United States Court of Appeals, District of Columbia Circuit
Archdiocese of Washington, Donald Cardinal Wuerl, a Roman Catholic Archbishop of Washington, a corporation sole, Appellant
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
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
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).
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.
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.
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
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.
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 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
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).
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
ORDERED that the following expedited briefing
schedule will apply in this case:
Appellant's Brief and Appendix
January 12, 2018
February 6, 2018
February 16, 2018