Penkoski v. Bowser

• Court: District Court, District of Columbia
• Decided: August 21, 2020
• Docket: Civil Action No. 2020-1519
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RICH PENKOSKI, et al.,

Plaintiffs,

v. Case No. 20-cv-01519 (TNM)

MURIEL BOWSER,

Defendant.

MEMORANDUM OPINION

Rorschach tests are non-descript inkblots scrawled on notecards. People looking at the

same inkblot identify entirely different images, based on their background, personality, and state

of mind.

Just outside the White House, stretching two blocks down 16th Street, D.C. Mayor

Muriel Bowser has painted her own sort of inkblot. Large yellow letters spanning the width of

the street proclaim, “BLACK LIVES MATTER.” The Mayor views this display (“the Mural”),

as something that commemorates demonstrators who lined the streets this summer protesting

police brutality. The D.C. chapter of Black Lives Matter (“BLM”), on the other hand, regards it

as a “performative distraction from real policy changes.” 1

And Plaintiffs—non-black Christians—perceive it as a sign that they are not welcome in

the District. Pointing to statements from BLM’s website and leaders declaring that it is

“unapologetically Black in [its] positioning” and embraces policies that “disrupt the Western-

prescribed nuclear family structure” and “foster a queer-affirming network,” Plaintiffs see the

1 See Black Lives Matter D.C. (@DMVBlackLives), Twitter (June 5, 2020), https://twitter.com/DMVBlackLives/ status/1268903712581464066. Mural as something that declares the District’s preference for black citizens who adhere to

Secular Humanism. This favoritism, they claim, violates both the Establishment Clause and

Equal Protection Clause.

Plaintiffs raise non-trivial objections to the Mural. But federal courts are not in the

business of correcting all constitutional errors wherever they appear. See Valley Forge Christian

Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 489 (1982). No matter the

importance of the issues presented, federal courts may adjudicate a “case” or “controversy.” Id.

Since Plaintiffs fail to show that they have standing to raise these constitutional challenges, the

Court must dismiss their claims.

I.

Early this summer, Black Lives Matter protests swept across the country. According to

Plaintiffs, tens of thousands of protestors in Washington, D.C., gathered for weeks outside the

White House in Lafayette Square, chanting and kneeling together. Christopher Mot. for Inj.

(“Christopher Mot.”) at 39, ECF No. 18; Penkoski Mot. for Inj. (“Penkoski Mot.”) at 19, ECF

No. 20. 2 By late May, though, the protests turned violent, as rioters clashed with police officers

and set American flags, parked cars, and historical landmarks—like St. John’s Church—on fire.

See id.; see also Pls.’ Statement of Undisputed Material Facts (“Pls.’ Statement”) ¶¶ 29, 35, 36,

ECF Nos. 42-1, 44-1, 46-1 (identical).

In a press conference after a particularly destructive night, the President threatened to

deploy the U.S. military to crack down on the violence. See Falcicchio Decl. ¶ 5, ECF No. 29-3.

Later that day, federal law enforcement officers cleared Lafayette Square shortly before the

President made an appearance at St. John’s Church. Id. ¶ 4; Pls.’ Statement, ¶ 29.

2 All page citations are to the page numbers generated by the Court’s CM/ECF system.

2 Allegedly in response to the President’s statements and federal law enforcement’s

actions, Mayor Bowser directed the D.C. Department of Public Works to create a mural on 16th

Street N.W., near the White House, to “honor the peaceful protesters from June 1, 2020 and send

a message that District streets are a safe space for peaceful protestors.” Falcicchio Decl. ¶ 6

(cleaned up). 3 The Mural, painted in bright yellow lettering that spans the width of the street and

stretches the length of two city blocks, reads “BLACK LIVES MATTER.” Compl. ¶ 2, ECF No.

1; Sevier Mot. for Inj. (“Sevier Mot.”) at 15, ECF No. 22; Falcicchio Decl. ¶ 7. The Mayor also

proposed renaming several blocks of 16th Street “Black Lives Matter Plaza,” which the Council

for the District of Columbia (“the Council”) later approved. Falcicchio Decl. ¶ 10; Compl. ¶ 2.

Five days after the District painted the Mural, Pastor Rich Penkoski and lobbyists Chris

Sevier and Tex Christopher sued pro se challenging its constitutionality. See Compl. They

claim that the Mural violates the Equal Protection Clause and the Establishment Clause because

it labels them—non-black Christians—“second class citizens.” Id. ¶ 44.

The “Black Lives Matter cult,” they allege, “is a denominational sect of the religion of

Secular Humanism.” Id. ¶ 2. This is evidenced both by the BLM protestors’ behavior, see

Penkoski Mot. at 19 (“The fact that there is a whole lot of kneeling, washing of feet, and

corporate chanting of incantations makes it difficult to argue that Black Lives Matter Global

Network is not a religious organization.”), and the “scriptures lifted from the Black Lives

Matter’s marxist liturgical creed,” id. (citing What We Believe, Black Lives Matter,

3 Perhaps D.C.’s streets were a “safe space” for protestors, but the Mayor had previously suggested such massive gatherings were not safe for D.C.’s community. Nor were they legal. Only four days before these events, the Mayor had issued a COVID-19 order requiring “all individuals . . . to maintain a distance of at least six (6) feet from persons not in their household” and prohibiting “large gatherings of more than ten (10) individuals” to prevent the spread of the deadly virus. See D.C. Mayor’s Order 2020-079 (May 27, 2020), https://coronavirus.dc.gov/sites/default/ files/dc/sites/coronavirus/page_content/attachments/MO2020-067.pdf. The Mayor claimed the community had a “shared responsibility to maintain our vigilance, in order to avoid a rapid increase in the occurrence of new cases and a spike in the number of fatalities, and to protect the public health, safety, and welfare of our fellow District residents and visitors.” Id.

3 https://blacklivesmatter.com/what-we-believe/ (last accessed Aug. 21, 2020) (“BLM

Statement”)). BLM’s “What We Believe” statement announces, among other things, that BLM

“is unapologetically Black in [its] positioning,” “foster[s] a queer-affirming network,” and

“disrupt[s] the Western-prescribed nuclear family structure[.]” Id. (quoting BLM Statement).

The Mural, Plaintiffs claim, signals the District’s preference both for black citizens and for those

that adhere to the BLM denomination. Compl. ¶¶ 2, 6.

Plaintiffs filed an Emergency Motion for a Temporary Restraining Order, see Pls.’ Mot.

for TRO, ECF No. 9, asking the Court to enjoin the Mayor from constructing more BLM

displays and to order her to remove the Mural and return the Plaza’s name to 16th Street, see

Pls.’ TRO Proposed Order, ECF No. 9-1.

In a hearing later that week, the Court denied Plaintiffs’ motion, but set an expedited

preliminary injunction briefing schedule in recognition of Plaintiffs’ assertion that “time is of the

essence.” TRO Hr’g Tr. (“Hr’g Tr.”) at 34–35 (June 18, 2020). The parties agreed both to

expedited briefing for Plaintiffs’ Motions for a Preliminary Injunction and to consolidate this

briefing with a trial on the merits under Rule 65(a)(2) of the Federal Rules of Civil Procedure.

Id. at 33, 36.

Each Plaintiff moved separately for a preliminary and permanent injunction. 4 See

Christopher Mot.; Penkoski Mot.; Sevier Mot. The Mayor cross-moved for summary judgment

and opposed Plaintiffs’ motions. Def.’s Mot. for Summ. J. & Opp’n to Pls.’ Mot. (“Def.’s

Opp’n”), ECF No. 29-1. And Plaintiffs filed replies and opposition briefs to the Mayor’s cross-

4 Sevier also sought to “support” Penkoski and Christopher’s motions. See Penkoski Mot. at 1; Christopher Mot. at 1. But a pro se litigant can only argue on behalf of himself. See Stoller v. Ocwen Fin. Corp., 140 F. Supp. 3d 80, 81–82 (D.D.C. 2015) (“A litigant may proceed in federal court on behalf of himself or by properly admitted counsel, but a layman cannot represent another person in a court proceeding[.]” (citing Georgiades v. Martin-Trigona, 729 F.2d 831, 834 (D.C. Cir. 1984))). “A pro se co-plaintiff, cannot represent” other plaintiffs. Id. at 82.

4 motion. Christopher Reply, ECF No. 32; Penkoski Reply, ECF No. 33; Sevier Reply, ECF No.

34. The Court later permitted Plaintiffs to supplement their replies with additional evidence. See

Order (Aug. 4, 2020); Penkoski Suppl. Mem., ECF No. 39; Christopher Suppl. Mem., ECF No.

40. And Plaintiffs re-filed their preliminary injunction motions as Motions for Summary

Judgment. 5 Penkoski Mot. Summ. J., ECF No. 43; Christopher Mot. Summ. J., ECF No. 45;

Sevier Mot. Summ. J., ECF No. 47.

This matter is ripe for decision.

II.

Having granted consolidation under Rule 65(a)(2), the Court “treats the parties’ briefing

as cross-motions for summary judgment.” Trump v. Comm. on Oversight & Reform of the U.S.

House of Representatives, 380 F. Supp. 3d 76, 90 (D.D.C. 2019). Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When deciding a

motion for summary judgment, the Court “must assume the truth of all statements proffered by

the non-movant except for conclusory allegations lacking any factual basis in the record.” Dist.

Intown Props. Ltd. P’ship. v. District of Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999). The

Court’s function at the summary judgment stage is not to “weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

For the Court to reach the merits, Plaintiffs must first carry their burden of establishing

the Court’s jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). At the

5 Plaintiffs also filed a separate Motion to Take Judicial Notice, ECF No. 41. But it does not appear that Plaintiffs have consulted with the Mayor on this nondispositive motion, as required by Local Civil Rule 7(m). So the Court will deny this motion. Further, none of the facts presented in this motion support Plaintiffs’ standing, so the Court would deny this motion as moot given the ultimate disposition of this matter.

5 summary judgment stage, they cannot rest on “mere allegations,” but must produce evidence of

“specific facts” that establish jurisdiction. Id. If a court determines that it lacks jurisdiction for

any claim, it must dismiss it. Fed. R. Civ. P. 12(h)(3).

III.

Though Plaintiffs assert that the Mayor’s conduct here is “so egregious that a standing

analysis is not necessary,” Christopher Reply at 8 (cleaned up), the Court cannot dispense with

standing so easily. This Court’s jurisdiction under the Constitution is limited to deciding “cases”

and “controversies.” Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 597–98 (2007).

And “one of the controlling elements in the definition of a case or controversy under Article III

is standing.” Id. So even if the Mayor had not challenged Plaintiffs’ standing, the Court would

need to consider it sua sponte. See Lee’s Summit v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C.

Cir. 2000).

Here, the Mayor urges that Plaintiffs lack standing to bring both their Establishment

Clause, Def.’s Opp’n at 19–26, and Equal Protection Clause claims, id. at 24. To satisfy their

burden to prove standing, Plaintiffs must offer evidence showing that they have suffered an

“injury in fact” that is “concrete and particularized,” and “actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560 (cleaned up). This injury must be “fairly traceable to the

challenged action of the defendant and not the result of the independent action of some third

party not before the court.” Id. (cleaned up). And, “it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (cleaned up).

At the summary judgment stage, Plaintiffs must do more than just allege that they meet these

elements. Id. “[E]ach element must be supported in the same way as any other matter on which

6 the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at

the successive stages of the litigation.” Id.

Because Plaintiffs fail to prove that they have suffered a cognizable injury-in-fact caused

by the Mayor’s action, the Court will dismiss their claims for lack of standing.

A.

Consider first Plaintiffs’ standing to assert their claim under the Equal Protection Clause.

Plaintiffs argue that the creation of the Mural is an “under inclusive government action

that violates the equal protection rights of the Plaintiffs and serve[s] to undermine a culture of

rights and sacred civil liberties.” Compl. ¶ 64. Perhaps, but what injury have they suffered?

Though Plaintiffs do not directly address their standing for this claim, their Complaint

and motions suggest one type of injury. The Mural offends them and makes them feel like

“second class citizens,” Penkoski Mot. at 32; Compl. ¶ 36, because it “gives the impression that

the favored race of the District of Columbia are liberal citizens with black skin pigmentation,”

Sevier Mot. at 21. In other words, Plaintiffs feel that the District’s “Black Lives Matter”

message stigmatizes them because they are not black.

The Court does not doubt the sincerity of Plaintiffs’ feelings of ostracization nor quibble

with their claims about the divisiveness of the Mayor’s actions. See Compl. ¶ 36; Sevier Mot. at

21; Penkoski Mot. at 32. But these feelings alone cannot justify standing. Indeed, in Allen v.

Wright, the Supreme Court expressly rejected the idea that litigants could base standing for an

equal protection challenge on the “stigmatizing injury often caused by racial discrimination.”

468 U.S. 737, 755 (1984).

In Allen, parents of black school children alleged that the Internal Revenue Service had

“not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exempt

7 status to racially discriminatory private schools.” Id. at 739. The IRS’s action caused the

parents and their children to suffer a “stigmatic injury, or denigration, suffered by all members of

a racial group when the Government discriminates on the basis of race.” 6 Id. at 753–54. Though

the Court acknowledged that stigmatization is the “sort of noneconomic injury [that] is one of the

most serious consequences of discriminatory government action,” it determined that such an

“abstract stigmatic injury,” standing alone, was not cognizable. Id. at 755. Such a theory of

standing would “transform the federal courts into ‘no more than a vehicle for the vindication of

the value interests of concerned bystanders.’” Id. at 756 (quoting United States v. SCRAP, 412

U.S. 669, 687 (1973)).

Standing, the Court held, requires plaintiffs to show that they have been “personally

denied equal treatment by the challenged discriminatory conduct,” not just that they feel

stigmatized. Id. at 755 (cleaned up) (emphasis added). For instance, plaintiffs could assert a

stigmatic injury if accompanied by “some concrete interest” subject to discriminatory action such

as when plaintiffs were “denied monetary benefits allegedly on a discriminatory basis.” Id. at

757 n.22.

Relying on Allen, other courts have rejected plaintiffs’ attempts to challenge

discriminatory displays under the Equal Protection Clause. See, e.g., Moore v. Bryant, 853 F.3d

245, 249–51 (5th Cir. 2017); see also Doe v. Cong. of the U.S., 891 F.3d 578, 594–95 (6th Cir.

2018) (holding atheists lacked standing to challenge the “In God We Trust” motto under the

Equal Protection Clause when they claimed that the motto “stigmatiz[ed] those whose religious

beliefs [did] not include trust in God”).

6 The Court also recognized that plaintiffs may have been trying to assert an injury based on the Government not complying with the Constitution. Allen, 468 U.S. at 753–54. This injury was also not cognizable, since the Court has “repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” Id. at 754.

8 In Moore v. Bryant, the Fifth Circuit dismissed on standing grounds an equal protection

challenge to the Mississippi state flag—which incorporated the cross of the Confederate battle

flag. 7 853 F.3d at 249. The plaintiff—an African-American lawyer—argued that he was

“unavoidably exposed to the state flag” through his work as a prosecutor. Id. And he found the

flag’s incorporation of the Stars and Bars “‘painful, threatening, and offensive’ to him, mak[ing]

him ‘feel like a second-class citizen,’ and caus[ing] him both physical and emotional injuries.”

Id. The court recognized that the plaintiff’s argument, at its core, was that “the Mississippi state

flag stigmatize[d] him.” Id.

That was the only injury the plaintiff asserted. The flag subjected him to discriminatory

messaging, but the plaintiff did not allege that he was “personally subjected to discriminatory

treatment.” Id. (emphasis added). Relying on Allen, the court determined that he failed to plead

a cognizable injury. Id.

So too here. As in Moore, Plaintiffs—at most—allege that the Mural is “painful,

threatening, and offensive’ to [them],” and makes them feel like second-class citizens. 8 Moore,

853 F.3d at 249. They may, indeed, be subject to a discriminatory message every time they see

the Mural. But they have made no showing that the Mayor or the District have subjected them to

any discriminatory treatment because of their race. 9 “Allen and its progeny make clear that . . .

exposure to a discriminatory message, without a corresponding denial of equal treatment, is

insufficient to plead injury in an equal protection case.” Moore, 853 F.3d at 250.

7 The Mississippi legislature recently voted to change its flag. See H.B. 1796, 2020 Reg. Sess. (Miss. 2020). 8 Recall that Plaintiffs never explain how they have standing to assert their Equal Protection Clause claim. 9 To be sure, Plaintiffs may fear discriminatory treatment. But they have presented “no concrete evidence to substantiate their fears, but instead rest on mere conjecture about possible governmental actions.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 420 (2013). This cannot establish a concrete injury-in-fact, especially at the summary judgment stage. Id.; see Lujan, 504 U.S. at 561.

9 Because Plaintiffs allege no cognizable injury-in-fact, the Court will dismiss Plaintiffs’

equal protection claim.

B.

Plaintiffs’ “primary cause of action in this case arises under the Establishment Clause.”

See Sevier Mot. at 18. But the Mayor believes Plaintiffs lack standing for that claim as well.

First, she asserts, Plaintiffs cannot establish taxpayer standing under the Supreme Court’s

decision in Flast v. Cohen, 392 U.S. 83 (1968). See Def.’s Opp’n at 20–21. Second, Plaintiffs’

“‘offended observer’ theory of standing has no basis in law.” Id. at 24 (quoting Am. Legion v.

Am. Humanist Ass’n, 139 S. Ct. 2067, 2098 (2019) (Gorsuch, J., concurring)). And third, any

concrete injury Plaintiffs suffered—such as being “threatened, victimized, and persecuted by the

Black Lives Matter cult,” Penkoski Mot. at 25—is not “fairly traceable to the District’s conduct,”

Def.’s Opp’n at 25. The Court takes each argument in turn.

1.

Plaintiffs’ only asserted basis for standing in their Complaint and, largely, their briefing

is that they have “taxpayer standing.” Compl. ¶¶ 34, 53. They “pay a variety of taxes in the

District of Columbia, including sale taxes and all other forms of taxes,” id. ¶ 34, and claim they

have a “logical nexus to seek accountability,” id. ¶ 43. So, in their view, they satisfy the

Supreme Court’s test in Flast v. Cohen for taxpayer standing to raise Establishment Clause

claims. Id. ¶ 53. Yet, as the Mayor notes, Plaintiffs have provided no evidence showing that

they satisfy the Flast test. Def.’s Opp’n at 20–21.

Taxpayer status grants litigants standing in “extremely limited” circumstances. See In re

Navy Chaplaincy, 534 F.3d 756, 762 (D.C. Cir. 2008). Indeed, a century ago, the Supreme Court

10 rejected the idea that a plaintiff’s status as a federal taxpayer could support standing to challenge

a government action. See Frothingham v. Mellon, 262 U.S. 447, 487–88 (1923).

Forty-five years later, the Court fashioned a narrow exception to Frothingham’s rule. In

Flast, it permitted federal taxpayers to raise an Establishment Clause challenge to congressional

appropriations to religious schools. 392 U.S. at 101–03. Still, these taxpayers had standing only

if they met two conditions. First, plaintiffs must challenge only the unconstitutionality of

“exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the

Constitution.” Id. at 102. Taxpayers lack standing to challenge “incidental expenditure of tax

funds in the administration of an essentially regulatory statute.” Id. And second, the taxpayers

must “establish a nexus between that [taxpayer] status and the precise nature of the constitutional

infringement alleged.” Id.

Though this provides some taxpayers standing, the Court has “made clear that Flast is a

very narrow exception,” Navy Chaplaincy, 534 F.3d at 762, which “has largely been confined to

its facts,” see Hein, 551 U.S. at 609–10 (declining to expand Flast to cover executive

expenditures even though “almost all Executive Branch activity is ultimately funded by some

congressional appropriation”). That is, federal taxpayers only have standing to challenge a

“legislative enactment [that] expressly authorizes or appropriates funds” violating the

Establishment Clause. See Navy Chaplaincy, 534 F.3d at 762 (emphasis added).

Penkoski and Christopher’s briefing mainly focuses on the nexus prong of the Flast

test. 10 See Penkoski Mot. at 25; Christopher Reply at 14–17. But they skip over Flast’s

threshold requirement: that they challenge a specific congressional appropriation or expenditure

made under Congress’s Article I, § 8 powers. See Flast, 392 U.S. at 102. Though they

10 Though Plaintiffs filed a joint Complaint in which they summarily alleged taxpayer standing, Compl. ¶ 34, neither of Sevier’s briefs address standing, see generally Sevier Mot.; Sevier Reply.

11 acknowledge this requirement, see Penkoski Mot. at 25 n.13; Christopher Reply at 10, they never

try to explain how the D.C. Mayor’s directive to paint the Mural qualifies as such an

expenditure.

And, as the Mayor observes, they cannot satisfy this prerequisite. First, any funds

expended on the Mural were municipal, not federal funds. 11 Def.’s Opp’n at 20–21. Second, the

Mayor—not Congress—directed the Department of Public Works to create the Mural. Id. at 20.

And consequently, third, Plaintiffs have presented no evidence that funds expended were

“expressly authorized or mandated” under Article I, § 8, to create the Mural. Navy Chaplaincy,

534 F.3d at 762. If anything, it seems likely that any money spent on the Mural was an

“incidental expenditure of tax funds in the administration” of the Department of Public Works.

See Flast, 392 U.S. at 102.

Since Plaintiffs have failed to show that they satisfy Flast’s test, they lack taxpayer

standing.

11 Plaintiffs never invoke the municipal taxpayer standing doctrine, so they have forfeited this argument. Cf. Scenic Am., Inc. v. U.S. Dep’t of Transp., 836 F.3d 42, 53 n.4 (D.C. Cir. 2016) (“Although a party cannot forfeit a claim that we lack jurisdiction, it can forfeit a claim that we possess jurisdiction.”). Yet even if they had raised it, they fall short of its requirements. Under the municipal taxpayer standing doctrine, a “taxpayer’s challenge to a state expenditure establishes a case or controversy ‘when it is a good-faith pocketbook action.’” D.C. Common Cause v. District of Columbia, 858 F.2d 1, 4 (D.C. Cir. 1988) (quoting Doremus v. Bd. of Educ., 342 U.S. 429, 434 (1952)). Plaintiffs must show a “‘measurable appropriation’ of tax funds.” Id. (quoting Frothingham, 262 U.S. at 488); see Am. Humanist Ass’n v. Douglas Cnty. Sch. Dist. Re-1, 859 F.3d 1243, 1260 (10th Cir. 2017) (rejecting municipal taxpayer standing because “plaintiffs have not shown evidence of a specific, measurable municipal expenditure on the challenged conduct”). And, as with Flast, “municipal taxpayers lack standing when they challenge a regulatory program that only incidentally involves expenditures of public funds.” D.C. Common Cause, 858 F.2d at 4. Here, Plaintiffs have offered no evidence that the District expended any funds on the Mural, that their sales taxes financed that project, or that, even if the District appropriated funds for the Mural, these expenses were not “incidental.” See ACLU-NJ ex rel. Miller v. Twp. of Wall, 246 F.3d 258, 263 (3d Cir. 2001) (finding that though plaintiffs had “provided uncontradicted testimony that they pay property taxes to the Township,” they “failed to establish that the Township has spent any money, much less money obtained through property taxes,” on a nativity display). And recall that at this trial-on-the-merits stage, mere allegations are insufficient. Lujan, 504 U.S. at 561.

12 2.

Christopher, in his reply brief, hints that Plaintiffs may also be able to assert an injury-in-

fact because they take offense at the Mural. 12 See Christopher Reply at 12–13. Even if Plaintiffs

argue this as an alternative basis for standing, the Court agrees with the Mayor that Plaintiffs’

“‘offended observer’ theory of standing has no basis in law.” See Def.’s Opp’n at 24 (quoting

Am. Legion, 139 S. Ct. at 2098 (Gorsuch, J., concurring)).

According to their Complaint, Plaintiffs “all walk past and are exposed to the

unavoidable Black Lives Matter display[.]” 13 Compl. ¶ 39. “The threat of unwelcomed and

continued contact” with the Mural, Christopher suggests, is “sufficient” for Plaintiffs “to meet

the ‘injury in fact’ requirement for standing.” Christopher Reply at 12 (citing Staley v. Harris

Cnty., 332 F. Supp. 2d 1030, 1031 (S.D. Tex. 2004); N.C. C.L. Union v. Constangy, 751 F. Supp.

552, 553 (W.D.N.C. 1990), aff’d, 947 F.2d 1145 (4th Cir. 1991)).

Why? Because, as Plaintiffs see it, they “will be subjected to repeated exposure to the

offensive non-secular display[] that is paid for and maintained by their tax dollars.” Id. at 13.

Plaintiffs suggest that the Mural offends them and makes them “actually feel like second class

citizens,” Compl. ¶ 44, because it signals to a “reasonable person . . . that the favored religion of

the District and the Nation is the religion of Secular Humanism as advocated by the violent BLM

cult,” Christopher Reply at 12. In other words, as with their equal protection claim, Plaintiffs

assert a psychological, stigmatic injury for their Establishment Clause claim.

12 He still ties this argument to taxpayer standing, see Christopher Reply at 12 (“As taxpayers, the Plaintiffs do not want to have to keep coming into contact with the offensive displays[.]”), so it is unclear whether he tries to assert this as a separate basis for standing. 13 Christopher never filed an affidavit or other evidence attesting to this fact in support of his motion or in response to the Mayor’s cross-motion. But a verified complaint can replace a pro se plaintiff’s affidavit. See Neal v. Kelly, 963 F.2d 453, 457 (D.C. Cir. 1992).

13 This injury, though, cannot be squared with the Supreme Court’s holding in the landmark

Establishment Clause standing case, Valley Forge Christian College v. Americans United for

Separation of Church & State, 454 U.S. 464 (1982). An overview of that case is in order.

Under the Federal Property and Administrative Services Act, the Secretary of Education

had authorization to transfer land that had “outlived its usefulness to the Federal Government” to

public or private entities, such as schools. See Valley Forge, 454 U.S. at 466. Following the

closure of a military hospital, the Secretary conveyed land to Valley Forge Christian College. Id.

at 468. A month later, a nonprofit organization, Americans United for Separation of Church and

State (“Americans United”), learned about the conveyance through a press release. Id. at 469. It

promptly sued, arguing that the conveyance violated the Establishment Clause. Id.

Americans United claimed that it had standing to challenge the transfer because it was

“composed of 90,000 ‘taxpayer members.’” Id. The complaint asserted that each member

“would be deprived of the fair and constitutional use of his (her) tax dollar for constitutional

purposes in violation of his (her) rights under the First Amendment of the United States

Constitution.” Id.

The district court dismissed the case, concluding that Americans United lacked taxpayer

standing under Flast and that it failed to allege that its members had suffered an “actual or

concrete injury.” Id. The Third Circuit reversed. Id. at 470. Americans United, it said, “had

standing merely as ‘citizens’ claiming ‘injury in fact’ to their shared individuated right to a

government that ‘shall make no law respecting the establishment of religion.’” Id. One judge

wrote separately emphasizing that finding “standing was necessary to satisfy the need for an

14 available plaintiff, without whom the Establishment Clause would be rendered virtually

unenforceable by the judiciary.” Id. (internal quotations omitted).

Upon review, the Supreme Court rejected the Third Circuit’s standing theory. The Court

had long recognized that “Art. III requirements of standing are not satisfied by the abstract injury

in nonobservance of the Constitution asserted by citizens.” Id. at 482 (cleaned up). “Such

claims amount to little more than attempts ‘to employ a federal court as a forum in which to

air . . . generalized grievances about the conduct of government.’” Id. at 483 (quoting Flast, 392

U.S. at 106).

And that was the type of claim that Americans United brought. It made no difference, as

the court of appeals thought, that Americans United alleged an Establishment Clause violation

rather than some other constitutional grievance. Id. at 483–84. Other clauses of the Constitution

are not “in some way less ‘fundamental’ than the Establishment Clause.” Id. at 484. And there

is “no principled basis on which to create a hierarchy of constitutional values or a

complementary ‘sliding scale’ of standing which might permit respondents to invoke the judicial

power of the United States.” Id.

Americans United “claimed that the Constitution had been violated, [but] they claimed

nothing else.” Id. at 485 (cleaned up). The only injury Americans United members had

personally suffered was “the psychological consequence presumably produced by observation of

conduct with which one disagrees.” Id. Such an injury, the Court held, had never been enough

to confer standing and was not now “even though the disagreement [was] phrased in

constitutional terms.” Id. at 485–86.

The Court, finally, rejected the suggestion in the circuit’s concurring opinion that

Americans United must have standing “to satisfy ‘the need for an available plaintiff’” to

15 challenge Establishment Clause violations. Id. at 488–89. Such a suggestion implied that “the

business of the federal courts is correcting constitutional errors, and that ‘cases and

controversies’ are at best merely convenient vehicles for doing so and at worst nuisances that

may be dispensed with when they become obstacles to that transcendent endeavor.” Id. at 489.

That idea strays from our constitutional scheme and does “not become more palatable when the

underlying merits concern the Establishment Clause.” Id.

In sum, Valley Forge establishes three key principles for this case. First, the

psychological consequences “produced by observation of conduct with which one disagrees” or

conduct at odds with the Constitution are not cognizable injuries. Id. at 482, 485. Second, there

is no “‘sliding scale’ of standing.” Id. at 484. That is, a plaintiff may not be held to a lower

threshold for injury for Establishment Clause claims than other constitutional violations. And

third, courts may not manufacture standing to find an “available plaintiff” to challenge the

Government’s action. Id. at 488–89.

So what does this mean for Penkoski, Sevier, and Christopher? Their Establishment

Clause claim must be dismissed.

Plaintiffs here, like Americans United, only allege a “psychological” harm, brought on by

observance of the Mayor’s action with which they disagree. Plaintiffs repeatedly assert that they

are “deeply offended” by the Mural. Compl. ¶¶ 36, 45 n.13, 46, 47. They do not believe they

should be “made to feel like second class citizens” because of their disagreement with the “Black

Lives Matter” message. Penkoski Mot. at 32 (emphasis added); see Christopher Mot. at 51

(“Plaintiffs feel unwelcome in their own Nation’s Capital” and “feel like second class citizens for

believing that Jesus Christ was who He said He was” (emphasis added)); Sevier Decl. ¶ 10, ECF

No. 11 (“[The Mural] make[s] me feel coerced and like a second class citizen[.]”); Penkoski

16 Decl. ¶ 10, ECF No. 13 (same). They claim no other injuries caused directly by the Mayor’s

action. 14

As with Americans United in Valley Forge, “[i]t is evident that [Plaintiffs] are firmly

committed to the constitutional principle of separation of church and State, but standing is not

measured by the intensity of the litigant’s interest or the fervor of his advocacy.” 454 U.S. at

486. It is measured by the demonstration of an actual and concrete injury. Plaintiffs’ abstract

psychological injuries do not meet that requirement.

Finding that Plaintiffs’ feelings of offense and stigmatization are sufficient injuries for an

Establishment Clause claim would also conflict with the second key principle from Valley Forge.

The Court cannot elevate the Establishment Clause over other constitutional rights and apply a

“‘sliding scale’ of standing.” Valley Forge, 454 U.S. at 484.

Plaintiffs assert the same injuries for both their Equal Protection and Establishment

Clause claims. See supra III.A. The only difference is that, for the Equal Protection Clause,

Plaintiffs allege that they feel like “second class citizens” because black citizens are “the favored

race of the District of Columbia,” Sevier Mot. at 21, while under the Establishment Clause, it is

because Secular Humanism is the “favored religion of the city [] and of the Nation,” Compl. ¶

40. Same injury—just invoking two different constitutional terms.

To find that Plaintiffs have standing for their Establishment Clause claim where it is

lacking for their Equal Protection Clause claim would lead to the “utterly unjustifiable result”

recently contemplated by Justice Gorsuch: “An African-American offended by a Confederate

flag atop a state capitol would lack standing to sue under the Equal Protection Clause, but an

14 Penkoski separately claims that he cannot preach on 16th Street because of the display. Penkoski Decl. ¶ 4. As we will see, see infra at III.B.3., these injuries are not fairly traceable to the Mayor but to third parties not before this Court.

17 atheist who is offended by the cross on the same flag could sue under the Establishment Clause.”

Am. Legion, 139 S. Ct. at 2099 (Gorsuch, J., concurring). Or here, a white Christian offended by

the Mural’s racially discriminatory message lacks standing to sue under the Equal Protection

Clause, but that same plaintiff offended by the same Mural’s religiously discriminatory message

could sue under the Establishment Clause. In Justice Gorsuch’s words, “Who really thinks that

could be the law?” Id.

Finally, though Plaintiffs believe that “in some circumstances, individuals may seek to

challenge governmental actions for which neither those individuals nor any other individuals

could meet standing requirements,” Penkoski Mot. at 25 n.13, Valley Forge directly forecloses

that result, 454 U.S. at 489. Standing is not a suggestion. Its requirements are “essential to

preserving the separation of powers and limited judicial role mandated by the Constitution.”

Navy Chaplaincy, 534 F.3d at 765. The “assumption that if [plaintiffs] have no standing to sue,

no one would have standing, is not a reason to find standing.” Valley Forge, 454 U.S. at 489

(quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974)).

To be sure, as Christopher observes, other courts have adopted some form of offended

observer standing. See Christopher Reply at 12–13 (citing Staley, 332 F. Supp. 2d at 1031; N.C.

C.L. Union, 751 F. Supp. at 553); see also, e.g., ACLU v. Rabun Cnty. Chamber of Com., Inc.,

698 F.2d 1098 (11th Cir. 1983); Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 683 (6th

Cir. 1994). This theory has been frequently advanced to require removal of Christian displays

around the Nation. But this Court is unpersuaded.

The Supreme Court, as the Mayor correctly observes, has never embraced this theory.

Def.’s Opp’n at 24. While it has considered Establishment Clause challenges to religious

18 displays without addressing standing, “it is a well-established rule that ‘cases in which

jurisdiction is assumed sub silentio are not binding authority for the proposition that jurisdiction

exists.’” Navy Chaplaincy, 534 F.3d at 764 (quoting John Doe, Inc. v. DEA, 484 F.3d 561, 569

n.5 (D.C. Cir. 2007)); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998)

(“[D]rive-by jurisdictional rulings . . . have no precedential effect.”). And when it comes to the

Supreme Court’s standing requirements, inferior courts must do as it says, not as it does.

Nor has the D.C. Circuit recognized offended observer standing. To the contrary, in

another Establishment Clause case, then-Judge Kavanaugh, writing for the panel, relied on the

Supreme Court’s decision in Allen to hold that “mere personal offense to government action does

not give rise to standing to sue.” 15 See Navy Chaplaincy, 534 F.3d at 763.

In that case, a group of Protestant Navy chaplains sued, alleging that the Navy’s

retirement system discriminated in favor of Catholic chaplains. Id. at 758. The chaplains had

not suffered from the alleged discrimination, but asserted an “injury-in-fact from their being

subjected to the ‘message’ of religious preference conveyed by the Navy’s allegedly preferential

retirement program[.]” Id. at 763. The program made them “feel like second-class citizens

within the Navy Chaplaincy.” Id. Pointing to religious display and prayer cases in which other

courts had found or assumed standing, the chaplains asserted that such an injury was sufficient.

Id.

The court first noted that those cases were not binding on it (nor are they on this Court).

Id. at 764. Then it went on to find that even “accepting those cases as precedents on standing,”

there were “significant differences between plaintiffs’ case and the religious display and prayer

15 Fifty years ago, the D.C. Circuit flirted with offended observer standing in Allen v. Hickel, 424 F.2d 944 (D.C. Cir. 1970). But Valley Forge later cast doubt on that decision, and the D.C. Circuit has not relied on that holding since Valley Forge was decided in 1982. No party cites it in the briefing.

19 cases.” Id. Namely, the chaplains were not even offended by a government message, but by a

government action “re-characterized as a governmental message promoting religion.” Id.

(emphasis in original).

Pointing to Valley Forge, the court noted that the chaplains’ only alleged injury was the

“psychological consequence . . . produced by observation of conduct with which one disagrees.”

Id. (quoting Valley Forge, 454 U.S. at 485–86). Since the chaplains were “not themselves

affected by a government action except through their abstract offense at the message allegedly

conveyed by that action,” the court determined that they had not shown injury-in-fact to bring an

Establishment Clause claim. Id. at 764–65.

The D.C. Circuit, then, has rejected the opportunity to apply offender observer standing

in other Establishment Clause contexts. Id. And it has only assumed but never held that this

theory suffices for religious display cases. Id. at 764. This Court declines to so hold now.

Though other courts of appeals have adopted this theory, this remains an unsettled area of

law. Even among those courts, cases invoking offended observer theory “are in some conflict

and the doctrine is somewhat confused.” Washegesic, 33 F.3d at 682.

Some courts, for instance, base standing, in part, on the frequency of the plaintiffs’

contact with the display. See, e.g., Vasquez v. L.A. Cnty., 487 F.3d 1246, 1250 (9th Cir. 2007)

(“Whether frequent regular contact with an allegedly offensive religious symbol . . . can give

rise to a legally cognizable injury is an open question in this circuit.” (emphasis added)). Others

consider whether the plaintiffs are members of the community where the display is located. See,

e.g., id. at 1251 (“[Plaintiff] has held himself out as a member of the community where the seal

is located, as someone forced into frequent regular contact with the seal[.]”); Washegesic, 33

F.3d at 683 (“The practices of our own community may create a larger psychological wound than

20 someplace we are just passing through.”). And, in the past, some courts have considered

whether the plaintiffs altered their behavior because of the display. See, e.g., Freedom from

Religion Found. v. Zielke, 845 F.2d 1463, 1467 (7th Cir. 1988) (denying standing where

plaintiffs said they were “offended by [the display’s] presence” but admitted they had “not

altered their behavior as a result of the monument”). But see, e.g., Doe v. Cnty. of Montgomery,

41 F.3d 1156, 1160 (7th Cir. 1994) (rejecting the argument that “unless a plaintiff assumes a

‘special burden’ or alters his behavior because of the religious message” he lacks standing).

But why not follow these circuits precedents—in one form or another—here?

First, for the reasons already explained, the Court believes Valley Forge forecloses this

result. See supra at III.B.2.a.; see also Am. Legion, 139 S. Ct. at 2100 (Gorsuch, J., concurring)

(“[T]his Court has already expressly rejected ‘offended observer’ standing under the

Establishment Clause itself.” (citing Valley Forge, 454 U.S. at 464)).

Second, many of those courts adopting this theory “invented offended observer standing

for Establishment Clause cases in the 1970s in response to [the Supreme] Court’s decision in

Lemon v. Kurtzman, 403 U.S. 602 (1971).” Am. Legion, 139 S. Ct. at 2101 (Gorsuch, J.,

concurring). The Lemon test, as it has evolved, “prohibit[s] the government from doing anything

that a ‘reasonable observer’ might perceive as ‘endorsing’ religion.” Id. So other courts crafted

offended observer standing to allow such a reasonable observer to have standing to sue. See,

e.g., Moore, 853 F.3d at 250 (“The Establishment Clause prohibits the Government from

endorsing a religion . . . [a]ccordingly, Establishment Clause injury can occur when a person

encounters the Government’s endorsement of religion.”); Suhre v. Haywood Cnty., 131 F.3d

1083, 1086 (4th Cir. 1997) (“[T]he standing inquiry in Establishment Clause cases has been

tailored to reflect the kind of injuries Establishment Clause plaintiffs are likely to suffer.”).

21 These courts adopted offended observer standing when Lemon reached its zenith of

influence. They are now wedded to that precedent. See Kondrat’yev v. City of Pensacola, 949

F.3d 1319, 1323 (11th Cir. 2020) (“If we were writing on a clean slate, we might well agree with

the City’s contention that plaintiffs lack standing here. But we are not—and so we cannot.”).

This case arises in a new Establishment Clause era. Since the 1970s, the Supreme Court

has gradually shifted away from Lemon, often ignoring the test altogether. See Am. Legion, 139

S. Ct. at 2080 (plurality opinion) (collecting cases). And just last year, a plurality of the

Supreme Court announced that the “daunting problems” that the Lemon test has presented in

religious display cases “counsel against efforts to evaluate such cases under Lemon.” 16 Id. at

2081–82. With Lemon eroded, so too has the justification for accommodating a plaintiff merely

standing in the role of the “reasonable observer.”

Third, the standing doctrine has tightened significantly since courts decided many of the

foundational offended observer cases. The Eleventh Circuit, for instance, adopted offended

observer standing in 1983. See Rabun, 698 F.2d at 1105. And many courts have relied on that

case in creating their own doctrines. See, e.g., Hawley v. Cleveland, 773 F.2d 736, 740 (6th Cir.

1985). But since then, the Supreme Court has raised the bar for “injury-in-fact” for standing. In

1992, the Court explained that the injury must be “concrete and particularized” and “actual or

imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. And just a few years ago,

the Court clarified that a cognizable injury must be not only “particularized”—in that it affects

16 Only Chief Justice Roberts and Justices Breyer and Kavanaugh joined this section of Justice Alito’s opinion in American Legion. See Am. Legion, 139 S. Ct. at 2074. But Justice Gorsuch’s concurring opinion emphasized that the “plurality rightly indicate[d]” that “Lemon was a misadventure” and that the test is “now shelved.” Id. at 2101– 02 (Gorsuch, J., concurring). Justice Thomas also agreed in his concurrence: “As to the long-discredited test set forth in Lemon v. Kurtzman . . . the plurality rightly rejects its relevance to claims, like this one, involving ‘religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.’ I agree with that aspect of its opinion. I would take the logical next step and overrule the Lemon test in all contexts.” Id. at 2097 (Thomas, J., concurring). At least six justices, then, support the holding that Lemon no longer applies to religious display cases. See Kondrat’yev, 949 F.3d at 1326.

22 the plaintiff in an individual way—but also “concrete.” Spokeo, Inc. v. Robbins, 136 S. Ct. 1540,

1548 (2016) (quotations omitted). It must “actually exist” and be “real and not abstract.” Id.

(cleaned up).

Under these heightened injury-in-fact requirements, the Court has rejected stigmatization,

see Allen, 468 U.S. at 755, disagreement, Diamond v. Charles, 476 U.S. 54, 62 (1986), fear,

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013), and other abstract or purely

psychological harms as sufficient injuries-in-fact. These cases have built upon Valley Forge’s

foundation, making it much harder to adopt an offended observer theory now, on a clean slate.

Indeed, some courts are questioning their adoption of offended observer theory and are

calling on the Supreme Court to address it directly. Judge Newsom recently argued that Rabun

was “wrong the day it was decided—utterly irreconcilable with the Supreme Court’s then-hot-

off-the-presses decision in Valley Forge.” Kondrat’Yev, 949 F.3d at 1336 (Newsom, J.,

concurring). And Judge Hardiman, while declining to abrogate Third Circuit precedent, noted

that it was up to “the Supreme Court—or this Court sitting en banc—to determine whether to

discard” offended observer standing. Freedom from Religion Found., Inc. v. Cnty. of Lehigh,

933 F.3d 275, 280 (3d Cir. 2019); see also id. at 280 n.3.

In sum, the development of the Establishment Clause and standing doctrines over the past

fifty years counsels against adopting offended observer standing here and now, when no contrary

precedent binds this Court. The Court, thus, declines to find that Penkoski, Sevier, and

Christopher have standing just because they have been “expose[d]” to a display that offends

them. Christopher Reply at 13.

23 c.

But even if the Court were to adopt offended observer standing, it is not clear that

Plaintiffs have offered enough evidence that they have suffered such an injury.

Plaintiffs’ Complaint, filed only five days after the Mural was created, jointly alleges that

Plaintiffs “all walk past and are exposed to the unavoidable Black Lives Matter display” and that

Sevier and Christopher “are required to walk past the challenged display as they carry out

official business” for their lobbying work. Compl. ¶¶ 39, 42.

But Plaintiffs offer no evidence in support of this. Indeed, their later declarations never

mention this allegation. See generally Sevier Decl.; Penkoski Decl.; Pls.’ Req. for Judicial

Notice, ECF No. 41. When did they walk past the Mural? How often? Did they pass it in their

day-to-day business, or did they intentionally walk past it? Indeed, Penkoski’s declaration casts

doubt on whether he has ever walked past the Mural since he testified that he “feel[s] like [he] is

prohibited from going to the spot where the challenged displays are.” See Penkoski Decl. ¶ 4.

And of course, it is Plaintiffs’ burden to establish standing. Lujan, 504 U.S. at 561.

More, as observed above, several circuits give weight to the fact that litigants are

challenging displays in their own community, finding that they may have a more concrete and

particularized injury than those “complaining about the unlawful establishment of a religion

. . . [in] such an establishment elsewhere[.]” ACLU v. St. Charles, 794 F.2d 265, 268 (7th Cir.

1986); Washegesic, 33 F.3d at 683 (“The practices of our own community may create a larger

psychological wound than someplace we are just passing through.”).

Yet Plaintiffs do not appear to be members of the District’s community, only visitors

whose lobbying activities or other business occasionally bring them here. All three Plaintiffs’

24 listed mailing addresses in their Complaint are in Nashville, Tennessee. 17 In later filings, Sevier

and Penkoski provided D.C. mailing addresses, but still no residential address. See, e.g.,

Penkoski Mot. at 56. Christopher’s Reply suggests that Sevier rents an apartment in the

District—though Sevier’s filings never reference this. Christopher Reply at 14. There is no

mention of how often Sevier stays in the District, nor is there any allegation that Penkoski or

Christopher currently reside here.

Plaintiffs’ ties to the D.C. community, at least on this evidence, are tenuous at best. And

Plaintiffs’ “claim that the Government has violated the Establishment Clause does not provide a

special license to roam the country in search of governmental wrongdoing and to reveal their

discoveries in federal court.” Valley Forge, 454 U.S. at 487.

3.

Finally, even when Plaintiffs do allege concrete and particularized injuries, those injuries

are caused by third parties—not the Mayor. Plaintiffs thus fail to offer proof of traceability and

redressability for these injuries.

Penkoski, for example, alleges that he has received a “barrage of threats . . . from the

phony tolerant Black Lives Matter cult members.” Penkoski Decl. ¶ 4. He worries that he

“could be physically harmed if [he] preach[es]” on 16th Street, id., so he has canceled events that

“take place on or around” that area, see Christopher Reply at 17. Sevier and Christopher, too,

claim that BLM members have threatened them. See Sevier Decl. ¶ 3; Christopher Reply at 16–

17.

17 Indeed, in violation of Local Rule 5.1(c)(1), Plaintiffs have failed to provide their full residential addresses. The Court has the authority to dismiss this case on that basis alone. See LCvR 5.1(c)(1) (“The first filing by or on behalf of a party shall have in the caption the name and full residence address of the party. . . . Failure to provide the address information within 30 days of filing may result in the dismissal of the case against the defendant.”). The Court declines to do so, but it also will not assume Plaintiffs are D.C. residents when their pleadings suggest otherwise.

25 But all these claims focus on the BLM members, not the Mayor herself. Plaintiffs have

provided no evidence that the Mayor has threatened them, physically harmed them, or prevented

them from preaching on 16th Street.

And even if the Court were to order the Mayor to remove the Mural, Plaintiffs provide no

evidence that this remedy would likely stop BLM members from threatening them. Lujan, 504

U.S. at 561 (“It must be likely, as opposed to merely speculative, that the injury will be redressed

by a favorable decision.” (cleaned up)). Recall that the protests and violence near the White

House preceded the erection of the Mural, not vice versa.

Plaintiffs’ failure to produce evidence of traceability and redressability stands as one final

roadblock in their pursuit of standing. Id. (requiring injuries to be “fairly traceable to the

challenged action of the defendant and not the result of the independent action of some third

party not before the court” (cleaned up)). The Court will thus dismiss Plaintiffs’ Establishment

Clause claim.

IV.

Plaintiffs’ Complaint includes only two counts, both challenging the Mural: a “First

Amendment Establishment Clause Violation” and a “Violation of the Equal Protection Clause of

the Fourteenth Amendment.” Compl. at 20–23. Though the crux of their motions is still the

Establishment Clause claim, see Sevier Mot. at 18, their motions for preliminary and permanent

injunctions pile on several additional constitutional and statutory claims challenging the Mural

and a claim challenging one of the Mayor’s COVID-19 orders.

The Court must “consider a pro se litigant’s complaint ‘in light of’ all filings,” Brown v.

Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015), but “[t]his benefit is not . . . a

license to ignore the Federal Rules of Civil Procedure,” Sturdza v. U.A.E., 658 F. Supp. 2d 135,

26 137 (D.D.C. 2009); see also Sanchez-Mercedes v. Bureau of Prisons, --- F. Supp. 3d ---, No.

1:19-cv-00054 (TNM), 2020 WL 1821131, at *18 n.21 (D.D.C. Apr. 10, 2020). More, when a

pro se plaintiff is an attorney—as Sevier claims to be, see Compl. ¶ 35; Sevier Decl. ¶ 2—he “is

not automatically subject to the very liberal standards afforded to a non-attorney pro se plaintiff

because an attorney is presumed to have a knowledge of the legal system and need less

protections from the court,” Richards v. Duke Univ., 480 F. Supp. 2d 222, 234 (D.D.C. 2007);

see also Robinson v. Howard Univ., Inc., 335 F. Supp. 3d 13, 22 (D.D.C. 2018), aff’d sub nom.

Robinson v. Wutoh, 788 F. App’x 738 (D.C. Cir. 2019).

Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a). This rule ensures plaintiffs “give fair notice to defendants of the claim being asserted,

sufficient to prepare a responsive answer, to prepare an adequate defense and to determine

whether the doctrine of res judicata applies.” Sturdza, 658 F. Supp. 2d at 137.

Here, Plaintiffs’ briefs raise five new claims that appear nowhere in the Complaint.

Some of these claims, like Plaintiffs’ arguments that the District violated its own code and

regulations, are unlikely to survive a motion to dismiss under Rule 12(b)(6) since these rules do

not appear to provide a private right of action. Def.’s Opp’n at 45.

Others claims require further pleading, argument, and, possibly, factual development—

which neither side has presented here. For instance, Plaintiffs’ claim that the Mayor violated

their free speech rights hinges, in part, on whether the Mural is private or government speech.

See Def.’s Opp’n at 40. But the parties have provided little-to-no argument or factual support to

aid the Court in answering this fact-intensive question. See Walker v. Tex. Div., Sons of

Confederate Veterans, Inc., 576 U.S. 200 (2015).

27 More, Plaintiffs’ suggestion that the Mayor violated the Free Exercise Clause may indeed

have merit, given that Plaintiffs allege that her COVID-19 restrictions have been selectively

enforced—prohibiting churches from gathering in groups of more than ten people while

tolerating protestors gathering by the thousands. See Roberts v. Neace, 958 F.3d 409, 413 (6th

Cir. 2020) (finding COVID-related restriction on in-person worship services likely violated the

Free Exercise Clause because the governor permitted “law firms, laundromats, liquor stores, gun

shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to

operate” while prohibiting worship services); see also Calvary Chapel Dayton Valley v. Sisolak,

--- U.S. ---, No. 19A1070, 2020 WL 4251360, at *2 (U.S. July 24, 2020) (Alito, J., dissenting

from denial of application for injunctive relief); On Fire Christian Ctr., Inc. v. Fischer, --- F.

Supp. 3d ---, No. 3:20-cv-264-JRW, 2020 WL 1820249, at *2 (W.D. Ky. Apr. 11, 2020)

(granting TRO to prevent enforcement of prohibition against drive-in Easter services).

But their Complaint failed to give the Mayor and this Court fair notice of these

allegations. No matter how broadly the Court construes the Complaint, it simply does not have

any free speech, statutory, or regulatory challenges to the Mural or a free exercise challenge to

the Mayor’s order on church attendance. The entire Complaint focuses on whether the Mural

violates the Establishment Clause or Equal Protection Clause. See generally Compl. Indeed,

this Complaint—unlike many pro se pleadings—contains clear and explicit statements about the

claims that the Plaintiffs do allege. See Compl. at 20–22. The claims are not among them. See

This is particularly problematic here, as the parties have briefed and the Court has

reviewed this case on an expedited schedule because of Plaintiffs’ representations that “time is of

the essence.” Hr’g Tr. at 33–34. The Court has consistently accommodated Plaintiffs’ timeline.

28 See, e.g., Min. Order (July 3, 2020) (denying Defendant’s Motion for Extension of Time). But it

cannot, on this expedited timeline, be asked to weigh in on these matters without full briefing

and an opportunity for both sides to develop and present evidence. See Franks v. Salazar, 816 F.

Supp. 2d 49, 58 n.5 (D.D.C. 2011) (“[P]laintiffs cannot use their summary judgment briefing to

press claims not raised in their [] complaint.”). Nor is it appropriate to expect the Mayor to

properly address claims on this expedited schedule for which she had no notice in the Complaint.

Plaintiffs may seek leave to file an Amended Complaint to make these claims under Rule

15(a)(2) of the Federal Rules of Civil Procedure.

V.

The Mayor’s decision to emblazon a city street by the White House with the name of an

organization that allegedly espouses a racial and religious preference may have been divisive and

offensive to many people, including Plaintiffs. But this Court is not a forum in which to air

generalized grievances about the conduct of the government. See Valley Forge, 454 U.S. at 483.

And since Plaintiffs have not shown standing to challenge the Mural, the Court cannot entertain

their Complaint.

The Court will thus dismiss the Complaint for lack of standing. Plaintiffs’ Motion for a

Preliminary and Permanent Injunction and Motions for Summary Judgment and Defendant’s

Cross-Motion for Summary Judgment will be denied as moot. A separate order will issue.

2020.08.21 16:11:55 ______-04'00' Dated: August 21, 2020 TREVOR N. McFADDEN, U.S.D.J.