Monday, November 7, 2011

Media Alert - Summary of the Matter Pending in Front of the United States Court of Appeals for the Third Circuit: Oral Argument Scheduled for December 6, 2011

Media Alert
Who
The Constitutional Guided Walking Tours, LLC, Jonathan Bari and Leslie Bari (Plaintiffs-Appellants) vs. Independence Visitor Center Corporation, William W. Moore, National Park Service, Dennis Reidenbach, Cynthia MacLeod and Darla Sidles (Defendants-Appellees)

What
Lawsuit pending with the United States Court of Appeals for the Third Circuit (Case Documents can be found here)

When
December 6, 2011 - Oral Argument scheduled (time to be determined)

Where
Federal Court in Philadelphia, Pennsylvania with the literal and figurative backdrop of Independence National Historical Park (a unit of the NPS) featuring Independence Hall and the Liberty Bell – America’s Birthplace 

Why
This is a David v. Goliath fight between a small business - The Constitutional Walking Tour vs. the National Park Service and its agent, the Independence Visitor Center Corp. This story focuses on backroom deals, pay to play politics, crony capitalism, heavy hand of government, random and arbitrary government regulations, etc. At the nearly 400 national parks across the country where commercial visitor services occur (i.e., Yellowstone, Yosemite), the concessions award process is followed - however, that is not the case in Philadelphia.

As a small business which employs about 30 people, The Constitutional is involved in litigation against the IVCC and National Park Service, which hired the IVCC back in 2001 and pays the IVCC $850,000.00 annually in Federal appropriations to run the Independence Visitor Center (“IVC”), a Federal facility located on Federal property.

On April 27, 2009, Congressman Robert Brady wrote to Interior Secretary Ken Salazar,
“[e]qually disturbing is that these [concessions] opportunities have not been offered equally and on reasonable and non-discriminatory terms to other vendors at the IVC [Independence Visitor Center] including The Constitutional, which conducts its tours in the INHP area.”
The case is pending in front of the Third Circuit Court of Appeals because the IVCC and NPS have circumvented all of the Federal laws for awarding concessions contracts at Independence National Historical Park, including at the IVC, which call for open processes that are competitive, independent and appealable. To that end, WATCH THE VIDEO which The Constitutional Walking Tour published on this blog.

Rather than grant the National Park Service discretion in its dealings with concessioners, Congress established “carefully controlled safeguards against unregulated and indiscriminate use” of the parks in the Omnibus Management Act of 1998, which governs all national park public accommodations, facilities and services, including tours.

The NPS and Independence Visitor Center have not followed the Federal laws for awarding concessions contracts at INHP, including at the Independence Visitor Center, which call for transparent processes that are competitive, independent and appealable. In fact, the NPS and Independence Visitor Center have negotiated back-room deals and arbitrarily dictated which vendors can do business at the Independence Visitor Center, thereby suppressing consumer choice and the free market in the pursuit of random and unfair regulation.

Case Documents
The Case Documents can be found here for both:
  • United States District Court for the Eastern District of Pennsylvania - Case Number: 2-09-cv-03083
  • United States Court of Appeals for the Third Circuit Court- Case Number: 11-2146
More Information
http://www.independencepark.blogspot.com/

Jon Bari
President
The Constitutional Walking Tour of Philadelphia
215.525.1776
info@theconstitutional.com
 
 
Summary of Appeal - United States Court of Appeals for the Third Circuit
The core issues on appeal are whether the United States District Court for the Eastern District of Pennsylvania erred in dismissing Plaintiffs' Administrative Procedures Act and Bivens claims against the National Park Service and NPS officials including Dennis Reidenbach (Director, Northeast Region, National Park Service), Cynthia MacLeod (Superintendent, Independence National Historical Park) and Darla Sidles (Superintendent, Saguaro National Park and former Acting/Deputy/Assistant Independence National Historical Park).

By Order and Opinion dated March 31, 2011, the United States District Court for the Eastern District of Pennsylvania granted the National Park Service's Motion to Dismiss.  The Honorable C. Darnell Jones, II  dismissed Plaintiffs’ Federal claims for violations of the Administrative Procedures Act and violations of the Plaintiffs' Constitutional rights. Judge Jones declined supplemental jurisdiction over Plaintiffs’ state law claims against the Independence Visitor Center Corp.  To that end, Judge Jones dismissed without prejudice all claims against the Independence Visitor Center Corp. and remanded all claims against the the Independence Visitor Center Corp. to be brought in the Philadelphia Court of Common Pleas.

Judge Jones ruled that while the National Park Service is governed by the NPS Organic Act, the Omnibus Management Act and the Concessions Management and Improvement Act, the NPS, for all intents and purposes, is not bound to follow any of these acts since the NPS can rely on its own discretionary judgment instead. This is a fundamental blow to the confidence that any national park concessionaire or commercial service operator can have in the stability of its agreement with NPS and how NPS is governed to deal with commercial operations.


On April 29, 2011, Plaintiffs filed a timely appeal with the United States Court of Appeals for the Third Circuit.

Plaintiffs Jonathan and Leslie Bari own a walking tour business (The Constitutional Walking Tour) that operates in the Independence National Historical Park area in Philadelphia. This action arises from the National Park Service's wrongful abdication of responsibility for the management of the Independence Visitor Center. Contrary to the relevant statutes (e.g., the National Park Service Management Act), the National Park Service granted the Independence Visitor Center Corporation ('IVCC'), a private corporation, total control over the Independence Visitor Center, a $38 million Federal facility located on Federal property, and permitted the IVCC to operate the Independence Visitor Center in an arbitrary and capricious manner designed to favor certain private interests, including private interests that competed with the Plaintiffs. The NPS further acted arbitrarily and capriciously in its own right by offering various concessions contracts, Permits and authorizations to the Plaintiffs' competitors while refusing to even consider requests from the Plaintiffs and by failing to act upon Plaintiffs' administrative complaints to the NPS.

The District Court dismissed Plaintiffs' Administrative Procedures Act claims, and the case is presently pending in the Third Circuit Court of Appeals since The Constitutional and the Baris have argued that the District Court held in error that the NPS had unreviewable discretion in the managenent of the Independence Visitor Center under all of the Federal governing statutes, including the NPS Organic Act and the NPS Management Act. The Constitutional argues that the District Court further held in error that the NPS had unreviewable discretion in awarding Commercial Use Authorizations at Independence National Historical Park to at least twelve separate private parties.

The District Court dismissed Plaintiffs' Bivens claims, and the Plaintiffs believe that the District Court held in error that the Plaintiffs' complaint failed to allege any disparate treatment of the Plaintiffs, and that Plaintiffs had no protected property interest in their business or their preexisting license to operate their business at lndependence National Historical Park.

More Information
http://www.independencepark.blogspot.com/

Jon Bari
President
The Constitutional Walking Tour of Philadelphia
215.525.1776
info@theconstitutional.com