts expressed in the Uniform Trust Code for the District of Columbia, for breaches of fiduciary trust by trustee delegates of the Smithson trust since the Smithsonian itself declares: “The Smithsonian Institution is a public trust whose mission is the increase and diffusion of knowledge. The Smithsonian was established by the United States Congress to carry out the fiduciary responsibility assumed by the United States in accepting the bequest of James Smithson to create the Smithsonian Institution. We are accountable to the general public as well as to the Smithsonian’s multiple stakeholders in carrying out this responsibility. We recognize that the public interest is paramount.(Bold added.)” Smithsonian Statement of

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Values And Code of Ethics3 “…the Smithsonian concedes it is, at least insofar as the United States, as trustee, holds legal title to the original Smithson trust property and later accretions.(Bold added.)” Dong v.

Smithsonian Institution, 125 F.3d 877, 883 (D.C. Cir. 1997) “Although Edes Home is technically a charitable corporation chartered by Act of Congress, the trial court concluded, and the parties agree, that rules applying to charitable trusts govern the standing issue.(Bold added.)” Hooker v. Edes Home, 579 A.2d 608, 611 n.8 (D.C. 1990) “Once we have determined that a fiduciary obligation4 exists by virtue of the governing statute or regulations, it is well established that we then look to the common law of trusts, particularly as reflected in the Restatement (Second) of Trusts, for assistance in defining the nature of that obligation.(Bold added.)” WMATribe v. U.S., 249 F.3d 1364, 1377 (Fed. Cir. 2001) Again, Respondents represented by the Department of Justice and both lower Courts have denied every effort by Petitioner to test his claims against the common law of trusts by denying the simple fact that the Smithsonian Institution is a public trust that is merely ‘run’ by the federal government as trustee as written in the 1846 Smithsonian Act of Congress: “…the United States having, by an act of Congress, received said property and accepted said trust; Therefore, For the faithful execution of said trust, according to the will of the liberal and enlightened donor…” Preamble to the Smithsonian Act of Congress of 1846: Acting as chancellor of the Smithsonian, Chief Justice William Taft declared, in documents created by the Department of Justice that attempt to define the Smithsonian’s entity status, that: “the Smithsonian Institution is not and has never been considered a government bureau. It is a private institution under the guardianship of government.(Bold added.)”5 and yet the Department of Justice representing the Smithsonian and the lower courts have ignored these facts

3 https://www.si.edu/content/governance/pdf/Statement_of_Values_and_Code_of_Ethics.pd f

4 See Appendix Report to the Board of Regents 2007 Fiduciary Duty 5 https://www.justice.gov/file/24096/download

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claiming the Smithsonian is an agency of the Federal Government as if created by the Federal Government for a government objective, whose decisions are not constrained by the constitution because of its ‘government speech’ powers and that it does not owe a Petitioner a fiduciary duty as trustee, thus denying all of Petitioners constitutional and breach of trust claims.

NO LAW APPLIES TO THE SMITHSONIAN INSTITUTION! It is bizarre how in LeBron, Amtrak argued that Amtrak was absolutely ‘not’ the government to skirt its constitutional constraints and in the instant case the government is arguing that the Smithsonian is so much part of the government that is does not comport to the constitution when acting to skirt its constitutional responsibilities claiming ‘government speech’ powers and equating itself with the State of Texas! And yet the facts clearly state that the Smithsonian is a private institution, created by a private will, not created for a government objective as Amtrak was, thus even less ‘government’ than Amtrak and thus a public trust that is merely ‘run’ by the government as trustee.

UNITED STATES ACTING AS MERELY TRUSTEE

The United States nonetheless is constrained by the United States Constitution for its actions as Smithson Trustee: “The Constitution constrains governmental action "by whatever instruments or in whatever modes that action may be taken." Ex parte Virginia, 100 U.S. 339, 346 347 (1880)” Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 392 (1995) “Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483.”(Bold added) Pennsylvania v. Board of Trusts, 353 U.S. 230, 231 (1957)

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Therefore the Federal Government/Smithsonian Officers owe every fiduciary and constitutional duty and obligation incumbent upon trustees according to the constitution and the common law of trusts to the American People and in the instant case Petitioner.

As a private trust simply ‘run’ by the government, the Smithsonian does not need to comply with the Privacy Act, the Freedom of Information Act, the Federal Advisory Committee Act or The Administrative Procedure Act6 etc. because it is not part of the government and yet at the same time since it is ‘run’ by the government, its actions are constrained by the constitution.

“We have held once, Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), and said many times, that actions of private entities can sometimes be regarded as governmental action for constitutional purposes. See, e.g., San Francisco Arts Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 546 (1987); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972).” Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 378 (1995) Founding Smithsonian secretary Joseph Henry clearly hammered this fact right at the beginning of and into the founding Smithsonian organizational document, the ‘Programme of Organization’7, for the simple reason that even at the Smithsonian’s establishing, government overreach already existed. In clause number two we read: “The bequest is for the benefit of mankind. The Government of the United States is merely a trustee to carry out the design of the testator.” 3: “The institution in not a national establishment, as is frequently supposed, but the establishment of an individual, and is to bear and perpetuate his name.(Bold added)” And to galvanize these legal facts, the Board of Regents, comprising then of the President of the United States, the Supreme Court Chief Justice, three members of Congress and three members

6 https://www.si.edu/ogc/legalhistory

7 https://siarchives.si.edu/collections/siris_sic_481

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of the Senate and appointed members of the public etc. acting as trustees of the Smithson will, ratified this document on December 13th, 18478. It seems redundant to have to say this, but those men knew what they were doing and they knew what the Smithsonian was and what the Smithsonian was not.

But as time passed, that clear entity status understanding and definition would become lost, causing the speech writer for Chief Justice Warren Burger in 1971 to ask; “But just what is the Smithsonian Institution? Why does it look and operate the way it does?

It most certainly is not a government agency, nor a component of the executive branch of the federal government. It is not a part of the Congress or the Judiciary. Instead, it is administered independently by a Board of Regents, much like a private board of trustees… Moreover, the Smithsonian Institution, as a trust instrumentality, continues to confuse members of Congress, the courts, and the executive branch. With surprising regularity, elements of the executive or legislative branches discover the fact that the Smithsonian is a non-governmental institution…If this all seems ambiguous, then I must say it is an ideal ambiguity. In similar fashion, the Smithsonian has made and will continue to make its most significant research and educational contributions to the needs of the public precisely because it is not an organizational part of the federal government.9(Bold added.)”

As can be seen, time and error have long passed, causing what Justice Benjamin Cardozo called the ‘disintegrating erosion’, so that even egregious free speech violations and breaches of fiduciary trust by federal officials are minimized and justified as an entire institution is redefined in order to deprive Petitioner of his benefits and owed duties as a trust beneficiary and of his 1st and 5th Amendment constitutional rights. The end result being the public ridicule, libel and mockery of Petitioner for even ‘daring’ to sue the ‘sacred’ institution and the immunization of federal officials from their fiduciary and constitutional duties and from prosecution.

8 https://siarchives.si.edu/history/this-­‐day-­‐smithsonian-­‐history/december

9 “a speech William W.Warner (CC �83) drafted for Chief Justice Warren Burger” http://www.cosmosclub.org/journals/2002/warner.html

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“Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior (bold added). As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions ( Wendt v. Fischer, 243 N.Y. 439, 444).

Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.”

(Bold added.) Meinhard v. Salmon, 249 N.Y. 458, 464 (N.Y. 1928) The Smithsonian Institution’s entity status is crystal clear, as can be seen from the volume of official documentation presented and yet in contrast, the lower courts have done nothing but further muddy the waters as to the correct entity status definition, leaving Petitioner in his grieved and injured condition without relief, that cries out to the Supreme Court for justice!

UNITED STATES COURT OF APPEALS ORDER10: SUMMARY AFFIRMANCE GRANTED! APPELLATE COURT ORDER: “The merits of the parties actions are so clear as to warrant summary action. (Bold added)” Without the critical question as to the entity status of the Smithsonian Institution having been answered by the Supreme Court, which one would think is required for ‘clarity’ and yet the Appeals court can declare ‘clarity’? The Supreme Court needed to answer the very same question in LeBron because, “Effectively, Amtrak's agency status served as the hook for its liability.” Am. Premier Underwriters, Inc. v. Nat'l R.R. Passenger Corp., 709 F.3d 584, 588 (6th Cir. 2013) APPELLATE COURT ORDER: “Appellant has not demonstrated that the district Court erred in dismissing his First Amendment claim.(Bold added.)”

10 U.S. Court of Appeals For the District of Columbia Circuit ORDER, No. 18-­‐5346 September term, 2018, Filed May 17, 2019 SEE APPENDIX TABLE OF CONTENTS

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Firstly, the Court of Appeals in denying Petitioner his appeal, by granting Summary Affirmance to Respondents, failed to heed the Supreme Court’s injunction when dealing with cases raising 1st Amendment issues. The appeals court just went along with the District Court’s dismissal without making an independent examination of the whole record as the appellate record shows.

No statement by the Appeals Court declares that they have made an independent examination of the whole record, in contrast, the same court in 1984 declared: “In making this determination, we are guided by the Supreme Court's recent decision in Bose Corp. v. Consumers Union, 466 U.S. 485 (1984)…In Bose, the Court set out the responsibility of an appellate court in cases raising first amendment issues: "an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression. (Bold added.)" Id. (citations and quotation marks omitted). See National Association of Letter Carriers v. Austin,418 U.S. 264, 282, 94 S.Ct. 2770, 2780, 41 L.Ed.2d 745 (1974); Greenbelt Cooperative Publishing Ass'n v. Bresler,398 U.S. 6, 11, 90 S.Ct. 1537, 1540, 26 L.Ed.2d 6 (1970). Lebron v. Washington Metro. Area Transit Auth, 749 F.2d 893, 897 (D.C. Cir. 1984) The District Court denied Petitioner his constitutional rights having his political free speech silenced by a government trustee delegate, by redefining the trust entity status. Petitioner argued exhaustively as to his 1st, 5th and Equal Protection constitutional case and the Supreme Court supports Petitioner’s contentions because as declared: “In Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U.S. 230 (1957)(per curiam), we held that Girard College, which had been built and maintained pursuant to a privately erected trust, was nevertheless a governmental actor for constitutional purposes because it was operated and controlled by a board of state appointees,…(Bold added.)” Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 397 (1995) The District Court had to unlawfully dissolve the controlling influence of the common law of trusts over the Smithson trust, which is an active and passive public trust with codified

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participatory rights for a ‘special interest’11 limited class of trust beneficiaries, in the instant case Artists at the portrait gallery. “(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.(Bold added)” 20 U.S.C. § 75b “Because the Smithsonian is a government entity and the Gallery's art selection decisions constitute government speech, the First Amendment does not limit the Gallery's ability to say what it wants to say” Raven v. Sajet, 334 F. Supp. 3d 22, 28 (D.D.C. 2018) And since the Smithsonian entity status was clearly distorted by the Department of Justice’s arguments and the District Court’s granting ‘government speech’ powers to a private institution, thus violating Petitioner’s 1st Amendment free speech rights etc., it is frustratingly exhausting, and seemingly impossible to demonstrate. It is like trying to convince someone that the color blue is actually blue when they have learned since childhood that blue is actually red. To argue to the contrary, when the trustees, the Department of Justice and the defenders of trusts, the Courts trample the will of the testator James Smithson and unilaterally and magically dissolve the trust, thus destroying its entity status to exempt it from it duties and refuse to defend trust beneficiaries, We The People, explains according to the appeals court Petitioner’s supposed inability to demonstrate anything, because to the courts, the color blue is actually red!

APPELLATE COURT ORDER: “The District Court correctly held that because of the discretion afforded to the appellees in selecting artwork to display, see U.S.C. 75e, Appellant failed to State a 5th Amendment Due process or Equal protection claim…”

11 “An exception to the general rule, recognized by this court, exists in situations where an individual seeking enforcement of the trust has a "special interest" in continued performance of the trust distinguishable from that of the public at large.” Hooker v. Edes Home, 579 A.2d 608, 612 (D.C. 1990)

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This is like saying that the trustees discretion in Girard College gave them the right to violate the constitution and to deny “…petitioners Foust and Felder …for admission to the college. They met all qualifications except that they were Negroes. For this reason the Board refused to admit them. ” Pennsylvania v. Board of Trusts, 353 U.S. 230, 231 (1957)

Petitioner was similarly rejected because of his political viewpoint as a patriotic, conservative Trump supporter. Politically liberal Respondent Sajet, Director of the portrait gallery, made that very clear in her off the record, personal, biased and hostile phone call to Petitioner in which she objected to the ‘too political and too pro-Trump’ viewpoint contained in the painting, but defended the acceptance of the donation12 and exhibition of the liberal political viewpoint expressed by the artist Shepherd Fairey in the pro-Obama ‘Hope’ campaign political poster for the 2009 and 2013 presidential inauguration exhibition/celebration. And accepted on loan by billionaire art collectors the two giant Obama photos by Chuck Close for the 2013 Obama inauguration.

“There is no doubt that the poster at issue here conveys a political message; nor is there a question that WMATA has converted its subway stations into public fora by accepting other political advertising… political speech may not constitutionally be restricted in a public forum… we reverse the district court and hold that WMATA violated the plaintiff's first amendment right of free speech.” Lebron v. Washington Metro. Area Transit Auth, 749 F.2d 893, 896 (D.C. Cir. 1984) In Penn. v. Board of Trusts, the U.S. Supreme Court righted the Pennsylvania Supreme Court’s discriminatory decision by stating:

12 Donation of the Obama ‘Hope’ poster to the Smithsonian by D.C. lobbyist Tony Podesta who said "It seemed like a historic moment for the country, and a chance to do something for art and Democrats,… Gallery spokeswoman Bethany Bentley said it will be up by Inauguration Day. " Tony Podesta, brother of transition co-chairman John Podesta, told the Washington Post, January 7, 2009 http://voices.washingtonpost.com/reliable-source/2009/01/rs-portrait7.html

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“The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State.

Such discrimination is forbidden by the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483.(Bold added.) Pennsylvania v. Board of Trusts, 353 U.S. 230, 231 (1957) This is identical to Petitioner’s experience under the 5th Amendment equal protection discrimination clause because the Smithsonian Board of Regents is ‘an agency’ of the Federal Government. The discrimination in the instant case though was not for his skin color but because of Petitioner’s political beliefs and political viewpoint expressed in a painting of the President Elect of the United States of America, submitted as a tribute to be displayed at the Smithsonian National Portrait Gallery, simply on loan for the historic inauguration of President Elect Trump on January 20th, 2017.

COMPLETE AND UNFETTERED DISCRETION “But even if "the increase and diffusion of knowledge" was originally a private goal, Congress ratified it, and the United States now has complete discretion in how to fulfill it.(Bold added.)” Raven v. Sajet, 334 F. Supp. 3d 22, 29 (D.D.C. 2018) This statement of ‘complete discretion’ lines up with the Court’s remarkable statement that; “…the Smithsonian's management has complete, unfettered discretion…(Bold added.)” Raven v.

Sajet, 334 F. Supp. 3d 22, 35 (D.D.C. 2018) ‘Complete’ and ‘unfettered’ discretion sounds like judicially certified tyranny, immune even from Supreme Court scrutiny. The District Court, remarkably erected another layer of impenetrable legal unaccountability in defense of the Smithsonian Institution, a public trust, which flies in the face of written codified standards of ethical conduct of its officers and written standards and procedures for portraiture acceptance as in the instant case. This judicial tyranny is precisely the very reason at the heart of Respondent’s egregious actions, since Smithsonian officials for now, act like they are above the law and are untouchable!

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“Invariably, the Court has felt obliged to condemn systems in which the exercise of such authority was not bounded by precise and clear standards. The reasoning has been, simply, that the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use. Our distaste for censorship — reflecting the natural distaste of a free people — is deep-written in our law.”

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975) “WMATA's refusal to accept this poster for display because of its content is a clear-cut prior restraint. Here, WMATA has by official action prevented Mr. Lebron from using a public forum to say what he wants to say. Southeastern Promotions,420 U.S. at 553, 95 S.Ct. at 1243. As such, WMATA "carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe,402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971). See New York Times Co. v. United States,403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971) (per curiam). We impose this burden on public officials because of "[o]ur distaste for censorship…(Bold added.)”

Lebron v. Washington Metro. Area Transit Auth, 749 F.2d 893, 896 (D.C. Cir. 1984) And remarkably the U.S. Court of Appeals for the District of Columbia Circuit agrees with the decision to grant complete and unfettered discretion to the government when acting as trustee.

‘GOVERNMENT SPEECH’, REALLY?

In LeBron even after it was determined by the Supreme Court that Amtrak was sufficiently ‘government’ so as to be constitutionally liable, Amtrak’s selection of advertising content for the Spectacular Screen in Penn Station was never considered to be ‘government speech’ and that would have seemed to be the case even more so than in the instant case since Amtrak was created for a government purpose: “We hold that where, as here, the Government creates a corporation by special law, for the furtherance of governmental objectives” Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 400 (1995) in contrast, the United States received and accepted the responsibility to carry out the will or objective of a private citizen James Smithson: “…the United States having, by an act of Congress, received said property and accepted said trust; Therefore, For the faithful execution of said trust, according to the will of the

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liberal and enlightened donor;”(Bold added) Preamble to the Smithsonian Act of Congress of 1846.

In Pennsylvania v. Board of Trusts, defendants did not try to argue that the selection of boys for participation in the Girard trust constituted protected government speech as per the ruling and as such was immune from the constraints of the U.S. Constitution as in the instant case. The Courts did not rule accordingly either, the trustees exercise of discretion was condemned by the Supreme Court as racial discrimination in violation of the 14th Amendment to the U.S. Constitution: “Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483.” Pennsylvania v. Board of Trusts, 353 U.S. 230, 231 (1957) The District Court’s decision, in order to grant ‘government speech’ powers to the private Smithsonian Institution has devastating legal and constitutional ramifications. The decision deprived Petitioner of his trust beneficiary participatory rights since the Smithson trust is an active and passive public trust13 and Petitioner’s 1st Amendment political ‘free speech’ rights and 5th Amendment ‘property’ and equal protection rights. The decision subtly dissolved the private property rights and private speech rights expressed in the will of James Smithson, even though a foreigner. Mr. Smithson would have been granted full constitutional protections including property and speech rights, since his will and property was fully and unconditionally accepted by the United States. With a stroke of the pen the District Court violates the Congressional Act and sacred trust law by deeming the private will of Smithson now apparently a government objective because Congress now has discretion as trustee to how fulfill the will?

This is akin to saying every time a trustee accepts the will of a testator, the testator’s will is no

13 20 USC 75e: Powers of Board

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longer is controlling and trust beneficiaries are powerless and have no say in the administration of the trust since the trustee has complete ‘unfettered discretion’ as how to fulfill the will of the testator. This is outrageous! Especially since ““It is the peculiar province of equity, to compel the execution of trusts.” Hunter v. United States, 30 U.S. 173, 188 (1831) The District Court arbitrarily dissolved the private will of James Smithson without adherence to the lawful process of trust dissolution in contradiction to: “…this Court has recognized the distinctive obligation of trust incumbent upon the Government in its dealings …Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct,... should therefore be judged by the most exacting fiduciary standards. Seminole Nation v. U.S., 316 U.S. 286, 296-97 (1942) The District Court’s ‘ratification’ theory14 is invented15, as it cites no law granting Congress this magical power of trust dissolution and government absorption and assimilation, because Congress simply accepted the sacred responsibility of trustee to carry out the will of a deceased private citizen. Wills and trusts are never ratified they are obeyed and fulfilled!

The District Court confuses and equates the entity status of the Smithsonian National Portrait Gallery, with that of the National Endowment for the Arts that is a government created entity for a government purpose and interestingly created around the same time and yet they are totally different animals.

“Because the Smithsonian is a government entity and the Gallery's art selection decisions constitute government speech, the First Amendment does not limit the Gallery's ability to say what it wants to say” Raven v. Sajet, 334 F. Supp. 3d 22, 28 (D.D.C. 2018) “With substantial federal funding…” Raven v. Sajet, 334 F. Supp. 3d 22, 30 (D.D.C. 2018)

14 “But even if "the increase and diffusion of knowledge" was originally a private goal, Congress ratified it, and the United States now has complete discretion in how to fulfill it.” Raven v. Sajet, 334 F. Supp. 3d 22, 29 (D.D.C. 2018)

15 The very fact that the name of the institution still is the ‘Smithsonian Institution’ is evidence the private will of Smithson is still controlling since the name was a condition of the will and further evidence of the institution’s private entity status.

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Even considering the federal funding question and its use by the Court to validate and justify the Court’s ‘Government Speech’ theory that translates in the instant case into a license for unfettered, arbitrary and legally untouchable actions by federal officials, while at the same time in a schizophrenic manner claiming submission to the 1st Amendment to the US Constitution, not even the government in NEA v. Finley claimed it speaks through the expressions subsidized by the government. And in Rosenberger v. Rector one can see the underlying principle controlling when and where government speech contours end. “the Smithsonian is part of the United States government for purposes of the First Amendment. See Crowley , 636 F.2d at 744.” Raven v. Sajet, 334 F. Supp. 3d 22, 30 (D.D.C. 2018) “We have stated that, even in the provision of subsidies, the Government may not "ai[m] at the suppression of dangerous ideas," Regan v. Taxation with Representation of Wash., 461 U.S. 540, 550 (1983) (internal quotation marks omitted), and if a subsidy were "manipulated" to have a "coercive effect," then relief could be appropriate.” National Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998) “ the NEA itself concedes, a more pressing constitutional question would arise if government funding resulted in the imposition of a disproportionate burden calculated to drive "certain ideas or viewpoints from the marketplace." Simon Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991);” National Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998) “The Government freely admits, however, that it neither speaks through the expression subsidized by the NEA,” National Endowment for the Arts v. Finley, 524 U.S. 569, 611 (1998)

“The quoted language in Widmar was but a proper recognition of the principle that when the State is the speaker, it may make content-based choices. When the University determines the content of the education it provides, it is the University speaking,” Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 833 (1995) DEFENESTRATION EXTRAVEGANCE The District Court continued to squeeze the Smithsonian into its newly created ‘constitution and trust free’ mode, twisting and forcing the Smithsonian into the Supreme Court’s decision in Pleasant Grove v. Summum in order to grant the Smithsonian Institution ‘government speech’ powers, depriving Petitioner of his 1st Amendment free speech rights: “Traditional government actors are subject to political restraints, Mr. Raven points out, echoing the Supreme Court's observation that "a government entity is ultimately ‘accountable to the electorate and the political process for its advocacy.’ " Summum , 555 U.S. at 468, 129 S.Ct. 1125 (citation omitted). In contrast, Mr. Raven argues, the Smithsonian's "trustees and

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their assistants do not qualify for ‘Gov. Speech’ powers ... since they cannot be voted out!"

Opp. 7. Raven v. Sajet, 334 F. Supp. 3d 22, 30 (D.D.C. 2018) The Court omitted the Supreme Court citation, confirming its absurd defenestration theory. The Supreme Court in Summun stated clearly that government speech powers are derived from the electorate: “And of course, a government entity is ultimately “accountable to the electorate and the political process for its advocacy.” Southworth, 529 U.S., at 235, 120 S.Ct. 1346. “If the citizenry objects, newly elected officials later could espouse some different or contrary position.” Ibid.” Pleasant Grove City v. Summum, 555 U.S. 460, 468-69 (2009) But remarkably the District Court now declares the Smithsonian Officials are ‘accountable to the electorate and political process’ ibid which is absurd. The Board of Regents is made up of eight government officials and nine members of the public all appointed and all unpaid. By statute (U.S. Code § 44) eight members are required to form a quorum so as to do business. So nine appointed citizens plus the unelected Chief Justice out of reach of the electorate, make a majority of the board membership not subject to the political process in any way at all and since statute requires only eight for a quorum, the institution can function quite well without the seven elected officials. So even stretching the District Court’s defenestration theory into its absurd ultimate theoretical end, where citizens rally to remove from office any or all of the officials who happen also to be board members, the Board of Regents is unaffected!

And the instant case is dealing with the actions of a federal official, an employee of the federal government who decisions and actions for now are untouchable.

“It is true that the Smithsonian, Cerberus-like, sports heads from the Executive, Legislative, and Judicial Branches. 20 U.S.C. § 42. But political accountability persists. Of the eight Regents who serve because of their federal office, voters could defenestrate seven:” Raven v.

Sajet, 334 F. Supp. 3d 22, 30 (D.D.C. 2018)

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And as will all distortions, aberrations and mutations, they can only produce more of the same, so goes with the District Court opinion. For in granting constituted ‘government speech’ powers illegitimately to the board of Smithsonian regents made up of all three branches of government, the District Court ruling violates the Constitutions separation of powers doctrine.

VIOLATION OF THE SEPARATION OF POWERS The Court of Appeal’s decision violates the separation of powers by certifying the District Court’s decision that attributes duly conferred constituted powers derived from the electorate in the form of ‘governmental speech’ powers to a private, non-governmental trust instrumentality managed by appointed, non-paid elected officials from all three branches of the government and of the public.

The District Court declared: “It is true that the Smithsonian, Cerberus-like, sports heads from the Executive, Legislative, and Judicial Branches. 20 U.S.C. § 42.” Raven v. Sajet, 334 F. Supp. 3d 22, 30 (D.D.C. 2018)(Bold added.)

This fiduciary trustee arrangement encroaches not upon the boundaries of demarcation separating the Legislative, Executive and Judicial branches of government as established in the United States Constitution so long as it operates within its own boundaries of establishment within the Smithsonian Act of Congress of 1846. For as Justice William Taft declared in his capacity as Chancellor: “The Smithsonian Institution is not and has never been considered a government bureau. It is a private institution under the guardianship of government.”

The Appellate Court’s decision is in conflict with: “…where the whole power of one department is exercised by the same hands which possess

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the whole power of another department, the fundamental principles of a free constitution, are subverted." The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961) (emphasis in original). ” Mistretta v. United States, 488 U.S. 361, 381 (1989) "While the Constitution diffuses power the better to secure liberty…It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (concurring opinion).” Mistretta v. United States, 488 U.S. 361, 381 (1989) You cannot have “separateness but interdependence” ibid. or “autonomy but reciprocity” ibid. when sitting at the same table and making decisions in quorum or as one unified body. “the greatest security against tyranny — the accumulation of excessive authority in a single Branch …" The Federalist No. 51, p. 349 (J. Cooke ed. 1961).Mistretta v. United States, 488 U.S. 361, 381 (1989)

Petitioner is not speaking about the accumulation of power in a single branch, but that the Panel’s Decision creates a whole new branch of unified unaccountable, un-defenestratable federal power where this tri-part accumulation occurs.

The domino effect of the entity status distortion continues its effect all the way down the Appeals Court ruling:

APPELLATE COURT ORDER: “Even if Appellant had sufficiently stated these 1st and 5th Amendment claims the District court properly concluded dismissal of appellant’s damages claims under Bivens…was warranted on qualified immunity grounds…”

The District Court decided that: “Qualified immunity protects government officials from civil liability for constitutional violations…Since the Free Speech Clause does not apply to government art decisions like this one, and no Fifth Amendment rights are at issue, the Defendants did not violate "clearly established" constitutional law, for all the reasons given above.(Bold added.)” Raven v. Sajet, 334 F. Supp. 3d 22, 34 (D.D.C. 2018)

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Distort the Smithsonian entity status to deprive Citizens of their constitutional rights strips them of the ground to stand on when pursuing money damages from rogue officials who have clearly violated “clearly established” constitutional law concerning the 1st and 5th Amendments to the U.S. Constitution and the common law of trusts.

“The principle that has emerged from our cases "is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others." City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984).

“The “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) ” Act Now to Stop War & End Racism Coal. v.

District of Columbia, 905 F. Supp. 2d 317, 329 (D.D.C. 2012) For the Supreme Court not to grant the Bivens remedy for the violations of the preeminent free speech clause of the 1st Amendment would seem contrary to everything the U.S. Constitution stands for. The 1st Amendment is there for a reason and its preeminence is there because of its protections against rogue officials who violate preeminent, vital and critical civil rights that must be protected. And until Congress creates the appropriate law, how else will individual federal officers be put on notice as to their constitutional obligations without applying Bivens to the free speech clause of the 1st Amendment? “…the Constitution's special concern with threats to the right of citizens to participate in political affairs is no mystery. The First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484 (1957); New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964). "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the "`highest rung of the hierarchy of First Amendment values,'" and is entitled to special protection. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980).

Connick v. Myers, 461 U.S. 138, 145 (1983) Denying Bivens for violations of the preeminent free speech clause of the 1st Amendment where

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rogue federal officials can willfully act in such an egregious, hostile and deliberate manner, knowing full well they are silencing the political free speech and a viewpoint that they despise is outrageous and an affront to the 1st Amendment. Biven’s may be a disfavored remedy but it exists precisely for the instant case. And because Bivens was extended in Davis v. Passman for gender ‘discrimination’ under the 5th Amendment equal protection under the law clause, Petitioner’s case has two lawful reasons, the 1st Amendment free speech and 5th Amendment viewpoint discrimination to extend Bivens to his case.

Qualified immunity did not protect government officials from their racially discriminatory actions in Penn. v. Board of Trusts when they violated the 14th Amendment, and by all accounts their actions were not driven by racial animus, but rather the terms of the will of Girard. Unlike the instant case where Respondent Sajet proudly tweeted to the official Smithsonian Twitter page from the un-hinged and vicious anti-Trump ‘Women’s March’ protest. At the protest pop star Madonna publically fantasized about blowing up the White House, and Respondent tweeted how much she loved the anti-Trump protest, held the day after President Trump’s inauguration.

These outrageous actions are evidence of the anti-Trump animus Respondent Sajet had toward Petitioner and his pro-Trump painting, proving Respondent Sajet knew exactly what she was doing in calling Petitioner off the record and silencing Petitioner’s 1st Amendment political free speech! Respondent Sajet’s final sentiments to Petitioner says it all: ‘I am the Director of the Smithsonian National Portrait Gallery, your application will not even be considered, you can appeal it all you want!’ and then hangs up the call. The District Court and Appeals Court immunizing Respondent’s actions by saying the 1st Amendment “Does not apply” shocks the conscience!

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PARALLEL RECOVERY Deny the trust status of the Smithsonian and deny Petitioner his right to amend his complaint with breach of trust claims removes the grounds for prosecuting Respondents according to the law and puts Respondents out of reach of both common and federal law.

The egregious breaches of trust committed by Respondents are to be judged against the common law of trusts and breaches of trust are to be equally judged and remedied by the comprehensive Uniform Trust Code for the District of Columbia16. Within the Uniform Trust Code there are wide and far reaching options for the Courts to grant relief to Petitioner.

Deny Petitioner his right to amend his complaint with breach of trust claims strips Petitioner of the injury remedies contained within the common law of trusts for breaches of trusts. So much so that a Court may order “…any other appropriate relief. (Bold added.)” and that included monetary damages, compliance with the Smithson trust and the written procedure for portraiture consideration or simply order the Smithsonian to show the painting. § 19–1310.01. of the Uniform Trust Code of the District of Columbia: Remedies for breach of trust.

Deny the public trust status of the Smithsonian and it strips trust beneficiaries, We The People of their property interests in the will of Smithson. That although title of the property held by trustees in public trusts cannot be extended to the entire public as this would create litigious chaos, those members of a small class of persons identified in the trust i.e. Artists in this case do have special interest in the execution of the trust and can enforce the trust through litigation.

16 § 19–1310.01. of the Uniform Trust Code of the District of Columbia: Remedies for breach of trust.

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The better reasoned view — consistent with the Restatement's recognition of representative standing for a member of a "small class of persons" — is that a particular class of potential beneficiaries has a special interest in enforcing a trust if the class is sharply defined and its members are limited in number. Alco Gravure, supra, 64 N.Y.2d at 465, 490 N.Y.S.2d at 119, 479 N.E.2d at 755. See also St. John's-St. Luke Evangelical Church v. National Bank, 92 Mich. App. 1, 13-19, 283 N.W.2d 852, 858-60 (1979) (where class of beneficiaries not "uncertain and indefinite," standing should not be denied) Hooker v. Edes Home, 579 A.2d 608, 614 (D.C. 1990) Once a person has been granted standing as a member of a limited class of persons, this gives them standing to bring suit and by extension extends equitable sharing in the property title as how else could standing be granted without property rights afforded through property title. Thus the denial of participation in the passive and active public Smithson trust by rogue trustees who are government officials constitutes a violation of the 5th Amendment’s deprivation of property without the due process of law clause.

When participation in the active public trust, specifically artists in the instant case, are deprived of participation in their property without the due process of law, their 5th Amendment property rights are violated. How can egregious violations of 1st Amendment and 5th Amendment equal protection under the law and Smithsonian written and codified due processes for the consideration and acceptance of portraiture, i.e. participation in the Smithson trust by trust beneficiaries not be a deprivation of “property without the due process of law” under the 5th Amendment? James Smithson’s property is held in trust by the United States as trustee for The People of the United States benefit and participation.

FINALLY APPELLATE COURT ORDER: “Finally, the District Court correctly denied as futile Appellant’s motion to amend his complaint with breach of fiduciary and infliction of emotional distress claims under the Federal Tort Claims Act, 28 U.S.C. Section 1346(b).”

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This is the case of Petitioner’s motion to amend his complaint with breach of trust claims under the FTCA. Although contained within that same motion was the citation of the Uniform Trust Code for the District of Columbia delineating the laws regarding fiduciary duties incumbent on trustees. Petitioner did not comprehend how that law could apply to the Federal Government, did not understand how the Restatement of Trusts applied, so at the time it seemed that the FTCA was his only non constitutional remedy. Since the Administrative Procedure Act does not apply to the Smithsonian, there seemed to be no laws or remedies that could apply.

This all changed with the discovery of multiple Supreme Court decisions regarding the administration of Indian land Trusts, and that how the actions of the Federal Government were measured against the common law of trusts/Restatement of Trusts Petitioner had already cited in the motion to amend.

Before the District Court even rendered its memorandum opinion, Petitioner filed his petition with the District Court to exchange the motion to amend his complain with the FTCA law with the Uniform Trust Code for the District of Columbia for breaches of trust. This petition was completely ignored by the District Court in its final decision and the motion was denied.

The docketed petition to the Court, prior to the Court’s ruling may have been better titled as a ‘motion’ or ‘cross motion’, or may have required a withdrawal of the original motion to then be re-filed accordingly, but Appellant is a ‘pro se’ litigant, trying his very best to follow the law and the local rules, but who is obviously at a massive disadvantage when navigating the federal court system and who’s adversary at law is the Smithsonian Institution represented by the full legal power of the U.S. Department of Justice!

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Appellant was not requesting any “unfair advantage” i.d., but simply what Appellant in owed by the Court’s codified duty towards Appellant, that places the burden upon the Court and Judges to exercise the Court’s discretion on behalf of justice when a ‘pro se’ litigant may have failed in a procedural matter as it is written: “[1A] The judge has an affirmative role in facilitating the ability of every person who has a legal interest in a proceeding to be fairly heard. Pursuant to Rule 2.2, the judge should not give self-represented litigants an unfair advantage or create an appearance of partiality to the reasonable person; however, in the interest of ensuring fairness and access to justice, judges should make reasonable accommodations that help litigants who are not represented by counsel to understand the proceedings and applicable procedural requirements, secure legal assistance, and be heard according to law.” Code of Judicial Conduct For The District of Columbia WHERE ARE PETIONER’S ‘REASONABLE ACCOMODATIONS’?

The Supreme Court is clear that “mere technicalities” ibid do not trump “decisions on the merits” even if defective procedurally or even pleaded poorly especially by a ‘pro-se’ litigant and the rules governing Judicial conduct require any claim be heard “according to law” (Bold added.) Rule 2.2/2.6: “It is too late in the day, and entirely contrary to the spirit of the Federal Rules of Civil Procedure, for decisions on the merits to be avoided on the basis of such mere technicalities.

"The Federal Rules reject the approach that pleading is a game of skill in which one misstep by [182] counsel(pro se litigant, added.) may be decisive to the outcome, and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v.

Gibson, 355 U. S. 41, 48. The Rules themselves provide that they are to be construed "to secure the just, speedy, and inexpensive determination of every action." Rule 1. Foman v. Davis, 371 U.S. 178(1962) (Bold, itallics added.)

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How could a decision on the merits have been reached by the District Court when the Court denied Appellant his right to amend his complaint so that Appellant’s claims could be lawfully heard “according to law” i.d. in this case the Uniform Trust Code for the District of Columbia?

This is an abuse of discretion by the Court, that has the appearance of either a deliberate prejudicial ruling because Appellant is a ‘pro se’ litigant and is not being taken seriously and so Appellant’s claims should be discarded and not given the chance to be ‘heard according to law’ or the abuse of discretion is a deliberate scheme exercised by the Courts to protect the Smithsonian Institution from a claim that will finally bring the institution to its correct status and operation and once and for all break the ‘Status Quo Bias’ controlling the perpetuated presuppositional error that treats the Smithsonian as a federal entity when it is not. The Federal Government is merely the trustee/guardian of the private charitable trust.

MOTION TO AMEND COMPLAINT COMPORTED WITH PRINCIPLES IN FOMAN v. DAVIS Petitioner’s ignored ‘petition’ for the FTCA law code to be exchanged with the Uniform Trust Code required nothing more, since Appellant’s entire breach of trust claims were all based on the egregious fiduciary violations of Smithsonian officials, they just needed to be tested against the appropriate law.

“The Court of Appeals also erred in affirming the District Court's denial of petitioner's motion to vacate the judgment in order to allow amendment of the complaint.” Foman v. Davis, 371 U.S. 178, 182 (1962)

This statement is in principal identical to Petitioner’s situation and yet at this is a more extreme stage of litigation since judgement had already occurred and the Supreme Court still reversed in

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the interest of justice because:

Appellant clearly cited the law codes for the Uniform Trust Code for the District of Columbia in Appellant’s motion to amend Appellant’s complaint with FTCA claims not knowing at the time that Appellant’s claims could have simply been filed sounding in the common law of trust. The reason being as stated now multiple times, Appellant is a ‘pro se’ litigant who did not know that at the time, but upon finding multiple Supreme Court decisions concerning measuring the actions of the Federal Government when acting as trustee against the common law of trust, Appellant added a response to Appellee’s motion in opposition to the motion to amend the complaint with a petition to the District Court to exchange the law.

No added claims, no added evidence, but the identical claims must be tested against the correct law. And the District Court ignored the cited Uniform Trust Code for the District of Columbia in the original motion.

The District Court abused its discretion by failing to state that the FTCA was not the appropriate legal remedy, because the appropriate law was right in front of the Court within the same motion to amend the complaint with FTCA claims! The District Court should have ordered Petitioner to cure this deficiency and to file the motion under the Uniform Trust Code for the District of Columbia. Or the District Could have simply ordered the claims be adjudicated against the correct law i.e. the Uniform Trust Code for the District of Columbia as written in the motion.

And that was before Appellant specifically petitioned the court to exchange the legal remedy and before the Court had rendered its judgement! “As appears from the record, the amendment

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would have done no more than state an alternative theory for recovery.” Foman v. Davis, 371 U.S. 178, 182 (1962) Rule 15(a) declares that leave to amend "shall be freely given when justice so requires"; this mandate is to be heeded. See generally, 3 Moore, Federal Practice (2d ed. 1948), ¶¶ 15.08, 15.10. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.(Bold added.) Foman v. Davis, 371 U.S. 178, 182 (1962)

PETITIONER OWED NO DUTY, OWED NOTHING APPELLATE COURT ORDER: “In the light of Appellees discretion to select portraits for display, Appellant has failed to demonstrate that he was owed any duty. See 20 U.S.C. Section 75e” The appellate court forgot to add ‘unfettered’ to its order since that is what they are agreeing with: “But as explained above, the Smithsonian's management has complete, unfettered discretion to determine how best to pursue "the increase and diffusion of knowledge among men," 20 U.S.C. § 41, at least when it comes to the selection of art for the Gallery. 20 U.S.C. § 75(e).(Bold added.)” Raven v. Sajet, 334 F. Supp. 3d 22, 35 (D.D.C. 2018) No compliance with the 1st and 5th Amendment to the U.S. Constitution, no compliance with the common law of trusts, no compliance with Federal law, No compliance with the federal code of conduct for federal employees, no compliance with Smithsonian written standards for portraiture acceptance, no compliance with written ethical and procedural Smithsonian standards, no compliance with the FOIA, the APA etc. and you owe no one “any duty” ibid.

But: “Once we have determined that a fiduciary obligation exists by virtue of the governing statute or regulations, it is well established that we then look to the common law of trusts,

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particularly as reflected in the Restatement (Second) of Trusts, for assistance in defining the nature of that obligation.(Bold added.)” WMATribe v. U.S., 249 F.3d 1364, 1377 (Fed. Cir. 2001) And the common law of trusts states the trustees in all of their dealings involving the trust and trust beneficiaries have the supreme duty of care, codified as: The Duty to Administer Trust; ” Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with this chapter.” § 19–1308.01 Uniform Trust Code, District of Columbia The Duty of Loyalty: “(a) A trustee shall administer the trust solely in the interests of the beneficiaries.”(Bold added.) § 19–1308.02. Uniform Trust Code, District of Columbia The Duty of Impartiality: “If a trust has 2 or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries’ respective interests.” § 19–1308.03. Uniform Trust Code, District of Columbia The Duty of Prudent Administration: “A trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distributional requirements, and other circumstances of the trust.

In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.” § 19–1308.04. Uniform Trust Code, District of Columbia The Duty of Recordkeeping: “(a) A trustee shall keep adequate records of the administration of the trust.” § 19–1308.10.5 The Duty to Inform and Report: “(a) A trustee shall keep the qualified beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable under the circumstances, a trustee shall promptly respond to a beneficiary’s request for information related to the administration of the trust.””

FINALLY, FINALLY The Supreme Court has the final word thankfully: “Invariably, the Court has felt obliged to condemn systems in which the exercise of such authority was not bounded by precise and clear standards. The reasoning has been, simply, that the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use. Our distaste for censorship — reflecting the natural distaste of a free people — is deep-written in our law.(Bold added.)”

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975)

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On July 9th, 2015 Julian Raven embarked upon a creative artistic, spiritual, patriotic and political journey that involved painting the now historic, patriotic, predictive and symbolic portrait of then presidential candidate Donald J. Trump. The nearly 8x16 foot painting in acrylics on stretched canvas and beautifully framed in a decorative red, white and blue frame became the most recognized pro‐Trump political portrait/painting during the 2015-2016 presidential campaign.

From New York to Los Angeles, reactions to the painting often ended with the comments that this painting should end up in the Smithsonian National Portrait Gallery in Washington D.C. After an historic grassroots political campaign, candidate Trump became the President of The United States on November 8th, 2016.

What followed was the disturbing and disheartening experience with the Smithsonian National Portrait Gallery and The Smithsonian Institution.

THE FACTS

Upon receiving confirmation of Petitioner’s publicly supported application via Smithsonian Affiliates Director Harold Closter, Petitioner called the Director of the Smithsonian NPG Kim Sajet on the morning of December 1st. 2016 at around 11:20 a.m. to inquire as to the ‘application’ process. Petitioner wanted to ensure that there was nothing lacking in the 20 plus page application document, which included letters of recommendation17 from elected representatives from upwards of 200,000 citizens. These included Congressman Tom Reed, New York Senator Tom O’Mara, Elmira

17 See Appendix Letters of Reference

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Mayor Dan Mandell, New York GOP chairpersons, Cox, Cady, King, Strange, radio personality Frank Acomb and art collectors Gates & Davis.

After leaving his phone number with the assistant to the Director of the NPG, since the assistant informed Petitioner that the Director was not in or available that day. Petitioner expected a call the next day or thereafter to inform him of any further steps necessary for the application process.

Within 15 minutes of the initial phone call to the assistant, Petitioner’s cell phone rang. It was a call from the same Washington D.C. number Petitioner had just dialed. It was to his surprise Director Kim Sajet.

This surprise call would lead to an eleven minute long tense debate and at times argument with the NPG Director Sajet18. The Director would lay out her arbitrary objections by inventing her own standards for acceptance into the portrait gallery, partially citing a portion of a written standard, lying about the creation of the Obama ‘Hope’ poster, as she argued, raising her voice, insisting that it had been created from life, having just refused Petitioners for not being created from life. Having already derided the painting’s content, expressed in a condescending tone referring to the American eagle and American flag, Respondent Sajet would go on to enforce her political animus expressed in a biased and anti-Trump opinion in any and every way that she could. The Painting was refused even before given a fair and objective consideration according to Smithsonian Institution standards.(Note: Prior Restraint) .

18 Kim Sajet is not an American citizen and yet she is the curator of American pictorial history.

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DIRECTOR KIM SAJET OBJECTIONS:

These objections ranged from its size being ‘too big’ to partially and incorrectly citing an NPG standard for acceptance that the portrait was not from life, to claiming the image was too ‘Pro‐ Trump’, ‘Too Political’, ‘not neutral enough’ and finally ‘no good’.

“TOO BIG”

Without any cordial, official, or written acknowledgement of Petitioner’s officially and publicly supported application19, Director Sajet by phone, began to object to the Trump Portrait. It is clear from the first objection about the size that the director was rushing to judgment and expressing a personal, partial, arbitrary and biased opinion. Nowhere in the Smithsonian Institution’s standards of acceptance for portraiture is there any mention of supposed appropriate sizes of paintings! In fact the NPG has huge paintings that dwarf Petitioner’s.

The hasty phone call less than 24 hours after the application had been received, calls into question whether Director Sajet even consulted with Chief Curator Brandon Brame Fortune or any other official at that time, as is required by Smithsonian procedures when considering a painting, this fact is yet to be discovered.

19 See Appendix Kim Sajet Rejection letter to Bishop E.W. Jackson

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Surprisingly, after about five minutes into the heated discussion, Director Sajet when repeatedly challenged about her objection to the size of the painting, began to backtrack and eventually apologized for her ridiculous objection! This erratic behavior is evidence of a deliberate, intentional, hasty and partial personal opinion, one not based or grounded in Smithsonian Institution Standards!

The sudden change of opinion about her first objection about the scale of the painting indicated that Director Sajet clearly knew, that her words and actions were inconsistent with Smithsonian standards and procedures, since in the midst of her objecting, she dramatically made an ‘about face’ turn, demonstrating her opinion to be arbitrary, since the reality in the Smithsonian spoke to the contrary.

This self-incriminating and guilty behavior at the outset of the conversation established the arbitrary context for the rest of the conversation, that later compelled Petitioner to investigate, and subsequently discover the reason for Director Sajet’s change of mind. The evidence discovered, proves the initial objection was absolutely partial and biased against Petitioner and his Trump Portrait. Director Sajet was eager to rush to judgment and was eager to personally give Petitioner her biased objections. It is still to be discovered if Chief Curator Fortune agreed with the objection

“NOT FROM LIFE”

Director Sajet continued, saying the Trump portrait was disqualified from consideration since it was not created from life, partially citing a Smithsonian Standard for portraiture acceptance. At this point Mr. Raven was in disbelief. Petitioner immediately cited the Smithsonian reception and showing of the Shepherd Fairey Obama ‘Poster’ on January 13th, 2009. Petitioner being intimately acquainted with the story of its creation, appealed to the poster as evidence that the NPG surely did show work not taken from life. At this point, since the Director’s second objection was now questioned, the

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Director repeatedly insisted that the Shepherd Fairey political campaign poster, had in fact been created from a live sitting by the artist with then Candidate Barrack Obama! This is absolutely false!

The Director did not back down on this statement, thus clearly violating federal law regarding the making of false statements by federal employees and the General Principles of Ethical Conduct for Federal Employees.

98. This was where the NPG Director twisted the truth to support her bias in favor of the Obama poster and obviously Barack Obama. One only has to examine the criminal conviction of the artist in question regarding the ‘Hope’ poster, Shepherd Fairey to discover that the ‘Hope’ poster was a digitized photograph taken from the internet from AP photographer Mannie Friedman. It turns out that the ‘requirement from life’ rule Director Sajet cited was partially true, the Smithsonian standard did require portraits to be from life. But as with this entire story, the guideline was quoted partially since it says; “that works must be the best likeness possible; original portraits from life, if possible;” http://siarchives.si.edu/history/national‐portrait‐gallery

In actuality, out of the four Donald Trump ‘portraits’ the NPG owns, only one of the four was actually created from life. In reality out that one of the four ‘portraits’ is actually a cartoon sketch of Donald Trump! Either Director Sajet was unaware of the existing stock of the Donald Trump portraits in her possession and of their back story regarding originality from life or she deliberately obscured the truth and fabricated the argument in her repeated efforts to deny Petitioner entry into the application process? Federal Employees And Smithsonian Employees are ordered by law to be ‘Loyal To the Constitution’, ‘Honest’, ‘impartial’ etc. in their decisions and conduct.

“TOO PRO‐TRUMP”

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Director Sajet now moved to her next partial and biased objection. The Trump Portrait was too ‘PRO-TRUMP’! ‘It is not neutral enough’ Director Sajet continued. Not only are Smithsonian Employees to be impartial, they are to follow the clearly established ‘standards’ for judging or testing a work of art. The ‘Hope’ Poster, created for Barrack Obama’s political campaign in 2008 is nothing but ‘PRO-OBAMA’. The whole essence of the Obama poster was to portray Presidential candidate Barrack Obama in the most favorable political light, as a visionary leader gazing upwards!

What would be the point if it was not ‘PRO-OBAMA’? Again clear and blatant bias and partiality is demonstrated in this arbitrary objection.

In the 2013 ‘Celebration’ Inauguration of President Obama, the NPG hung TWO huge 6x8 foot photo portraits of President Obama side by side along with the ‘Hope’ poster from 2008 a total of 3 ‘PRO’ Obama portraits no less! And I am told that one portrait of Donald Trump is ‘TOO PRO TRUMP’? This is obviously another false, biased and partial statement!

“TOO POLITICAL”20

20 Petitioner’s story regarding the instant case was recently the sprawling thirteen page feature in the Washingtonian Magazine’s August 2019’s issue. Although the portrayal by the politically left leaning and generally anti-­‐Trump magazine of Petitioner is skewed, the facts of the case are pretty sound as printed. The fact that the highly respected left leaning Washingtonian magazine, known for its fact checking would cover Petitioner’s story is because they spent three months investigating it. After 2 photo-­‐shoots, nearly thirty hours of interviews and rigorous legal and editorial oversight they printed the story. They know something is very wrong with the picture, and by that Petitioner does not mean his Trump portrait. LINK: https://www.washingtonian.com/2019/08/04/julian-­‐raven-­‐trump-­‐artist-­‐ national-­‐portrait-­‐gallery-­‐smithsonian/

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The Director of the National Portrait Gallery from the outset of the phone call mentioned, in a condescending tone the imagery of the eagle and the American flag. Director Sajet’s tone implied the painting was too patriotic. Whilst complaining that the trump Painting was not ‘neutral enough’ the Director repeatedly mentioned the George Washington Lansdowne portrait in the NPG since it too had a fully developed background. Furthermore, the Lansdowne portrait is layered in symbolism like the Trump Portrait, the Lansdowne portrait is not just a portrait of the face of the subject.

Director Sajet excused the Washington portrait whilst objecting to the Trump portrait since the Washington portrait contradicted her objection to the Trump portrait’s content. An analysis of the Washington portrait reveals a much large ratio of background and body to the shoulders, head and face than is contained in the Trump Portrait that is about 40% head and face. An analysis of the Trump cartoon sketch, part of the 4 portraits owned by the NPG also reveals another contradiction to the Directors objections as to the ratio of background verses head, face and shoulders.

Again, to be noted, Director Sajet’s opinion was devoid of Smithsonian Institution standards. The Director said the Trump Portrait was in fact ‘TOO POLITICAL’! Again to Petitioner’s astonishment, the NPG Director had now objected to the historical context, the political and presidential campaign of 2015-16, the unprecedented campaign of Donald J. Trump and to the content of the Trump Portrait. The American Flag, the Bald Eagle, the representation of the geographical United States and The Statue of Liberty are some of the American symbols used in the contextual narrative of the Trump Portrait and these are too political to be shown in the National Portrait Gallery? They are patriotic rather than political. The title ‘Unafraid And Unashamed’ is relating to Trump’s character politician or not!

“NO GOOD”

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After Director Sajet’s objections were all refuted, her final and seemingly desperate, personal and arbitrary opinion was that she did ‘not like’ the portrait and the Director said that it was ‘no good’, again showing her personal bias against Petitioner and his painting. Again ignoring the Smithsonian Standard; “Thus, the standards for accepting portraits varied considerably from other galleries. Even today, in every instance, the historical significance of the subject is judged before the artistic merit of the portrait, or the prominence of the artist.” But regardless of what the Smithsonian has to say, Director Sajet was to have the last word and that was final!

Based upon Director Sajet’s final taunting words to the Petitioner this legal complaint has been made. The final words were something like this. ‘I am the Director of the National Portrait Gallery, this application will not go forward or even be considered, you can appeal my decision all you want…’

It is clear that this type of authoritarian statement evinces an abuse of authority, in that all procedural ‘due process’ was stripped away from Petitioner, from the Smithsonian Institution and from the Smithsonian Trust Beneficiaries, the American People. Petitioner was deprived of his constitutional right of free political speech while others of a different opinion were permitted.

Petitioner’s rights were willfully & recklessly ignored, cancelled, trampled and violated! Everything the Smithsonian Institution stands for, the ‘increase and diffusion of knowledge for all men’, the Smithsonian Board of Regents approved standards for acceptance of portraiture, the rights of participation, the rights of procedural ‘due process’ that is Petitioner’s right to participate in the process of consideration were thrown out of consideration.

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DR. RICHARD KURIN CONCURS Dr. Richard Kurin, having been appointed by the Board of Regents to adjudicate Petitioners appeal to the Board of Regents for their intervention at the direction of Director Kim Sajet who taunted Petitioner to appeal her unlawful decision all he wants, ignored Petitioners appeal and simply “concurred”21 with all that Director Sajet said, making himself jointly liable for all of Petitioners claims against Director Kim Sajet.

REMAINING RESPONDENTS The remaining respondents, Chief Curator Brandon Brame Fortune, Smithsonian Spokesperson Linda St. Thomas and The Smithsonian Board of Regents in 2016/2017 in their capacities as trustees, including Chief Justice John G. Roberts Jr., Vice President Michael R. Pence, Senator John Boozeman, Senator Patrick Leahy, Senator David Purdue, Rep. Xavier Becerra, Rep. Tom Cole, Rep. Sam Johnson, Mrs. Barbara M. Barret, Mr. Steve Case, Mr. John Fahey, Mrs. Shirley Ann Jackson, Mr. Robert P. Kogod, Mrs. Risa J. Lavizzo-Mourey, Mr. Michael M. Lynton, Mr. John W. McCarter, Jr., Mr. David M. Rubenstein are all part of Petitioner’s breach of trust claims that were denied by the District and Appeals Court.

These Respondents were all served individually as trustees of the Smithson Institution, with the appeal to the Board of Regents via the Board of Regents office and Chancellor of the Board of Regents John G. Roberts. Like everyone else in this case, they have remained silent, eschewing their fiduciary duties and betraying their most sacred duty, the duty of care owed Petitioner..

They are all ‘defendants’ in the breach of trust claims.

CONCLUSION Granting Petitioner’s writ for certiorari and correctly defining the Smithsonian Institution’s entity status will have far reaching effects both in law and civilized society for the common good and personal relief of Petitioner.

1. The Smithsonian Institution’s mystery will finally be solved and what it is and what it is not will be known as to its entity status will be fully known. Legislation, appropriations, donations and the general use of the Smithsonian Institution will comply with the correct laws thus ensuring fulfillment of the will of Smithson and lawful participation in the will for the beneficiaries.

2. Trust beneficiaries, the American People will be less likely to be treated with contempt by rogue trustee officials and or any employee of the trust, as lawful compliance and the consequences of violating the constitution and the common law of trusts comes with tangible consequences thus restraining lawlessness.

3. The general public, We The People of the United States, trust beneficiaries will be encouraged to participate more fully and freely in the ‘increase and diffusion of knowledge’ as they learn the

21 See Appendix Dr. Richard Kurin Rejection Letter

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Smithsonian is their public institution as opposed to it being a club for the elite left wing political class, the rich, famous and powerful.

4. Conservative, Christian, Republican and pro-Trump viewpoints will be equally accepted, expressed and contribute to the will of Smithson.

5. Politically biased activist employees will need to go and work in the public sector where overt political bias and partiality can freely operate.

6. America’s pictorial historical archive as composed at the national Portrait Gallery will reflect the participation and will of 60 million plus Americans who voted for Donald J. Trump for president of the United States.

7. Desperately needed reform at the Smithsonian can finally take place. Please see Smithsonian Modernization Act 2015 that sits dead on the floor of the house. And senator Grassley’s letter to Chancellor John Roberts(See Pages 1 and 11 in the Appendix) regarding the “…actions of the Smithsonian Board of Regents raise as many red flags as some of the worst boards I have investigated. The American people expect and deserve better.”

The Petition for a writ of certiorari should be granted.

SUPREME ORDER Petitioner seeks the writ of certiorari by the Supreme Court to review the U.S. Court of Appeals for the District of Columbia Circuit’s order granting Summary Affirmance to Respondents. The appellate order22 to affirm the District Court’s memorandum opinion23 needs to be vacated.

The case needs to be remanded back to the District Court. The District Court’s decision needs to be reversed and Petitioner’s motion to amend his complaint with his breach of trust claims tested against the common law of trusts for multiple breaches of trust by Respondents be granted.

With the correct entity definition in place, Petitioner’s claims for violations of the 1st and 5th Amendments to the United States constitution needs to be amended and re-filed with the updated order so as to have Respondent’s answer according to law against Petitioner’s claims so that discovery and trial can be reached to secure the correct and just verdict regarding Petitioner’s claims.

This petition is submitted respectfully by ‘pro se’ Petitioner Julian Marcus Raven on Thursday the 7th of November 2019 to the Supreme Court of the United States and to the honorable justices Breyer, Thomas, Roberts, Ginsburg, Alito, Gorsuch, Sotomayor, Kagan and Kavanaugh.

Julian Marcus Raven PO Box 2111 Springfield VA 22152-0111

22 See Appendix 23 See Appendix

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703-715-7308 julianmarcusraven@gmail.com Copies of this Petition for a Writ of Certiorari CC: 2019 Board of Regents Elected Officials: The Vice president of the United States, Mike Pence, CC: Senator John Boozman Senator Patrick Leahy, CC: Senator David Perdue, CC: Representative Doris Matsui, Representative Lucille Roybal-Allard, CC: Representative John Shimkus CC: Smithsonian Secretary Lonnie Bunch

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Case 1:17-cv-01240-TNM Document 54 Filed 09/19/18 Page 1 of 20

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

Case No. 1:17-cv-01240 (TNM)

KIM SAJET, Director, National Portrait Gallery, Smithsonian Institution, et al., Defendants.

MEMORANDUM OPINION Artist Julian Raven brought this action against the United States and senior leaders of the National Portrait Gallery over the Gallery’s refusal to exhibit his portrait of then-President-elect Donald Trump. Mr. Raven claims that the decision was motivated by political bias, violating his rights under the First and Fifth Amendments. He may be right about the motivation, but he is wrong about the law. The First Amendment’s Free Speech Clause does not limit the Gallery’s art decisions, because it protects private speech, rather than curtailing government speech. Nor does the Fifth Amendment apply, as Mr. Raven has no legal right to the Gallery’s consideration.

Mr. Raven also seeks to amend his complaint by adding claims under the Federal Tort Claims Act, but the Defendants have committed no cognizable tort, even viewing the allegations in the light most favorable to Mr. Raven. Without expressing any opinion about whether the Defendants’ decision was right or good, the Court finds that Mr. Raven has not articulated a plausible violation of the Constitution, or the Federal Tort Claims Act. So the Defendants’ Renewed Motion to Dismiss will be granted, and Mr. Raven’s Motion for Leave to Amend will be denied.

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Case 1:17-cv-01240-TNM Document 54 Filed 09/19/18 Page 2 of 20

I. In his last will and testament, James Smithson “bequeath[ed]” a large sum of money “to the United States of America, to found at Washington, under the name of the Smithsonian Institution, an Establishment for the increase and diffusion of knowledge among men.”

Smithsonian Institution Archives, Last Will and Testament, October 23, 1826, https://siarchives.si.edu/history/featured-topics/stories/last-will-and-testament-october-23-1826; O’Rourke v. Smithsonian Inst. Press, 399 F.3d 113, 117 (2d Cir. 2005). Congress accepted the money, see David P. Currie, The Smithsonian, 70 U. Chi. L. Rev. 65 (2003), incorporating the Smithsonian Institution by federal statute as “an establishment . . . for the increase and diffusion of knowledge among men.” 20 U.S.C. § 41. A Board of Regents composed of the Vice President, the Chief Justice of the United States, Members of Congress, and others oversees the Smithsonian. Id. § 42.

The National Portrait Gallery is a bureau of the Smithsonian. 20 U.S.C. § 75b(a). It operates “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 Board of Regents “is authorized to accept . . . gifts of any property for the benefit of the Gallery.” 20 U.S.C. § 75d(a).

The Board may purchase, accept, borrow, or otherwise acquire portraiture, statuary, and other items for preservation, exhibition, or study. 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 . . . [and] display, loan, store, or otherwise hold any such item.

20 U.S.C. § 75(e).

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Case 1:17-cv-01240-TNM Document 54 Filed 09/19/18 Page 3 of 20

In 2015, Mr. Raven “painted the Donald Trump portrait/painting ‘Unafraid and Unashamed.’” Am. Compl., ECF No. 16, at 10. According to Mr. Raven, “[t]he nearly 8x16 foot painting . . . became the most recognized pro-Trump political portrait/painting during the 2015-2016 campaign.” Id. at 22. After President Trump won the November 2016 election, Mr. Raven sought to have the portrait displayed at the Gallery “as part of the festivities for the 2017 Inauguration.” Id. at 23. Mr. Raven sent an application—over 20 pages in length, id. at 25—by email to the Rockwell Museum, an affiliate of the Smithsonian in Corning, New York. Id. at 2324. After what Mr. Raven felt was a cold initial meeting, the Rockwell Museum informed him by return email “that the Rockwell Museum was unable to help since [it] did not have the ‘resources’” to do so. Id. at 23-24.

Mr. Raven “subsequently . . . file[d] an official complaint with the Smithsonian Director of Affiliations Harold Closter” for what Mr. Raven considered the Rockwall Museum’s “anticonservative, anti-Trump bias and for failing to simply assist [him] in submitting his application to the [National Portrait Gallery].” Id. at 24. The complaint provided a copy of Mr. Raven’s application, and Director Closter forwarded the application to the Gallery at Mr. Raven’s request.

Id. In December 2016, Mr. Raven called and left a message for Kim Sajet, the Gallery’s Director, to ask about the application. Id. at 25. Director Sajet returned Plaintiff’s call, beginning what Mr. Raven described as “an eleven minute dialogue and at times argument” during which Director Sajet allegedly stated “her partial, dishonest, arbitrary and personal antiTrump ‘objections’ as to why the . . . Gallery would not even consider plaintiff’s painting for the application process[.]” Id. at 26. Director Sajet’s “objections ranged from its size being ‘too big[,]’ to partially and incorrectly citing a[] [National Portrait Gallery] standard for acceptance,”

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Case 1:17-cv-01240-TNM Document 54 Filed 09/19/18 Page 4 of 20

to her claims that the painting was “too ‘Pro-Trump,’” “[t]oo [p]olitical,” “not neutral enough,” and “no good.” Id.; see generally id. at 26-38. In Mr. Raven’s view, “[t]he [p]ainting was refused even before given a fair and objective consideration according to Smithsonian Institution standards.” Id. at 26. Director Sajet’s “final words” to him allegedly were, “I am the Director of the National Portrait Gallery, and this application will go no further, you can appeal my decision all you want.” Id. at 42.

Mr. Raven then sent a “letter of ‘appeal’” to the Board of Regents. Id. at 46; see Pl.’s Opp. to Defs.’ Mot. to Dismiss (Opp.), ECF No. 38 at 84-87 (page numbers designated by ECF).

Two days later, Richard Kurin, then Acting Provost of the Smithsonian and Under Secretary for Museums and Research, responded: Consistent with recent tradition, the Gallery has long planned to hang a portrait of the President-elect before his Inauguration. A portrait of Mr. Trump from the National Portrait Gallery’s collection will be on display at the Gallery beginning January 13, 2017.

The decision about whether to acquire or display a work of art at the National Portrait Gallery rests in the first instance with that museum’s director, curators and historians. I have spoken with Kim Sajet, director of the National Portrait Gallery, and concur with her decision to decline your offer and continue with the museum’s plan to display a portrait of Mr. Trump from our collections.

Pl.’s Opp’n, ECF No. 38 at 89. By concurring with Director Sajet’s decision, Mr. Raven contends, Mr. Kurin “made himself accountable and jointly liable for her actions as if they were his own.” Am. Compl. at 48.

Mr. Raven brings this action against Director Sajet and Mr. Kurin in their personal capacities, under the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See Am. Compl. 10-11. He alleges that the individual Defendants violated his First and Fifth Amendment rights, id. at 11, 38-44, and seeks declaratory judgment, injunctive relief, and monetary damages. See id. at 55-60. The Amended 4

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Complaint also had claims under the Federal Tort Claims Act (FTCA)—against the United States and the Smithsonian’s leaders in their official capacity 1—but Mr. Raven withdrew those claims without prejudice after he learned that administrative exhaustion was required. Mot. Withdraw FTCA Claims, ECF No. 24; Minute Order of Dec. 22, 2017. Once the Smithsonian’s General Counsel issued a final denial of the FTCA claims, ECF No. 47 at 7, Mr. Raven sought leave to amend his complaint and reinstitute that cause of action. Opposed Mot. for Leave to Amend (Mot. Amend), ECF No. 47.

All Defendants moved to dismiss the constitutional claims. Renewed Mot. Dismiss (Mot. Dismiss), ECF No. 33. The Defendants also oppose Mr. Raven’s motion to amend his complaint, arguing that amendment would be futile. ECF No. 50.

II. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). “A claim crosses from conceivable to plausible when it contains factual allegations that, if proved, would allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Banneker Ventures, LLC v. Graham, 798 F.3d

1

The full list of defendants is long. See Am. Compl. at 71-72, 74 (naming the United States, “all of the defendants in their official capacities,” and “[t]he remaining defendants, Chief Curator Brandon Brame Fortune, Chief Smithsonian Spokesperson Linda St. Thomas[,] the Board Of Regents members[,] and the U.S. Congress represented by Congressman Roy Blunt[,] in their official capacity as federal officers[,] employees of a federal government instrumentality, Trust ‘Legatees’ and Co-Trustees, fiduciary delegates, [and] functional fiduciaries of the private and individual Will and Trust Of Mr. James Smithson.”

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1119, 1129 (D.C. Cir. 2015) (cleaned up). A court must “draw all reasonable inferences from those allegations in the plaintiff’s favor,” but not “assume the truth of legal conclusions.” Id. “In determining whether a complaint fails to state a claim, [a court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [a court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). This is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

Because Mr. Raven is pro se, his complaint must be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Courts may “consider supplemental material . . . to clarify the precise claims being urged,” Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007), “including filings responsive to a motion to dismiss.” Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015). Yet the ultimate standard remains the same. The plaintiff “must plead ‘factual matter’ that permits the court to infer ‘more than the mere possibility of misconduct.’” Atherton v. Dist. of Col. Office of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at 679). 2 III. A. At the outset, the Defendants argue that this case is moot, at least as to Mr. Raven’s request for injunctive relief. Mot. Dismiss 28. The Constitution limits federal jurisdiction to

2

Given these generous standards, the Court will grant Mr. Raven’s Motion for Leave to File a Surreply, ECF No. 42, despite the Defendants’ opposition, ECF No. 43, considering the brief attached to that motion, ECF No. 42-1(Surreply), as though it had been separately filed.

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“actual, ongoing controversies,” Am. Bar Ass’n v. FTC, 636 F.3d 641, 645 (D.C. Cir. 2011), and the Defendants point out that Mr. Raven wanted the Gallery to display the portrait for the 2017 Inauguration, which is now past. But Mr. Raven is asking for more. His later filings clarify that he wants the Gallery to hang the portrait “at any time,” as “a record of history.” Opp. 20. He observes that Donald Trump is still President, and he suggests hanging the portrait in November 2018, January 2019, or January 2020. Id. Given the obligation to construe Mr. Raven’s filings liberally, Brown, 789 F.3d at 152, the Court finds that this request presents an ongoing controversy and is not moot. 3 That said, Mr. Raven’s constitutional claims fail as a matter of law. Because the Smithsonian is a government entity and the Gallery’s art selection decisions constitute government speech, the First Amendment does not limit the Gallery’s ability to say what it wants to say. And the Fifth Amendment has no application either, for reasons explained below.

Despite Mr. Raven’s arguments to the contrary, the Smithsonian is a government entity.

In Crowley v. Smithsonian Inst., the D.C. Circuit repeatedly referred to the Smithsonian as “government” for First Amendment purposes, rejecting an Establishment Clause challenge to two exhibitions on evolution. 636 F.2d 738, 744 (D.C. Cir. 1980). The Smithsonian is an “independent establishment of the United States,” and thus a “federal agency” under the Federal Tort Claims Act. Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Inst., 566 F.2d 289, 296 (D.C. Cir. 1977) (citing 28 U.S.C. § 2671). The court reasoned: “[a]lthough the Smithsonian has a substantial private dimension . . . the nature of its function as a national museum and center of scholarship, coupled with the substantial governmental role in funding and

3

The Court has jurisdiction over the case generally, since it raises questions of federal law. 28 U.S.C. § 1331.

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oversight, make the institution an ‘independent establishment of the United States,’ within the ‘federal agency’ definition.” Id. The Second Circuit reached a similar conclusion in O'Rourke, 399 F.3d at 122 (“We conclude that the Smithsonian is within the term “the United States” in 28 U.S.C. § 1498(b).”).

To be sure, the Smithsonian is no typical federal agency. Its unusual origins, combined with the fact that it has leadership from all three branches of government, means that “the Smithsonian lacks both the ‘authority’ necessary for it to qualify as an “authority of the government of the United States” under [5 U.S.C.] § 551(1) [Administrative Procedure Act] and the executive department status necessary under [5 U.S.C.] § 552(f) [Freedom of Information Act].” Dong v. Smithsonian Inst., 125 F.3d 877, 883 (D.C. Cir. 1997). But that does not alter the Smithsonian’s government status for constitutional purposes.

Consider the case of another odd federal bird, Amtrak. In Lebron v. Nat’l R.R. Passenger Corp., the Supreme Court held that Amtrak was a part of the government “for purposes of the First Amendment.” 513 U.S. 374, 394 (1995). LeBron noted that Congress had expressly exempted Amtrak from federal “agency” status in its charter, which provided immunity from the Administrative Procedure Act, id. at 392, just like the Smithsonian. See Dong, 125 F.3d at 883.

But the Court reasoned: If Amtrak is, by its very nature, what the Constitution regards as the Government, congressional pronouncement that it is not such can no more relieve it of its First Amendment restrictions than a similar pronouncement could exempt the Federal Bureau of Investigation from the Fourth Amendment. The Constitution constrains governmental action “by whatever instruments or in whatever modes that action may be taken.” Ex parte Virginia, 100 U.S. 339, 346–347 (1880).

Lebron, 513 U.S. at 392. LeBron went on to conclude that “where, as here, the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains 8

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for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.” Id. at 399.

Although the Smithsonian is not a corporation, the salient factors considered in LeBron lead to a similar conclusion here.

Mr. Raven seizes on the fact that Amtrak was created for governmental purposes, arguing that the Smithsonian, by contrast, is a trust that must seek “the increase and diffusion of knowledge,” not whatever objectives the government chooses. Opp. 5-6, 8-9; see also Dong, 125 F.3d at 881, 883 (noting that the Smithsonian was created “pursuant to a trust bequest,” and “the United States, as trustee, holds legal title to the original Smithson trust property and later accretions.”). But even if “the increase and diffusion of knowledge” was originally a private goal, Congress ratified it, and the United States now has complete discretion in how to fulfill it.

In any event, LeBron relied more heavily on the federal government’s control over Amtrak’s board than on its federal purposes. 513 U.S. at 397 (“That Government-created and -controlled corporations are . . . part of the Government itself has a strong basis, not merely in past practice and understanding, but in reason itself.”).

Mr. Raven also argues that entities in other government speech cases have been more classic manifestations of government authority—municipal governments in People for the Ethical Treatment of Animals, Inc. v. Gittens (PETA), 414 F.3d 23, 28 (D.C. Cir. 2005), and in Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009), a state government in Walker v.

Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), and Congress in Pulphus v. Ayers, 249 F. Supp. 3d 238 (D.D.C. 2017). Opp. at 6. Traditional government actors are subject to political restraints, Mr. Raven points out, echoing the Supreme Court’s observation that “a government entity is ultimately ‘accountable to the electorate and the political process for

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its advocacy.’” Summum, 555 U.S. at 468 (citation omitted). In contrast, Mr. Raven argues, the Smithsonian’s “trustees and their assistants do not qualify for ‘Gov. Speech’ powers . . . since they cannot be voted out!” Opp. 7.

It is true that the Smithsonian, Cerberus-like, sports heads from the Executive, Legislative, and Judicial Branches. 20 U.S.C. § 42. But political accountability persists. Of the eight Regents who serve because of their federal office, voters could defenestrate seven: “the Vice President . . . three Members of the Senate, [and] three Members of the House of Representatives.” Id. The nine remaining Regents are appointed by politically-accountable representatives in Congress. Id. § 43. These Regents are empowered to control the “business of the Institution.” Id. § 42. In sum, despite its philanthropic mien, the Smithsonian is a government institution through and through. With substantial federal funding, federallyapproved leadership, and creation through private gift and federal charter, the Smithsonian is part of the United States government for purposes of the First Amendment. See Crowley, 636 F.2d at 744.

That conclusion brings us close to deciding Mr. Raven’s speech claim, because when the government speaks, the First Amendment’s Free Speech Clause does not limit what it says.

Summum, 555 U.S. at 467. And government speech includes decisions about what pieces of art it will patronize and display. PETA, 414 F.3d at 28.

In PETA, the District of Columbia’s Commission on the Arts and Humanities created a “Party Animals” art program, under which artists could submit “creative, humorous” designs for standard size sculptures of elephants and donkeys. Id. at 25. The Commission would temporarily install winning entries around the city, to display a “whimsical and imaginative side of the Nation’s Capital.” Id. In addition to general submissions, the Commission also allowed

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submissions from individuals and organizations who paid $5,000, while reserving ultimate “design approval.” Id. at 26. PETA sent in a $5,000 check and submitted several successive elephant designs alleging animal abuse in the circus. The Commission rejected each design, calling them “political billboard[s], not art,” and “not an artistic expression consistent with the goals, spirit and theme of the art project.” Id. PETA challenged the rejection as a government restriction on free speech.

The D.C. Circuit rejected that argument. Reasoning that “[t]he First Amendment’s Free Speech Clause does not limit the government as speaker,” the court explained that the government’s decision to select specific art designs constituted government speech. Id. at 28.

The court held that public forum analysis and the judicial scrutiny that comes with it do not apply to “the government’s role as patron of the arts,” id. at 29, where the government is forced to “make esthetic judgments” that courts should not police. Id. at 29 (quoting Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 586 (1998)). “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.

“There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech.” Summum, 555 U.S. at 470. In determining whether to apply public forum analysis or the government speech doctrine, the Supreme Court has looked to “(1) whether the medium at issue has historically been used to communicate messages from the government; (2) whether the public reasonably interprets the government to be the speaker; and (3) whether the government maintains editorial control over

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the speech.” Pulphus, 249 F. Supp. 3d at 247 (citing Walker, 135 S. Ct. at 2247–49; Summum, 555 U.S. at 470–72).

The D.C. Circuit’s decision in PETA ably anticipated the test that the Supreme Court applied in Walker and Summum. In PETA, the court carefully parsed what constituted government speech, before rejecting a public forum analysis.

As to the message any elephant or donkey conveyed, this was no more the government’s speech than are the thoughts contained in the books of a city’s library. . . . Those who check out a Tolstoy or Dickens novel would not suppose that they will be reading a government message. But in the case of a public library, as in the case of the Party Animals exhibit, there is still government speech.

With respect to the public library, the government speaks through its selection of which books to put on the shelves and which books to exclude. In the case before us, the Commission spoke when it determined which elephant and 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 (quoting Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998)).

A judge in this District recently applied the same logic to reject a similar challenge. In Pulphus, a young artist and his Congressman brought a First Amendment suit over the Architect of the Capitol’s decision to remove his painting from the walls of the Capitol. 249 F. Supp. 3d at 240. The painting had been selected through the Congressional Art Competition before an outcry arose over the painting’s controversial content, and the Architect subsequently removed it.

Id. at 241-44. Applying the Supreme Court’s analysis from Walker and Summum and the D.C. Circuit’s logic in PETA, Judge Bates concluded that “the art competition and the display . . . constitutes government speech.” Id. at 253. Because the government was “‘using its editorial discretion in the selection and presentation of” the art submitted as part of the competition,” id.

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(quoting PETA, 414 F.3d at 28), the plaintiffs had “no First Amendment rights at issue.” Id. at 254.

A similar analysis applies here. First, the National Portrait Gallery has historically communicated messages from the government, in the sense that it compiles the artwork of third parties for display on government property. See 20 U.S.C. § 75b(a). Second, the public would reasonably interpret the government to be the speaker, in that it selects specific art for display.

Selected artists certainly have a voice in the Gallery, but the government’s selection itself conveys a government message: the government considers the artist’s work to be worthy of public display and consideration. PETA, 414 F.3d at 28; see also Pulphus, 249 F. Supp. 3d at 249 (“the public would reasonably associate the art competition, and the art displayed . . . with the government[.] . . . Art displayed on public property is often treated as being endorsed by the government or representative of the government’s views”). Finally, the Smithsonian’s Board of Regents and its subordinates maintain editorial control over the speech. The Board has expansive authority to accept a portrait “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.” 20 U.S.C. § 75e(1).

This analysis is fatal to Mr. Raven’s First Amendment claim. In asking the Gallery to display his portrait, Mr. Raven was asking a component of the federal government to take a “communicative act” by adding his work to its compilation of art created by third parties. PETA, 414 F.3d at 28. In other words, he asked for a form of government speech. When the Gallery rejected his submission, it acted as a federal patron of the arts, declining to include the portrait as part of a government-sponsored exhibit. “The First Amendment has nothing to do with such choices.” Id.

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Mr. Raven objects, arguing that Director Sajet’s reasons for rejecting his painting (“too big,” “not from life,” and “too Pro-Trump”) were arbitrary, pretextual, and unfair, betraying a political bias against President Trump and his supporters. At the motion to dismiss stage, the Court accepts these well-plead allegations as true. Iqbal, 556 U.S. at 678. That said, the Free Speech Clause places no limitations on the content of government speech. Even political discrimination is allowed when the government chooses to sponsor speech. PETA, 414 F.3d at 30 (“we can see no First Amendment problem with the Commission making arbitrary or viewpoint-based decisions about which donkeys and elephants it wanted in its parade. No one could plausibly argue that an Inauguration Parade has to have balance, or that the losing Presidential candidate must—if he requests—be allowed to have a float of his own.”). And even though Mr. Raven considers the Gallery’s motivations to be inappropriate, particularly on the occasion of President Trump’s inauguration, the First Amendment simply does not apply to government art selections, no matter how arbitrary. Id. at 30 (“[E]sthetic judgments . . . often may appear to be arbitrary, and sometimes are.”). For these reasons, Mr. Raven’s First Amendment claim must be dismissed. 4 B. Mr. Raven’s claims under the Fifth Amendment fare no better. He asserts violations of its Due Process and Equal Protection Clauses.

4

Many of Mr. Raven’s arguments seem to rely not on the Constitution but on the language in Mr. Smithson’s will, the statutes governing the Smithsonian, or the Smithsonian’s public explanations of portrait acceptance standards. Even if the Court generously construes these arguments as a separate, non-constitutional claim for relief, Mr. Raven has not stated a claim upon which relief can be granted. In theory, the government’s speech “may be limited by law, regulation, or practice,” Summum, 555 U.S. at 468, but the Gallery has what amounts to complete discretion, as a legal matter, to decide which paintings to accept and which to reject.

20 U.S.C. §§ 41, 75(e), 75b, 75d.

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“The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘liberty’ or ‘property.’” NB ex rel. Peacock v. District of Columbia, 794 F.3d 31, 41 (D.C. Cir. 2015) (citation omitted). If no protected interest exists, no due process claim exists. Id. “To have a protected property interest in a given benefit, ‘a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.’” Id. (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). “[A] benefit is not a protected entitlement if government officials may grant or deny it in their discretion.” Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005).

Under the due process rubric, Mr. Raven argues that he had a constitutionally protected property right to apply for his portrait’s acceptance, which the Smithsonian violated by subjecting him to an unfair, biased process. See, e.g., Am. Compl. 15-16. But Mr. Raven was not legally entitled to a fair hearing for his application. The Gallery has what amounts to complete discretion in choosing portraits. 20 U.S.C. § 75(e) (“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.”). Contrary to Mr. Raven’s arguments, Am. Compl. 38-39, the Smithsonian’s broad calling to increase and spread knowledge, and its general standards for accepting items, confer no particular rights on those who wish to participate. 20 U.S.C. § 75(e); Town of Castle Rock, Colo., 545 U.S. at 756. In its discretion, the Gallery could have simply informed Mr. Raven that it was not interested in his portrait, or even done nothing at all. With no protected constitutional right at stake, Mr. Raven’s Due Process claim fails. Cf. Pulphus, 249 F. Supp. 3d at 254 (“the argument that the competition

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rules are void for vagueness because they may chill plaintiffs’ protected speech depends on plaintiffs having speech rights to chill, which the Court has already determined is not the case.”).

Mr. Raven also invokes “the equal protection component of the Fifth Amendment’s Due Process Clause.” Am. Compl. 13 (quoting Davis v. Passman, 442 U.S. 228, 235 (1979)); see Schweiker v. Wilson, 450 U.S. 221, 227 n.6. (1981) (“[T]he Fifth Amendment imposes on the Federal Government the same standard required of state legislation by the Equal Protection Clause of the Fourteenth Amendment.”). He argues that the Defendants arbitrarily deprived him of a fair hearing and rejected his work, Am. Compl. 13, while accepting other comparable art pieces celebrating President Obama, for example. Id. at 28-29. It is possible to bring a “class of one” equal protection claim, “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). “[T]he purpose of the equal protection clause . . . is to secure every person . . . against intentional and arbitrary discrimination.” Id. (quoting Sioux City Bridge Co. v. Dakota Cty., Neb., 260 U.S. 441, 445 (1923)) (brackets omitted).

But in the narrow context of this case—where the government may make esthetic choices that may seem arbitrary, PETA, 414 F.3d at 30—such principles have no application. After all, the relevant constitutional language forbids that the Government “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. am. XIV (emphasis added). And the Gallery has no legal constraints on its ability to consider or select particular portraits. The most relevant statute suggests that the Board of Regents “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.” 20 U.S.C. § 75(e) (emphasis added).

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“May” is a permissive term. The law does not require the Board to acquire (or even consider) any particular portrait, regardless of its historical interest, artistic merit, or cultural significance. 5 With no legal protections for art applications, equal protection cannot be enforced.

C. Even if Mr. Raven had successfully stated a violation of the First or Fifth Amendment, his claims for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), would still be dismissed. Qualified immunity protects government officials from civil liability for constitutional violations unless they violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Since the Free Speech Clause does not apply to government art decisions like this one, and no Fifth Amendment rights are at issue, the Defendants did not violate “clearly established” constitutional law, for all the reasons given above.

In any case, damages for constitutional violations are rare and not appropriate here. “[T]he Supreme Court has not authorized a suit for damages based on the First Amendment and warns that extending such remedies to new contexts is ‘a disfavored judicial activity.’” Storms v.

Shinseki, 319 F. Supp. 3d 348, 351 (D.D.C. 2018) (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1848 (2017)). Government art decisions would certainly be a new context, even for a Fifth Amendment Bivens claim. And the Judicial Branch’s lack of expertise in deciding what constitutes a “rational” art decision (among other factors), counsels strongly against creating a new damages remedy here. If such a remedy should exist, it is the role of Congress to create it.

5

This fact refutes Mr. Raven’s argument that he was deprived of “the right to appeal” when Mr. Kurin allegedly ignored the fact that his letter to the Board of Regents was an “appeal.” Am. Compl. 13, 46-47. Even if Mr. Kurin’s letter could be so construed, no law conferred upon Mr. Raven appeal rights.

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D. Finally, Mr. Raven filed a Motion to Amend, which would reinstate his claims under the Federal Tort Claims Act. The Defendants argue that this amendment would be legally futile and should therefore be denied. Opp. Mot. Amend; James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim would not survive a motion to dismiss.”). The Court agrees.

Under the FTCA, the United States has waived sovereign immunity only for claims: [1] against the United States, [2] for money damages . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

FDIC v. Meyer, 510 U.S. 471, 477 (1994) (quoting 28 U.S.C. § 1346(b)). Under the law of the place where the Defendants’ actions occurred—the District of Columbia—Mr. Raven’s tort claims do not survive.

Mr. Raven’s most prominent tort claim is for breach of fiduciary duty. See, e.g., Am. Compl. 91; see Beckman v. Farmer, 579 A.2d 618, 655 (D.C. 1990) (recognizing the tort under District of Columbia law). He argues that the Smithsonian is a trust, since it was created by the will of James Smithson “for the increase and diffusion of knowledge,” and that as a trust beneficiary, he is entitled to fair treatment. Am. Compl. 92-93. It is true that the Smithsonian acts as a “trustee,” in that it administers “the original Smithson trust property and later accretions.” Dong, 125 F.3d at 883. But as explained above, the Smithsonian’s management has complete, unfettered discretion to determine how best to pursue “the increase and diffusion of

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knowledge among men,” 20 U.S.C. § 41, at least when it comes to the selection of art for the Gallery. 20 U.S.C. § 75(e).

Mr. Raven also claims that the Defendants negligently inflicted emotional distress on him. Am. Compl. 114-15. But as the Defendants point out, the bar for that tort is high indeed.

“Under District of Columbia law, a plaintiff may make out a claim for negligent infliction of emotional distress in one of two ways.”

Clark v. District of Columbia, 241 F.Supp.3d 24, 30 (D.D.C. 2017).

The first method is to satisfy the standards for the “zone of physical danger test” and show that “serious” and “verifiable” mental distress occurred because the defendant’s actions caused the plaintiff to be “in danger of physical injury,” and as a result the plaintiff “feared for his own safety.” Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 798 (D.C. 2011) (quoting Williams v. Baker, 572 A.2d 1062, 1066 (D.C. 1990)). Alternatively, a plaintiff may “show that (1) the defendant has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, of a nature that necessarily implicates the plaintiff's emotional well-being, (2) there is an especially likely risk that the defendant’s negligence would cause serious emotional distress to the plaintiff, and (3) negligent actions or omissions of the defendant in breach of that obligation have, in fact, caused serious emotional distress to the plaintiff.” Id. at 810–11.

Kowalevicz v. United States, 302 F. Supp. 3d 68, 78 (D.D.C. 2018). Mr. Raven cannot satisfy either standard. The rejection of his painting did not put him in a “zone of physical danger,” and his relationship with the Defendants was not of the sort “that necessarily implicates [his] emotional well-being.” See id. Although artists may be “highly sensitive,” Am. Compl. 56, and Mr. Raven credibly asserts that this was “the most important work in [his] career,” id. 56-57, the gatekeepers of the Gallery have no obligation to steward the emotional health of artists.

And even if Mr. Raven contends that the Defendants intentionally inflicted his emotional distress (a separate tort), that claim fails as well: In the District of Columbia, a prima facie showing of intentional infliction of emotional distress requires “(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.” Sere 19

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v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982) (internal quotation marks omitted). To meet the first prong, the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. . . . Liability will not ensue for “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998).

North v. Catholic Univ. of Am., 310 F. Supp. 3d 89, 94–95 (D.D.C. 2018). Even accepting the worst possible reading of the Defendants’ alleged actions, what they did amounted to a professional insult, though partisan and undeserved, against Mr. Raven and his work. Odious they may be, but insults of this kind are not actionable torts under District of Columbia law. No impartial jury could conclude that the Defendant’s politically-biased rejection was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. For these reasons, Mr. Raven’s Motion to Amend must be denied as futile.

IV. For these reasons, the Court will grant the Defendants’ Motion to Dismiss and deny Mr. Raven’s Motion for Leave to Amend. A separate order will issue.

2018.09.19 16:26:05 -04'00' Dated: September 19, 2018

TREVOR N. MCFADDEN, U.S.D.J.

20

CHAIRMAN ENVIRONMENTAL CONSERVATION COMMITTEES AGRICULTURE BANKS CODES ENERGY AND TELECOMMUNICATIONS FINANCE INSURANCE INVESTIGATIONS& GOVERNMENT OPERATIONS IUDICIARY TRANSPORTATION

THE SENATE STATE OF NEW YORK

ROOM 307 LEGISLATIVE OFFICE BUILDING ALBANY. NEWYORK 12247 518) 455-2091 FAX. 1518) 426-6976

IA

333 E WATER STREET, SUITE 301 ELMIRA. NEW YORK 14901 (607) 735-9671 FAX. (6071 735-9675 E-MAIL onrnrunysena1e gov

p

THOMAS F. O’MARA SENATOR 58TH DISTRICT

November 1 6. 201 6

Mr. .ltilian Raven

2524 (‘0. Rt. 60 I tlinira. New ‘ork 14002 Dear N’lr. Raven: I hank you br tiNs opportunity to express my strong support br your &iplicaition to the Smithsonian National Portrait Gallery to have your portrLlt of President—elect Donald trump.

-i naIl-aid and nashallied. displayed at the (jul lery in eonjllnction ith the President—elect’s Inauguration in January.

As your representative in the New York State Senate. I believe that your incredible work would be an appropriate and impactiul addition to the National Portrait Gallery’ during this time, and a truly’ patriotic tribute to our new President.

I sincerely hope that the selection committee will give your work every consideration and if I can be ol an l’urther assistance or provide any additional thoughts. please don’t hesitate to contact me. It would he my pleasure to do so.

Sincerely.

%;:

AC?1t’-

I homas F. (1 Mara N VS Senator. 5wl District

THE NEW YORK REPUBLICAN STATE COMMITTEE ED COX, CHAIRMAN November 28, 2016 Dear Mr. Raven, Thank you for the opportunity to express my strong support for your application to the Smithsonian National Portrait Gallery for your portrait of President-elect Donald J. Trump to be displayed at the gallery in conjunction with the January 20th inauguration.

We were proud to have this piece prominently displayed at the New York delegation hotel during the 2016 Republican National Convention. Our status as the home state committee of the Republican nominee attracted several top national figures who had the opportunity to view this striking and memorable piece of political art.

It has already been enjoyed and remarked upon by many, but its display at the inauguration by a New York artist would be an appropriate commendation for our President-elect. This honor would have a special significance given your position as an alternate delegate for Mr. Trump’s campaign at this year’s convention, and as a loyal member of the Republican Party.

Please allow this communication to serve as my enthusiastic support for this endeavor. If anyone on the selection committee would like to speak to me further, please feel free to have them reach out to my office.

We wish you the best of luck in this pursuit and look forward to seeing your piece again in Washington D.C. this January.

Sincerely,

Edward F. Cox Chairman

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Schuyler County Republican Committee Lester W. Cady 1268 Crans Rd Millport, NY 14864 607-481-1207 November 18, 2016 Julian Raven 2524 County Route 60 Elmira, NY 14902

Dear Mr. Raven,

Thank you for this opportunity to express my strong support for your application to the Smithsonian National Portrait Gallery to have your portrait of President-­‐elect Donald Trump “Unafraid and Unashamed”, displayed at the Gallery in conjunction with the President-­‐elect’s Inauguration in January.

As part of the Schuyler and State Republican Committee, my wife Cindy and I believe that your incredible work would be an appropriate and impactful addition to the National Portrait Gallery during this time and a truly patriotic tribute to our new President.

It was a pleasure to get to know you and your work in Cleveland at the GOP National Convention, along with your generous display and time you gave to our Committee Fall Dinner event.

I sincerely hope that the selection committee will give your work every consideration and if we can be of any further assistance or provide any additional thoughts, please don’t hesitate to contact us. It would be our pleasure to do so.

Sincerely,

Lester W. Cady, Schuyler County Republican Chairman

Joseph Sempolinski Chairman, Steuben County Republican Committee

Mr. Julian Raven 2524 Co. Rt. 60 Elmira, NY 14902 Dear Mr. Raven, I write in regards to your application to the Smithsonian National Portrait Gallery to have your painting “Unafraid and Unashamed” displayed at the celebration for President-Elect Donald Trump’s inauguration.

I hope that your application is received positively by the Gallery. I admire the passion and patriotism that you have displayed through your artwork and I hope that you will be able to share that art with the whole nation through this opportunity.

I know that as a newly minted citizen this election has been of particular importance to you personally and I hope that your application is successful.

Sincerely,

Joseph Sempolinski Chairman, Steuben County Republican Committee

Smithsonian Institution Dr. Richard Kurin Acting Provost/Under Secretary for Museums & Research

December 9, 2016 Mr. Julian Marcus Raven 2524 County Route 60 Elmira NY 14901 Dear Mr. Raven: We appreciate receiving your letter of December 7 to the Smithsonian’s Board of Regents, regarding your proposal to exhibit your portrait of President-elect Trump at the National Portrait Gallery. The Board has referred your letter to me for a response.

Consistent with recent tradition, the Gallery has long planned to hang a portrait of the President-elect before his Inauguration. A portrait of Mr. Trump from the National Portrait Gallery’s collection will be on display at the Gallery beginning January 13, 2017.

The decision about whether to acquire or display a work of art at the National Portrait Gallery rests in the first instance with that museum’s director, curators and historians. I have spoken with Kim Sajet, director of the National Portrait Gallery, and concur with her decision to decline your offer and continue with the museum’s plan to display a portrait of Mr. Trump from our collections.

Thank you for your interest in the Smithsonian and the National Portrait Gallery.

Sincerely,

Smithsonian Castle on the National Mall 1000 Jefferson Drive, SW, Art Room 219 MRC 040 PO Box 37012 Washington DC 20013-7012 (202) 633-5240 Telephone (202) 357-7031 Fax kurin@si.edu Email

STANDARDS FOR REVIEW A.

The Smithsonian’s Legal Status

The Smithsonian is a trust instrumentality that was established by Congress in 1846 to hold in trust property donated by James Smithson and to carry out the provisions of his will for the “increase and diffusion of knowledge.”4

Like other quasi-governmental entities, the

Smithsonian, though a creation of federal law, has an independent organizational existence and is not an agency of the United States government.

The legal status of the Smithsonian has been raised periodically in lawsuits against the Smithsonian. Federal courts have considered the Smithsonian to be an establishment, agency or authority of the federal government in some circumstances, but not others.5 The Smithsonian is unique among quasi-governmental organizations in that, while most of its employees are treated as federal employees with all the protections, benefits and restrictions applicable thereto, a limited number of employees are considered to be employed by the Smithsonian trust.

The Smithsonian’s main source of funds is the federal government, which currently provides more than seventy percent of the Smithsonian’s budget. This reliance on federal funding has been increasing in recent years.

B.

Governance and Applicable Fiduciary Duties

The structure, organization, management and oversight of the Smithsonian were established by federal statute in 1846, providing that the Board of Regents shall be the governing

4 5

The Smithsonian Act of August 10, 1846, as amended and codified, 20 U.S.C. §§ 41-67.

For example, the Smithsonian has been deemed to fall within the definition of “federal agency” for purposes of the Federal Tort Claims Act, and so entitled to immunity against a defamation action under that statute. See Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Inst., 566 F. 2d. 289 (D.C. Cir. 1977) (en banc).

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body.6 The Board has the responsibility for appointing the Secretary, who is charged with managing the operations of the Smithsonian.

Unlike the vast majority of nonprofit organizations whose governance is informed by applicable state statutes and common law of fiduciary duties, there is no developed body of federal common law setting forth the duties and obligations of the Board. Nonetheless, it is clear that the Regents are fiduciaries of the Smithsonian. First, the Regents are trustees charged with managing the original Smithson trust for the benefit of the American people.7 Second, the Regents are analogous to directors of a nonprofit organization and therefore must fulfill the fiduciary duties of directors. While trustees and directors are both subject to duties of loyalty and care, the trustee is expected to satisfy a higher standard with respect to both duties.8 The fiduciary duties of the Regents are spelled out clearly in Smithsonian Directive 150: The Board of Regents bears the responsibility of the United States as trustee for carrying out the Smithsonian bequest and the public trust for which it provided. The primary obligation of the Board of Regents is to manage the resources of the Institution for the benefit of all mankind.9 The standards applied to the Regents derive from trust law: A trust is a fiduciary relationship whereby a trustee holds and administers property for stated purposes on behalf of named beneficiaries. A trustee who holds legal title to trust property can use that property only in accordance with trust purposes to serve trust beneficiaries. In addition, a trustee must exercise prudent oversight of trust assets, keep strict accounts, make 6

20 U.S.C. §§ 41-67.

A trustee has a “fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another.”

RESTATEMENT (SECOND) OF TRUSTS 2 (1957).

8 See George B. Bogert & George T. Bogert, THE LAW OF TRUSTS AND TRUSTEES §394 (Rev. 2d 1994) (higher standard of care and stricter duty of loyalty generally imposed upon trustees under trust law than on trustees or directors under nonprofit corporation statutes).

9 SMITHSONIAN DIRECTIVE 150, Smithsonian Institution Origins, Governance, and Relationship to the Federal Government (April 16, 1996), attached as Exhibit 3.

7

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every effort to further trust purposes, and account for stewardship of the trust to all proper authorities.10 The duties required of one in such a fiduciary capacity are well established in the law.

The duty of care generally describes the level of attention required of a director in all matters related to the organization.11 This duty of care is perhaps more accurately described as a “duty to be informed.” A director has the responsibility to become informed about an issue before making a business decision relating to the issue.12 A director will fulfill the duty of care if, prior to making a decision, he or she seeks out and considers all material information reasonably available to him or her. To fulfill the duty of care, the directors should follow deliberate procedures and consult with appropriate committees, officers or employees of the organization or other outside experts in making corporate decisions. This often means going beyond what is provided to the board by in-house staff, including consulting with outside experts, talking directly to, and questioning, employees with knowledge of the facts and, above all, asking thoughtful and probing questions. Board members may not simply rely on the word of senior management without further inquiry.

The duty of loyalty requires a director to act in the interest of the entity rather than in the personal interest of the director or some other person or organization.13 More importantly, the duty of loyalty encompasses an obligation of directors and key employees with financial or other decision-making authority to avoid conflicts of interest. For a director, a violation of this duty may result in personal liability for a breach of fiduciary duty. For the organization, such a 10

Id. See 3A William Meade Fletcher, FLETCHER CYCLOPEDIA OF THE LAW OF CORP. § 1029 (duty of care requires that directors perform their obligations with a minimum standard of care).

12 See id. § 1034.80 (director’s failure to make a reasonable inquiry may constitute breach of duty of care).

13 See id. § 837.60 (duty of loyalty mandates that best interest of the corporation take precedence).

11

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breach may allow a court to void the corporate transaction in which a conflict was present.14 There have been no allegations, nor is the IRC aware of any evidence whatsoever, that any Regent violated this duty of loyalty.

These duties of care and loyalty are heightened for the Regents due to their status as trustees of the Smithsonian trust. In short, Regents owe the highest possible fiduciary duty to the Smithsonian and the American people.

C.

Applicable Tax Laws and Principles

The Smithsonian is treated as an organization exempt from taxation under section 501(c)(3) of by the Internal Revenue Code of 1986, as amended (“Code”). Accordingly, certain provisions of the Code dealing with compensation and expenses apply to the Smithsonian.

Code section 4958 imposes a tax on excess benefit transactions for those organizations which are exempt from taxation under Code sections 501(c)(3) or 501(c)(4).15 In general, an excess benefit transaction is any transaction in which an economic benefit (including compensation) is provided to or for the use of any “disqualified person,” if the value of the economic benefit provided to the disqualified person exceeds the value of the consideration (including the performance of services) received by the organization in return for such benefit.

The intermediate sanction excise tax, therefore, may be imposed on a senior executive who is paid excess compensation by a nonprofit organization, with compensation including not just base salary, but all other forms of compensation, including bonuses, benefits, and deferred compensation.

14

See id. § 916 (transaction voidable where unfair to the corporation or entered into in bad faith).

15 See also Treas. Reg. § 53.4958-1T et seq.

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I

114TH CONGRESS 1ST SESSION

H. R. 3169

To revise the composition of the Board of Regents of the Smithsonian Institution so that all members are individuals appointed by the President from a list of nominees submitted by the leadership of the Congress, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES Ms. NORTON

JULY 22, 2015 introduced the following bill; which was referred to the Committee on House Administration

A BILL To revise the composition of the Board of Regents of the Smithsonian Institution so that all members are individuals appointed by the President from a list of nominees submitted by the leadership of the Congress, and for other purposes.

1

Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled, 3 4

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Smithsonian Mod-

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5 ernization Act of 2015’’.

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SEC. 2. APPOINTMENT OF MEMBERS OF SMITHSONIAN

2 3

BOARD OF REGENTS.

(a) NUMBER

OF

MEMBERS; APPOINTMENT

OF

ALL

4 MEMBERS FROM LIST OF NOMINEES.— 5

(1) IN

GENERAL.—Section

5580(a) of the Re-

6

vised Statutes of the United States (20 U.S.C.

7

42(a)) is amended by striking ‘‘to be composed of’’

8

and all that follows and inserting the following: ‘‘to

9

be composed of 21 members appointed by the Presi-

10

dent from among the list of nominees submitted

11

under subsection (b), of whom 2 shall be residents

12

of the District of Columbia.’’.

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(2) LIST

OF NOMINEES.—Section

5580 of the

14

Revised Statutes of the United States (20 U.S.C.

15

42(a)) is amended—

16

(A) by redesignating subsection (b) as sub-

17

section (c); and

18

(B) by inserting after subsection (a) the

19 20

following new subsection: ‘‘(b) The Speaker of the House of Representatives

21 and the Majority Leader of the Senate shall each submit 22 to the President a list of 12 nominees for appointment

smartinez on DSK4TPTVN1PROD with BILLS

23 as members of the Board of Regents.’’.

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(3) REVISION

OF QUORUM.—Section

25

the Revised Statutes of the United States (20

26

U.S.C. 44) is amended by striking ‘‘eight shall con•HR 3169 IH

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stitute a quorum’’ and inserting ‘‘17 shall constitute

2

a quorum’’.

3

(4) NO

4

GENTS.—Nothing

5

subsection may be construed to affect the authority

6

of any individual who serves as a Regent of the

7

Smithsonian Institution as of the date of the enact-

8

ment of this Act pursuant to a joint resolution of

9

the Congress to continue to serve as a Regent after

EFFECT ON CURRENT CITIZEN RE-

in the amendments made by this

10

that date.

11

(b) UNIFORM TERM

OF

SERVICE.—Section 5581 of

12 the Revised Statutes of the United States (20 U.S.C. 43) 13 is amended to read as follows: 14

‘‘SEC. 5581. (a) Except as provided in subsections

15 (b) and (c), each Regent of the Smithsonian Institution 16 shall be appointed for a term of 6 years, and may be re17 appointed for additional terms.

18

‘‘(b) Of the Regents who are appointed after the date

19 of the enactment of the Smithsonian Modernization Act 20 of 2015 who were not serving as Regents prior to that

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21 date— 22

‘‘(1) 4 shall be appointed for a term of 2 years

23

(as designated in the joint resolution under which

24

they are appointed) and may be reappointed for ad-

25

ditional terms of 6 years; and

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‘‘(2) 4 shall be appointed for a term of 4 years

2

(as designated in the joint resolution under which

3

they are appointed) and may be reappointed for ad-

4

ditional terms of 6 years.

5

‘‘(c) Any Regent appointed to fill a vacancy occurring

6 before the expiration of the term for which the Regent’s 7 predecessor was appointed shall be appointed only for the 8 remainder of that term. A Regent may serve after the ex9 piration of that Regent’s term until a successor has taken 10 office.’’.

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