United States District Court, D. Oregon
OCCUPY EUGENE; FLORENCE E. SEMPLE; and TERRILL E. PURVIS, Plaintiffs,
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
[Copyrighted Material Omitted]
For Occupy Eugene, Florence Semple, Terrill Purvis, Plaintiffs: Lauren C. Regan, LEAD ATTORNEY, Eugene, OR; Marianne G. Dugan, Attorney at Law, Eugene, OR.
For United States General Services Administration, (" GSA" ), Wayne C. Benjamin, Regional Director, GSA, in his individual and official capacities, Kimberly Gray, Associate Director, in her individual and official capacities, Defendants: Janice E. Hebert, U.S. Attorney's Office, Portland, OR.
For Dan M. Tangherlini, Acting Administrator, GSA, in his individual and official capacities, Defendant: Janice E. Hebert, LEAD ATTORNEY, U.S. Attorney's Office, Portland, OR.
OPINION AND ORDER
Michael McShane, United States District Judge.
Occupy Eugene (OE) brings this action under the Administrative Procedures Act (APA) challenging the General Services Administration's (GSA) denial of a permit renewal allowing the group to protest at the Federal Plaza. Plaintiffs seek summary judgment on the ground that defendants' permitting scheme and the conditions imposed by the renewed permit violate their First Amendment rights. Plaintiffs also argue that defendants were required to provide a period of notice and comment for the changes to the regulations. Defendants countermove for summary judgment, arguing that the permitting regulations are constitutional as applied, and that no notice and comment period was required because any changes to the regulations were interpretative rather than substantive. Because the offered permit was not narrowly tailored to any significant government interest, and because the substantive changes to the regulations were put in place absent any notice and comment period, plaintiffs' motion for summary judgment 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. This original Occupy group is commonly referred to as " Occupy Wall Street." By October 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) have 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 (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 corner [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 be used as a prop that would 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 GSA permit application. Plaintiff Terrill 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 and in accordance with the permit guidelines. 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 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 these new restrictions limited OE use of the Plaza from 8 a.m. until 5 p.m., Monday through Friday. AR 25. Specifically, the new permit application contained a " Condition" not included in the original permit application. The new restriction stated " Organized activities authorized under this permit shall be limited to and be held during the public access hours of the property. Current property hours are: Monday -- Friday 8:00am to 5:00pm." AR 25.
On June 27, OE filed an application to renew its permit in order to extend their use of the Plaza through July. AR 24. OE requested the same unrestricted terms of the initial permit. After OE expressed its discontent with the 8 a.m. to 5 p.m. restrictions, Benjamin amended the hours of assembly to 7:00 a.m. to 10:00 p.m., seven days a week. AR 16. On June 30, OE informed the GSA that it disagreed with the restrictions and planned to remain at the Plaza without a permit. AR 18.
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." AR 16-17. 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 ...