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MEHDI v. USPS

December 23, 1997

M. T. MEHDI and GHAZI KHANKAN, Plaintiffs, against UNITED STATES POSTAL SERVICE, MARVIN RUNYON, Postmaster General, and BOB FEARNLEY, Director of Consumer Affairs, Defendants.


The opinion of the court was delivered by: SOTOMAYOR

 This case presents an issue not uncommon in a pluralistic society such as ours. Plaintiffs M. T. Mehdi and Ghazi Khankan are Muslims who object to the fact that, during the winter holiday season, some post offices are decorated with symbols primarily associated with the Christmas and Chanukah celebrations -- specifically, Christmas trees and menorahs -- yet there is no similar recognition of Muslim celebrations also taking place during December. The plaintiffs allege that they have asked the Postal Service to correct this situation and have either been ignored or refused. They have turned to this Court seeking injunctive relief in the form of an order requiring the Postal Service to display the Muslim Crescent and Star in conjunction with other holiday decorations or, alternatively, to remove any sectarian symbols from its holiday displays, The defendants argue that their display policy is violative neither of the plaintiffs' First Amendment nor Fifth Amendment Due Process rights, and have moved for judgment on the pleadings or, in the alternative, summary judgment. For the reasons to be stated, the defendants' motion is granted.

 BACKGROUND

 Except where otherwise noted, the following facts are taken from the amended complaint. Plaintiffs Mehdi and Khankan are American Muslims. Dr. Mehdi is, or at least was at the time of filing the complaint, the secretary-general of the National Council on Islamic Affairs. He has worked, successfully in many cases, to persuade the operators of various public buildings and facilities to display the Crescent and Star, "secular symbol of the Muslim people" (Complaint P 9), during the month of December along with Christmas and Chanukah displays (Complaint P 4; Ex. 2). The display of the Crescent and Star is in celebration of USA Muslims Day, a holiday falling on the third Friday of December in which American Muslims are urged to host parties, exchange gifts and cards, inculcate their children with Islamic ideals, and "express appreciation for the bounty we enjoy in our new country and to express pride in Islam's contributions to the human civilization." (Complaint Ex. 1).

 The defendant United States Postal Service ("USPS") is an independent agency within the Executive Branch of the United States, see 39 U.S.C. § 201, charged with providing postal service to the nation, see 39 U.S.C. § 101(a). According to plaintiffs, the USPS has at times displayed Christmas trees and Chanukah menorahs in its post offices, including the Manhattan General Post Office on Eighth Avenue and Thirty-third Street, without also displaying the Crescent and Star. (Complaint P 28). Other post offices around the nation have done the same. (Complaint P 4). The plaintiffs have written to these post offices individually as well as to the Postmaster General requesting the addition of the Crescent and Star whenever the Christmas tree and menorahs are displayed, but have uniformly been refused. Id.; see also Decl. of Patricia M. Gibert, Vice-President, Retail, USPS, P 10 (USPS unaware of any postmaster which has displayed Crescent and Star on post office property).

 Plaintiffs then filed this pro se action in this Court, *fn1" asking for injunctive relief in the form of an order to the USPS "to decorate its headquarters, all its branches, their lobbies and other facilities with the Crescent and Star as it decorates those facilities with the Christmas tree and Hanukkah Menorah" or, alternatively, "to order removal of all sectarian symbols which create different classes of citizens." (Complaint p. 11). The plaintiffs have not clearly articulated the constitutional or statutory provisions alleged to be violated by the USPS's refusal to display the Crescent and Star, but the Court construes the complaint to raise claims under the Free Speech and Establishment Clauses of the First Amendment, and under the equal protection component of the Fifth Amendment Due Process Clause.

 DISCUSSION

 Summary judgment *fn2" is required when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "The moving party has the initial burden of 'informing the district court of the basis for its motion' and identifying the matter 'it believes demonstrate[s] the absence of a genuine issue of material fact.'" Leibovitz v. Paramount Pictures Corp., 948 F. Supp. 1214, 1996 WL 733015, *3 (S.D.N.Y. 1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Once the movant satisfies its initial burden, the nonmoving party must identify "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). In assessing the parties' competing claims, the Court must resolve any factual ambiguities in favor of the nonmovant. See McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993). It is within this framework that the Court must finally determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Preliminarily, the Court begins by noting that although this case is ultimately about speech, the complaint could be read in two ways, depending upon just who is doing the speaking. On the one hand, the claims raised could be understood to be a complaint about Postal Service restrictions on the plaintiffs' speech -- namely, that the plaintiffs wish to display the Muslim Crescent and Star in post offices but are being forbidden access to that forum in contravention of their Free Speech rights. Alternatively, the complaint could be read to assert plaintiffs' objection to the Postal Service 's speech -- i.e., that by putting up Christmas and Chanukah displays but not displaying the Muslim Crescent and Star, the Postal Service is favoring Christians and Jews but disfavoring Muslims in violation of the Establishment Clause. See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 765-66, 115 S. Ct. 2440, 2448, 132 L. Ed. 2d 650 (1995)(plurality opinion)(distinguishing between "'government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect'")(quoting Board of Educ. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 250, 110 S. Ct. 2356, 2372, 110 L. Ed. 2d 191 (1990)(O'Connor, J., concurring)). *fn3" Although the complaint sounds primarily in the Establishment Clause interpretation (for example, the plaintiffs seek an injunction from this Court either to "order the [defendants] to decorate . . . its branches . . . with the Crescent and Star" or to "order removal of all sectarian symbols"), the Court will, consistent with its obligation to read pro se litigants' complaints liberally, see, e.g., Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996), consider both of the above interpretations to be asserted. In addition, both interpretations are amenable to analysis under the Equal Protection component of the Fifth Amendment Due Process Clause. *fn4"

 I. Free Speech

 A First Amendment claim that the government is impermissibly restricting a speaker's access to government property is controlled by the now-familiar tripartite forum analysis. See General Media Communications, Inc. v. Cohen, 131 F.3d 273, 1997 U.S. App. LEXIS 33869, at *13-16 (2d Cir. 1997). Under this analysis, government property falls into one of three classifications: (1) traditional public fora, consisting of "'places which by long tradition or by government fiat have been devoted to assembly and debate,'" 131 F.3d 273, 1997 U.S. App. LEXIS 33869, at *14 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 802, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985)); (2) designated public fora, places "'not traditionally open to assembly and debate' but 'which the State has opened for use by the public as a place for expressive activity,'" id. (quoting Cornelius, 473 U.S. at 802, and Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983)); and (3) nonpublic fora, consisting of "all remaining public property." 131 F.3d 273, 1997 U.S. App. LEXIS 33869, at *15. "The extent to which the Government can control access depends on the nature of the relevant forum." United States v. Kokinda, 497 U.S. 720, 726, 110 S. Ct. 3115, 3119, 111 L. Ed. 2d 571 (1990) (plurality opinion).

 Governmental intent is the "touchstone" for determining into which category a particular property falls. General Media, 131 F.3d 273, 1997 U.S. App. LEXIS 33869 at *15. Generally speaking, "when the state reserves property for its 'specific official uses,' it remains nonpublic in character." Id. (quoting Capitol Square, 515 U.S. at 761, 115 S. Ct. at 2446 (1995)). In addition, "dedication of property to a commercial enterprise is 'inconsistent with an intent to [create] a public forum.'" 131 F.3d 273, 1997 U.S. App. LEXIS 33869 at *15-16 (quoting Cornelius, 473 U.S. at 804, 105 S. Ct. at 3450).

 There is little question that the Postal Service is essentially a commercial enterprise -- delivering mail and packages for its customers in return for payment. See Kokinda, 497 U.S. at 732 ("Congress has directed the Service to become a self-sustaining service industry . . . ."). Its facilities are, in the main, reserved for the specific purpose of "accomplishing the most efficient and effective postal delivery system." Id.; see 39 U.S.C. § 403(b)(3) (responsibility of Postal Service is to maintain post offices "of such character" that customers will have "ready access to essential postal services"); 39 U.S.C. § 101(g) (Postal Service policy regarding new postal facilities must emphasize, inter alia, "a maximum degree of convenience for efficient postal ...


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