Rule 16(f) Sanctions Require Violation of Unambiguous Order — Order Permitting Discovery by One Party But Silent As to Other Does Not Unambiguously Bar Discovery by Other — Permission Presumptively Unneeded under Rule 26

Act Now to Stop War and End Racism Coalition v. Dist. of Columbia, 2017 U.S. App. LEXIS 1193 (D.C. Cir. Jan. 24, 2017):

 

Like many municipalities around the country, the District of Columbia regulates the manner in which members of the public may post signs on the District's lampposts. District of Columbia law allows a posted sign to remain on a public lamppost for up to 180 days. But a sign relating to an event must be removed within 30 days after the event, whether the 180-day period has expired or not. Thus, the District's rule may in some cases give less favorable treatment to signs that relate to an event than to signs that do not.

Two nonprofit organizations, the Act [*2]  Now to Stop War and End Racism Coalition (ANSWER) and the Muslim American Society Freedom Foundation (MASF) (together, the organizations), challenge the District's sign-posting rule. MASF brings a pre-enforcement challenge to the rule as unconstitutional on its face in violation of the First Amendment and due process. MASF first argues that the distinction between event-related and other signs is content based yet cannot meet strict First Amendment scrutiny and that, even if the rule is not content based, it fails the intermediate scrutiny applicable to content-neutral time, place, and manner restrictions. Second, MASF contends that the regulation delegates an impermissible degree of enforcement discretion to the District's inspectors in violation of due process. It further challenges what it contends is strict liability on the originators of posters for any violation of the sign-posting rule, which MASF argues also contravenes its speech and due process rights. ANSWER, unlike MASF, was cited by the District for violations of the regulation. ANSWER seeks damages under section 1983, contending that it did not in fact violate the regulation and that citations were unconstitutional retaliation against it for its postering.

The [*3]  district court granted summary judgment to MASF, invalidating the regulation's treatment of event-related posters on both First Amendment and due process grounds, but rejecting MASF's strict-liability objection. The court also sanctioned the District for seeking discovery in the face of an order granting limited discovery to plaintiffs. The district court granted summary judgment to the District on ANSWER's section 1983 damages claim for lack of a showing of a policy, custom, or practice of retaliatory enforcement, as required by Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978). The District and the organizations cross-appealed.

We conclude that the regulation does not impose a content-based distinction because it regulates how long people may maintain event-related signs on public lampposts, not the content of the signs' messages. The "event-related" category is not itself content based. Under the intermediate First Amendment scrutiny that is therefore applicable, the rule is a reasonable time, place, and manner restriction. It is narrowly tailored to further a well-established, admittedly significant governmental interest in avoiding visual clutter. The regulation's definition of event-based signs also guides officials' enforcement discretion sufficiently to avoid facial [*4]  invalidation on due process grounds. Accordingly, we reverse the grant of summary judgment in MASF's favor and remand for the district court to enter summary judgment for the District.

On the organizations' cross-appeal, we affirm the district court's dismissal of ANSWER's section 1983 damages claim that the District retaliated against it in violation of the First Amendment, and MASF's claim that the District's regulation imposes a system of strict liability the First Amendment does not allow. Finally, because discovery is presumptively available to all parties pursuant to the Federal Rules of Civil Procedure in the absence of a court order to the contrary, we vacate the district court's imposition of discovery sanctions against the District for seeking discovery without leave of court.

I. Background

The District of Columbia began its regulation of signs on public lampposts with an outright prohibition in 1902. D.C. Police Regulations, Art. XII, § 2 (1902). The District partially relaxed that ban in 1958 to allow for the posting of signs on lampposts only with the permission of the District's Commissioners. D.C. Police Regulations, Art. 20 § 2 (1958). After the District's Corporation Counsel advised that the regulation might be constitutionally infirm for lack [*5]  of clearly articulated standards, see Letter from Louis P. Robbins, Acting Corporation Counsel, to James W. Hill, Director, Dep't of Licenses, Investigations, and Inspections (October 12, 1978) (Gov't Add. 13) [hereinafter Robbins Letter], the District revised the regulation to add specific criteria to limit enforcing officers' discretion, see Street Sign Regulation Amendment Act of 1979, D.C. Law 3-50, 26 D.C. Reg. 2733 (1979); see also Crime Prevention Sign Posting Act of 1980, D.C. Law 3-148, 27 D.C. Reg. 4884. Following the revisions, signs "not relate[d] to the sale of goods" could be affixed to lampposts for up to 60 days; election signs for District of Columbia candidates for public office were exempt from that overall limit but had to be taken down within 30 days after the election; and signs intended to aid neighborhood crime prevention were exempted from the time limits. See D.C. Mun. Regs. tit. 24 § 108.4-108.6 (1980). Commercial signs could not be affixed to public lampposts at all. See id. § 108.4. The revised rule also articulated specific requirements for the manner in which signs could be posted on a lamppost "or appurtenances of a lamppost" to "minimiz[e] the need to repair lamp posts defaced by signs attached by adhesives or other permanent methods and the need to remove abandoned or improperly secured [*6]  signs from lamp posts, the sidewalks and the streets." Robbins Letter at 2; see D.C. Mun. Regs. tit. 24, § 108.8-108.9 (1980). During the pendency of this case, the District twice further amended its lamppost rules, as described below.

In the meantime, ANSWER, a "grassroots civil rights organization" that works to end war and oppose racism, Affidavit of Brian Becker ¶ 2 (Mar. 14, 2008), J.A. at 32, had posted signs advertising rallies in the District, including events in September 2007 and March 2010. MASF, an unincorporated nonprofit association that conducts "civil and human rights advocacy with a focus on empowering the Muslim American community," Affidavit of Imam Mahdi Bray (Oct. 26, 2013) ¶ 6, Organizations' Add. 2, has in the past and intends in the future to post signs that combine general messages of advocacy and references to specific events, see id. at 6-8. MASF "has sought to engage in postering to the same extent as is afforded others, including those favored within the District of Columbia municipal regulation system." Id. at 9. The District of Columbia has not cited MASF, but in 2007 the District issued multiple citations against ANSWER under the then-current lamppost rule.

ANSWER and MASF sued the District, seeking a declaratory judgment that [*7]  the District of Columbia's lamppost rule violates their First Amendment and due process rights, and an injunction barring its enforcement. First Amended Complaint, Act Now To Stop War & End Racism Coal. v. District of Columbia (ANSWER I), 570 F. Supp. 2d 72 (D.D.C. 2008) (No. 07-1495). The district court dismissed both ANSWER's and MASF's claims for lack of standing, and in abstention from pending local administrative enforcement proceedings. ANSWER I, 570 F. Supp. 2d at 75-78. The organizations appealed.

This court reversed in part and remanded. Act Now to Stop War & End Racism Coal. v. District of Columbia (ANSWER II), 589 F.3d 433, 434 (D.C. Cir. 2009). The court held that MASF had standing based on "a credible statement of intent to engage in violative conduct," and had shown sufficient likelihood of enforcement against it because its allegations raised "somewhat more than the 'conventional background expectation that the government will enforce the law.'" Id. at 435 (quoting Seegars v. Gonzales, 396 F.3d 1248, 1253 (D.C. Cir. 2005)). At the motion to dismiss stage, the court reasoned, an affidavit from MASF's director stating an intention to violate the regulation sufficed to establish standing. Id. at 436. As to ANSWER, the court found that the district court had correctly abstained under Younger v. Harris, 401 U.S. 37 (1971), to the extent that charges against ANSWER for violations of the challenged regulation remained pending in the District of Columbia's administrative process. ANSWER II, 589 F.3d at 436.

While MASF and ANSWER's appeal was pending before this court, the District [*8]  of Columbia Department of Transportation amended the lamppost regulation. The 2010 final rule made one distinction relevant to the plaintiffs' claims: Signs "not related to a specific event" could be posted for up to 60 days while signs "related to a specific event" could be posted at any time beforehand, but had to be removed within 30 days after the event. 57 D.C. Reg. 528 (January 8, 2010) (amending D.C. Mun. Regs. tit. 24, §§ 108.5 & 108.6). Thus, in theory, event-related signs could be posted for months or years before the event they announced and for an additional 30 days thereafter, while signs that were not event related could be posted for a maximum of 60 days.

On remand, ANSWER voluntarily dismissed its claims for prospective relief. See Stipulation of Dismissal, Act Now To Stop War & End Racism Coal. v. District of Columbia (ANSWER III), 798 F. Supp. 2d 134 (D.D.C. 2011) (No. 07-1495). MASF, the only party still challenging the constitutionality of the District's regulation going forward, amended its complaint in light of the revised rule, adding an as-applied challenge to the "event-related" distinction as content based. See Supplemental Pleading ¶¶ 16-17, ANSWER III, 798 F. Supp. 2d 134 (No. 07-1495). Because neither the earlier nor the revised regulation had been enforced against MASF, the district court dismissed MASF's as-applied challenge, leaving only its facial [*9]  challenges under the First Amendment and the Due Process Clause. ANSWER III, 798 F. Supp. 2d at 143. Those claims, the court held, could proceed to discovery. Id. at 150-51.

Meanwhile, in its supplemental pleading after remand, ANSWER alleged that the District had "attacked" it with ninety-nine enforcement actions in March and April 2010 in retaliation for the content of its postering activity. The court dismissed that claim, holding that ANSWER had failed adequately to allege that the claimed retaliation resulted from a municipal custom or practice. ANSWER III, 798 F. Supp. 2d at 154-55. The court also dismissed MASF's claim that the regulation imposes a system of "strict liability" in violation of the First Amendment. Id. at 153.

In 2012, the District revised the regulation once more, yielding the version now before us. See 59 D.C. Reg. 273 (Jan. 20, 2012). Section 108 currently provides that any sign--including those announcing events--may be affixed to a publicly owned lamppost for a maximum of 180 days, but that signs relating to specific events must be removed within 30 days after the event. D.C. Mun. Regs. tit. 24, §§ 108.5, 108.6. The regulation also continues to restrict the method of affixing signs on public lampposts: All signs must be "affixed securely to avoid being torn or disengaged by normal weather conditions," id. § 108.8, but cannot "be affixed by adhesives that prevent their complete [*10]  removal from the fixture, or that do damage to the fixture," id. § 108.9. Signs may not be posted on "any tree in public space," id. § 108.2, and no more than three copies of any sign may be posted on either side of the street on a given block, id. § 108.10. The 2012 revision also added subsection 108.13, which defines an "event" as "an occurrence, happening, activity or series of activities, specific to an identifiable time and place, if referenced on the poster itself or reasonably determined from all circumstances by the inspector." See 59 D.C. Reg. 273 (codified at D.C. Mun. Regs. tit. 24, § 108.13).

After discovery--which we discuss in Part II.E., infra, in connection with the sanctions order--the District and MASF cross-moved for summary judgment. The court granted summary judgment to MASF, reasoning that even if the regulation does not distinguish on the basis of content, subsections 108.5 and 108.6 nevertheless fail intermediate scrutiny under the First Amendment for want of admissible evidence showing how the regulation advances the city's content-neutral purposes. Act Now to Stop War & End Racism Coal. v. District of Columbia (ANSWER IV), 905 F. Supp. 2d 317, 340-41 (D.D.C. 2012). It also held that subsection 108.13 was an impermissible delegation of enforcement discretion in violation of the Due Process Clause. Id. at 332. The court sanctioned the District for seeking discovery in violation of the court's [*11]  scheduling order. Act Now to Stop War & End Racism Coal. v. District of Columbia, 286 F.R.D. 117 (D.D.C. 2012). The District and the organizations cross-appealed.

We held these appeals in abeyance pending the Supreme Court's resolution of Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), see Order, Act Now to Stop War & End Racism Coal. v. District of Columbia, No. 12-7139 (D.C. Cir. August 20, 2014), and, once Reed was decided, requested supplemental briefing addressing its applicability here.

II. Analysis

We begin by addressing the District's contention that MASF lacks standing to sue. Finding standing, we proceed to MASF's First Amendment and due process facial challenges. As to both, we find MASF's challenges fall short, and accordingly reverse the district court's grant of summary judgment in its favor. We affirm the court's dismissal of ANSWER's section 1983 claim for damages and MASF's claim that the District's rule imposes strict liability in violation of the First Amendment. Finally, we vacate the discovery sanctions again the District.

A. MASF Has Standing to Challenge the District's Lamppost Regulation

**

B. The District's Rule Does Not Violate the First Amendment

***

E. Discovery Sanctions are Vacated

Finally, we address the discovery sanctions the district court imposed against the District of Columbia under Federal Rule of Civil Procedure 16(f). We review the district court's award of sanctions for an abuse of discretion, [*51]  see Perkinson v. Gilbert/Robinson, Inc., 821 F.2d 686, 689 (D.C. Cir. 1987), and vacate it.

Rule 16(f)(2) gives courts a tool to enforce compliance with its scheduling orders. That rule directs that a court, "[i]nstead of or in addition to any other sanction, . . . must order the party, its attorney, or both to pay the reasonable expenses--including attorney's fees--incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 16(f)(2). But a court may award sanctions under Rule 16(f) only where a party violates an unambiguous order. See Ashlodge, Ltd. v. Hauser, 163 F.3d 681, 684 (2d Cir. 1998), overruled on other grounds, as stated in New Pac. Overseas Grp. (U.S.A.) Inc. v. Excal Int'l Dev. Corp., 272 F.3d 667, 669 (2d Cir. 2001) ("To sustain sanctions under Rule 16(f), an order must be unambiguous . . . ."); cf. United States v. Day, 524 F.3d 1361, 1372 (D.C. Cir. 2008). The order that the District allegedly violated here was ambiguous.

The court's scheduling order authorized MASF to take discovery but was silent as to the District. Before the court issued the order, the District and MASF had submitted a joint status report. The joint report explained that the District believed discovery was "unnecessary here, as the remaining facial vagueness challenge presents a purely legal question." J.A. at 97. MASF, however, proposed that the court allow it to propound ten interrogatories, ten requests for production, [*52]  fifteen requests for admission, and allow it to take six depositions. In response to MASF's suggestion, the District suggested the court allow MASF ten interrogatories, five requests for production, and one deposition. Neither party addressed the scope of District's anticipated discovery in the event that the court imposed discovery constraints on MASF.

MASF and the District each submitted a proposed scheduling order: The District's order contemplated that "each party may not propound more than ten (10) interrogatories (including sub-parts) and five (5) requests for production of documents, and may not take more than one (1) deposition." J.A. at 103. That is, the District's proposed order tracked the limited discovery it had suggested in the Joint Status Report, contemplating that the limits would apply equally to both parties. MASF's proposed order suggested less restrictive limits on its own discovery, and did not specify whether or to what extent the District's discovery would be restricted. With some stylistic modifications, the court adopted MASF's proposed order, stating that "plaintiff is authorized to propound not more than" the specified numbers of interrogatories, requests [*53]  for production, requests for admission, and deposition notices; the order made no mention of any discovery restriction on the District of Columbia.

The District sent eleven interrogatories and three requests for production to MASF and ANSWER. After plaintiffs' counsel objected, the District withdrew six of its interrogatories but insisted on its right to conduct discovery. MASF then moved for a protective order and sanctions. The court granted the motion.

We acknowledge the district courts' prerogative to sanction parties for noncompliance with their orders, but we must vacate the sanctions here because the underlying order was ambiguous as to whether it limited the District's discovery rights. It expressly lowered the default caps in the Federal Rules of Civil Procedure only as to the plaintiffs. The order referred more generally to the earliest date on which "discovery requests may be served" and when "the parties" should file their dispositive motions. J.A. at 105. In context, the order could reasonably be read (a) to leave the District's discovery rights as specified in the Federal Rules, (b) to implicitly subject it to the same lower caps the court applied to plaintiffs, or (c) [*54]  to permit limited discovery to the plaintiffs while by negative implication barring any discovery whatsoever by the District.

In the context of the dueling proposed orders--one equally limiting both parties and the other, which the court accepted, speaking only to plaintiffs--the court's order could reasonably be read to constrain only the plaintiffs. Such one-sided treatment seems sensible enough given that the District, which as defendant did not bear the burden of proof, was unlikely to need extensive discovery in any event. That same reasoning might, alternatively, support reading the order as setting limits equally applicable to both parties, given that the District had urged the court to proceed without any discovery and presumably was willing to work within any constraints it could persuade the court to impose. Alternatively, framed as it was affirmatively to "authorize" the plaintiffs, and only plaintiffs, to take the specified discovery, and issuing against the backdrop of the District's initial argument against any discovery for either party, the order might be read--as the court evidently intended--to preclude the District from taking any discovery.

There are, however, strong [*55]  background principles that cut against the district court's intended reading. Under Rule 26, a party may take discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). Critically, a party has that prerogative without the order of a court. A court order may "otherwise limit[]" a party's discovery right, but a court's affirmative permission is not a prerequisite to the taking of discovery. Id. Given the general discovery authorizations in the Federal Rules of Civil Procedure, which are not contingent on court orders granting permission, the district court's scheduling order was ambiguous. Sanctions for the District's service of discovery requests were therefore unwarranted, and are vacated.

* * *

For the foregoing reasons, we reverse the district court's grant of summary judgment to MASF on its facial First Amendment and due process challenges to the District of Columbia's regulation and remand for the district court to enter summary judgment for the District. We affirm the court's decision to dismiss ANSWER's claim for damages and MASF's claim alleging an impermissible strict liability regime. Finally, we vacate the court's [*56]  award of sanctions.

So ordered.

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