Raven v. Smithsonian Appeal, DOJ's Motion for Summary Affirmance by Julian Raven

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 18-5346 (C.A. 17-1240) JUILIAN MARCUS RAVEN,

Appellant,

v. UNITED STATES OF AMERICA, et al.,

Appellees.

APPELLEES’ MOTION FOR SUMMARY AFFIRMANCE Appellees, the United States of America, Kim Sajet, Director of the Portrait Gallery in the Smithsonian Institution, and Richard Kurin, Acting Provost of the Smithsonian Institution, through undersigned counsel, respectfully move for summary affirmance of the September 19, 2018 Opinion and Order by the Honorable Trevor N. McFadden, granting Appellees’ Motion to Dismiss and denying Appellant’s Motion for Leave to Amend his Complaint.1 Summary disposition is appropriate because the merits of appellees’ claims “are so clear that expedited action is justified” and “no benefit will be gained from further briefing and argument of the issues presented.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297-98 (D.C. Cir. 1987); Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.) (per curiam), cert. denied, 449 U.S. 994 (1980).

Copies of the September 19, 2018 Opinion and Order are attached.

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY In 2015, appellant created a painting of then-presidential candidate Donald J. Trump (the “Trump Portrait”). R. 16, Amended Complaint, p. 22, lines 14-16. 2 On December 1, 2016, appellant called Director Sajet to inquire about displaying his Trump Portrait in the Portrait Gallery. Id. at p. 23, line 11 – p. 25, line 2. Appellant claims that Director Sajet informed him that, for various reasons, the Portrait Gallery would not consider his painting for display in the Gallery. Id. at p. 25, line 14 – p. 26, line 19. Those reasons allegedly included that the portrait was “‘too big’ . . . too ‘Pro Trump’, ‘Too Political’, ‘not neutral enough’ and finally ‘no good.’” Id. at p. 26, lines 17-19. Director Sajet also purportedly said that the portrait “was not created from life, partially citing a Smithsonian Standard for portraiture acceptance.” Id. at p. 30, lines 17-19. Appellant alleges that he appealed Director Sajet’s conclusion to the Smithsonian Board of Regents, and that his appeal was decided by appellee Kurin, Acting Provost of the Smithsonian. Id. at pp. 42-43, 46-47. Dr. Kurin informed appellant that he concurred in Director Sajet’s decision. Id. at p. 48, lines 13-14.

Appellant’s Amended Complaint contains no paragraph numbers, only page and line numbers. Citations to “R.” followed by a number are to the corresponding numerical entry in the District Court’s docket. 2

Appellant filed suit in the United States Court of Federal Claims. That Court transferred appellant’s case to District Court in June 2017. Appellant filed an Amended Complaint on October 3, 2017, challenging the Portrait Gallery’s alleged refusal to consider displaying, or actually displaying, his Trump Portrait. R. 16, Amended Complaint, p. 23, line 7. Appellant claimed that appellees’ actions violated his rights under the First and Fifth Amendments to the U.S. Constitution, for which a Bivens3 action could be brought against appellees in their individual capacities. Appellant also claimed that appellees’ actions in connection with his request were negligent, thereby giving him a cause of action under the Federal Tort Claims Act (“FTCA”). Appellees moved to dismiss. R. 18. By Minute Order dated November 29, 2017, the District Court deferred consideration of appellees’ motion pending service on the appellees sued in their individual capacities. On December 13, 2017, appellant withdrew his unexhausted FTCA claims. R. 24. Appellees renewed their motion to dismiss on March 9, 2018. R. 33. Appellant opposed that motion and filed motions for an adverse inference, leave to amend the Amended Complaint to add the then-exhausted FTCA claims, and for a rescission of the decision not to hang his Trump Portrait in the Portrait Gallery. R. 38, 46, 47, & 48.

See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”). 3

Deeming appellant’s rescission motion as essentially a motion for preliminary injunction, by Minute Order dated July 24, 2018, the District Court denied appellant’s motion, finding the record failed to support the grant of such an extraordinary remedy. By Memorandum Opinion dated September 19, 2018, the District Court denied appellant’s motion for adverse inference as moot and denied the motion for rescission as duplicative of the relief requested in the Amended Complaint. R. 54. The Court further granted appellees’ renewed motion to dismiss and denied appellant’s motion for leave to amend his Amended Complaint. Id. In denying appellant’s motion for leave to amend to add back his FTCA claims, the Court concluded that such amendment would be futile. The Court found that appellant’s main tort claim was for an alleged breach of fiduciary duty by the Smithsonian in administering Smithsonian property. The Court held that because the Smithsonian has unfettered discretion to decide which pieces of art should be displayed in the Portrait Gallery, this FTCA claim would be subject to dismissal. R. 54 at 18. The Court also found that appellant’s negligent infliction of emotional distress claim would fail because “the gatekeepers of the Gallery have no obligation to steward the emotional health of artists.” Id. at 19. Finally, the Court held that appellant’s intentional infliction of emotional distress claim would also fail because the rejection of his portrait did not rise to the level of extreme or

outrageous behavior. Id. at 19-20. The Court granted appellees’ renewed motion to dismiss on several grounds. With respect to appellant’s First Amendment claim, the Court concluded that “[b]ecause 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.” R. 54 at 7. The Court also readily rejected appellant’s Fifth Amendment claims of violations of the Due Process and the Equal Protection Clauses. The Court concluded that appellant had no constitutionally protected right to have a hearing on his application to display his Trump Portrait, let alone to have the portrait actually displayed at the Portrait Gallery. See R. 54 at 15-16. Absent any legal protections for applications to display art, no constitutional rights were implicated. Id. Finally, the Court held that even if appellant had stated a claim for a constitutional violation, his claim for damages under Bivens would fail on the grounds of qualified immunity. “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[.]” R. 54 at 17. Moreover, the Court noted that there has been no recognition of a Bivens claim for government art decisions, “[a]nd 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.” R. 54 at 17. This appeal followed. ARGUMENT I.

The District Court Correctly Concluded that Appellant’s Bivens Claims Fail to Allege a Constitutional Claim and, Even if They Did, Dismissal was Warranted on Qualified Immunity Grounds.

As a threshold matter, the Supreme Court recently reiterated in Ziglar v. Abbasi, 137 S. Ct. 1843, 1866-69 (2017) (“Abbasi”), that it has only recognized an implied cause of action under Bivens in three circumstances: a Fourth Amendment claim (see Bivens); a Fifth Amendment claim for gender discrimination (Davis v. Passman, 442 U.S. 228 (1979)); and an Eighth Amendment claim for cruel and unusual punishment in the prison context (Carlson v. Green, 446 U.S. 14 (1980)). See Abbasi, 137 S. Ct. at 1854-57 (“expanding the Bivens remedy is now considered a ‘disfavored’ judicial activity.”) (citing Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). This Court in Thompson v. District of Columbia, 428 F.3d 283, 286 (D.C. Cir. 2005), also recognized a Bivens claim for the retaliatory firing of a public employee. None of these cases, however, bear any resemblance to the instant action. Indeed, appellant conceded that “[a] First Amendment political free speech ‘Bivens Action’ will be considered a new context and a new cause of action.” R. 16, Amended Complaint, p. 11, lines 11-12. The District Court

correctly recognized that no Bivens claim should be created to address appellees’ failure to hang a portrait in the Portrait Gallery. The decision to hang a particular piece of art in a Smithsonian museum constitutes government speech that fails to implicate the First Amendment in any respect. Additionally, appellant has no Fifth Amendment right to have portrait considered by the Smithsonian, and thus appellant also failed to state any claim for a violation of the Fifth Amendment’s Due Process or Equal Protection clauses. A. Appellant’s First Amendment Claims. Although the regulation of private speech is subject to varying levels of First Amendment protection, depending upon the forum in which the speech occurs, the Supreme Court has made clear, repeatedly, that the government is entitled to use government property to engage in government speech, as long as such use is within reason. The First Amendment’s Free Speech Clause does not apply to government speech. In Walker v. Texas Div., Sons of Confederate Veterans Inc., 135 S. Ct. 2239 (2015), the Supreme Court held that in order to determine whether the speech at issue constituted government speech, the Court considered three different factors: (1) whether the forum is one which the government traditionally uses to speak to the public; (2) whether a reasonable person observing the speech would interpret it as conveying a message on behalf of the government; and (3) whether the

government maintained control over the speech conveyed. Walker; 135 S. Ct. at 2247. The Court’s three factors were based in large part on its prior decision in Pleasant Grove City v. Summum, 555 U.S. 460 (2009), in which the Court also had made clear that it had repeatedly held that the government has the right to engage in its own speech, free from First Amendment constraints. Id. at 467, citing, e.g., Johanns v. Livestock Marketing Ass’n, 544 U.S. 550, 553 (2005); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 139, n.7 (1973) (Stewart, J., concurring); Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000). The facts at issue here plainly meet the Walker/Summum test for government speech. First, the Smithsonian is a trust instrumentality of the United States, and this Court has held that the Smithsonian museums constitute governmental entities. Expeditions Unlimited Aquatic Enter. v. Smithsonian Institution, 566 F.2d 289, 296 (D.C. Cir. 1977) (Smithsonian is an “independent establishment of the United States” covered by the FTCA). The Portrait Gallery is a public museum, and the portraits and statues exhibited by the Gallery are selectively chosen by governmental representatives, whether they be the Board of Regents for the Smithsonian, or their delegees, the National Portrait Gallery Commission or the Director (and staff) of the Portrait Gallery. See 20 U.S.C. §§ 75a-f; 20 U.S.C. § 75b(b). These portraits and statues are selected based on factors

prescribed by Congress in the statute creating the Portrait Gallery. See 20 U.S.C. § 75e(1). As this Court recognized in People for the Ethical Treatment of Animals v. Gittens, 414 F.3d 23 (D.C. Cir. 2005) (“PETA”), when the government runs a museum, it is not regulating private speech subject to the First Amendment. Id. at 28-29. Instead, it is engaged in government speech, which may well include viewpoint discrimination. Id. See Pulphus v. Ayers, 249 F. Supp.3d 238, 254 (D.D.C. 2017) (Congressional art competition resulting in display on the walls in the Cannon Tunnel on the Capitol Grounds constitutes government speech), appeal dismissed as moot, No. 17-5095 (D.C. Cir. Nov. 30, 2018). Second, members of the public seeing the display of portraits and statues in the Portrait Gallery would reasonably assume that they are endorsed by the government. The displays are on the walls of a Smithsonian government building, and clearly represent selective choices made by the Galley. Just like the monuments selected by the city for display in the public park in Summum, members of the public would reasonably assume that the Portrait Gallery is conveying a message by its choice of portraits to hang on the walls of the Gallery. See Summum, 129 S. Ct. at 1133. Third, there is no dispute that the United States maintains control over the displays of portraits and statues in the Portrait Gallery. Under 20 U.S.C. § 75e, the

Board of Regents for the Smithsonian, or its designee, is responsible for acquiring items for the Gallery consistent with Congress’s statutory factors, displaying them, storing them, disposing of them, and similar activities. Through all these procedures, the government keeps significant control over the portraits and statues it chooses to display in the Portrait Gallery. See Walker, 135 S. Ct. at 2249 (Texas effectively controlled all the messages on license plates by exercising final approval over their selection). Thus, the facts presented here easily meet the test set out in Walker/Summum for a finding of government speech. Not only does the government have a right to its own speech, but when it exercises that right the Free Speech Clause of the First Amendment is not implicated. Walker, 135 S. Ct. at 2245 (“[w]hen the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”); Summum, 555 U.S. at 467 (“The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”). The Supreme Court has made clear that when the government speaks, it need not include alternate views. Walker, 135 S. Ct. at 2246. As this Court held in PETA, “[t]he First Amendment’s Free Speech Clause does not apply to the government as communicator.” Id., 414 F.3d at 30-31. It would be strange indeed to hold that the government may not favor its own

expression in a governmental museum, when a federal statute specifies the types of portraits and statues the museum may choose to display, and where space necessarily limits the selective choices the museum can make. Thus, the District Court correctly concluded that appellant had failed to state a claim for a violation of the First Amendment. Ashcroft v. Iqbal, 556 U.S. 662, 667-78 (2009); see Abassi, 137 S. Ct. at 1866-69. B. Appellant’s Fifth Amendment Claims. The Due Process Clause of the Fifth Amendment prohibits the government from depriving an individual of life, liberty or property without due process of law. As the Supreme Court made clear long ago, “[t]o have a property interest in a benefit, a person clearly must have . . . a legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Such entitlements are not created by the Constitution; the source for such an entitlement must stem from an independent source, such as state or federal law. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005); Paul v. Davis, 424 U.S. 693, 709 (1976). A benefit is not entitled to Fifth Amendment protection if the government may grant or deny the benefit as a matter of discretion. Town of Castle Rock, Colo., 545 U.S. at 756. The District Court correctly rejected appellant’s claim that he has a property right to have the Smithsonian consider his Trump Portrait for hanging in the

Portrait Gallery. R. 54 at 15. As the Court correctly concluded, “[t]he 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.’).” R. 54 at 15. Such discretion is fatal to the notion of any private property right to have a portrait considered for display, or actually displayed, at the portrait Gallery. Nonetheless, despite the absence of a legally cognizable interest to support a Fifth Amendment Due Process claim, appellant in fact alleged that he had received senior-level consideration of his offer to display his portrait, satisfying the essential element of procedural due process. His offer to display his portrait was considered by the Director of the Portrait Gallery and the Acting Provost of the Smithsonian. R. 15, Amended Complaint, p. 25, line 14 – p. 26, line 19; p. 48, lines 13-14. The fact that appellant disagreed with the conclusions both individuals reached does not mean that he was denied procedural due process. Appellant also failed to state a claim for a violation of the Equal Protection Clause of the Fifth Amendment. As the District Court concluded, “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.” R. 54 at 16 (emphasis in original). If the law provides no legal protection for applications to the Portrait Gallery of art to display, then there can be no claim for equal protection of the law. Id. at 17. Thus, the District Court correctly concluded that appellant failed to state a claim for a violation of the Due Process or Equal Protection Clauses of the Fifth Amendment. C. Appellees Are Entitled to Qualified Immunity. Even if the Amended Complaint stated some First Amendment or Fifth Amendment claim, such a claim was properly dismissed on the grounds of qualified immunity. Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This is an “exacting standard”, City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015), and in applying it, it is well-settled that government officials such as the individual appellees in this case enjoy qualified immunity from constitutional and statutory claims against them. See, e.g., Saucier v. Katz, 533 U.S. 194, 200-01 (2001). To determine whether a government official’s conduct violates clearly established law, “a court must ask whether it would have been clear to a reasonable [] [federal employee] that the alleged conduct was unlawful in the situation he

confronted.” Abbasi, 137 S.Ct. at 1867. Thus, to be subject to liability, “‘existing precedent’” must have “‘placed the statutory or constitutional question beyond debate.’” Sheehan, 135 S. Ct. at 1774 (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)). Here, there was no clear and binding authority that addressed appellant’s situation, and the Supreme Court has made clear that it is reluctant to create a new cause of action where one had not been previously recognized. See Abbasi, 137 S. Ct. at 1856-57. Indeed, as demonstrated above in appellees’ discussion of government speech and the Fifth Amendment, the law is contrary to appellant’s claims. Under these circumstances, appellant could not establish a violation of a constitutional right and, if such a right could be found, it was not clearly established at the time appellees Sajet and Kurin made their respective decisions to reject appellant’s art application. Thus, the District Court correctly rejected appellant’s Bivens claims. II.

The District Court Correctly Denied Appellant’s Motion to Amend his Amended Complaint.

A party may move for leave to amend a pleading under Fed. R. Civ. P. 15, and the grant or denial of such a motion is committed to the sound discretion of the district court. See Foman v. Davis, 371 U.S. 178, 182 (1962). This Court has held that denial of leave to amend is not an abuse of discretion in the face of sufficiently compelling reasons, such as “undue delay, bad faith, or dilatory motive . . . repeated 14

failure to cure deficiencies by [previous] amendments [or] futility of amendment.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (emphasis added); see also, e.g., National Wrestling Coaches Ass’n v. Dep’t of Ed., 366 F.3d 930, 945 (D.C. Cir. 2004). An amendment is considered a “futile gesture” if it could not survive a dispositive motion. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996); Atchison v. D.C., 73 F.3d 418, 425-26 (D.C. Cir. 1996). Here, the District Court correctly concluded that allowing appellant to amend his Complaint to reinstate his claims under the FTCA would be futile. Under the FTCA, the United States may be sued in tort for money damages arising from the negligent acts or omissions of government employees acting within the scope of their employment. 28 U.S.C. § 1346(b); see, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004). To prevail on a claim of negligence in the District of Columbia, the claimant must establish that a duty of care existed on the part of the defendant, that the defendant deviated from that duty of care, and that there was a causal relationship between that deviation and the claimant's injury. Poola v. Howard Univ., 147 A.3d 267, 289 (D.C. 2016). The claimant bears the burden of establishing that a violation of the reasonable care standard caused the injury sustained. See District of Columbia v. Smith, 642 A.2d 140, 141 (D.C. 1994). The District Court concluded that appellant was alleging a breach of

fiduciary duty, on the grounds that the Smithsonian is a trust for the benefit of members of the public, and that he, as a trust beneficiary, was entitled to have his art application fairly considered. See R. 54 at 18. But as the Court correctly concluded, the Smithsonian has “complete, unfettered discretion” to select art for placement in the portrait Gallery. Id. at 18-19. Under such circumstances, there was no duty owed to appellant that appellees breached. Id. Appellant also alleged the negligent infliction of mental distress. As the Court recognized in Kowalevicz v. United States, 302 F. Supp.3d 68 (D.D.C. 2018): ‘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. Id. at 77. Appellant did not allege that any action by appellees placed him in

any “zone of physical danger,” and he had no relationship with appellees that implicated his emotional well-being. As the District Court noted, “[a]lthough 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.” R. 54 at 19. To the extent that appellant alleged the intentional infliction of emotional distress, that claim also would be futile. In the District of Columbia, a prima facie showing of intentional infliction of emotional distress is a difficult standard to meet, and requires a showing of “‘(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff [to suffer] severe emotional distress.’” Ortberg v. Goldman Sachs Group, 64 A.3d 158, 163-64 (D.C. 2013) (citation omitted). No liability exists for mere insults, threats or other types of indignities. Id. The Portrait Gallery’s treatment of appellant’s request to have his portrait displayed cannot be considered “extreme and outrageous conduct” that would state a claim under the FTCA. As demonstrated above, appellant had no right to have his portrait even considered – nonetheless, it was. See supra at 12. Appellant’s unhappiness with the result of that consideration does not rise to the level of stating a claim for intentional infliction of emotional distress under the FTCA. See

Ortberg, 64 F.3d at 163-64 (vague threats of possible future injury made by loud protesters not beyond “all possible bounds of decency” especially where they had no prior relationship to plaintiff). Thus, the District Court properly denied appellant’s motion to amend his Complaint to add claims under the FTCA, because such claims would not survive a motion to dismiss. CONCLUSION WHEREFORE, appellees respectfully submit that the September 19, 2018 Order of the District Court should be summarily affirmed. Respectfully submitted, JESSIE K. LIU United States Attorney /s/ R. Craig Lawrence R. CRAIG LAWRENCE Assistant U.S. Attorney /s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL Assistant United States Attorney 555 Fourth Street, N.W. – Civil Div. Washington, D.C. 20530 (202) 252-2561 Marina.Braswell@usdoj.gov

CERTIFICATE OF COMPLIANCE (FRAP 27(d)(2)(A)) I hereby certify that the text of the Appellees’ Motion for Summary Affirmance was prepared using 14-point Times New Roman font, and it contains 4102 words as counted by Microsoft Word 2016.

/s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL Assistant United States Attorney

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of March, 2019, the Appellees’ Motion for Summary Affirmance was served on appellant by placing a copy in the first class United States mail, postage prepaid and marked for delivery as follows: Mr. Julian Marcus Raven 2524 Co. Rt. 60 Elmira, NY 14901 /s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL Assistant United States Attorney