Case 1:23-cv-01218-TJK Document 14 Filed 08/21/23 Page 1 of 5

UNITED STATES DISTRICT COURT

PATRICK SCHOEN,

Plaintiff,

v.
Civil Action No. 23-1218 (TJK)
JAMIE SYCAMORE,
in his individual and official capacities,

Defendant.

MOTION FOR ORDER OF DISMISSAL AND CONTINUING JURISDICTION

The Parties have reached a full and final settlement of this matter, as reflected

in the Agreement attached to this Motion as Exhibit A. Plaintiff respectfully requests

that this Court approve the terms of the Agreement, incorporate the terms of the

Agreement into an order dismissing this case, and retain jurisdiction to enforce the

Agreement.

This Court has the authority, but not the obligation, to accept continuing

jurisdiction over the enforcement of the Agreement. In Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375 (1994), the Supreme Court explained that district

courts lack jurisdiction to enforce the terms of a private settlement that resolved a

federal case that had been dismissed without a specific request for the federal court

to retain jurisdiction to enforce it. Id. at 380. Thus, to achieve a settlement agreement

that is enforceable in federal court, parties must submit that agreement to the court

before the case is dismissed, and the court must incorporate the agreement into its

order of dismissal. Id. The Supreme Court held that district courts have the power to
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Schoen v. Sycamore Civil Action No. 23-1218

do this. Id. (explaining that federal jurisdiction will lie to enforce a settlement

agreement where “the parties’ obligation to comply with the terms of the settlement

agreement had been made part of the order of dismissal—either by separate provision

(such as a provision ‘retaining jurisdiction’ over the settlement agreement) or by

incorporating the terms of the settlement agreement in the order” (emphasis added));

see also CHARLES ALAN WRIGHT, ET AL., Voluntary Dismissal—Conditions on

Dismissal, 9 FED. PRAC. & PROC. CIV. § 2366 (4th ed. 2021) (“The Supreme Court has

held that a district court also may condition dismissal on the parties’ agreement to

allow the court to enforce a settlement agreement’s terms.”).

The decision to accept jurisdiction to enforce a settlement agreement is within

the Court’s discretion, Pigford v. Glickman, 206 F.3d 1212, 1216 (D.C. Cir. 2000)

(holding that approval of consent decrees is within sound discretion of district court),

and exercising that discretion is warranted here. In evaluating whether to accept

jurisdiction to enforce the agreement, courts consider whether the agreement is “fair

and reasonable.” Citizens for a Better Environment v. Gorsuch, 718 F.2d 1117, 1126

(D.C. Cir. 1983). That, in turn, is driven by whether the agreement “‘spring[s] from

and serve[s] to resolve a dispute within the court’s subject matter jurisdiction, . . .

comes within the general scope of the case made by the pleadings [,] . . . [and whether]

the relief embodied. . . conflicts with or violates the statute upon which the complaint

was based.” Sierra Club v. Browner, No. 93-125, 1994 WL 750290, at *2 (D.D.C. Sept.

20, 1994) (internal citations and quotation marks omitted).

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Schoen v. Sycamore Civil Action No. 23-1218

This case meets those criteria. The parties’ settlement agreement is fair and

reasonable. Through the Agreement, Commissioner Sycamore commits that he will

not block any users from his @SycamoreANC Twitter account or from any other

account that he uses for official purposes, thus ensuring that he will not block users

from any account on which he conducts official business on the basis of the users’

protected speech. Three published circuit court opinions, and more than a dozen

district court opinions, have concluded that public officials violate the First

Amendment if they block users from an account used to discuss public business on

the basis of users’ protected speech. See, e.g., Knight First Amend. Inst. at Columbia

Univ. v. Trump, 928 F.3d 226, 236–37 (2d Cir. 2019), cert. granted, judgment vacated

as moot sub nom. Biden v. Knight First Amend. Inst. at Columbia Univ., No. 20-197,

2021 WL 1240931 (Apr. 5, 2021); Davison v. Randall, 912 F.3d 666, 679 (4th Cir.

2019); and compare Campbell v. Reisch, 986 F.3d 822, 825 (8th Cir. 2021); see also

Joseph A. D’Antonio, Note, Whose Forum Is It Anyway? Individual Government

Officials and Their Authority to Create Public Forums on Social Media, 69 DUKE L.J.

701, 705 n.24 (2019) (collecting district court cases). Although Commissioner

Sycamore does not acknowledge that his decision to block users from his account

violated the Constitution, the Agreement ensures that Commissioner Sycamore will

follow the Constitution as interpreted by other courts facing similar issues, and the

Agreement therefore (a) resolves a matter within the scope of this case, (b) embodies

relief consistent with the legal basis of the case, and (c) violates no other law. See

Sierra Club, 1994 WL 750290, at *2.

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Schoen v. Sycamore Civil Action No. 23-1218

In addition, this issue has already been litigated in this district against

another ANC member in Hecker v. Krepp, No. 21-CV-839 (2021). In that case, the

defendant settled the case by agreeing to terms substantively identical to the terms

in this Agreement. On motion from the parties, the court in Hecker used its discretion

to retain jurisdiction to enforce the agreement as it applied to the plaintiff only.

Plaintiff’s counsel then learned that the defendant in Hecker violated the Agreement

by blocking other members of the public. In a letter to the defendant, plaintiff’s

counsel wrote that “a user with the handle @nevertweety, who identifies himself as

‘Jeff,’ posted a screenshot showing that you have blocked him from your official D.C.-

government account, @ANC6B10. I can’t see the messages that lead to the blocking,

but, according to Jeff, they were related to redistricting and by no means unprotected

by the First Amendment. You violated Jeff’s constitutional rights quite clearly.” But

because the court retained jurisdiction over enforcement of the agreement only

insofar as it applied to the plaintiff, the defendant was, as a practical matter, able to

continue violating the terms of the settlement agreement.

Here, continued jurisdiction is necessary to enforce the Agreement in its

entirety, since a similarly situated defendant has already violated a substantively

identical agreement. In addition, Plaintiff has evidence that on May 2, 2023, the day

after the complaint in this case was filed, Defendant Commissioner Sycamore blocked

a Twitter user who commented on this litigation. See Ex. B.

Pursuant to Local Civil Rule 7(m), undersigned counsel discussed this matter

with counsel for Commissioner Sycamore and for the District of Columbia. Both

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Schoen v. Sycamore Civil Action No. 23-1218

Commissioner Sycamore and the District of Columbia stated they would not oppose

Plaintiff’s motion.

For Plaintiff:

CHARLES GERSTEIN
(D.C. Bar No. 1033346)
GERSTEIN HARROW, LLP
810 7th Ste NE, Ste. 301,
No. 317
Washington, DC 20002
[email protected]
202-670-4809

August 21, 2023

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