Robert A. Miller v. Air Line Pilots Association, International, an Unincorporated Association

116 F.3d 498

D.C. Cir.

1997

Check Treatment

Robert A. MILLER, et al., Appellants v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, an unincorporated association, Appellee.

No. 96-7033.

United States Court of Appeals, District of Columbia Circuit.

June 9, 1997.

116 F.3d 498

Before: SILBERMAN, WILLIAMS and ROGERS, Circuit Judges.

Friends’ final contention is that the Park Service’s blanket ban on t-shirt sales on the Mall should have been more narrowly tailored to allow the sale of t-shirts in areas where the Park Service already tolerates a certain degree of commercialism. In this regard, Friends point out that the Park Service, pursuant to its statutory mandate to provide “services ... necessary and appropriate for public use” and that “are consistent to the highest practicable degree with the preservation and conservation” of the national parks, 16 U.S.C. § 20 (1994), allows the sale of t-shirts (among other paraphernalia) from regulated kiosks. Friends also emphasize that certain areas of the Mall, such as the area in front of the National Air and Space Museum, are virtually overrun with tourists and thus suffer from the effects the Park Service complains of regardless of whether appellants are there selling t-shirts.³ Although it may be that the Park Service could have limited its regulation to allow the sale of t-shirts in some particular locales, it also may be that the Park Service could have more broadly proscribed the sale of items, message-bearing and otherwise, on the Mall. Our inquiry is directed not at what the Park Service could have done, but rather at what it did, and whether that action furthers significant interests, does not burden substantially more speech than necessary to achieve those interests, and leaves open ample alternative means of communication. This task does not “assign to the judiciary the authority to replace the Park Service as the manager of the Nation’s parks or endow the judiciary with the competence to judge how much protection of parklands is wise and how that level of conservation is to be attained.”

Clark, 468 U.S. at 299, 104 S.Ct. at 3072.⁴

* * *

For the reasons stated, we reverse the district court’s conclusion that the Park Service’s regulation violates the First Amendment.

So ordered.

ORDER

PER CURIAM.

Upon consideration of appellee’s petition for rehearing filed April 11, 1997, and of the response thereto, it is

ORDERED that the petition be denied.

A statement of Circuit Judge SILBERMAN concurring in the denial of the petition, joined by Circuit Judge WILLIAMS, is attached.

SILBERMAN, Circuit Judge, with whom WILLIAMS, Circuit Judge, joins, concurring in the denial of rehearing:

Air Line Pilots Association argues in its petition for rehearing that our opinion is inconsistent with the rationale of

Cole v. Burns Int’l Security Services, 105 F.3d 1465 (D.C.Cir.1997). In Cole we held that an employer can enforce an agreement to arbitrate federal statutory discrimination claims which an employee signs as a condition of employment. . ALPA concedes that the non-union pilots did not sign a written arbitration agreement, as did Cole, but argues that arbitration is nonetheless a condition of employment because it arises from the agency shop agreement between ALPA and the airline. But, as appellant correctly notes, under the agency shop agreement, ALPA is the agent for the nonmembers only vis-à-vis the employer, it is not an agent for the nonmembers vis-à-vis itself. So is irrelevant to this case.

Robert A. MILLER, et al., Appellants v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, an unincorporated association, Appellee.

No. 96-7033.

United States Court of Appeals, District of Columbia Circuit.

June 10, 1997.

116 F.3d 499

Before: EDWARDS, Chief Judge; WALD, SILBERMAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL and GARLAND, Circuit Judges.

ORDER

Upon consideration of appellee’s Suggestion for Rehearing In Banc, the response thereto, and the absence of a request by any member of the court for a vote, it is

ORDERED that the suggestion be denied.

Circuit Judge GARLAND did not participate in this matter.

Notes

In a related point, Friends rely on , to contend that the validity of the regulation is fatally undermined by the activities the Park Service allows. But see (squarely rejecting this argument in evaluating the same regulation).

On appeal, amicus American Civil Liberties Union repeatedly asserts that this case presents a “facial challenge” to the regulation. But this assertion is at odds with the complaint below and the argument as joined by the parties on appeal, so we ignore it. See, e.g., .