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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 1 of 24

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA











____________________________________
)

ACT NOW TO STOP WAR AND END
)
RACISM COALITION, et al.,
)
)

)
)
)
)
)
)

)
____________________________________)






DISTRICT OF COLUMBIA,



Plaintiffs,




Defendant.











v.





















Civil Action No.07-1495 (HHK)





DEFENDANT’S MOTION TO DISMISS

Pursuant to Fed. R. Civ. P. 12(b)(1) and (6), Defendant the District of Columbia hereby

moves this Honorable Court to dismiss the Complaint based on equitable restraint, lack of

subject-matter jurisdiction and/or plaintiff’s failure to state a claim upon which relief can be

granted.

The grounds and the reasons are set forth more fully in the accompanying Memorandum

of Points and Authorities and proposed Order.



















DATE: February 6, 2008




























































Respectfully submitted,

PETER J. NICKLES
Interim Attorney General for the District of Columbia

GEORGE C. VALENTINE
Deputy Attorney General, Civil Litigation Division







/s/ Ellen A. Efros


ELLEN A. EFROS, D.C. Bar No. 250746
Chief, Equity Section I
441 Fourth Street, N.W., 6th Floor South
Washington, D.C. 20001
Telephone: (202) 442-9886
Facsimile: (202) 727-0431


Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 2 of 24





/s/ Andrew J. Saindon


ANDREW J. SAINDON, D.C. Bar No. 456987
Assistant Attorney General
Equity I Section
441 Fourth Street, N.W., 6th Floor South
Washington, D.C. 20001
Telephone: (202) 724-6643
Facsimile: (202) 727-0431
[email protected]
























































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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 3 of 24

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA







____________________________________
)

ACT NOW TO STOP WAR AND END
)
RACISM COALITION, et al.,
)
)

)
)
)
)
)
)

)
____________________________________)






DISTRICT OF COLUMBIA,



Plaintiffs,




Defendant.













v.





















Civil Action No.07-1495 (HHK)





MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF

DEFENDANT’S MOTION TO DISMISS



Defendant District of Columbia (“District” or “government”), pursuant to Fed. R. Civ. P.

12(b)(1) and (6), moves this Court to dismiss the complaint. This memorandum of points and

authorities is provided in support of the defendant’s dispositive motion in accordance with LCvR

7(a).

The Court should dismiss plaintiffs’ claims and decline plaintiffs’ invitation to inject

itself into an ongoing local proceeding, as controlling case law dictates that plaintiff Act Now To

Stop War And End Racism (“ANSWER”) Coalition can raise the instant constitutional claims in

its pending local proceedings.

Notwithstanding this, the Court should dismiss the Complaint because plaintiff Muslim

American Society Freedom Foundation (“MASFF”) lacks standing, and not only has plaintiff

ANSWER Coalition failed to exhaust its administrative remedies, it is precluded by res judicata

from proceeding here.



Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 4 of 24

I. Factual and Procedural Background

Plaintiff ANSWER Coalition originally filed suit on or about August 20, 2007, but failed

properly to serve the defendant.1 The instant plaintiffs filed their First Amended Complaint for

Injunctive Relief (“Complaint”) on December 18, 2007, again failing properly to serve the

District. On or about January 17, 2008, plaintiffs served the Mayor of the District of Columbia,

pursuant to Fed. R. Civ. P. 4(j)(2)(A), and it is from this date that the District calculates its time

to respond.

Plaintiff ANSWER Coalition’s original complaint vaguely references “recently posted

anti-war posters calling for mass assembly on September 15, 2007.” Original Complaint at 3.

The instant First Amended Complaint does not contain that information, but plaintiff ANSWER

Coalition was cited repeatedly last Summer—both before and after the filing of the instant

matter—for violations of the District’s postering regulations. See Defendant’s Exhibit No.

(“DEx.”) 1 (sample Notices of Violation (“NOV”)).2



The District reserves and does not waive any future defensive motions or
pleadings and does not admit the factual allegations in plaintiff’s filings except for purposes of
this Motion.

The inclusion of these documents does not convert the instant motion into one for
summary judgment. See, e.g., Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253–54
(D.C. Cir. 2005) (when considering a motion to dismiss for lack of subject matter jurisdiction,
courts may consider certain materials outside the pleadings); Baker v. Henderson, 150 F.Supp.2d
17, 19 n.1 (D.D.C. 2001) (court may consider documents “attached to or incorporated in the
complaint . . . without converting the motion to dismiss into one for summary judgment.”)
(citations omitted). See also Anderson v. Wiggins, 460 F.Supp.2d 1, 6 (D.D.C. 2006) (when a
motion pursuant to Fed. R. Civ. P. 12(b)(1) “focuses on the Court’s power to hear the claim . . .
‘the Court may give the plaintiff’s factual allegations closer scrutiny and may consider matters
outside the pleadings.’”) (citations omitted).

Specifically, in the context of an assertion of res judicata, “[a] court may take judicial
notice of public records from other proceedings.” Hemphill v. Kimberly-Clark Corp., ___
F.Supp.2d ___, 2008 WL 41426 (D.D.C. Jan. 3, 2008) (citing, inter alia, Covad Comms. Co. v.
Bell Atlantic Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005)).

1


2





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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 5 of 24

Those NOVs allege improper placement of posters on public property throughout the

District, i.e., that the posters are “affixed by adhesives that prevent their complete removal from

the fixture or that do damage to the fixture.” Tit. 24, D.C. Mun. Reg. § 108.9.

Plaintiff ANSWER Coalition is contesting the NOVs, and the administrative process is

proceeding at the District’s Office of Administrative Hearings (“OAH”). DEx. 2.





II. Argument



This is not a case about the First Amendment, but about the District’s authority under its

police powers to combat littering.

The District has a valid esthetic interest in ensuring that public property is not

permanently marred or damaged by improperly attached posters, and plaintiffs cannot invoke the

First Amendment to insulate their behavior.



The Court should exercise equitable restraint and dismiss this matter, as plaintiff

ANSWER Coalition is currently engaged in a local administrative enforcement action, and may

raise any and all of its asserted constitutional issues there (to the extent any survived its recent,

local litigation raising identical claims). Additionally, plaintiff MASFF lacks standing here, as it

has never been cited under the challenged regulations, and it does not face any imminent threat

of enforcement. Moreover, neither plaintiff has shown the realistic potential for a “chilling

effect” on the exercise of any constitutional right.

In evaluating a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a

claim upon which relief can be granted, a court must accept the allegations in the complaint as

true. See, e.g., Croixland Properties Ltd. Partnership v. Corcoran, 174 F.3d 213, 215 (D.C. Cir.

1999). All reasonable inferences must be drawn in favor of the plaintiff, and a court should only



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dismiss a complaint for failure to state a claim “‘if it is clear that no relief could be granted under

any set of facts that could be proved consistent with the allegations.’” Id. (quoting Hishon v.

King & Spaulding, 467 U.S. 69, 73 (1984)); see also Price v. Crestar Secs. Corp., 44 F. Supp. 2d

351, 353 (D.D.C. 1999).

In a Rule 12(b)(6) analysis, while the complaint is to be construed liberally, courts “need

not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out

in the complaint. Nor must the court accept the legal conclusions cast in the form of factual

allegations.” Kowal v. MCI Communications Corp., Inc., 16 F.3d 1271, 1276 (D.C. Cir. 1994)

(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

All of the allegations in the Complaint fail as a matter of law. No factual development

can resuscitate them.






A. The Court Should Dismiss this Matter Pursuant to the Doctrine of Equitable Restraint.

Even in light of plaintiffs’ purported First Amendment claims, controlling case law

mandates dismissal.



In JMM Corp. v. District of Columbia, 378 F.3d 1117 (D.C. Cir. 2004), the operator of an

adult video store brought suit under the First, Fifth, and Fourteenth Amendments, challenging the

facial constitutionality of District zoning regulations as impermissibly content-based, vague, and

overbroad, and sought a declaratory judgment that the regulations were unconstitutional. Id. at

1120. JMM also sought an injunction to bar the District’s then-pending administrative

enforcement actions against it. The district court dismissed all of plaintiff’s claims for injunctive

and declaratory relief, and the Circuit affirmed:

The ongoing District of Columbia proceedings are judicial in nature and implicate
important District interests; those proceedings afford [plaintiff] an adequate



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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 7 of 24

opportunity to litigate its federal claims; and there are no extraordinary
circumstances warranting equitable relief. Accordingly, the criteria for application
of the Younger [v. Harris, 401 U.S. 37 (1971)] doctrine have been satisfied, and
the district court’s dismissal of [plaintiff]’s complaint was appropriate.


Id. at 1128; see also Bridges v. Kelly, 84 F.3d 470, 476 (D.C. Cir. 1996) (same).3


The exact same situation obtains here, as to ANSWER Coalition—its local proceedings

are judicial in nature and implicate important District interests; the proceedings will also afford

plaintiff ANSWER Coalition an adequate opportunity to litigate its constitutional claims. Unlike

JMM, the instant plaintiffs do not seek damages, but only declaratory and injunctive relief, hence

dismissal of all claims is appropriate.

The Circuit in JMM Corp. made a number of findings that are controlling here. The

Circuit found that, regardless of whether local proceedings begin at the Superior Court or at the

administrative level (as here), the regulated entity will have an adequate opportunity to raise its

constitutional claims as defenses to any enforcement of District law. JMM Corp., 378 F.3d at

1121.

Plaintiff ANSWER Coalition will have ample opportunity to raise its constitutional

claims regarding the disputed regulations at the OAH, and, if it loses there, at the D.C. Court of

Appeals. “Whether or not the [entity] can raise its constitutional defenses at the administrative

level, ‘it is sufficient under [Younger] that constitutional claims may be raised in state-court

judicial review of the administrative proceeding.’” Id. (quoting Ohio Civil Rights Comm’n v.

Dayton Christian Sch., Inc., 477 U.S. 619, 629 (1986)).

Moreover—and even more apposite—the plaintiff in JMM raised claims nearly identical

to those raised here, i.e., that the disputed regulations impermissibly discriminate on the content



3

While occasionally referred to as “abstention,” the doctrine enunciated in Younger

and its progeny is more properly named equitable restraint. See Bridges, 84 F.3d at 475, n.7.



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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 8 of 24

of the message conveyed, and are unconstitutionally vague. JMM, 378 F.3d at 1120. No matter,

said the Circuit, dismissal was appropriate “even where a defendant levels a facial First

Amendment challenge against a regulation and contends that its existence has a chilling effect on

his free speech.” JMM Corp., 378 F.3d at 1122 n.11 (citing Younger, 401 U.S. at 54 (neither a

“chilling effect” nor the possible facial unconstitutionality of a statute would justify an injunction

against good-faith attempts to enforce the statute)).4 See also, e.g., Hatfill v. Ashcroft, 404

F.Supp.2d 104, 118–19 (D.D.C. 2005) (plaintiff “having failed to show that his First Amendment

rights were actually chilled, has not stated a claim for which relief can be granted . . . .”) (emphasis

in original).



The Circuit in JMM noted that that plaintiff would not suffer irreparable injury by being

entirely foreclosed from obtaining an injunction in federal court, unless there were “extraordinary

circumstances” warranting interference in the local enforcement action, such as bad faith,

harassment, or where the law to be enforced was “flagrantly and patently” unconstitutional. JMM,

378 F.3d at 1122 (citing Trainor v. Hernandez, 431 U.S. 434, 442–43 (1977)).



The District avers that none of those factors are present here, and plaintiffs have not alleged

otherwise.

“[W]here it is not clear that a particular [government action] will have any actual adverse

effect on protected First Amendment liberties, the moving party must demonstrate some likelihood

of a chilling effect on their rights.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d



4

As this Court well knows, the Younger equitable restraint doctrine was properly
applied to First Amendment claims even before JMM. See Scolaro v. District of Columbia Bd. of
Elections & Ethics, 946 F.Supp. 80 (D.D.C. 1996); Scolaro v. District of Columbia Bd. of
Elections & Ethics, 104 F.Supp.2d 18 (D.D.C. 2000).





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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 9 of 24

290, 301 (D.C. Cir. 2006). Plaintiffs have failed to show how the District’s actions here have a

“likelihood” of chilling their (or anyone’s) rights in the future.

The Circuit in JMM also reaffirmed that “enforcement of [land-use] regulations, like

those at issue here, constitutes an important state interest.” Id. at 1126 (citing City of Los Angeles

v. Alameda Books, Inc., 535 U.S. 425, 435–37 (2002); City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41, 50 (1986)).

Here, it can no longer be reasonably questioned that the District “may legitimately

exercise its police powers to advance esthetic values.” Members of City Council of Los Angeles

v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984) (“it is within the constitutional power of the

City to attempt to approve its appearance”); White House Vigil for ERA Comm. v. Clark, 746

F.2d 1518, 1528 (D.C. 1984) (“[T]he government has a substantial interest in the preservation

and enhancement of the human environment; aesthetics are a proper focus of governmental

regulation.”) (citing, inter alia, Vincent).

The Supreme Court has held that the First Amendment does not prohibit laws justified by

a valid governmental interest when those laws do not reflect an intent to control the content of

speech but rather incidentally limit unfettered exercise of the right. See, e.g., Konigsberg v. State

Bar, 366 U.S. 36, 50 (1961)). No citizen has the right to permanently deface public property in

the name of the First Amendment.

Since JMM, the Younger equitable restraint doctrine has been applied in a variety of

cases to dismiss constitutional claims brought in federal court against the District by entities

currently undergoing local administrative enforcement or litigation. See, e.g., Worldwide Moving

& Storage, Inc. v. District of Columbia, 445 F.3d 422 (D.C. Cir. 2006) (federal preemption claim

brought by company being sued under local consumer-protection statute); Franco v. District of



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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 10 of 24

Columbia, 422 F.Supp. 216 (D.D.C. 2006) (“takings” claim brought by property owner in

eminent-domain litigation in Superior Court); Bannum, Inc. v. District of Columbia, 433

F.Supp.2d 1 (D.D.C. 2006) (equal-protection and due-process claims brought by entity

attempting to avoid Superior Court’s “order to vacate” property based on zoning proceeding).5

In light of JMM and its progeny, the Court should dismiss the Complaint.



B. Plaintiff ANSWER Coalition Has Failed to Exhaust Its Administrative Remedies.

In evaluating whether it has subject matter jurisdiction, a court must construe the

complaint liberally, and give the plaintiff the benefit of all reasonable inferences. Tozzi v. EPA,

148 F. Supp. 2d 35, 41 (D.D.C. 2001) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)). The court

must view the allegations as a whole, and a conclusory averment of subject matter jurisdiction,

negated by other allegations in the pleading, should result in dismissal. See id. at 35, 41 (citation

omitted).

“It is a ‘long-settled rule of judicial administration that no one is entitled to judicial relief

for a supposed or threatened injury until the prescribed administrative remedy has been

exhausted.’” Association of Flight Attendants-CWA v. Chao, 493 F.3d 155, 158 (D.C. Cir. 2007)

(quoting Myers v. Bethlehem Shipbuilding Corp.,303 U.S. 41 (1938)).

Available administrative remedies must be exhausted before a party may resort to judicial

relief. See, e.g., Comm. of Blind Vendors of D.C. v. District of Columbia, 28 F.3d 130, 133–34 (D.C.

Cir. 1994) (even if case is not governed by APA or any other statute requiring exhaustion, that

doctrine applies “as a matter of judicial discretion.”) (quoting Darby v. Cisneros, 509 U.S. 137, 154



5

For a discussion of equitable restraint in general, and an extended discussion of
JMM, see Tunica-Biloxi Tribe of Louisiana v. Warburton/Buttner, 2005 WL 1902889 (D.D.C.
2005).



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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 11 of 24

(1993)); Franco v. District of Columbia, 456 F.Supp. 2d 35, 41 (D.D.C. 2006) (plaintiffs must

exhaust state-court remedies).

Plaintiff ANSWER Coalition is currently contesting several notices of infraction based on

the same regulations it challenges here. It should be required to exhaust that process.

The fact that plaintiffs bring constitutional claims does not excuse the failure to exhaust. See,

e.g., Marine Mammal Conservancy, Inc. v. USDA, 134 F.3d 409, 413 (D.C. Cir. 1998) (plaintiff “is

very much mistaken in believing there is some bright-line rule allowing litigants to bypass

administrative appeals simply because one or all of their claims are constitutional in nature.

Exhaustion even of constitutional claims may promote many of the policies underlying the

exhaustion doctrine.”) (citations omitted). See also Washington v. District of Columbia, ___

F.Supp.2d ___, 2008 WL 108725 (D.D.C. Jan. 11, 2008) (even plaintiffs challenging District’s

actions as “per se unconstitutional” must exhaust their local administrative remedies) (“[T]he

inflection of a constitutional note does not silence the command of exhaustion.”) (citing Marine

Mammal).

Those policies include giving agencies the opportunity to correct any errors, affording all

parties (and the courts) the benefits of agency expertise, compiling an adequate factual record, and

promoting judicial efficiency. Id. at 414. All those policies weigh against allowing ANSWER

Coalition to avoid exhaustion here. Cf. id. (constitutional challenge in context “is a matter of some

complexity” and “one of first impression before the agency”). Allowing the administrative process

here to run its course would give subsequent reviewers “the benefit of a more thorough explanation

for the result and a better understanding of the [agency’s] position regarding the regulatory scheme

[plaintiff] wants to challenge.” Id. (citing, inter alia, New York State Ophthalmological Soc’y v.

Bowen, 854 F.2d 1379, 1387 (D.C. Cir. 1988)).



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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 12 of 24

A court may, in its discretion, excuse the exhaustion requirement, “if the litigant’s interests

in immediate judicial review outweigh the government’s interest in the efficiency or administrative

autonomy that the exhaustion doctrine is designed to further.” Jasperson v. Federal Bureau of

Prisons, 460 F.Supp.2d 76, 87 (D.D.C. 2006) (quoting Avocados Plus Inc. v. Veneman, 370 F.3d

1243, 1247 (D.C. Cir. 2004)).

As shown below, however, notwithstanding the lack of any showing of imminent injury,

plaintiffs’ purported need for immediate judicial review is insufficient to overcome the

countervailing interests in judicial efficiency, comity, and the other interests detailed in JMM.





C. Plaintiff ANSWER Coalition is Precluded by Res Judicata.

Plaintiff ANSWER Coalition previously challenged the constitutionality of the exact

regulations it disputes here, in an administrative proceeding, and lost, hence it is precluded from

relitigating those claims.

In the Spring of 2002, a group called International “Act Now to Stop War and End

Racism” was cited by DPW for infractions of, and subsequently challenged the “constitutionality

of[,] District of Columbia regulation 24 DCMR § 108.1 et seq., a regulation promulgated to

implement the District’s littering laws by preventing the indiscriminate posting of signs and

posters on public property.” DEx. 3 at 1 (Decision and Order, Mar. 4, 2004, International

A.N.S.W.E.R. v. DPW, D.C. Bd. of Appeals & Review (“BAR”) Dkt. No. 02-5859-LC, 51 D.C.

Reg. 5382 (May 21, 2004)).6



6

The Office of Adjudication (“OAH”) was created in 2004 to, inter alia, hear
administrative appeals formerly heard by the Board of Appeals and Review. See D.C. Official
Code §§ 2-1831.02, 2-1831.03(a) (2007 Supp.).



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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 13 of 24

At a contested hearing at DPW, the appellant presented its witness, Sarah Sloane, and

cross-examined the DPW inspector who had issued the three infractions. Id. at 5383.7

Appellant argued that such regulation was “unconstitutional because it violates the First

and Fourteenth Amendments to the U.S. Constitution[,]” e.g., it “suppresses political dissent,

favors some political speech over others, i.e., political campaign signs are permitted but signs

containing political speech unrelated to campaigns are not permitted, and deprives appellant of

due process of law.” Id.

The BAR affirmed the decision of DPW, finding substantial evidence in the record to

support DPW’s decision. Id. at 5384. The BAR also noted that while it was “authorized to

consider issues of constitutionality,” and both parties had extensively briefed the issue, it

concluded that “this issue in this case should be left for consideration by the District of Columbia

Court of Appeals if appellant so choose [sic] to file an appeal there.” Id. at 5385.

The appellant apparently attempted to appeal the BAR decision to the D.C. Court of

Appeals, but its filing was untimely, and hence dismissed. See DEx. 4.

The doctrine of res judicata prevents repetitious litigation; it consists of issue preclusion

(also known as collateral estoppel) and claim preclusion. NextWave Personal Communication,

Inc. v. FCC, 254 F.3d 130, 142 (D.C. Cir. 2001), affirmed in relevant part, 537 U.S. 293 (2003).

“Res judicata . . . prevents the consideration not only of those issues which were litigated

but also those which might have been litigated in the first action.” Woodward & Lothrop, Inc. v.

Schnabel, 593 F.Supp. 1385, 1398 (D.D.C. 1984) (quoting Thornton v. Little Sisters of the Poor,

380 A.2d 593, 595 (D.C. 1977)).



infractions were served. See DEx. 1.

Sarah Sloane is also the person on whom the recent ANSWER Coalition

7





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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 14 of 24

Under claim preclusion, “a final judgment on the merits of an action precludes the parties

or their privies from relitigating issues that were or could have been raised in that action.” Drake

v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (emphasis in original) (quoting Allen v. McCurry, 449

U.S. 90, 94 (1980)).8

In comparison, to establish issue preclusion, a party must show: (1) that the same issue

now being raised was previously contested and submitted for judicial review, (2) the issue was

actually and necessarily determined by a court of competent jurisdiction in the prior case, and (3)

preclusion would not work a basic unfairness to the party bound by the first decision. Beverly

Health & Rehabilitation Svcs, Inc. v. NLRB, 317 F.3d 316, 322 (D.C. Cir. 2003) (citing Kremer

v. Chemical Constr. Corp., 456 U.S. 461, 467 n.6 (1982)).

Plaintiff Answer Coalition cannot again argue the constitutionality of these regulations.

“If a new legal theory or factual assertion put forward in the second action is related to the

subject-matter and relevant to the issues that were litigated and adjudicated previously, so that it

could have been raised, the judgment is conclusive on it despite the fact that it was not in fact



Plaintiffs may claim that International A.N.S.W.E.R. and the ANSWER Coalition
are not the same entity. The District avers that those entities are obviously in privity, and hence
preclusion applies. Cf. Taylor v. Blakey, 490 F.3d 965, 971 (D.C. Cir. 2007) (“virtual
representation” exists to preclude subsequent litigation, where parties have identical interests,
adequate representation, and some “affirmative link” between the litigant and his putative
proxy). Those elements exist here in abundance; the two entities seek the same result, had
substantially the same incentive to achieve it, id. at 972, were represented by the same counsel,
and have a “close relationship.” Id. at 975. Plaintiff ANSWER Coalition’s website directs
inquiries to “[email protected]” or “www.internationalanswer.org,” and input of the
address http://www.internationalanswer.org/ brings the browser to the ANSWER Coalition’s
website. See http://answer.pephost.org/site/PageServer?pagename=ANS_contact_us
(as of
January 29, 2008).

Moreover, case law suggests that the addition of plaintiff MASFF here could be seen as
“tactical maneuvering,” i.e., conduct “designed unfairly . . . to obtain multiple bites of the
litigatory apple,” which further reinforces the finding of privity. Taylor, 490 F.3d at 976
(citations omitted).

8





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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 15 of 24

expressly pleaded or otherwise urged.” Hall v. Clinton, 285 F.3d 74, 81 (D.C. Cir. 2002)

(quoting Yamaha Corp., 961 F.2d at 257–58)).

Because plaintiff ANSWER Coalition raised

the

identical constitutional

issues

previously, but failed timely to appeal them to the DCCA, it is precluded from doing so here.

The principles of res judicata reduce unnecessary litigation, “but also promote the comity

between state and federal courts that has been recognized as a bulwark of the federal system.”

Allen, 449 U.S. at 95–96. See also Stanton v. D.C. Court of Appeals, 127 F.3d 72, 77 (D.C. Cir.

1997) (res judicata exists in part to shield parties from duplicative and vexatious litigation).



Local administrative agency determinations are given preclusive effect when the agency

is acting in a judicial capacity, and the litigants had a fair opportunity to litigate all the issues.

Fonville v. District of Columbia, 448 F.Supp.2d 21, 25 (D.D.C. 2006) (citing University of

Tennessee v. Elliott, 478 U.S. 788 (1986)). See also Elkins v. District of Columbia, ___

F.Supp.2d ___, 2007 WL 4329477 (D.D.C. Dec 12, 2007) (factual findings by D.C.’s

administrative agencies acting in a judicial capacity are entitled to preclusive effect, so long as

the proceeding was “the essential equivalent of a judicial proceeding.”) (quoting Winder v. Erste,

511 F.Supp. 2d 160, 176 (D.D.C. 2007)).



ANSWER Coalition’s previous appeals of the infractions had all the elements necessary

for preclusive effect—“a full adversary hearing,

including representation by counsel,

presentation of direct and rebuttal evidence, presentation of witnesses and cross-examination of

opposing-party’s witnesses, and the opportunity to present arguments and briefs.” Fonville, 448

F.Supp.2d at 25 (citing Martin v. Malhoyt, 830 F.2d 237, 264 (D.C.Cir.1987)).



Plaintiff ANSWER Coalition appealed International A.N.S.W.E.R. to the D.C. Court of

Appeals, which was empowered to address all of its purported constitutional concerns, as JMM



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Case 1:07-cv-01495-HHK Document 8 Filed 02/06/2008 Page 16 of 24

holds. The appeal was dismissed, however, because ANSWER’s appeal was untimely, hence it is

precluded from raising those same issues here.9



“A new legal theory does not amount to a new claim, and the bar of res judicata cannot

be overcome by ingenious adventuring, over a period of time, on new paths to the same goal.”

Woodward & Lothrop, 593 F.Supp. at 1398 (citing Migra v. Warren City School District Bd. of

Ed., 465 U.S. 75, 81 (1984)).



Because plaintiff ANSWER Coalition received a judgment “on the merits” in the

previous BAR litigation on the same claims it brings here, the instant plaintiffs are precluded

from relitigating them. See, e.g., Wood v. Several Unknown Metropolitan Police Officers, 835

F.2d 340, 343 (D.C. Cir. 1987) (plaintiff is precluded “from litigating against the municipality in

federal court matters he placed at issue in the District of Columbia proceeding.”).









Consequently, the Court should dismiss plaintiffs’ claims against the District.

D. Plaintiff MASFF Lacks Standing.

Plaintiff MASFF lacks standing because its allegations are “purely speculative[, which is]

the ultimate label for injuries too implausible to support standing.” Tozzi v. Dep’t of Health &

Human Servs., 271 F.3d 301, 307 (D.C. Cir. 2001).



9

International ANSWER’s appeal was untimely filed, hence it was dismissed for
“lack of jurisdiction.” DEx. 4. While that appeal was clearly not dismissed pursuant to Fed. R.
Civ. P. 41(b), that rule suggests that such involuntary dismissals should not ordinarily preclude a
second action, which proposition “means only that the dismissal permits a second action on the
same claim that corrects the deficiency found in the first action.” 18 Wright, Miller & Cooper,
Fed. Prac. & Proc. § 4436 at 149 (2d ed. 2002). Of course, International ANSWER could not
have “corrected” its timing error, hence the dismissal was analogous to one on statute-of-
limitation grounds. For res judicata purposes, “[t]he rules of finality . . . treat a dismissal on
statute-of-limitations grounds . . . as a judgment on the merits.” Smalls v. United States, 471 F.3d
186, 192 (D.C. Cir. 2006) (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995)).



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Plaintiff ANSWER Coalition was cited under 24 DCMR § 108.1 et seq. for violations of

the District’s postering regulations. There are no allegations, or any indications in the record, that

MASFF is planning imminently to post any posters anywhere in the District, much less that it

intends to improperly attach them to public property.



The “chilling effect” alleged here cannot reasonably be attributed to any enforcement of

District postering regulations, but—if anything—only to the specific enforcement taken against

ANSWER for extensive, city-wide littering with an improper adhesive.



Unlike plaintiff ANSWER Coalition, it does not appear that plaintiff MASFF has ever

been cited for violations of any of the disputed regulations, and there are no specific allegations

that it currently plans to engage in actions that may trigger those regulations, or has ever even

distributed or posted any posters in the District. As such, its alleged threatened harms are entirely

speculative.

A federal court’s jurisdiction can only be invoked when a plaintiff has suffered some

threatened or actual injury resulting from a defendant’s putatively illegal action. Warth v. Seldin,

422 U.S. 490, 499 (1975).

“Abstract injury is not enough. The plaintiff must show that he has sustained or is

immediately in danger of sustaining some direct injury as the result of the challenged official

conduct and the injury or threat of injury must be both real and immediate, not conjectural or

hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101–102 (1983) (citations and internal

quotation marks omitted). See also Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)

(“Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened

injury must be ‘certainly impending’ to constitute injury in fact.”) (quoting Babbitt v. Farm

Workers, 442 U.S. 289, 298 (1979)).



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Plaintiff MASFF has not shown any “certainly impending” injury. To have standing, a

plaintiff must allege a “specific present objective harm or a threat of specific future harm.” Laird

v. Tatum, 408 U.S. 1, 14 (1972); Field v. Brown, 610 F.2d 981, 990 (D.C. Cir. 1980). See also

Gettman v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002) (“The Constitution requires a concrete and

particularized injury.”).10

“‘[S]ome day’ intentions—without any description of concrete plans, or indeed any

specification of when the some day will be—do not support a finding of . . . ‘actual or imminent

injury . . . .’” ANSWER Coalition v. Kempthorne, 493 F.Supp.2d 34, 45 (D.D.C. 2007) (quoting

Lujan, 504 U.S. at 564) (emphasis in original)).

Plaintiffs may argue, as they did in Kempthorne, that MASFF has standing to challenge

the postering regulations because, in the First Amendment context, the disputed law’s “very

existence may cause others not before the court to refrain from constitutionally protected speech

or expression.” Id. at 46 (quoting Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392–93

(1988)). See also Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955, n. 5

(1984).

Simply raising a First Amendment challenge, however, is insufficient, alone, to support

standing. As the Circuit has repeatedly clarified, the “relaxed” standing analysis seemingly

implicated in American Booksellers and related cases applies to criminal statutes. See Parker v.



10

Separation of powers principles underlie the concept of standing, and reflect that
courts should not prematurely interfere “with legislative and executive functions which have not
yet proceeded so far as to affect individual interests adversely. Accordingly, the courts should
never ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’”
Field, 610 F.2d at 990 (quoting Communist Party v. Subversive Activities Control Bd., 367 U.S.
1, 72 (1961).





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District of Columbia, 478 F.3d 370, 375 (D.C. Cir. 2007), cert. granted sub. nom., Heller v.

District of Columbia, ___ U.S. ___ (Nov. 20, 2007).

The Circuit in Parker explained that the American Booksellers plaintiffs had standing to

challenge a criminal statute regulating the display of certain types of sexually explicit material,

thus it was sufficient for those plaintiffs to allege “an actual and well-founded fear that the law

will be enforced against them . . . .” Parker, 478 F.3d at 375. Moreover, the Circuit explained

that the Supreme Court in American Booksellers was concerned that the disputed statute “might

chill speech without any prosecution ever taking place, thereby creating a wrong without remedy

if pre-enforcement standing were denied.” Id. (citation omitted).

Here, the regulations at issue are manifestly not criminal in nature. See D.C. Official

Code § 8-802 (2007 Supp.) (infractions pursuant to, inter alia, 24 DCMR § 108, “shall be subject

to the civil administrative system and the civil sanctions provided in this chapter.”). Moreover,

plaintiff MASFF cannot show an actual and well-founded fear that 24 DCMR § 108 et seq. will

be enforced against them, because there are no allegations that the posters they may post in the

future may be improperly attached to public property.

Additionally, if MASFF is denied pre-enforcement standing here, no “wrong without

remedy” will be created, because ANSWER Coalition will be able to mount the identical

challenges to the regulations, in the form of a defense in its ongoing local proceeding. See JMM,

378 F.3d at 1121. The Circuit has also clarified that, notwithstanding plaintiffs’ preferred

hierarchy, “the injury–in-fact requirement should be applied uniformly over the First and Second

Amendments (and presumably all other constitutionally protected rights).” Parker, 478 F.3d at

375 n.1 (citing Seegars v. Gonzalez, 396 F.3d 1248, 1254 (D.C. Cir. 2005)).



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Plaintiff MASFF cannot challenge the referenced District regulations because it has never

been cited under them, and it cannot “demonstrate a realistic danger of sustaining a direct injury

as a result of the [regulations’] operation or enforcement.” Babbitt, 442 U.S. at 298 (citing

O’Shea v. Littleton, 414 U.S. 488, 494 (1974)).

Leaving aside the First Amendment issues, to establish the standing required to maintain

this pre-enforcement challenge, MASFF must demonstrate by specific facts that it faces a

“credible and immediate” threat of enforcement. See, e.g., Babbitt, 442 U.S. at 298; Seegars, 396

F.3d at 1251; Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997) (party must

demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or

enforcement).

To show preenforcement standing, then, a plaintiff must show “a threat of prosecution

reaching the level of imminence required by Navegar.” Seegars, 396 F.3d at 1255. Analyzing

that alleged threat of prosecution “is a factual and case-specific one” requiring courts to look at a

number of factors. Navegar, 103 F.3d at 999 (citing, inter alia, Lion Mfg. v. Kennedy, 330 F.2d

833, 839 n.10 (D.C. Cir. 1964) (federal court “intervention must, at the very least, rest upon a

showing of an immediate and tangible danger to the person assertedly apprehensive of

prosecution.”)).11



See also Lion Mfg., 330 F.2d at 839–40:

11

Just as the complaint alleges no specific threat of prosecution, so it does not allege
facts which raise such threat.

* * *

To assert that [legislation] is unconstitutional on its face is a formidable
contention under any circumstances; the least that can be required of one who
makes it is that he relate himself clearly to the impingement of the statute. This, in
order to create a meaningful lawsuit within our adversary tradition, calls for more



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MASFF cannot meet this burden. See Navegar, 103 F.3d at 999 (“plaintiffs allege no

prior threats [of prosecution] against them or any characteristics indicating an especially high

probability of enforcement against them.”). In Navegar, for example, the court found that a threat

of enforcement of a federal law was not sufficiently “credible” even when some plaintiff firearm-

manufacturers had personally been visited by ATF agents and notified of the disputed law’s

enactment. 103 F.3d at 1000.



Similarly, in Seegars, the Circuit found that plaintiffs, to establish standing to challenge a

District law imposing criminal penalties, “were required to show that the District had singled

them out for prosecution . . . .” Parker, 478 F.3d at 374 (discussing Seegars). Because the

Seegars plaintiffs “could show nothing more than a general threat of prosecution by the District,”

they lacked standing. Id.



The identical situation obtains here. Plaintiff MASFF has failed to show any “credible

and immediate” threat of enforcement by the District. MASFF has not shown that it “ha[s] been

singled out or uniquely targeted by the D.C. government for prosecution[,]” nor has it pointed to

any “actual and specific” threats of enforcement, which showing is “insufficient” to demonstrate

standing. Parker, 478 F.3d at 375.



Plaintiff MASFF can present no competent evidence showing a credible threat of

enforcement of the disputed District regulations against it, hence it lacks standing. See, e.g.,

Seegars, 396 F.3d at 1253 (this Circuit’s preenforcement standing cases “appea[r] to demand

more than a credible statement by the plaintiff of intent to commit violative acts and a



than a mere prayer for an adjudication of the statute’s invalidity now in order that
one may be spared any prospect, however remote, of being obliged to defend
oneself later.


Id. (footnote omitted).



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conventional background expectation that the government will enforce the law.”) (citing

Navegar).

Plaintiffs’ First Amendment allegations here are simply insufficient to support standing.

Laird v. Tatum, 408 U.S. 1, 13–14 (1972) (“Allegations of a subjective ‘chill’ are not an adequate

substitute for a claim of a specific present objective harm or a threat of specific future harm . . . .”);

DKT Memorial Fund, Ltd. v. USAID, 887 F.2d 275, 298–99 (D.C. Cir. 1989) (despite initial

rejection of claim at trial court, an opportunity to amend, and then remand, plaintiffs “still com[e]

before us with a bare allegation of ‘subjective chill’”) (“Plaintiffs were on quite adequate notice

long ago of the need for such specific present harm and have demonstrated none.”) (citing Laird).





E. Plaintiff MASFF’s Claims are Unripe.

Plaintiff MASFF lacks standing because it has failed to allege—much less demonstrate—

a “realistic danger” that the disputed regulations will be applied so as to compromise its (or

anyone else’s) First Amendment rights.

Thus, MASFF’s claims are entirely speculative, depending on the hypothetical

possibilities that it may distribute and post posters on public property, which may be mounted

improperly, for which it may be cited by the District. Such a chain of conjecture is insufficient to

support standing. Texas v. United States, 523 U.S. 296, 300 (1998) (“a claim is not ripe for

adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed

may not occur at all.’”) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568,

580–81 (1985)).

Under the ripeness doctrine, a court must examine the “fitness of the issues for judicial

decision and the hardship to the parties of withholding court consideration.” Nevada v.



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Department of Energy, 457 F.3d 78, 84 (D.C. Cir. 2006) (quoting Eagle-Picher Indus., Inc. v.

EPA, 759 F.2d 905, 915 (D.C. Cir. 1985)). The Supreme Court has elaborated, concluding that in

ripeness challenges a court must consider “(1) whether delayed review would cause hardship to

the plaintiff[;] (2) whether judicial intervention would inappropriately interfere with further

administrative action; and (3) whether the courts would benefit from further factual development

of the issues presented.” Nevada, 457 F.3d at 84 (quoting Ohio Forestry Ass’n, Inc. v. Sierra

Club, 523 U.S. 726, 733 (1998)).

Here, delayed review would cause no hardship at all to MASFF, because it has never

been cited under the disputed regulations, and has not alleged or shown any intent to engage in

any action that might trigger those regulations. Moreover, as explained supra, judicial

intervention by this Court would inappropriately interfere with ongoing local proceedings in

ANSWER Coalition’s identical challenge. Similarly, the “further factual development”

contemplated in the ripeness doctrine will occur in the local proceedings. See Texas, 523 U.S. at

301 (postponing adjudication gives state courts the opportunity to resolve any constitutional

issues that may be present).

To the extent even viable, MASFF’s claims are not ripe.



III. Conclusion

For the foregoing reasons, the defendant moves to dismiss the Complaint. A proposed

Order is attached hereto.

DATE: February 6, 2008

































Respectfully submitted,

PETER J. NICKLES
Interim Attorney General for the District of Columbia

GEORGE C. VALENTINE
Deputy Attorney General, Civil Litigation Division



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/s/ Ellen A. Efros


ELLEN A. EFROS, D.C. Bar No. 250746
Chief, Equity Section I
441 Fourth Street, N.W., 6th Floor South
Washington, D.C. 20001
Telephone: (202) 442-9886
Facsimile: (202) 727-0431





/s/ Andrew J. Saindon



ANDREW J. SAINDON, D.C. Bar No. 456987
Assistant Attorney General
Equity I Section
441 Fourth Street, N.W., 6th Floor South
Washington, D.C. 20001
Telephone: (202) 724-6643
Facsimile: (202) 727-0431
[email protected]

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA















Civil Action No.07-1495 (HHK)














____________________________________
)

ACT NOW TO STOP WAR AND END
)
RACISM COALITION, et al.,
)
)

)
)
)
)
)
)

)
____________________________________)






DISTRICT OF COLUMBIA,



Plaintiffs,




Defendant.











v.








ORDER

Upon consideration of the Defendant’s Motion To Dismiss, the Memorandum of Points

and Authorities in Support thereof and any opposition thereto, the entire record herein, and it

appearing that the relief should be granted, it is hereby:



it is



ORDERED, that the Defendant’s Motion To Dismiss be, and hereby is, GRANTED, and

FURTHER ORDERED, that the Complaint is hereby DISMISSED with prejudice.

SO ORDERED.

SO ORDERED.











___________________________________
HENRY H. KENNEDY
United States District Judge














DATE: ___________________