Archdiocese of Washington v. WMATA , 877 F.3d 1066 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 17-7171 September Term, 2017
1:17-cv-02554-ABJ
Filed On: December 20, 2017
Archdiocese of Washington, Donald Cardinal
Wuerl, a Roman Catholic Archbishop of
Washington, a corporation sole,
Appellant
v.
Washington Metropolitan Area Transit
Authority and Paul J. Wiedefeld, in his official
capacity as General Manager of the
Washington Metropolitan Area Transit
Authority,
Appellees
BEFORE: Rogers, Tatel, and Millett, Circuit Judges
ORDER
Upon consideration of the emergency motion for an injunction pending appeal
and for expedited consideration of this appeal, the response thereto, and the reply, it is
ORDERED that the motion for a mandatory injunction pending appeal be denied.
Appellant has not satisfied the stringent requirements for an injunction pending appeal.
See John Doe Co. v. Consumer Fin. Prot. Bureau, 849 F.3d 1129, 1131 (D.C. Cir.
2017); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2017).
Appellant’s motion for an injunction pending appeal centers on an as-applied
claim of unconstitutional viewpoint discrimination. Specifically, Appellant contends that
the Washington Metropolitan Area Transit Authority’s (“WMATA”) policy governing the
placement of advertisements on its buses permits advertisements discussing and
promoting secular holiday activities, but disallows advertisements promoting religious
activities during the holiday season or a religious perspective on celebration of the
holiday season.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 17-7171 September Term, 2017
Appellant has failed to establish a substantial likelihood of success because, at
least at this early pre-discovery procedural stage, Appellant’s argument of
discriminatory treatment is grounded in pure hypothesis. Appellant has not come
forward with a single example of a retail, commercial, or other non-religious
advertisement on a WMATA bus that expresses the view that the holiday season
should be celebrated in a secular or non-religious manner. Appellant references a
CorePower Yoga advertisement, but that advertisement contains no discernible holiday,
seasonal, religious, or irreligious content. Appellant also points to a WMATA-permitted
Salvation Army advertisement encouraging donations to its seasonal Red Kettle
campaign so that funds can be used to help the less fortunate. That advertisement
underscores, however, that WMATA does not exclude religious speakers from
advertising when their proposed messages comport with the allowed categories of
speech. Neither does anything in that advertisement suggest that WMATA is
discriminating against a religious perspective on worthwhile eleemosynary activities; in
fact, it indicates the opposite.
Appellant repeatedly cites a statement in WMATA’s district court papers
proposing a “secular half” and “religious half” to Christmas celebrations. See WMATA
Opp’n to TRO or Prelim. Inj., Dist. Ct. Docket # 10, at 14-15 n.3. The citation, however,
refers to a footnoted legal argument made by counsel addressing an argument in the
alternative. Appellant identifies no basis for concluding that the defendant WMATA
applied any such test in denying Appellant’s proposed advertisement, or that WMATA
has actually made Christmas or the holiday season a permissible subject of advertising.
Cf. Grossbaum v. Indianapolis-Marion County Building Auth., 63 F.3d 581, 588 (7th Cir.
1995) (where City had “recogniz[ed] the ‘holiday season’ as a topic of discussion” in a
forum, religious perspectives on that allowed topic could not be excluded).
Positing next that WMATA’s advertising ban is arbitrarily enforced, Appellant
argues that WMATA allowed a Christian radio station to advertise on the side of its
buses. But the advertisements identified by Appellant were on unidentified non-
WMATA buses. Mem. Op. at 33 n.20. And while WMATA admits that it did allow that
same radio station to advertise on its buses in April 2017, the record is silent as to the
content of those advertisements.
With respect to Appellant’s facial challenge to WMATA’s decision to exclude
religion as an advertising subject, the Supreme Court has acknowledged that the
government may impose reasonable limitations on the subjects for discussion in a
limited public forum, so no substantial likelihood of success in demonstrating WMATA’s
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 17-7171 September Term, 2017
unreasonableness has yet been shown at this procedural stage. See Rosenberger v.
Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 831 (1995) (noting that the
University policy “does not exclude religion as a subject matter,” but instead
unconstitutionally foreclosed religious perspectives on permitted subjects).
Finally, Appellant has failed to demonstrate any substantial burden on its ability
to freely exercise its religious beliefs. Although WMATA has declined one proposed
advertisement, Appellant has not demonstrated how, in the absence of viewpoint
discrimination, that decision substantially burdens Appellant’s ability to exercise its
religion. See Branch Ministries v. Rossotti, 211 F.3d 137, 142-43 (D.C. Cir. 2000).
Because Appellant has not shown a likelihood of success on its free speech or free
exercise claims, it follows that its hybrid-rights claim must fail as well. See Henderson
v. Kennedy, 253 F.3d 12, 19 (D.C. Cir. 2001).
In denying the injunction pending appeal, we emphasize the preliminary nature
of this order, which does not speak to the ultimate merits of any of Appellant’s claims on
a more mature record. It is
FURTHER ORDERED that the following expedited briefing schedule will apply in
this case:
Appellant’s Brief and Appendix January 12, 2018
Appellees’ Brief February 6, 2018
Reply Brief February 16, 2018
The Clerk is directed to schedule this case for oral argument on the first available
date following the completion of briefing.
To enhance the clarity of their briefs, the parties are urged to limit the use of
abbreviations, including acronyms. While acronyms may be used for entities and
statutes with widely recognized initials, briefs should not contain acronyms that are not
widely known. See D.C. Circuit Handbook of Practice and Internal Procedures 41
(2017); Notice Regarding Use of Acronyms (D.C. Cir. Jan. 26, 2010).
Parties are strongly encouraged to hand deliver the paper copies of their briefs to
the Clerk's office on the date due. Filing by mail may delay the processing of the brief.
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 17-7171 September Term, 2017
Additionally, counsel are reminded that if filing by mail, they must use a class of mail
that is at least as expeditious as first-class mail. See Fed. R. App. P. 25(a). All briefs
and appendices must contain the date that the case is scheduled for oral argument at
the top of the cover. See D.C. Cir. Rule 28(a)(8).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Robert J. Cavello
Deputy Clerk
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