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Eugene v. United States General Services Administration

United States District Court, Ninth Circuit

December 3, 2013

UNITED STATES GENERAL SERVICES ADMINISTRATION (GSA); WAYNE C. BENJAMIN, Regional Director, GSA, in his individual and official capacities; KIMBERLY S. GRAY, Associate Director, GSA, in her individual and official capacities; and DAN M. TANGHERLINI, Acting Administrator, GSA, in his individual and official capacities, Defendants.


MICHAEL McSHANE, District Judge.

Plaintiffs allege that defendants violated their constitutional rights by denying plaintiffs permit to protest on federal government property. The individual defendants move to dismiss plaintiffs' claims against them in their individualcapacities under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons stated below, defendants' motion (ECF No. 36) is GRANTED;


The Occupy movement began as a group of a few hundred protesters occupying New York City's financial district in September 2011 to protest social and economic inequality.[1] This original Occupy group is commonly referred to as "Occupy Wall Street." By Octqber 15, 2011, the Occupy movement spread to Eugene, Oregon and many other cities throughout the country. Since that time, a group of protesters who call themselves "Occupy Eugene" (OE) has maintained protest sites at various locations throughout Eugene. The members of OE describe themselves as "a group of concerned citizens inspired by Occupy Wall Street." (First Am. Compl. at ¶ 5 [hereinafter FAC].) OE's protest movement focuses on "democracy, economic security, corporate responsibility, ... financial fairness, and... accountability in the United States government." Id.

On May 1, 2012, plaintiffs and approximately ten to twenty-five other members of OE assembled at the plaza of the Eugene Federal Building[2] (Plaza). OE selected the Plaza because it "has always been a lawful place for demonstrat[ors] and picketers to congregate." Id. at ¶ 18. Additionally, the Plaza is "located on a highly-visible, busy street comer [and] is adjacent to courthouses, federal, state, and municipal political offices...." Id.

Shortly after OE arrived at the Plaza, the group set up a tent to use as a prop to draw attention· to the issue that homeless people did not have a place to legally sleep during the night. Officer Thomas Keedy of the Federal Protective Services (FPS) instructed OE that they could not set up a tent or sleep at the Plaza, but they were welcome to stay as long as they would like. OE complied with Officer Keedy's instructions.

In addition, Officer Keedy asked if a member of OE would be a contact person for the group and sign a U.S. General Services Administration (GSA) permit application. Plaintiff Terrill Purvis (Purvis) agreed to be the point of contact and accepted the permit application. The group, however, was reluctant to apply for a permit because some members of OE knew that the GSA had not previously required protesters to apply for permits. Nevertheless, on May 2, OE submitted a standard sixty-day permit application to Officer Keedy. OE's application requested continuous, non-exclusive use of the Plaza from May 1 through July 1 for up to sixty people for a First Amendment demonstration. After Officer Keedy reviewed the application for potential security impacts, the GSA approved plaintiffs' permit application as requested.

OE used the Plaza without any major incidents[3] and according to the permit guidelines.[4] However, on June 6, when a member of OE contacted Officer Keedy about a sound permit for an upcoming event at the Plaza, Officer Keedy informed the member that she would need to contact the local GSA manager. Officer Keedy said that "the rules for permits had been changed by the GSA due to the fact that the GSA had bad' experiences with other Occupy groups in other areas." (FAC ¶ 33.)

Near the end of the initial sixty-day permit period, defendant Wayne Benjamin (Benjamin) informed OE that, due to problems with other Occupy groups, the group's renewed permit would only last thirty days and have new restrictions. One of the new restrictions Benjamin informed OE about was that they could only use the Plaza from 8 a.m. until 5 p.m., Monday through Friday. On June 27, OE filed an application to renew its permit in order to extend their use of the Plaza through July. OE requested the same unrestricted terms of the initial permit. After OE protested the 8 a.m. to 5 p.m. restrictions, Benjamin amended the hours of assembly to 7 a.m. to 10 p.m., seven days a week. On June 30, OE informed the GSA that it disagreed with the restrictions and planned to remain at the Plaza without a permit.

On July 9, Benjamin denied plaintiffs' application to renew their permit. The GSA indicated that its primary reason for denying the permit was that OE sought "to maintain a presence in the plaza 24 hours a day for a period of 30 days." Defs.' Ex. 3 at 2. The GSA stated that it has "an interest in preserving the plaza for use by the general public, maintaining an aesthetically pleasing area and keeping the public safe." Id. (stating that 41 C.F.R. § 102-74.500(c) authorizes Federal agencies to disapprove a permit application in certain situations). The denial letter also indicated that plaintiffs could appeal the denial. Id. Plaintiffs did appeal but were unsuccessful. Defs.' Ex. 4, 5.

On July 10, Benjamin and another GSA manager went to the Plaza to verbally inform OE that their permit extension had been denied and that the members must vacate the Plaza within twenty-four hours. The managers indicated that if OE did not comply, the GSA would request law enforcement assistance from the FPS. OE responded to the mangers by stating that they believed that they did not need a permit and would continue without a permit.

The following day, as plaintiffs continued their protest, Officer Keedy and FPS Area Commander Michael Foster entered the Plaza and advised OE and other groups to leave the Plaza or face arrest. Subsequently, all of the OE member and members of the public evacuated the Plaza except plaintiff Florence Semple (Semple). Semple indicated to Officer Keedy that she. believed that the eviction was unconstitutional and would only leave upon receipt of a citation or arrest in order to later challenge the eviction. Semple was arrested for violating 41 C.F.R. § 102-. 74.385, cited, and released.

The federal government charged Semple but later moved to dismiss the charge. Semple raised a constitutional challenge to the criminal charge and opposed the motion to dismiss. Semple argued that a court ruling was necessary to preserve the constitutional rights of citizens who wish to use the Plaza for First Amendment purposes. Nevertheless, the case was ultimately dismissed.

On December 13, 2012, plaintiffs returned to the Plaza to resume their protest. On December 14, Kimberly Gray (Gray) delivered a letter to plaintiffs indicating that they had twenty-four hours to leave the Plaza or a complaint and subsequent arrests would occur. Gray's letter did not state any reasons for the ban, indicate the duration of the ban, nor provide any alternative ...

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