UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JACOB N. FERGUSON, : : Plaintiff, : Civil Action No.: 21-02512 (RC) : v. : Re Document No.: 7 : ROBBIN M. OWEN, : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION TO DISMISS

I. INTRODUCTION

There are two questions in this case. The first is whether there can be a substantial

burden under the Religious Freedom Restoration Act (“RFRA”) when a government restriction

of an individual’s religiously motivated activity does not prevent the individual from fulfilling a

central religious practice and provides the individual with alternative means of conducting the

religiously motivated activity. The second is whether the Court should extend the Bivens remedy

to the First Amendment context for a denied demonstration permit application. The answer to

both questions is no.

Jacob N. Ferguson, proceeding pro se, brings a RFRA claim and a Bivens action against

Robbin M. Owen, the Chief of the Division of Permits Management for the National Park

Service (“NPS”), in her individual capacity for alleged deprivations of his right to religious free

exercise under the First Amendment and RFRA arising from NPS’s denial of his permit

application for a 4-month long demonstration at the Lincoln Memorial in Washington D.C. in

2021. Mr. Ferguson brings his lawsuit under RFRA, 42 U.S.C. § 2000bb et seq., and Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics,

(1971). Mr. Ferguson seeks an unspecified amount of nominal, compensatory, and punitive damages and

attorney’s fees and costs from Ms. Owens.

II. FACTUAL BACKGROUND

Mr. Ferguson is a musician, a demonstrator, and a street performer. Compl. ¶¶ 13, 54,

64, ECF No. 1-1. Mr. Ferguson came to Washington “to prophesy in the heart of the nation’s

capital and convey a sincerely held religious belief in free exercise of religion.” Id. ¶ 47. Since

Mr. Ferguson’s arrival in Washington, he has sought to hold musical demonstrations to “attract a

crowd with music and convey a religious/political message.” Id. ¶¶ 13, 47. Mr. Ferguson’s

decision to demonstrate in Washington has religious significance for him because D.C. “is the

political subject of [his] religious message” and he believes “that great parallels can be drawn

between the present time and that of the transition of Rome’s government from republic to

empire, before the coming of Christ.” Id. ¶ 93.

Mr. Ferguson also specifically wanted to demonstrate at the Lincoln Memorial Reflecting

Pool area. Id. ¶¶ 27–28, 93–96. Mr. Ferguson had general religious motivations to reach a large

audience to spread his religious message and to confront his fear of public speaking, as well as a

particular religious motivation to demonstrate in the heart of the nation’s capital, and the Lincoln

Memorial Reflecting Pool area satisfied these religious criteria. Id. ¶¶ 93–96. But Mr. Ferguson,

while presenting a religious reasoning for his choice of location, claiming that the Lincoln

Memorial “represents the appropriate and symbolic epicenter for [his] religious/political

message,” id. ¶ 95, specifically disclaims the notion that his religious beliefs made demonstrating

at the Lincoln Memorial a religious necessity, id. ¶ 96 (expressing Mr. Ferguson’s belief that the

location he selected “was acceptable to God”); see also Opp’n to Mot. to Dismiss (“Opp’n”) at

2 17, ECF No. 9-1 (“Plaintiff did not know which site God wanted him to demonstrate at, or even

if God was so pedantic at all.”).

Mr. Ferguson has more than three years’ worth of grievances against Ms. Owen, but this

case concentrates on a single permit denial. Id. ¶¶ 11–12. As a result of previous denials, Mr.

Ferguson developed an increasingly sophisticated understanding of the regulations that govern

the NPS permit application process, and he began to plan his musical demonstrations further and

further in advance. Id. ¶ 4. Mr. Ferguson’s greater sophistication and planning, however, did not

result in successful permit approvals, compounding his disappointments and frustrations, and

leading to this lawsuit. Id. ¶¶ 74–82. Mr. Ferguson has brought this suit pro se, having invested

considerable time and energy in bringing the present case. Id. ¶ 74; Opp’n at 3.

The present controversy begins on April 9, 2020. Id. ¶ 18. 1 On April 9, 2020, Mr.

Ferguson submitted an application to demonstrate from April 9 through August 9, 2021, at the

Lincoln Memorial Reflecting Pool area. Id. ¶ 18. NPS uses a first-come, first served system to

issue permits. Compl. ¶ 20; see also

(g)(4)(i) (“NPS processes permit

applications for demonstrations and special events in order of receipt . . . . Use of a particular

area is allocated in order of receipt of fully executed applications, subject to the limitations in

this section.”). One year is the maximum amount of time that an applicant can apply in advance.

Compl. ¶ 20; see also

(g)(4)(i) (“NPS will not accept applications more than one

year in advance of a proposed continuous event (including set-up time, if any).”). And yet,

despite applying exactly one year in advance for 123 dates at the Lincoln Memorial Reflecting

1 Because the Court is considering a Rule 12(b)(6) motion to dismiss, the Court presumes that “all [the] factual allegations in [Mr. Ferguson’s] complaint are true . . . .” KBI Transp. Servs. v. Med. Transp. Mgmt., Inc.,

(D.D.C. 2010).

3 Pool area, NPS issued Mr. Ferguson zero permits to demonstrate at that location. Compl. ¶ 28. 2

Mr. Ferguson speculates that NPS denied his applications because of religious prejudice, but he

admits that he has no evidence for this claim. Compl. ¶¶ 42–44.

After Ms. Owen correctly filed Mr. Ferguson’s application, she still refused to grant Mr.

Ferguson any dates to demonstrate at the Lincoln Memorial Reflecting Pool area, claiming that

other applicants had filed before him. Id. ¶ 28. Mr. Ferguson monitored the Reflecting Pool and

did not see any demonstrations on several of the dates that NPS denied his application. Compl.

¶¶ 29−30. He alerted Ms. Owen of this observation. Id. ¶ 31. Ms. Owen responded that the

approved permit applicants must have failed to appear on those dates. Id. Mr. Ferguson alleges

that, despite Ms. Owen’s assertion to him of the contrary, there were no other applicants on some

of the dates that he requested. Id. ¶¶ 29−31.

Mr. Ferguson sought redress through several channels. Mr. Ferguson tried to call Deputy

Superintendent Sean Kennealy but was unable to reach him. Compl. ¶ 32. He reached out to

Congresswoman Eleanor Holmes Norton, who sent multiple inquiries to NPS on his behalf. Id.

¶ 34. He filed a complaint with the NPS Office of Professional Responsibility and a separate

complaint with the Inspector General of the U.S. Department of the Interior, but both declined to

pursue further action. Id. ¶ 34. He submitted a Freedom of Information Act request, but he did

not receive any information from it. 3 Id. ¶ 35.

2 NPS clearly reserves the Lincoln Memorial Reflecting Pool area for three weeks in late June and early July for the annual Fourth of July Celebration, so the denial of his applications for those three weeks needs no further explanation.

(g)(4)(ii)(C); see also Owen Decl. ¶ 16, ECF No. 7-2. 3 Mr. Ferguson has not raised a Freedom of Information Act claim in the present action, and so the Court does not address it.

4 On May 21, 2021, Mr. Ferguson filed a petition for a writ of mandamus in District of

Columbia District Court, requesting that the court immediately order NPS to issue him “a public

gathering permit to conduct 1st Amendment demonstrations on the lower plaza of the Lincoln

Memorial” on the dates requested by his April 9, 2020, application. Pet. for Writ of Mandamus,

Ferguson v. National Park Service, Civ. A. No. 21-1425 (D.D.C. Sept. 9, 2021), ECF No. 1-1;

Compl. ¶ 36. On June 9, 2021, the court informed Mr. Ferguson that he had not filed a proposed

summons. Min. Order, Ferguson, Civ. A. No. 21-1425, ECF No. 4 (June 9, 2021). On June 17,

2021, the court electronically issued a summons to NPS. Summons, Ferguson, Civ. A. No. 21-

1425, ECF No. 5. On July 6, 2021, Mr. Ferguson filed an amended petition for a writ of

mandamus. Am. Pet. for Writ of Mandamus, Ferguson, Civ. A. No. 21-1425, ECF No. 7. On

August 30, NPS requested to move its deadline to respond to October 1, 2021, and the court

granted the motion the next day. Mot. for Extension of Time, Ferguson, Civ. A. No. 21-1425,

ECF No. 11; Ferguson Decl. ¶ 32, ECF No. 9-2. The permit application at issue had been for

demonstrations from April 9 through August 9, 2021. Compl. ¶ 18. On September 8, 2021, Mr.

Ferguson voluntarily dismissed the suit, August 9 having already passed without injunctive

relief. Notice of Voluntary Dismissal, Ferguson, Civ. A. No. 21-1425, ECF No. 12. 4

Mr. Ferguson has continued to seek NPS permits. While Mr. Ferguson has succeeded in

receiving permits from NPS, he claims that NPS is not granting him the permits he wants.

Ferguson Decl. ¶¶ 35–39. Mr. Ferguson and Ms. Owen have continued not to see eye to eye on

the NPS permitting process and the regulations that govern it.

. Those disputes,

4 According to Ms. Owen, “To the extent Plaintiff argues that his action was mooted by the end of his requested four-month demonstration, Plaintiff may have still had a viable claim to the extent the alleged First Amendment violation is capable of repetition yet evades review.” Reply to Opp’n to Mot. to Dismiss at 8, ECF No. 11 (citing Weinstein v. Bradford,

(1975)).

5 however, which postdate the April 9, 2020, permit application, are not at issue in the present

case.

On September 27, 2021, Mr. Ferguson filed a complaint against Ms. Owen, bringing a

RFRA claim and a Bivens action against her in her individual capacity for alleged deprivations of

his right to religious free exercise under the First Amendment and RFRA. Compl. ¶¶ 83–116.

Ms. Owen moved to dismiss pursuant to Rule 12(b)(6). Def.’s Mot. at 26. Alternatively, Ms.

Owen requested summary judgment.

5

III. LEGAL STANDARD

In order to survive a Rule 12(b)(6) motion to dismiss, the plaintiff must state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “[A] Rule 12(b)(6) motion does not

test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has

properly stated a claim.” Coulibaly v. Kerry,

(D.D.C. 2016). At the

motion to dismiss stage, a court must assume the veracity of the complaint’s factual allegations.

Ashcroft v. Iqbal,

(2009) (“[A] court must take the allegations as true, no

matter how skeptical the court may be.”). A court need not, however, accept conclusory

assertions or legal conclusions.

; Bell Atl. Corp. v. Twombly,

(2007).

The plaintiff meets the standard of facial plausibility “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal,

.

When a complaint is brought pro se, the court should construe the pro se plaintiff's

pleadings liberally in determining whether to dismiss a complaint for failure to state a claim

5 Because the Court is granting Ms. Owen’s motion to dismiss, the Court has not considered Ms. Owen’s alternative motion for summary judgment.

6 upon which relief can be granted. Taylor v. District of Columbia,

(D.D.C. 2009). “[A] district court errs in failing to consider a pro se litigant’s complaint in light

of all filings, including filings responsive to a motion to dismiss.” Brown v. Whole Foods Mkt.

Grp., Inc.,

(D.C. Cir. 2015). Complaints filed by pro se litigants “must be

held to less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus,

(2007) (quoting Estelle v. Gamble,

(1976)), but pro se litigants

still “must present a claim on which the [c]ourt can grant relief.” Belton v. Shinseki,

(D.D.C. 2009) (quoting Chandler v. Roche,

(D.D.C.

2002)). The Court must be careful to avoid reading pro se complaints too liberally, placing itself

“more in the role of advocate than judge and . . . denying the defendant fair notice and an

opportunity to respond to identifiable allegations of wrongdoing.” Nichols v. Vilsack, No. 13-

cv-01502,

, at *1 (D.D.C. Dec. 30, 2015).

IV. ANALYSIS

As noted above, Mr. Ferguson brings claims against Ms. Owen in her individual capacity

for money damages for an alleged deprivation of his religious free exercise under RFRA and free

speech and free exercise under Bivens. The Court addresses the claims in the order they appear

in the Complaint.6

6 Mr. Ferguson makes scattered reference to “intentional tort,” Compl. ¶¶ 7, 41, 111, but it appears that these references are elements of his Bivens claim and not indications that he is bringing a standalone tort claim,

(referring to “a federal official knowingly commit[ting] an intentional tort” as part of his Bivens argument). If Mr. Ferguson did intend to bring a standalone tort claim separate from his RFRA and Bivens claims, it is not clear what tort action he intended to bring, nor whether he exhausted his administrative remedies as required by the Federal Tort Claims Act (“FTCA”). See

(a); Edwards v. District of Columbia,

(D.D.C. 2009) (“In order to bring suit under the FTCA, a claimant must first exhaust his or her administrative remedies.”). Accordingly, the Court has considered Mr. Ferguson’s RFRA and Bivens claims and has not considered a standalone tort claim.

7 A. RFRA

Congress enacted RFRA to provide broad protections for religious exercise. RFRA

“provide[s] greater protection for religious exercise than is available under the First

Amendment.” Holt v. Hobbs,

, 357 (2015). RFRA guarantees that the federal

“Government shall not substantially burden a person’s exercise of religion even if the burden

results from a rule of general applicability” unless “it demonstrates that application of the

burden . . . (1) is in furtherance of a compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-

1(a)–(b); City of Boerne v. Flores,

(1997) (holding that RFRA cannot

constitutionally constrain state and local governments). “A challenger under RFRA has the

initial burden of showing that the Government’s conduct ‘substantially burdens his religious

exercise.’” Mahoney v. U.S. Capitol Police Bd., No. CV 21-2314,

, at *10

(D.D.C. Feb. 22, 2022) (quoting Holt, 574 U.S. at 361 (discussing burden under the analogous

Religious Land Use and Institutionalized Persons Act)).

Showing a substantial burden is an essential component of a RFRA claim. “Whether a

government action substantially burdens a plaintiff's religious exercise is a question of law for a

court to decide.” Sabra v. Pompeo,

, 328 (D.D.C. 2020) (quoting Singh v.

McHugh,

(D.D.C. 2016)). RFRA does not define substantial burden, but

courts have explained its contours. A “regulation [that] forces [individuals] to engage in conduct

that their religion forbids or . . . prevents them from engaging in conduct their religion requires”

can constitute a substantial burden. Henderson v. Kennedy,

, 16 (D.C. Cir. 2001);

see also Bryant v. Gomez,

(9th Cir. 1995) (holding that a substantial burden

must prevent the adherent “from engaging in conduct or having a religious experience which the

8 faith mandates” and must be “an interference with a tenet or belief that is central to religious

doctrine” (quoting Graham v. Commissioner,

, 850–51 (9th Cir. 1987)). “A

‘substantial burden’ exists when government action rises above de minimis inconveniences and

puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’”

Roman Catholic Archbishop of Wash. v. Bowser,

, 35 (D.D.C. 2021) (quoting

Kaemmerling v. Lappin,

(D.C. Cir. 2008)).

The D.C. Circuit has held that a substantial burden requires more than government

restriction of religiously motivated conduct. Henderson explicitly rejected “whether the

governmental restriction forced ‘adherents of a religion to refrain from religiously motivated

conduct’” as the test for a substantial burden under RFRA. 253 F.3d at 17 (quoting Mack v.

O’Leary,

(7th Cir. 1996)). Instead, Henderson endorsed “a narrower

test[:] . . . whether ‘the government has placed a substantial burden on the observation of a

central religious belief or practice and, if so, whether a compelling governmental interest justifies

the burden.’”

(quoting Jimmy Swaggart Ministries v. Bd. of Equalization,

, 384–

85 (1990)). The difference between “religiously motivated conduct” and “the observation of a

central religious belief or practice” is important. See

As the Henderson court explained,

“[o]ne can conceive of many activities that are not central or even important to a religion, but

nevertheless might be religiously motivated.”

Congress only intended RFRA’s compelling

interest requirement to be triggered by a substantial burden, and “[t]o make religious motivation

the critical focus is . . . to read out of RFRA the condition that only substantial burdens on the

exercise of religion trigger the compelling interest requirement.”

The restriction of one—among several—means of fulfilling a central religious belief does

not rise to the level of a substantial burden. In Henderson, the D.C. Circuit found that a “ban on

9 selling t-shirts on the Mall [did not] ‘substantially burden’ plaintiffs’ exercise of their religion[.]”

Id. at 16. While proselytizing was a central religious belief for the plaintiffs, selling t-shirts on

the Mall was not; no central religious belief of the plaintiffs prevented them from proselytizing

by giving away t-shirts on the Mall or, alternatively, selling t-shirts at another nearby location.

Id.; see also Mahoney v. U.S. Capitol Police Bd.,

, at *11 (ruling that although

plaintiff “felt called by God to hold the September 11th prayer vigil on the Western Front

Lawn,” the refusal to allow an audience of twenty or more was not a substantial burden under

RFRA because he had “not alleged that his sincerely held religious belief required him to

conduct his September 11 vigil with more than 19 people” (citation omitted)). Selling t-shirts on

the Mall and having a prayer vigil with more than 19 people on the Western Front Lawn were

both expressions of sincerely held religious beliefs, but neither were protected by RFRA.

Henderson, 253 F.3d at 16; Mahoney v. U.S. Capitol Police Bd.,

, at *11.

While proselytizing and holding prayer vigils can be practices central to religious belief

protected by RFRA, it does not follow that every government restriction on proselytizing and

holding prayer vigils is a substantial burden. Rather, there is only a substantial burden when the

government restriction prevents an action that is central to religious belief. Henderson, 253 F.3d

at 17. When the plaintiffs do not allege that the restricted action was central to a religious belief,

there can be no substantial burden. Id.

Mr. Ferguson had both religious and practical reasons for demonstrating at the Lincoln

Memorial. Mr. Ferguson explains that he “chose the place, the Reflecting Pool steps of the

Lincoln Memorial in Washington, D.C., for a few reasons.” Compl. ¶ 93. First, he chose D.C.

because “Washington, D.C., is the political subject of [his] religious message.” Id. Second, he

“chose the Reflecting Pool steps because it resembles an amphitheatre,” and people can

10 conveniently gather and watch his demonstration there. Id. ¶ 94. Third, he “chose the Lincoln

Memorial because it is the #1 most heavily trafficked and international tourist destination in the

nation’s capital . . . therefore . . . represent[ing] the appropriate and symbolic epicenter for [his]

religious/political message . . . .” Id. ¶ 95. Fourth, “because [Mr. Ferguson] knows his greatest

fear is speaking in front of people” and because “the Lincoln Memorial consistently attracts the

largest crowds of people in Washington, D.C.,” Mr. Ferguson believed his choice of the Lincoln

Memorial “was acceptable to God, ‘[f]or God has not given us a spirit of fear’ (quoting 2

Timothy 1:7).” Id. ¶ 96.

Religious demonstrations are central to Mr. Ferguson’s religious beliefs. Mr. Ferguson is

clear that a “central tenet of Christianity is called prophecy,” and he came to Washington “to

prophesy in the heart of the nation’s capital . . . .” Id. ¶¶ 46–47. This Court does not question

the sincerity or religious nature of Mr. Ferguson’s call “to prophesy in the heart of the nation’s

capital and convey a sincerely held religious belief in free exercise of religion,” and RFRA

protects Mr. Ferguson’s right to do so regardless of whether prophecy is a “central tenet of

Christianity.” Id. ¶ 46; see Capitol Hill Baptist Church v. Bowser,

, 293–94

(D.D.C. 2020) (“RFRA defines ‘religious exercise’ to include ‘any exercise of religion, whether

or not compelled by, or central to, a system of religious belief.’” (citing U.S.C. §§ 2000bb-2(4),

2000cc-5(7))); Levitan v. Ashcroft,

(D.C. Cir. 2002) (“The litigant’s beliefs

must be sincere and the practices at issue must be of a religious nature.” (citing Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah,

(1993))). But nowhere in Mr.

Ferguson’s Complaint does he suggest that prophesying at the Lincoln Memorial is a “central

tenet” of his belief rather than merely a means of prophesying that he believed “was acceptable

to God.” Compl. ¶¶ 46, 96.

11 Mr. Ferguson explicitly disclaims the possibility that demonstrating at the Lincoln

Memorial Reflecting Pool area was central to his religious belief. In his Complaint, Mr.

Ferguson claims that the Lincoln Memorial “was [religiously] acceptable” rather than claiming it

was central to his religious belief. Id. ¶ 96. Mr. Ferguson explicates the meaning of this claim in

greater detail in his Opposition. Mr. Ferguson explains:

Plaintiff did not know which site God wanted him to demonstrate at, or even if God was so pedantic at all. Plaintiff chose carefully the words of his complaint, kicking around the sentence many times (foreseeing Defendant’s argument) before invariably giving up and settling once again upon the truth. The Lincoln Memorial was chosen because Plaintiff “believed it was acceptable to God[]” . . . . God did not command or require Plaintiff to choose the Lincoln Memorial (though Plaintiff prayed about it many times actually).

Opp’n at 17 (quoting Compl. ¶ 96). RFRA does not protect all actions that are religiously

acceptable; rather, RFRA protects only “the observation of a central religious belief or practice.”

See Henderson, 253 F.3d at 17 (emphasis added) (citation omitted). Mr. Ferguson’s explicit

disavowal of the very claim he would need to make for his RFRA claim to be successful means

his RFRA claim cannot succeed.

Even accepting that prophesying in the heart of the nation’s capital was central to Mr.

Ferguson’s religious belief, Mr. Ferguson’s RFRA claim still fails. Mr. Ferguson concedes that

Ms. Owen offered him a permit for “Korean War Veterans Memorial Site #6A.” Compl. ¶ 27.

Mr. Ferguson had a religious motivation “to prophesy in the heart of the nation’s capital.” Id.

¶ 47. Both the Reflecting Pool and the Korean War Veteran Memorial are located in the heart of

the nation’s capital on heavily trafficked public land, so both should have satisfied Mr.

Ferguson’s religiously motivated desire to demonstrate in Washington and reach an audience

with his religious message. Mr. Ferguson found the Korean War Veteran Memorial

unsatisfactory because it is “awkwardly detached from the people and logistically impractical for

a large setup of music equipment.” Id. ¶ 27. These complaints are practical, not religious.

12 Moreover, Mr. Ferguson did not believe that the Lincoln Memorial was the only suitable location

to conduct his demonstrations, and he conducted demonstrations at other locations in D.C. See

Ferguson Decl. ¶ 12 (noting that Mr. Ferguson conducted his “first ever musical demonstration

in Washington, DC, . . . [in] 2018, outside the United States Capitol Building” after receiving the

appropriate permits from “the United States Capitol Police and White House Metropolitan Police

Department,” and Mr. Ferguson also “was able to successfully conduct First Amendment

musical demonstrations front and center outside of the White House on the closed portion of

Pennsylvania Avenue NW”). RFRA protects religious free exercise, but RFRA does not protect

the practically motivated choice of a specific location, even if the location is used for a

religiously motivated activity. See Henderson, 253 F.3d at 17.

RFRA is only triggered when “the government has placed a substantial burden on the

observation of a central religious belief or practice . . . .” Id. (quoting Jimmy Swaggart

Ministries,

). Mr. Ferguson appears to reject this holding. He rhetorically asks,

“Must one have religious beef with Abraham Lincoln in order to prophesy at his memorial?”

Opp’n at 18. The essence of Mr. Ferguson’s rhetorical question, applied to this case, is this:

Must an individual have a central religious belief that requires demonstrating at the Lincoln

Memorial in order for the denial of permit applications to demonstrate at the Lincoln

Memorial—accompanied by the approval of permit applications to demonstrate at nearby

locations—to constitute a substantial burden under RFRA? The answer to this question is yes.

Mr. Ferguson appears to be confusing the substantial burden analysis under RFRA with

general First Amendment protections. Everyone has a First Amendment right to demonstrate,

and everyone may apply for a permit to demonstrate at the Lincoln Memorial. But the denial of

a permit application to demonstrate at the Lincoln Memorial is a substantial burden under RFRA

13 only if demonstrating at the Lincoln Memorial is a central religious belief or practice. RFRA

“provide[s] greater protection for religious exercise than is available under the First

Amendment,” Holt, 574 U.S. at 357, but RFRA is only triggered upon the showing of a

substantial burden, Henderson, 253 F.3d at 17.

The availability of alternative means of fulfilling religious obligations also cautions

against the finding of a substantial burden. The Henderson court reasoned that “[b]ecause the

Park Service’s ban on sales on the Mall is at most a restriction on one of a multitude of means, it

is not a substantial burden on their vocation.” Henderson, 253 F.3d at 17 (“Plaintiffs can still

distribute t-shirts for free on the Mall, or sell them on streets surrounding the Mall.”). Similarly,

in Mahoney v. Doe, the D.C. Circuit held that a prohibition on sidewalk chalking in front of the

White House was not a substantial burden under RFRA because the plaintiff “may still spread

his message through picketing, a public prayer vigil, or other similar activities in which he has

previously engaged,” as well as “chalking elsewhere.”

(2011). When a

government action only forecloses one of many ways an individual may engage in religiously

required conduct, there is no substantial burden.

Mr. Ferguson argues that the existence of alternative means of demonstrating should not

affect his RFRA claims. See Opp’n at 38 (first citing Mahoney v. Babbitt,

(D.C. Cir. 1997); and then citing United States v. Grace,

(1983)). The cases

that Mr. Ferguson cites arise in the context of the First Amendment, and they do not apply to

RFRA. The government may not impermissibly deny an individual the use of one forum solely

because other fora are available. See Mahoney v. Babbitt,

(“[There is] no

authority for the proposition that the government may choose for a First Amendment actor what

public forums it will use.”). In “‘public places’ historically associated with the free exercise of

14 expressive activities . . . the government’s ability to permissibly restrict expressive conduct is

very limited . . . .” Grace,

(quoting Perry Educ. Ass’n v. Perry Local Educators’

Ass’n,

(1983)).

But court holdings on the importance of alternative channels of communication in the

First Amendment context have no bearing on this case. The desire to demonstrate in a particular

time or place is protected by the First Amendment. See Grace,

(holding that a

statutory prohibition on picketing on a sidewalk outside the United States Supreme Court

building was unconstitutional even though “there [were] sufficient alternative areas within the

relevant forum [to protest], such as the streets around the Court or the sidewalks across those

streets”). In the RFRA context, unlike the First Amendment, the availability of alternative

channels suggests that there has not been a substantial burden, preventing RFRA from being

triggered in the first place. Compare Henderson, 253 F.3d at 17 (“Because the . . . [prohibition]

. . . is at most a restriction on one of a multitude of means, it is not a substantial burden on their

vocation.”), with Mahoney v. Babbitt,

(“[There is] no authority for the

proposition that the government may choose for a First Amendment actor what public forums it

will use.”); see also Weir v. Nix,

(8th Cir. 1997) (considering alternatives in

determining whether there was a substantial burden). The existence of alternative means of

fulfilling a religiously motivated activity may be considered in determining whether there has

been a substantial burden on free exercise.

Mr. Ferguson also argues that his case is distinguishable from Henderson on the facts.

See Opp’n at 19. Mr. Ferguson notes (1) that the Henderson court found it significant that no

“religious group [has] as one of its tenets selling t-shirts on the National Mall,”

(quoting

Henderson, 253 F.3d at 16); (2) that selling t-shirts was not “central” to the religious beliefs of

15 the litigants in that case, id. at 19–20 (quoting Henderson, 253 F.3d at 16), but prophecy is

central to Mr. Ferguson’s beliefs, id. at 20 (citing Compl. ¶¶ 46, 88); (3) that among the

alternative channels available to the litigants in Henderson was distributing t-shirts on the Mall

for free, Opp’n at 20 (citing Henderson, 253 F.3d at 17), and Mr. Ferguson did not plan to collect

any donations at the Lincoln Memorial, id. (citing Compl. ¶¶ 10, 18, 60–61); and (4) that he

would be opening himself up to government prosecution if he demonstrated at the Lincoln

Memorial without a permit, Opp’n at 20.

None of these distinctions are legally significant. First, Mr. Ferguson has never claimed

that music or prophecy at the Lincoln Memorial are central to his religious beliefs, and so Mr.

Ferguson’s case is like Henderson in this respect. Second, spreading a religious message was

central to the religion of the litigants in Henderson, as it is for Mr. Ferguson, but just as

spreading a religious message on the National Mall was not central to their beliefs, prophesying

at the Lincoln Memorial is not central to Mr. Ferguson’s. Compare Henderson, 253 F.3d at 17

(“[P]laintiffs have . . . alleged that it is their vocation to spread the gospel by ‘all available

means.’”), with Opp’n at 20 (“Plaintiff has alleged that prophecy is a central tenet of

Christianity.” (citing Compl. ¶¶ 46, 88)). Third, that the plaintiffs in Henderson sold t-shirts

rather than distributing them for free was only important because the regulation at issue in that

case prohibited selling but permitted distributing for free.

(k)(2) (2019);

Henderson, 253 F.3d at 14. The distinction between selling and giving has no general

importance for RFRA and has no bearing on this case. The fourth distinction is not a difference

at all, as the plaintiffs in Henderson were similarly subject to government prosecution for

violating a government regulation.

16 Mr. Ferguson’s case is also not analogous to recent cases holding that Covid rules that

prevent in-person gatherings at houses of worship are a substantial burden under RFRA. Two

recent district court cases in the D.C. Circuit have overturned restrictions on in-person religious

gatherings on RFRA grounds. Capitol Hill Baptist Church, 496 F. Supp. at 296 (finding a

substantial burden under RFRA because “[t]he District has not, as it contends, banned merely

one ‘method of worship,’ but instead has foreclosed the Church’s only method to exercise its

belief in meeting together as a congregation, as its faith requires”); Roman Catholic Archbishop

of Wash., 531 F. Supp. 3d at 35–36 (reaching a similar holding). A recent Supreme Court

decision enjoined a New York restriction on in-person religious gatherings on First Amendment

grounds. See Roman Catholic Diocese of Brooklyn v. Cuomo,

(2020). RFRA

“covers the same types of rights as those protected under the Free Exercise Clause.” Tyndale

House Publrs., Inc. v. Sebelius,

(D.D.C. 2012) (citation omitted).

The plaintiffs in Capitol Hill Baptist Church, Roman Catholic Archdiocese of Wash., and

Roman Catholic Diocese of Brooklyn all claimed that in-person religious gathering was central to

their religion, and the challenged government actions prevented them from gathering in person to

perform their religious activities. Capitol Hill Baptist Church, 496 F. Supp. 3d at 291; Roman

Catholic Archbishop of Wash., 531 F. Supp. 3d at 35; Roman Catholic Diocese of Brooklyn,

. “It is not the role of a court to tell religious believers what is and isn’t important to

their religion,” Roman Catholic Archbishop of Wash., 531 F. Supp. 3d at 36 (citation omitted),

and this Court presumes that prophesying in the heart of Washington and publicly performing

music are central to Mr. Ferguson’s religion. Mr. Ferguson’s case might be analogous to these

cases if the government prevented Mr. Ferguson from prophesying or performing music publicly

anywhere in Washington. As Mr. Ferguson concedes, however, that is not what happened, see

17 Compl. ¶ 27, thus his case is not analogous to the cases concerning in-person gatherings to

worship.

For all of these reasons, Mr. Ferguson has no claim under RFRA. Mr. Ferguson has not

shown that his free exercise of religion was substantially burdened, so he has failed to state a

cause of action.

B. Bivens

The Court now turns to Mr. Ferguson’s Bivens claim. There is a two-part test for

deciding when implied damages under Bivens are recognized: “First, we must consider whether

the plaintiff seeks to extend Bivens into a ‘new context.’ If so, we then must consider whether

there are any ‘special factors counselling hesitation.’” Loumiet v. United States,

(D.C. Cir. 2020) (quoting Ziglar v. Abbasi,

, 1857–60 (2017)). The Supreme

Court conceives of “new context” broadly, encompassing any context “different in a meaningful

way from previous Bivens cases decided by this Court.” Hernandez v. Mesa,

(2020) (quoting Abbasi,

)).

Existing Bivens remedies are only applicable to an exceedingly narrow scope of claims.

Currently, Bivens claims “are cognizable only in three, narrow factual contexts.” Robinson v.

Pilgram, Civ. A. No. 20-cv-2965,

, at *10 (D.D.C. Dec. 17, 2021) (citing

Abbasi,

). In Bivens, the context was a “claim against FBI agents for

handcuffing a man in his own home without a warrant.” Abbasi,

. In Davis v.

Passman,

(1979), the context was “a claim against a Congressman for firing his

female secretary.”

In Carlson v. Green,

(1980), the context was a “claim against

prison officials for failure to treat an inmate’s asthma.”

The Supreme Court “has

‘consistently refused to extend Bivens to any new context or new category of defendants’ . . . for

18 the past 30 years.” Abbasi,

(quoting Corr. Servs. Corp. v. Malesko,

(2001)).

If a claim arises in a new context, a court must then “proceed to the second step and ask

whether there are any ‘special factors that counsel hesitation’ about granting the extension.”

Hernandez,

(cleaned up) (quoting Abbasi,

)). If such factors

are present, the court must reject the extension of Bivens.

The Supreme Court “ha[s] not

attempted to ‘create an exhaustive list’ of factors that may provide a reason not to extend Bivens,

but [the Court] ha[s] explained that ‘central to [this] analysis’ are ‘separation-of-powers

principles.’”

(quoting Abbasi,

). The court must “consider the risk of

interfering with the authority of the other branches . . . ask[ing] whether ‘there are sound reasons

to think Congress might doubt the efficacy or necessity of a damages remedy’ . . . and ‘whether

the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the

costs and benefits of allowing a damages action to proceed . . . .’”

(quoting Abbasi,

).

Courts have identified Congressional action as an important special factor. The existence

of an “alternate remedial scheme” counsels against extending a Bivens remedy. Pinson v. U.S.

Dep’t of Justice,

, 243 (D.D.C. 2021); see also Abbasi,

(“[I]f there is an alternative remedial structure present in a certain case, that alone may limit the

power of the Judiciary to infer a new Bivens cause of action.”). The alternate remedial scheme

does not need to supply a remedy to an individual plaintiff. Wilson v. Libby,

(D.C. Cir. 2008) (“The special factors analysis does not turn on whether the statute provides a

remedy to the particular plaintiff for the particular claim he or she wishes to pursue.”). “Instead,

the existence of an alternative scheme implies that ‘congressional inaction’ in declining to

19 provide a damages remedy ‘has not been inadvertent,’ so the Judiciary should not interfere.”

Pinson, 514 F. Supp. 3d at 243 (quoting Schweiker v. Chilicky,

(1988)). “[A]

comprehensive statutory scheme precludes a Bivens remedy even when the scheme provides the

plaintiff with ‘no remedy whatsoever.’” Wilson,

(quoting Spagnola v. Mathis,

(D.C. Cir. 1988)). Relatedly, “Congress’ activity in the field” is a special

factor counselling against extending Bivens. Chappell v. Wallace,

(1983).

Applying these principles to Mr. Ferguson’s claims makes clear that no Bivens remedy should be

recognized on these facts.

1. Mr. Ferguson’s Bivens Claims Arise in a New Context

Mr. Ferguson’s First Amendment claims involve free speech and free exercise. Mr.

Ferguson alleges that the government restricted his speech by arbitrarily denying him a permit at

the time and place he requested. Compl. ¶ 114. Mr. Ferguson also alleges that because of the

religious nature of his planned activities, the denial of the permits “deprived [him] of free

religious exercise . . . .” Id. ¶ 115. Mr. Ferguson and Ms. Owen agree that recognizing a Bivens

remedy in this case would be a “new context.” Id. at ¶ 106; Def’s Mot. at 13. They are correct.

“If the case is different in a meaningful way from previous Bivens cases decided by this Court,

then the context is new.” Abbasi,

. When “the constitutional right at issue” is

different, the case is meaningfully different.

. The Supreme Court “ha[s] never held

that Bivens extends to First Amendment claims.” Reichle v. Howards,

, 663 n.4

(2012); see also Black Lives Matter D.C. v. Trump,

, 30 (D.D.C. 2021) (“The

plaintiffs’ First Amendment claim arises in a new context because the Supreme Court has never

extended Bivens to a claim brought under the First Amendment.” (citing Hernandez,

)).

20 2. Special Factors Weigh Against Extending Bivens to Mr. Ferguson’s Claims

Separation of powers concerns are central to the “special factors” inquiry. See

Hernandez,

. In this case, there is an “alternate remedial scheme,” Pinson, 514

F. Supp. 3d at 243, and congressional “action in the field,” Chappell,

. While

freedom of speech and free exercise are fundamental rights protected by the First Amendment,

special factors counsel hesitation in judicially creating a damages remedy against federal

officials who deny permit applications. In cases like this one, courts are not “well suited, absent

congressional action or instruction, to consider and weigh the costs and benefits of allowing a

damages action to proceed.” Abbasi,

; see also Storms v. Shinseki,

(D.D.C. 2018) (“Ultimately, in the complex, fraught arena of free speech,

Congress is better suited than the Judiciary to determine whether a damages action should

arise.”). The Court declines to expand Bivens to cover Mr. Ferguson’s claims.

To the extent that Ms. Owen’s actions may have impeded Mr. Ferguson’s religious

freedom, Congress has sought to protect free exercise, including with money damages against

federal officials in their individual capacities, with RFRA. 42 U.S.C. § 2000bb et seq; Tanvir v.

Tanzin,

(2d Cir. 2018) (ruling that RFRA permits litigants to obtain monetary

damages against federal officials in their individual capacity). When Congress “provide[s]

meaningful safeguards” to protect the “[constitutional] rights,” an extension of Bivens may be

foreclosed. Chilicky,

.

Congressional “activity in the field” through RFRA also counsels against extending

Bivens. Chappell,

. That Mr. Ferguson has failed to state a claim under RFRA,

as discussed above, does not affect the relevance of RFRA to the special factors analysis. Insofar

as RFRA does not provide relief to Mr. Ferguson, this lack of remedy suggests Congress’s

21 intention to limit causes of action for monetary damages against federal officials. Chilicky,

(“[T]he courts must give appropriate deference to indications that congressional

inaction has not been inadvertent, and should not create Bivens remedies when the design of a

Government program suggests that Congress has provided what it considers to be adequate

remedies for constitutional violations . . . .”). Given the extensive attention Congress has given

to religious freedom, inadvertent neglect is unlikely. Because Congress has already acted, this

Court should not interfere.

Furthermore, Mr. Ferguson could have sought—and did seek—equitable relief in the

courts to enjoin the government to grant him a permit. Pet. for Writ of Mandamus, Ferguson,

Civ. A. No. 21-1425, ECF No. 1-1; Def.’s Mot. at 16; Opp’n at 32–33. Mr. Ferguson did not

receive the mandamus relief he requested because he voluntarily dismissed his action before it

was considered on the merits. Notice of Voluntary Dismissal, Ferguson, Civ. A. No. 21-1425,

ECF No. 12. Although Mr. Ferguson did not cite the Administrative Procedure Act (“APA”) in

either action, individuals who believe that NPS is acting in an arbitrary, capricious, unlawful, or

unconstitutional manner can also sue under the APA.

(2)(A)–(D); see Henke v.

DOI,

(D.D.C. 2012) (“If Plaintiffs believe NPS’s future closure

decision—should it occur—to be arbitrary and capricious, or otherwise unlawful or

unconstitutional, they can challenge that decision under the Administrative Procedure Act,

(2)(A)–(D), at that time.”); Mausolf v. Babbitt,

(8th Cir. 1997).

Individuals convicted of violating NPS regulations can also raise the APA as a defense. See

United States v. Picciotto,

(D.C. Cir. 1989) (reversing the conviction of the

defendant demonstrator because the relevant NPS regulation was not adopted in conformity with

the APA’s procedural requirements).

22 According to Mr. Ferguson, an injunction could have provided him with only “partial

relief,” and “[t]he loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Opp’n at 32–33 (quoting Roman Catholic

Diocese of Brooklyn,

). Mr. Ferguson’s citation of Roman Catholic Diocese of

Brooklyn is inapt for two reasons. First, the plaintiff in that case received injunctive relief, not

money damages. Roman Catholic Diocese of Brooklyn,

. Second, Abbasi

specifically recognizes “an injunction” and “some other form of equitable relief” as adequate

alternative remedies. Abbasi,

(2017). The Supreme Court has “refused to

create a Bivens action even [when] it assumed a First Amendment violation and acknowledged

that ‘existing remedies do not provide complete relief for the plaintiff.” Chilicky,

(quoting Bush v. Lucas,

(1983)). Lack of a path to seek “relief for

injuries” is not sufficient to extend Bivens; it is enough for Congress to have provided for an

“administrative . . . process.” Wilkie v. Robbins,

(2007). The injunctive relief

open to Mr. Ferguson, even if only promising partial relief, counsels against an extension of

Bivens.

Mr. Ferguson also filed several administrative complaints, including with the NPS Office

of Professional Responsibility. Compl. ¶ 34. “‘Alternative remedial structures’ can take many

forms, including administrative, statutory, equitable, and state law remedies.” Vega v. United

States,

(9th Cir. 2018). The existence of an administrative process to

contest permit denials by the NPS represents an alternative remedial structure. The Supreme

Court has recently made clear that agency regulations can also be the basis for an alternative

remedial structure that forecloses a Bivens action. Egbert v. Boule, No. 21-147,

, at *8–9 (U.S. June 8, 2022) (determining that a regulation requiring the Border Patrol

23 to accept grievances and investigate misconduct foreclosed a Bivens remedy because “[s]o long

as Congress or the Executive has created a remedial process that it finds sufficient to secure an

adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a

Bivens remedy” (emphasis added)).

For all of these reasons, no Bivens cause of action exists for Mr. Ferguson’s claim, and

under the analysis required by Abbasi, this Court should not create one. See Abbasi,

. The complaint therefore fails to state a claim upon which relief can be granted. 7

***

Mr. Ferguson’s RFRA and Bivens claims for monetary damages are subject to dismissal.

The Court perceives, however, that Mr. Ferguson may have a claim for injunctive relief if his

allegations are correct that the NPS has not issued, and continues not to issue, permits to him in

conformity with the relevant regulations. See Compl. ¶¶ 28–30 (citing

)

(alleging that NPS did not process permit applications for demonstrations and special events in

order of receipt);

(g)(4)(i) (“NPS processes permit applications for

demonstrations and special events in order of receipt.”).

This litigation is still in an early stage, so the Court will permit Mr. Ferguson to file for

leave to amend his complaint. See Tyson v. District of Columbia, 20-cv-1450,

,

at *14 (D.D.C. Mar. 8, 2021) (“[G]iven the early stage in the litigation . . . the Court will allow

the Plaintiff to amend his complaint.”); Thomas v. District of Columbia, No. 21-cv-00584,

, at *3 (D.D.C. Dec. 6, 2021) (granting the motion to dismiss without prejudice and

“invit[ing] [the plaintiff] to file a motion for leave to file an amended complaint, attaching the

7 Because Mr. Ferguson has failed to state a claim, there is no occasion to consider whether Ms. Owens would be entitled to qualified immunity.

24 proposed amendment, within 30 days”). “The practice of freely giving leave to amend is

particularly appropriate in the circumstance of pro se litigants.” Kidd v. Howard Univ. Sch. of

L., No. 06-cv-1853,

, at *2 (D.D.C. June 25, 2007) (citing Wyant v.

Crittenden,

(D.C. Cir. 1940)); see also Moore v. Cap. Realty Grp., Inc., No.

21-cv-1099,

, at *1 (W.D.N.Y. Apr. 7, 2022) ([G]iven his pro se status, [the

plaintiff] may amend his complaint to allege, if possible, a viable claim . . . .”).

Mr. Ferguson is proceeding pro se, so it is important that this Court inform him about the

litigation process. Mr. Ferguson “is advised that an amended complaint is intended to completely

replace the prior complaint in the action and thus ‘renders [any prior complaint] of no legal

effect.’” Moore,

, at *1 (quoting Int’l Controls Corp. v. Vesco,

(2d Cir. 1977) (advising a pro se plaintiff of the law surrounding amended complaints)); see

also Halldorson v. Sandi Grp.,

(D.D.C. 2013) (“It is hornbook law that

an amended complaint supersedes the prior complaint and renders it of no legal effect.”). Any

proposed amended complaint must include all allegations so that the amended complaint may

stand alone. Mr. Ferguson is also advised that “[a] motion for leave to file an amended pleading

shall attach, as an exhibit, a copy of the proposed pleading as amended.” LCvR 15.1. After

receiving the motion for leave to file an amended pleading, the Court will determine whether to

permit or deny the proposed amendment. See Foman v. Davis,

(1962) (“[T]he

grant or denial of an opportunity to amend is within the discretion of the District Court.”). This

Court may deny the amendment as “futile if the amended complaint would not withstand a

motion to dismiss.” Hall & Assocs. v. Env’t Prot. Agency,

(D.C. Cir. 2020).

25 V. CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss (ECF No. 7) is GRANTED,

and the complaint is DISMISSED WITHOUT PREJUDICE. If the Plaintiff does not seek

leave to file an amended complaint and accompanying motion within 30 days, the Court will

dismiss the case with prejudice. An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.

Dated: July 8, 2022 RUDOLPH CONTRERAS United States District Judge

26