source: Caselaw Access Project

author: PILLARD, Circuit Judge:

license: Public Domain

text:
    A.N.S.W.E.R. COALITION (ACT NOW TO STOP WAR AND END RACISM), Appellant Graylan Scott Hagler, Pastor, Plymouth Congregational Church, et al., Appellees v. W. Ralph BASHAM, In official capacity as Director, U.S. Secret Service and Sally Jewell, Secretary, United States Department of the Interior, Appellees
    No. 16-5047
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 14, 2016
    Decided January 17, 2017

      Mara Verheyden-Hilliard, Washington, DC, argued the cause for appellant. With her on the briefs was Carl L. Messineo, Washington, DC.
    Marina Utgoff Braswell, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief was R. Craig Lawrence, Assistant U.S. Attorney.
    Before: SRINIVASAN, MILLETT and PILLARD, Circuit Judges.
   PILLARD, Circuit Judge:

On the occasion of a U.S. Presidential Inauguration, thousands of people gather along the sidewalks, parks, and plazas that line the Inaugural Parade route. On January 20th, the parade travels the 1.2-mile, sixteen-block portion of Pennsylvania Avenue in Washington, D.C. that runs from the Capitol Budding to the White House— a stretch sometimes referred to as America’s Main Street. The Inaugural Parade tradition dates back to April 30, 1789, when George Washington was sworn in as the nation’s first President. See Joint Congressional Committee on Inaugural Ceremonies, Inaugural Parade, J.A. at 1236. With a new government fonning and the public eye focused on the event, demonstrators also turn out on Inauguration Day to voice their dreams and demands. One of the great accomplishments of our Constitution is its guarantee of the people’s right to take to the streets to say what they think.

The National Park Service is responsible for managing the open-air, traditional-public-forum spaces along the Inaugural Parade route. A 2008 Park Service regulation authorizes a priority permit setting aside a fraction of those spaces for identified Presidential Inaugural Committee uses on Inauguration Day. The priority permit allocates thirteen per cent of the footage alongside the parade route for ticketed spectator bleachers constructed and administered by the Inaugural Committee. One of the designated bleacher areas is on Freedom Plaza. Plaintiff-Appellant ANSWER (Act Now to Stop War and End Racism) Coalition contends that authorizing Freedom Plaza bleachers in the priority permit violates ANSWER’S First Amendment right to instead use the same space for a mass demonstration. Allocating that prime spot to ticketed bleachers, ANSWER asserts, unconstitutionally prefers the government’s message to its own.

The permit the Park Service regulation authorizes for the Inaugural Committee takes priority over any conflicting permit to demonstrate in the same space on Inauguration Day, but the ordinary permit system remains effective along most of the parade route. Seventy per cent of the footage immediately adjacent to the route remains available on a first-come, first-served basis to individuals and permitted groups. ANSWER does not challenge the Park Service’s regulatory prerogative, consistent with the First Amendment, to exclude the public from some areas reserved for the Inaugural Committee, including areas exclusively for spectator bleachers. See Appellant Br. at 60. But ANSWER strongly prefers to demonstrate at Freedom Plaza because it is an open, elevated space that is easily visible from the Avenue and is historically associated with political protest. With its sightlines down the Avenue eastward toward the Capitol, Freedom Plaza is also, however, a salutary location for media staging and spectator seating. The Park Service thus included it within the fraction of the roadway-adjacent footage that the regulation assigns to the Inaugural Committee for such specified uses.

The Park Service regulation authorizing the priority permit, including the space on Freedom Plaza for the bleachers, is not a content- or viewpoint-based speech restriction, but a reasonable time, place, and manner regulation of the use of a public forum. It sets aside bleacher areas, including on Freedom Plaza, for the Inaugural Committee’s use as part of the package the rule reserves to the Committee as event organizer. The First Amendment requires that any reasonable, content-neutral regulation limiting expression along the parade route leave ample space available for peaceful demonstrations. The First Amendment does not, however, support ANSWER’S claim of a right to displace spectator bleachers with its own demonstration at Freedom Plaza.

I. Background

ANSWER, a group that “engages in political organizing and activism in opposition to war and racism,” sought to engage in “expressive, free speech activities” on Freedom Plaza during the 2013 Presidential Inauguration. Deck of Brian Becker ¶ 5 (Nov. 13, 2013), J.A. at 435; Suppl. Pleading ¶ 1, A.N.S.W.E.R. Coalition v. Jewell, 153 F.Supp.3d 395 (D.D.C. 2016) (No. 05-cv-71) (2016 A.N.S.W.E.R.). As soon as the Park Service started accepting permit applications to demonstrate on Inauguration Day 2013, ANSWER filed an application to use Freedom Plaza and its adjacent sidewalks. ANSWER’S permit application sought permission to use the space for a multimedia demonstration, with “[sjigns, placards, banners, stage, sound, bleachers, art installation, props, canopies, and other facilitative materials.” Attach. 1 to Suppl. Pleading at 2, ANSWER Application for 2013 Inauguration, J.A. at 117. The Park Service informed ANSWER that it would be permitted to use only a 160-foot long by 35-foot wide portion of Freedom Plaza for its Inauguration Day demonstration because, pursuant to a 2008 amendment to the Park Service’s regulations governing areas of the National Park system in the National Capital Region, most of the Plaza was reserved for the priority use of the Inaugural Committee.

The 2008 amendment created a “regulatory priority use for limited, designated park areas for the Presidential] inaugural] C[ommittee], the Armed Forces Inaugural Committee, and the Architect of the Capitol or the Joint Congressional Committee on Inaugural Ceremonies.” 73 Fed. Reg. 67,739, 67,740 (Nov. 17, 2008). Referring to Freedom Plaza by its Park Service designation as part of “Pennsylvania Avenue, National Historic Park,” the regulation states:

In connection with Presidential Inaugural Ceremonies the following areas are reserved for priority use as set forth in this paragraph....
(B) Portions of Pennsylvania Avenue, National Historic Park and Sherman Park ... for the exclusive use of the Presidential Inaugural Committee on Inaugural Day for:
(1) Ticketed bleachers viewing and access areas, except that members of the public may use a ticketed bleacher seat that has not been claimed by the ticket holder 10 minutes before the Inaugural Parade is scheduled to pass the bleacher’s block;
(2) Portable toilets, except that they will be available to the public;
(3) Television and radio media and Armed Forces Inaugural Committee parade support structures;
(4) The area in front of the John A. Wilson Building for the District of Columbia reviewing stand;
(5) Viewing areas designated for individuals with disabilities, except that they will be available to any disabled persons.

36 C.F.R. § 7.96(g)(4)(iii)(B) (2016). Maps separately identifying the areas allocated to each of the uses authorized in subsections (1) through (5) accompany the regulation. See id. § 7.96(g)(4)(iii)(E).

The regulation leaves open to the public, including demonstrators, 70 per cent of the footage on Pennsylvania Avenue abutting the Inaugural Parade route. Id.; 73 Fed. Reg. at 67,741. Of the 30 per cent that is not open to the public, the regulation designates 13 per cent for Inaugural Committee bleachers. See id. The Inaugural Committee, which comes into being after the presidential election and is responsible for organizing, planning, and executing “most of the inaugural celebration activities,” decides how tickets for bleacher seats will be distributed. See Audrey Celeste Crane-Hirsch, Congressional Research Service, The Presidential Inauguration: Basic Facts and Information at 5 (Jan. 9, 2013); 73 Fed. Reg. at 67,742.

In this appeal, ANSWER challenges the regulation’s allocation of most of Freedom Plaza to the priority permit instead of to the public under the “generally applicable permitting regulations, governed by a ‘first-come first-served’ system of priority.” Suppl. Pleading ¶ 14. ANSWER argues that the Park Service’s promulgation and application of subsection (B)(1), the portion of the priority-permit regulation authorizing bleacher seating on Freedom Plaza, constitutes “identity-based, viewpoint-based and/or content-based discrimination,” in violation of the First Amendment and the Equal Protection Clause. Id. ¶ 21; see generally Compl., 2016 A.N.S.W.E.B., 153 F.Supp.3d 395 (No. 05-cv-71). ANSWER contends that the regulation authorizing spectator bleachers on the Plaza is an unconstitutional content-based restraint of dissent in favor of pro-government speech. Suppl. Pleading ¶ 22; Appellant Br. at 42.

This case presents a controversy likely to arise every four years. ANSWER has protested both Republican and Democratic inaugurations and has been granted a permit to demonstrate on a portion of Freedom Plaza for the imminent 2017 Inauguration. See Decl. of Brian Becker ¶ 9, J.A. at 436; ANSWER Coalition, Permits Secured for Jan. 20 Mass Protest at the Inauguration!, (Jan. 5, 2017), http://www. answercoalition.org/permits_secured_for_ jan_20_mass_protest_at_the_inauguration; National Park Service, National Mall First Amendment Permit Applications (Jan. 4, 2017), https://www.nps.gov/aboutus/foia/ upload/NAMA_InaugurationPermit Requests_01-04-17.pdf. ANSWER does not challenge the priority permit’s allocation of space on any day other than Inauguration Day. ANSWER seeks a declaration that subsection (B)(1) is unconstitutional, and an injunction barring its enforcement.

The National Park Service, on behalf of itself and its parent agency the United States Department of the Interior, defends the challenged subsection on two alternative grounds. The Park Service’s second defense, which we hold determinative here, is that the provision is a reasonable and content-neutral time, place, and manner regulation of a public forum. The priority permit, the Park Service asserts, is narrowly tailored to the government’s significant interest in conducting a public Inaugural ceremony. See Gov’t Br. at 39-40. The Park Service also argues that any speech that occurs in the Inaugural Committee’s bleachers would be government speech not subject to the First Amendment’s restrictions. Because we conclude that the challenged regulatory subsection is a content-neutral time, place, and manner restriction, we do not reach the government speech question.

A. Earlier Cases Challenging Park Service Regulations in the Nation’s Capital

Political protestors and the Park Service have been here before. In Mahoney v. Babbitt, 105 F.3d 1452 (D.C. Cir. 1997), we enjoined a Park Service permit to President William Jefferson Clinton’s 1997 Inaugural that displaced all demonstrator permits along the entire Inaugural Parade route, and that did so not only during the parade, but for several months leading up to Inauguration Day. The Park Service in that case lacked the regulatory support it invokes today. It instead sought to preempt first-in-time permitted demonstrators by issuing itself a “blocking permit” for the “entire length of Pennsylvania Avenue sidewalks for a five-month period.” Id. at 1458-59. The Service then compounded the constitutional flaw of that sweeping prohibition by stating that it would not in practice exclude all demonstrations from the sidewalks, but only those whose message was “inconsistent” with the government’s intended use. See id. at 1457-59.

We held in Mahoney that the Park Service’s viewpoint-based exclusion of disfavored demonstrators violated the First Amendment. We took pains to dispel any suggestion that the “government can never control the use of segments of its own property against actual inconsistent usage by persons attempting First Amendment expression.” Id. at 1458. The constitutional violation there was the government’s attempt to “suppress opposing viewpoints” by excluding only disfavored demonstrators, and by taking the space out of general public use for several months. Id. at 1456. We held that the government may not “by fiat take a public forum out of the protection of the First Amendment” and purport to completely exclude all demonstrators as a ruse to exclude only those “citizens whose views it fears or dislikes.” Id. at 1457,1459.

The Park Service’s regulatory authority has not always been as constrained as it is today. In A Quaker Action Grp. v. Morton, 516 F.2d 717 (D.C. Cir. 1975) (Quaker Action IV) and Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C. Cir. 1972), for example, this Court reviewed challenges to a Park Service regulation that required a permit for any public gathering in National Park areas, but “excepted” events sponsored or co-sponsored by the Park Service (“NPS events”) and provided that events to which the Service chose to lend its sponsorship “may preempt any such areas to the exclusion of other public gatherings.” Quaker Action IV, 516 F.2d at 737 (App.) (citing 36 C.F.R. §§ 50.19(a)(5), (b)). The regulation contained no “expressed standards for selection of ‘NPS events.’ ” Quaker Action IV, 516 F.2d at 728. We noted that because such unconstrained discretion in the administration of a public permitting regulation invited discriminatory enforcement, it was “patently inconsistent with the Constitution.” Women Strike for Peace, 472 F.2d at 1290 (opinion of Wright, J.); Quaker Action IV, 516 F.2d at 728.

In response to that litigation, the Park Service promulgated a regulation establishing National Celebration Events that “occur at the same time and location” every year, 46 Fed. Reg. 55,959, 55,960 (Nov. 13, 1981) — or in the case of Inauguration Day, quadrenially, 45 Fed. Reg. 84,997, 84,997 (Dec. 24, 1980). The events continued to receive priority use of designated areas, but the Park Service’s discretion was constrained by the limitation of space afforded and the specification of the events in the Federal Register. 46 Fed. Reg. at 55,960.

B. ANSWER’S Initial Complaint, Preceding the Challenged 2008 Regulation

ANSWER initiated this case in 2005, after President George W. Bush’s second Inauguration, when it filed a complaint challenging the National Park Service’s since-further-amended regulatory approach. Since 1980, the Park Service’s regulations have designated the White House sidewalk and portions of Lafayette Park for the “exclusive use of the Inaugural Committee on Inauguration Day.” 36 C.F.R. § 7.96(g)(4)(iii)(A); 45 Fed. Reg. at 84,997-98. When ANSWER brought this case in 2005, all other areas immediately adjacent to the Inaugural Parade route, including Freedom Plaza, were open to the public for use by individuals or groups who obtain Park Service special-event or demonstration permits on a first-come, first-served basis. See 36 C.F.R. § 7.96(g)(4)(i) (2004). The Inaugural Committee did not then have a regulatory priority permit to use Freedom Plaza. Instead, on an ad hoc basis before the one-year permit application period opened, the Park Service granted a permit to the second Bush Inaugural Committee for “the entire length of the Pennsylvania Avenue sidewalks (plus additional areas).” See A.N.S.W.E.R. Coalition v. Kempthorne, 537 F.Supp.2d 183, 187 (D.D.C. 2008) (2008 A.N.S.W.E.R.).

ANSWER’S initial complaint included three counts. It challenged: the Park Service’s ad hoc deviation from the Service’s general permitting regulation in favor of the Inaugural Committee (Count I); the ban on sign supports (rods or sticks on which handheld signs could be held aloft) (Count II); and the ad hoe permit’s broad exclusion of protestors from vast portions of Pennsylvania Avenue (Count III). See 2016 A.N.S.W.E.R., 153 F.Supp.3d at 402. The parties cross-moved for partial summary judgment on Count I, and the district court ruled in ANSWER’S favor that the Park Service unconstitutionally failed to follow its own generally applicable permitting regulations. See 2008 AN.S.W.E.R., 537 F.Supp.2d at 206. The court reasoned that the Park Service’s departure from the regulations’ procedural requirements in order to give special treatment to the Inaugural Committee worked “an abridgement of communication” against other permit seekers. Id. at 199 (quoting Quaker Action IV, 516 F.2d at 727). The Park Service did not appeal that adverse decision, but responded by promulgating the 2008 amended regulation, including the priority permitting provision for bleachers at Freedom Plaza now before us.

C. ANSWER’S Supplemental Pleading Adding its Claim Against the 2008 Rule’s Grant of Bleacher Space to the Inaugural Committee

On December 7,2011, ANSWER applied for a permit to demonstrate on Freedom Plaza and its adjacent sidewalks during the 2018 Inauguration. The Park Service then filed an application that invoked the priority permit regulation on behalf of the Inaugural Committee. In accordance with the 2008 regulation, the priority permit included “designated portions of Freedom Plaza” specifically for “bleachers for viewing during the Inaugural Parade.” Letter from Robbin Owen, Division of Permits Management, to Brian Becker, ANSWER Coalition National Coordinator (Jan. 4, 2012), J.A. at 687; Inaugural Committee Permit Application for 2013 Inauguration at 4, J.A. at 598. As set forth above, the Park Service’s regulatory priority displaced ANSWER’S first-in-time-application for all but a fraction of Freedom Plaza 160 feet deep, with 35 feet abutting Pennsylvania Avenue. ANSWER then supplemented its complaint to add Count IV challenging subsection (B)(1) of the regulation as “identity-based, viewpoint-based and/or content-based discrimination in violation of the First Amendment.” Suppl. Pleading ¶ 21.

The Park Service informed ANSWER that after the Presidential election and formation of the Inaugural Committee, some eleven months in the future, ANSWER might discuss with that Committee whether it would be willing to accommodate ANSWER’S planned protest on its regulatory priority portion of Freedom Plaza. ANSWER also could apply to demonstrate at other locations abutting the route, including John Marshall Park, another park area on Pennsylvania Avenue. See 36 C.F.R. § 7.96(g)(4)(iii)(E) (Maps 1-2).

Once the election was over and the new Inaugural Committee was formed, ANSWER diligently sought to coordinate with the Committee regarding the possibility of using more space on Freedom Plaza. After meeting with ANSWER, the Inaugural Committee told ANSWER that it intended to use its entire allocated space on Freedom Plaza. Having failed to persuade the Committee to cede its bleacher space at Freedom Plaza, ANSWER would have to resort to space elsewhere along the parade route.

Several months after the 2013 Inauguration, the parties cross-moved for summary judgment as to Counts II, III and IV. The district court granted judgment to the Park Service. 2016 A.N.S.W.E.R., 153 F.Supp.3d at 400-01. On Count II, the court held that the ban on sign supports was narrowly tailored to ensuring safety and managing pedestrian traffic at the Inauguration, id. at 417, a decision ANSWER did not appeal. On Counts III and IV, the court conducted a two-step analysis. It first assumed that bleachers were authorized as an expressive activity or venue for expression, and decided that — like the parades and orations elsewhere in the priority-permitted Inauguration areas— bleacher speech constitutes government speech not subject to First Amendment scrutiny for content or viewpoint. Id. at 410-13.

The district court acknowledged that, although the government may express its own viewpoint in a public forum, any regulatory restriction on private expression in the forum remains subject to constitutional scrutiny. Id. at 413-14 (citing Walker v. Texas Div., Sons of Confederate Veterans, Inc., — U.S. -, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015)). The court therefore next analyzed the regulation’s effect on demonstrators under intermediate scrutiny, holding it narrowly tailored to the government’s significant interest in planning and executing the Inaugural Ceremony and Parade. Id. at 415. The court determined that the regulation’s incidental restrictions on speech are no greater than necessary to serve the government’s significant interest and that it leaves sufficient alternative channels for communication, as it designates only a modest portion of the Inaugural Parade route for the Inaugural Committee’s use. Id. at 415.

II. Analysis

ANSWER appeals the district court’s grant of summary judgment on Counts III and IV in the Park Service’s favor, pressing its challenge to the Park Service’s regulation both on its face and as applied in the 2013 Inauguration permitting cycle to give the Inaugural Committee’s permit priority at Freedom Plaza. We review the district court’s grant of summary judgment de novo. See Hodge v. Tallan, 799 F.3d 1145, 1155 (D.C. Cir. 2015).

The regulation designates areas of priority use along the Pennsylvania Avenue sidewalk. That space, including Freedom Plaza, is a quintessential public forum. See Mahoney, 105 F.3d at 1457. Its importance to public dialogue is acute on Inauguration Day. See id. at 1458,

The constitutionality of regulation of public forums depends first on whether the regulation is content based. Content-based regulations are “presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, — U.S. -, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015). Second, because traditional public forums are vital places for speech, even a content-neutral public-forum regulation is subjected to additional First Amendment scrutiny to determine whether it is a reasonable time, place, and manner restriction “narrowly tailored to serve a significant governmental interest” that “leave[s] open ample alternative channels for communication.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Edüd 794 (1983).

A. The Regulation Is Not A Content-Based Speech Restriction Subject to Strict First Amendment Scrutiny

1. The Regulation is Facially Content Neutral. To be subject to evaluation under the more lenient, “intermediate” scrutiny applicable to time, place, and manner regulations, a rule must not itself be content based, see Reed, 135 S.Ct. at 2228, and must be “justified without reference to the content of the regulated speech,” Ward, 491 U.S. at 791, 109 S.Ct. 2746. “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed, 135 S.Ct. at 2227. Facial distinctions based on message, whether they regulate the speech’s subject matter, function, or purpose, are content based and so subject to strict scrutiny. Id, Meanwhile, “laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral.” Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 643, 114 S.Ct. 2445,129 L.Ed.2d 497 (1994).

The challenged regulation is content neutral on its face. It authorizes the Inaugural Committee to construct and administer “[tjicketed bleachers viewing and access areas,” along with space for disabled spectators, media, toilets, and the District of Columbia’s reviewing stand. 36 C.F.R. § 7.96(g)(4)(iii)(B)(l); see id. §§ 7.96(g)(4)(iii)(B)(2)-(5). Contrary to the district court’s background assumption, the regulatory priority granted to the Inaugural Committee by subsection (B)(1) to provide spectator bleachers turns not on the content of any speech, but on the desirability of providing to the Inaugural Committee as the event organizer a limited amount of reserved seating for ticketed spectators.

Subsection (B)(l)’s provision for bleachers at Freedom Plaza is “not a ‘regulation of speech,’ ” but a “regulation of the places where some speech may occur.” Hill v. Colorado, 530 U.S. 703, 719, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). The Colorado statute in Hill made it unlawful to knowingly approach within eight feet of another person, without consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person” within 100 feet of the entrance to any health care facility. Id. at 707, 120 S.Ct. 2480. The Court held the Colorado law was not viewpoint based, but that it imposed a reasonable time, place, and manner restriction on knowingly approaching, for specified purposes, patients entering the clinics. Id. at 725-26, 120 S.Ct. 2480. There was no evidence in Hill that Colorado enacted its law “because of disagreement with” the message of the regulated speech: The regulation applied “equally to all demonstrators, regardless of viewpoint, and the statutory language ma[de] no reference to the content of the speech.” Id. at 719,120 S.Ct. 2480.

The regulation at issue here is even more clearly content neutral, because it makes no reference at all to speech, let alone the content of speech. It simply provides for permitting of spectator bleachers and a cluster of non-speech functions on Freedom Plaza in service of the Inaugural celebration, and it only indirectly regulates where demonstrations may occur by displacing them from that spot. Any displaced speakers’ content is irrelevant: Nothing in the regulation would prohibit a ticketholder to the Inaugural Committee’s bleacher area from publicly endorsing ANSWER’S message. See McCullen v. Coakley, — U.S. -, 134 S.Ct. 2518, 2531, 189 L.Ed.2d 502 (2014) (regulation excluding people from a 35-foot buffer zone outside clinics where abortions are performed did not “draw content-based distinctions on its face”). The record contains no evidence that the Park Service would have pared back the scope of the priority permit at Freedom Plaza if demonstrators with a message more to the government’s liking had asked. Cf. Mahoney, 105 F.3d at 1455-56; R.A.V. v. City of St. Paul, 505 U.S. 377, 391, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Niemotko v. Maryland, 340 U.S. 268, 272-73, 71 S.Ct. 325, 95 L.Ed. 267 (1951). And the regulation provides a rule under which non-ticketholders may occupy bleacher seats if they remain unclaimed ten minutes before the Inaugural Parade is scheduled to pass. 36 C.F.R. § 7.96(g)(4)(iii)(B)(l), Inaugural Committees are entitled to the priority permit, on behalf of any President-elect, no matter the views of the Committee or President-elect. The regulation also equally excludes anyone who might elbow into the reserved area, regardless of whether she or he wishes to protest, show support, or simply get a better view. Here, the regulatory preference for “[t]icketed bleachers viewing and access areas” draws no content distinction.

2. The Regulation is Justified Without Reference to the Content of Speech. The facially neutral regulation is also “justified without reference to the content” of any potential speaker’s alternative use of the Plaza space and was not adopted “because of disagreement with the message” of any anticipated expression on Inauguration Day. See Reed, 135 S.Ct. at 2227; see also United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The inquiry into regulatory purpose ensures that a facially neutral regulation affecting speech is not designed to suppress content the government disfavors. By its nature, a restriction on use of a public forum is bound to curtail some speech. But a “regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at 791,109 S.Ct. 2746.

The function of the challenged provision, subsection (B)(1), is to provide “viewing and access areas.” 36 C.F.R. § 7.96(g)(4)(iii)(B)(l). The governmental purpose is unrelated to the content of expression. There is no evidence in the record that the regulation was adopted because of any disagreement with ANSWER’S — or any demonstrators’ — message, nor any evidence of desire generally to suppress dissent or otherwise discriminate with regard to content. The regulation is therefore content neutral. See Reed, 135 S.Ct. at 2227; see also O’Brien, 391 U.S. at 377, 88 S.Ct. 1673.

ANSWER argues that the regulation is content based because it restricts ANSWER demonstrating at Freedom Plaza while favoring the incoming administration’s supporters. See Appellant Br. at 6, 42. ANSWER’S admittedly viewpoint-based reason for seeking access to the Plaza does not, however, make any rule that stands in its way content based. The regulation excludes ANSWER from portions of Freedom Plaza not because it seeks to demonstrate, nor due to the content of the message ANSWER wishes to communicate, but to ensure some premium space for “[picketed bleachers viewing and access areas” as part of the event package reserved for the Inaugural Committee. 36 C.F.R. § 7.96(g)(4)(iii)(B)(l). The Park Service’s provision for the Inaugural Committee to construct its bleachers, even as 70 per cent of the Inaugural route remains available for demonstration permits, is no more content based than the unchallenged provisions reserving areas for portable toilets, media stands, or viewing areas for individuals with disabilities. See id. §§ 7.96(g)(4)(iii)(B)(2), (3), (5).

We see no record evidence suggesting that the government intended the bleacher area to be a conduit for communicating any content to the public, that the government controls the content of spectator expression in the bleachers, or that the public will perceive the government to be speaking via the bleachers. See Appellant Br. at 36. But see 2016 A.N.S.W.E.R., 153 F.Supp.3d at 412-13 (concluding otherwise). The regulation makes no suggestion that the purpose of the Freedom Plaza bleacher seating is communicative. The bleachers are for ticketed spectators to view the parade. The Final Rule’s only reference to control of the bleachers’ use is that “[tjraditionally, each Presidential] I[naugural] C[ommittee] decides how, and to whom, to distribute Presidential] inaugural] C[ommittee] bleacher seat tickets.” 73 Fed. Reg. at 67,742.

ANSWER’S contrary characterization is unpersuasive. It casts subsection (B)(1) as an impermissible content-based effort to provide supporters of the administration an enhanced “visible presence” on Inauguration Day to the exclusion of ANSWER, an avowed government critic. See Appellant Br. at 42-43. ANSWER quotes the Park Service’s counsel in the district court contending that the Inaugural Committee “wants to be able to provide a presence” for ticketholders along the Pennsylvania Avenue sidewalks. Appellant Br. at 42 (quoting Tr. of Mot. Hr’g at 10). ANSWER takes that comment out of context. The Service there acknowledged that the sidewalk adjoining the Inaugural Parade route is valuable both for expression by demonstrating parties seeking a “visible presence” (such as ANSWER), and for those wishing to reserve choice viewing areas (such as the Park Service on the Committee’s behalf). ANSWER’S desire to demonstrate at Freedom Plaza — an undeniably expressive use — does not render the Park Service’s intended use expressive. Cf. O’Brien, 391 U.S. at 376, 88 S.Ct. 1673.

The regulation itself is agnostic as to whether the persons to be seated will even be supporters of, or chosen by, the incoming president, let alone whether they will express themselves in any particular way. Consistent with the rule, President Obama’s 2009 Inaugural Committee, for example, offered some of its bleacher seats at a nominal price to any member of the public. See Gone in 60 Seconds, Politico (Jan. 10, 2009), http://www.politico.com/ story/2009/01/gone-in-60-seconds-inaugural-parade-tickets-017310 (noting publicly available Inaugural Committee tickets for 2009 Inauguration sold out in under one minute). And the rule itself contains a 10-minute release provision that allows any member of the public to occupy a ticketed seat for free if the ticketholder has not claimed it ten minutes before the parade passes. 36 C.F.R. § 7.96(g)(4)(iii)(B)(l); 73 Fed. Reg. at 67,741. The set-aside of viewing areas on Freedom Plaza “open to members of the public who have disabilities” also reflects the rule’s premise that spectators are present to watch, rather than to engage in some kind of loyalty performance. 73 Fed. Reg. at 67,741; see also 36 C.F.R. § 7.96(g)(4)(iii)(B)(5); id. § 7.96(g)(4)(iii)(E) (Map 8). The decision by the Park Service to grant the Inaugural Committee space to provide viewing areas was neither expressly nor implicitly conditioned on the ticketholders communicating anything on Inauguration Day. The mere possibility that a priority permit might be susceptible of such use does not make it a content-based regulation of speech. Cf. Turner, 512 U.S. at 652, 114 S.Ct. 2445 (“Appellants’ ability to hypothesize a content-based purpose for [the law at issue] rests on little more than speculation and does not cast doubt upon the content-neutral character of [the law].”).

Content-neutral regulatory line-drawing may incidentally burden speech without running afoul of the First Amendment. See Ward, 491 U.S. at 791,109 S.Ct. 2746; Turner, 512 U.S. at 643, 114 S.Ct. 2445. In Regan v. Taxation with Representation of Washington, 461 U.S. 540,103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), for instance, the Supreme Court upheld statutory authorization for veterans’ organizations to use tax exempt contributions for lobbying purposes while other nonprofits lacked authority to do the same. The line drawn between veterans’ groups and other nonprofits reflected the country’s “long standing policy of compensating veterans for their past contributions.” Id. at 551, 103 S.Ct. 1997. The Park Service’s priority permit for the Inaugural Committee planning a “national celebration event” reflects a similarly well-established policy of enabling a public ceremony to recognize the start of a new presidential administration. See 36 C.F.R. § 7.96(g)(l)(iii). The Park Service’s regulation, including subsection (B)(1) authorizing bleachers at Freedom Plaza, is no more content based than the line drawn between veterans’ groups and other nonprofits that the Court upheld in Regan, or the restrictions on leafletting and handbilling sustained in Hill.

Finally, this case is easily distinguished from the content-based enforcement scheme that we invalidated in Mahoney. The Christian Defense Coalition sought permission in 1997 for its members “to stand on the sidewalk and peacefully note their dissent” as the Inaugural Parade passed, but were told that its members would be subject to arrest if they picketed at any point alongside Pennsylvania Avenue. 105 F.3d at 1455-56. The Park Service in Mahoney issued to itself a permit for the entirety of Pennsylvania Avenue for several months, thus displacing all permits to demonstrate anywhere along the Inaugural Parade route. 105 F.3d at 1457-58. The government’s putative, content-neutral justification was to prevent demonstrators’ “physical intrusion” into the Inaugural event. Id. at 1458. But the government’s proffered justification was revealed to be pretextual when the Park Service “conceded that if appellants were carrying no signs or, indeed, if they were carrying signs favorable to the administration whose second Inaugural was being celebrated, their ‘physical intrusion’ would be welcomed.” Id. Here, there is no hint of any such content-based purpose by the Park Service to pick and choose among demonstrators based on their messages.

ANSWER contends that the Obama Inaugural Committee in 2012 conducted a “political vetting” to decide whether to invite ANSWER to share some of the Plaza space included in the Committee’s permit, and that the Committee unconstitutionally concluded “on the basis of viewpoint that ANSWER had ‘competing interests’ for expression along the parade route.” Appellant Br. at 62. The First Amendment presumptively bans political vetting as a condition of access to a public forum, but the fleeting assertion in ANSWER’S brief that a past Inaugural Committee engaged in “vetting” fails for several overlapping reasons to raise an issue of fact material to the claim ANSWER pleaded and litigated here. First, the “vetting” contention is vague and conclusory, resting on a single statement that unidentified members of the Inaugural Committee asked unidentified ANSWER representatives “about our goals, messaging, and how we do outreach and organize.” Decl. of Brian Becker ¶ 33, J.A. at 443. Second, it is unclear how the “vetting” contention relates to this case as ANSWER has framed it. The Inaugural Committee, the putative vetter, is not a defendant; the vetting of which ANSWER complains does not help to show the asserted constitutional defect in the regulatory subsection (B)(1) that ANSWER challenges; and ANSWER has no evidence that vetting is likely to recur such that it could be redressable by the declaratory and injunctive relief ANSWER seeks.

We conclude that the regulation is content neutral and is justified without reference to the content of regulated speech. Having determined that the regulation is facially content neutral and justified without reference to the content of expression, we have no occasion to rely on any notion that the regulations involve government speech of the kind described in Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009), and Walker v. Texas Div., Sons of Confederate Veterans, Inc., — U.S. -, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015). The public forum analysis suffices.

B. The Priority Permit for the Inaugural Committee Is a Reasonable Time, Place, and Manner Restriction

Because the regulation is content neutral, any incidental effect it has on speech is subject to the intermediate scrutiny that governs time, place, and manner restrictions. Ward, 491 U.S. at 791, 109 S.Ct. 2746. To survive such scrutiny, the regulation must be “narrowly tailored to serve a significant governmental interest” and “leave open ample alternative channels for communication of the information.” Id.; Henderson v. Lujan, 964 F.2d 1179, 1183 (D.C. Cir. 1992).

1. The Regulation Serves a Significant Governmental Interest. The regulation is directed to the government’s significant interest in facilitating the President-elect’s public Inaugural ceremony. See Gov’t Br. at 39-40. The date of the Presidential transition is mandated by the Constitution, see U.S. Const, amend XX, § 1, and its attendant celebration is contemplated in federal legislation, see Presidential Inaugural Ceremonies Act, Pub. L. No. 84-986, 70 Stat. 1049, 1049 § 1 (1956), codified at 36 U.S.C. § 501(2). For its part, ANSWER does not contest the Inauguration’s importance as a national celebration. See Appellant Br. at 48 (“The public Inaugural Parade is deeply rooted iri the American tradition....”); 73 Fed. Reg. at 67,739. Nor does it argue that the governmental interest in giving a committee control over some public space to organize an open-air, public Inaugural ceremony is insignificant. Rather, ANSWER argues that the government cannot show that the regulation is narrowly tailored to serve that interest. See Appellant Br. at 47.

The reason the Park Service created a priority permit regulation is to facilitate a public “Inauguration celebration for a newly elected President.” Gov’t Br. at 39; 73 Fed. Reg. at 67,739 (describing Inauguration as “a national celebration event for the benefit of all citizens”); 36 C.F.R. §§ 7,96(g)(l)(iii), (4)(ii) (designating Inauguration as National Celebration Event). To achieve that goal, the regulation creates a “regulatory priority use for limited, designated park areas for the Presidential] I[naugural] C[ommittee], the Armed Forces Inaugural Committee, and the Architect of the Capitol or the Joint Congressional Committee on Inaugural Ceremonies, entities whose role in the Inaugural has traditionally necessitated such use.” 73 Fed. Reg. at 67,740. That regulatory priority makes sense. Congress put the Inaugural Committee “in charge of the Presidential inaugural ceremony and functions and activities connected with the ceremony.” 70 Stat. at 1049 § 1, codified at 36 U.S.C. § 501(1). To support that role, the Act allows the Secretary of the Interior to “grant to the Inaugural Committee a permit to use [federal land] during the inaugural period.” Id. § 503.

The Park Service’s designation of space for reserved seating is a reasonable component of a priority permit for a public Inaugural celebration. Part of organizing the Inauguration is providing seating for spectators; the Inaugural Committee’s regulatory priority allows just that. See 36 C.F.R. § 7.96(g)(4)(iii)(B)(1); see also Inaugural Committee Permit Application for 2013 Inauguration at 4, J.A. at 598 (“For all proposed bleacher space, we will be placing bleachers for viewing during the Inaugural Parade on January 21st.”). The Park Service also asserts a more particular interest in facilitating the Inaugural Committee’s fundraising efforts by allowing it to sell bleacher tickets, see Gov’t Br. at JO-41, but we neither find record support for such an interest nor do we believe it material to the validity of the Park Service rule under the First Amendment.

2. The Regulation is Narrowly Tailored to the Governmental Interest. In order to satisfy the requirement that the regulation be narrowly tailored to the government’s significant interest, the government must show “a close fit between ends and means.” McCullen, 134 S.Ct. at 2534. We must satisfy ourselves that the regulation “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799, 109 S.Ct. 2746. The regulation “need not be the least restrictive or least intrusive means of serving the government’s interests,” but it “must not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.’ ” McCullen, 134 S.Ct. at 2535 (quoting Ward, 491 U.S. at 799, 109 S.Ct. 2746); see also Ward, 491 U.S. at 797, 109 S.Ct. 2746 (“[Restrictions on the time, place, or manner of protected speech are not invalid ‘simply because there is some imaginable alternative that might be less burdensome on speech.’ ” (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))); cf. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 299, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (declining under a time, place, and manner analysis to “judge how much protection of park lands is wise and how that level of conservation is to be attained”).

The government has cleared this hurdle. The Park Service’s regulation sets aside 13 per cent of the parade route along Pennsylvania Avenue for Inaugural Committee bleachers, including the bleachers on Freedom Plaza. It leaves open 70 per cent of the route for the public. The total of the ticketed bleacher area under the current rule is substantially reduced from the amount of space the bleachers have occupied in the past. See 73 Fed. Reg. at 67,741 (noting current regulation reduces bleacher area to 24 bleachers from 49 bleachers in 2005); id. (“[T]he final rule substantially increases the park areas available to the public and demonstrators.”); cf. Mahoney, 105 F.3d at 1458-59 (doubting that Park Service permit blocking demonstrators from entire parade route for five-month period satisfies narrow tailoring). No doubt there are significantly more spectators who wish to attend the Inauguration than these bleachers can accommodate. The reservation of limited space along the parade route for bleachers as part of the event package afforded to the Inaugural Committee allows the Committee to offer a moderate number of seats to ticketed spectators, while also leaving most “front row” space along Pennsylvania Avenue available to others, including demonstrators.

We are also satisfied that the governmental interest would be “achieved less effectively absent the regulation.” Ward, 491 U.S. at 799, 109 S.Ct. 2746. ANSWER contends that the Constitution requires that ticketed bleacher space be limited to what the Inaugural Committee might be able to obtain in a first-come, first-served public permit application process. Suppl. Pleading ¶¶ 14-15, 17; Appellant Br. at 48, 58; Appellant Reply Br. at 30. That process, however, opens eleven months before the election of the incoming president has even occurred, when no Inaugural planning committee exists to submit such an application. This regulation is a practical and reasonable response to that problem.

ANSWER’S arguments to the contrary are unavailing. First, ANSWER argues that the government has not met its burden because it fails to show that Inaugural ceremonies would be cancelled absent the regulation. See Appellant Br. at 48-49. ANSWER also argues that the regulation is not narrowly tailored because in 2009, pursuant to a settlement with the Park Service, ANSWER was able to use part of the area on Freedom Plaza that the regulation allocates to the Inaugural Committee’s bleachers and the Inaugural ceremony still happened. Appellant Br. at 49. Otherwise valid restrictions arising from conflicting uses need not be struck down, however, “merely because the government has for a time stayed its hand.” Henderson, 964 F.2d at 1183. The narrow tailoring requirement is not a “least intrusive” or “least restrictive” means test. Ward, 491 U.S. at 798, 109 S.Ct. 2746.

Next, ANSWER argues that Freedom Plaza has unique symbolic and historic characteristics that merit special analysis. See Appellant Br. at 4, 40-41. There may well be circumstances in which the Plaza’s admittedly salutary aspects and symbolic value could be relevant to a time, place, and manner analysis. But ANSWER cites no case in which the quality of particular public-forum space means that the First Amendment places it out of reach of any exclusive event permit. Two reasons support the contrary conclusion. For one, ANSWER is not necessarily entitled to its favored place for expression. “[T]he First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640, 647,101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). For instance, in White House Vigil for the ERA Comm. v. Clark, 746 F.2d 1518 (D.C. Cir. 1984), we upheld a prohibition against protestors standing still with signs in the center portion of the White House sidewalk, despite the plaintiffs contention that the center portion is “particularly evocative ... for symbolic protest.” Id. at 1534-38.

A second flaw is ANSWER’S failure to distinguish the Freedom Plaza bleachers from other historically significant areas, including the White House sidewalk and Lafayette Park. See 36 C.F.R. § 7.96(g)(4)(iii)(A). Those areas are similarly “controlled by the Inaugural Committee through a reserved ticket system.” 73 Fed. Reg. at 67,741. And those areas have historic and symbolic importance. See Quaker Action TV, 516 F.2d at 725 (“[T]he White House sidewalk, Lafayette Park, and the Ellipse constitute a unique situs for the exercise of First Amendment rights.”); Women Strike for Peace, A12 F.2d at 1287 (opinion of Wright, J.) (“There is an unmistakable symbolic significance in demonstrating close to the White House or on the Capitol grounds.... ”). Aside from alluding to “unique ceremonial and security issues” associated with the Presidential reviewing stands, ANSWER does not provide a principle for drawing a constitutional line between ticketed access to Lafayette Square and ticketed access to bleachers at Freedom Plaza. Appellant Br. at 60.

Finally, ANSWER asserts that Freedom Plaza has unique physical characteristics that make it more hospitable for public demonstrations than other available areas such as John Marshall Park. See Appellant Br. at 41, 56. ANSWER rejects John Marshall Park as unable to accommodate “size-able bleachers, stage or sound platforms.” Deck of Brian Becker ¶ 39, J.A. at 445. That argument cuts both ways. Freedom Plaza also offers a particularly desirable vantage point for spectators and media. It was thus reasonable for the Park Service to include space on a Plaza that can accommodate such activities within the package of areas. covered by the priority permit.

3. The Regulation Leaves Ample Alternative Channels for Expression. To stand as a reasonable time, place, or manner restriction, the priority permit regulation must also leave open ample alternative channels for communication. See Boardley v. U.S. Dept. of Interior, 615 F.3d 508, 524 (D.C. Cir. 2010). ANSWER disagrees that demonstrators have adequate access, principally by framing the issue as whether alternative channels remain at Freedom Plaza itself. See Appellant Br. at 54; Appellant Reply Br. at 27-28. The relevant question here, however, as ANSWER itself comes close to acknowledging, is whether ANSWER retains channels for expression at the Inaugural Parade. See Appellant Br. at 25 (“[T]he object of proper analysis is the Pennsylvania Avenue sidewalks and parklands on Inauguration Day — ”). As ANSWER described its objections in 2005, for example, it wished to express its opposition to “the war policies of the Bush administration,” Compl. at 3-4, and it then anticipated that it would demonstrate “at the next [2009] Presidential Inauguration,” Id. ¶ 85. In 2013, ANSWER similarly sought to “engage in expressive, free speech activities in connection with the January 20, 2013 Presidential Inauguration and related parade.” Suppl. Pleading ¶ 1. ANSWER criticizes governmental policies, and its Inaugural demonstrations are “directed at parade participants” including “the Administration members and [the] President in the parade.” Compl. ¶¶ 46, 60. ANSWER has not persuaded us that the relevant forum here is limited to Freedom Plaza, such that alternative channels alongside the celebration and parade that are directly visible to its target audiences are inadequate.

The 2008 regulation is dramatically narrower than the permit we invalidated in Mahoney. There, the Park Service “issued itself a permit not for a limited segment of the Pennsylvania Avenue sidewalks ... but for the entire length of Pennsylvania Avenue sidewalks for a five-month period.” 105 F.3d at 1458; see also 2008 A.N.S.W.E.R., 537 F.Supp.2d at 187 (invalidating Inaugural Committee permit for the parade route “from the National Capital Area, 3rd Street to 17th Street including sidewalks on both sides of the street”); and see Women Strike for Peace, 472 F.2d at 1293 (opinion of Wright, J.) (government “may not preempt the entire Ellipse when only a partial preemption would fully vindicate its interest”). As described above, the current regulation sets aside 13 per cent of the Inaugural Parade route along Pennsylvania Avenue for Inaugural Committee bleachers. 73 Fed. Reg. at 67,741. Another 17 per cent is prioritized for other logistical purposes, including media. See Tr. of Mot. Hr’g at 11. Seventy per cent of the portion of Pennsylvania Avenue abutting the parade route is available for members of the public, including groups with permits to demonstrate. 73 Fed. Reg. at 67,741. By excluding from the priority permit “certain park areas that have been allocated to the [Committee] in past Inaugural Parades,” the 2008 regulation “substantially increases the park areas available to the public and demonstrators.” 73 Fed. Reg. at 67,741. We decline to establish where on the continuum — between Mahoney’s total exclusion of protestors for several months and the current regulation’s allocation of 70 per cent of the Parade route’s sidewalks to the public — the government’s priority allocation of space becomes reasonable. We simply hold that this regulation is content neutral, reasonable, and provides ample alternative channels for communication.

We accordingly affirm the district court’s grant of summary judgment to the Park Service.

So ordered.


author: EAREN LeCRAFT HENDERSON, Circuit Judge:

text:
    Gregory BARTKO, Petitioner v. SECURITIES AND EXCHANGE COMMISSION, Respondent
    No. 14-1070
    United States Court of Appeals, District of Columbia Circuit.
    Argued November 17, 2016
    Decided January 17, 2017

      Brian R. Matsui, Washington, DC, appointed by the court, argued the cause as the amicus curiae in support of the appellant. Bryan J. Leitch and Deanne E. Maynard, Washington, DC, were with him on brief.
    Gregory Bartko, pro se, filed the briefs for the appellant.
    Daniel Matro, Attorney, United States Securities and Exchange Commission, argued the cause for the respondent. John W. Avery, Deputy Solicitor, Dominick V. Freda, and Stephen G. Yoder, Senior Litigation Counsel were with him on brief.
    Before: HENDERSON and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
   EAREN LeCRAFT HENDERSON, Circuit Judge:

Between 2004 and 2005, Gregory Bart-ko masterminded a wide-ranging scheme that sought to defraud investors through the sale of securities. Five years later, Bartko was convicted of conspiracy, selling unregistered securities and mail fraud. Shortly thereafter, the United States Securities and Exchange Commission (SEC or Commission) instituted a follow-on administrative proceeding against him. In that proceeding, the Commission, inter alia, permanently barred Bartko from associating with six classes of securities market participants.

Bartko’s petition for review raises multiple challenges to the Commission’s order. We have accorded each of Bartko’s arguments “full consideration after careful examination of the record, but address in detail only those arguments that warrant further discussion.” See, e.g., Ozburn-Hessey Logistics, LLC v. NLRB, 833 F.3d 210, 213 (D.C. Cir. 2016); United States v. Garcia, 757 F.3d 315, 321 (D.C. Cir. 2014) (“We have given full consideration to the various additional arguments that [appellant] raises, but find none convincing or worthy of discussion.”). Although we agree with the Commission’s findings and conclusions, we believe it applied the bar regarding five of the six classes in an impermissi-bly retroactive manner. For the reasons that follow, we grant the petition in part and deny it in part.

I. Background

A. Statutory Landscape

With the enactment of section 203(f) of the Investment Advisers Act of 1940, see 15 U.S.C. § 80b-3, and sections 15(b), 15B(c) and 17A(c) of the Securities Exchange Act of 1934, see id. §§ 78o(b), 78o-4(c), 78q-l(c), the Congress authorized the SEC to oversee the registration and licensing of four different classes of participants in the securities markets: brokers and dealers, municipal securities dealers, transfer agents and investment advisers. See id. §§ 78o, 78o-4, 78q-l, 80b-3 (2000) (respectively, broker-dealers, municipal securities dealers, transfer agents and investment advisers). As relevant here, these statutory provisions also authorized the Commission to suspend or bar a participant from specific classes if certain conditions were met. See id. §§ 78o(b)(6)(A), 78o-4(c)(4), 78q — 1(c)(4)(C), 80b-3(f). Generally, to impose such a sanction, the Commission had to first demonstrate that the penalty was in the public interest. See id. Second, the Commission had to show that the participant was, inter alia, convicted of a specified offense within the last ten years or had been enjoined by the SEC from working in the industry. See id. Finally, the Commission had to show that the participant was associated with — or seeking to become associated with — one of the four classes either at the time of the alleged misconduct or at the time of registration. See id.

Originally, the Commission read these provisions as authorizing a “collateral bar.” E.g., Meyer Blinder, Exchange Act Release No. 39180, 1997 WL 603788, at *3-5. (Oct. 1, 1997). A collateral bar is a tool by which the SEC can ban a market participant from associating with all classes based on misconduct regarding only one class. See id. at *5-6. Thus, through the imposition of a collateral bar, the Commission could not only bar an investment adviser from associating with the investment adviser class but also from the broker-dealer, municipal securities dealer and transfer agent classes — even if he had no association with those classes. See id.

This Court, however, rejected the Commission’s notion that section 203(f) of the Advisers Act and sections 15(b), 15B(c) and 17A(c) of the Exchange Act sanctioned a collateral bar. See Teicher v. SEC, 177 F.3d 1016, 1019-20 (D.C. Cir. 1999). In Teicher, we noted that both statutes set forth “an almost identically worded threshold nexus requirement” that “under-seore[d] a congressional determination to create separate sets of sanctions....” Id. at 1020. Because each statute required a market participant to be, at a minimum, “seeking to become associated” with a class before he could be barred from it, see 15 U.S.C. §§ 780(b)(6)(A), 78o-4(c)(4), 78q-l(e)(4)(C), 80b-3(f) (2000), we held that the Commission could not bar an individual from a class that he had no association — no “nexus” — with, see Teicher, 177 F.3d at 1020-21. An investment adviser could be immediately barred from associating with the investment adviser class; a broker-dealer could be barred from associating with the broker-dealer class — but because a collateral bar was not statutorily authorized, the SEC could not bar him from other classes unless and until he sought to associate with those classes. See id.

In 2010, the enactment of Dodd-Frank changed the landscape. See Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), Pub. L. No. 111-203, 124 Stat. 1376 (2010). Perhaps in response to the Commission’s lobbying, the Congress empowered it to impose a collateral bar. See Pub. L. No. 111-203, 124 Stat. 1376, 1850-51 (July 21, 2010). In addition, Dodd-Frank expanded the Commission’s reach, adding two new classes to its purview: municipal advisors and nationally recognized statistical rating organizations (“NRSROs”). See 15 U.S.C. §§ 780(b)(6)(A), 78o-4(c)(4), 78q-1(c)(4)(C), 80b — 3(f) (2012). Under Dodd-Frank, then, the Commission is now able to bar a securities market participant from the six listed classes — broker-dealers, investment advisers, municipal securities dealers, transfers agents, ■ municipal advisors and NRSROs — based on misconduct in only one class. See id. In effect, Dodd-Frank removed the industry-specific “nexus” central to the Teicher holding, making available an industry-wide ban for class-specific misconduct. See id.

B. Factual Background

From 1999 to 2011, Bartko, a securities lawyer, served as the chief executive officer and chief compliance officer of Capstone Partners, L.C., a registered broker-dealer under section 15 of the Exchange Act, 15 U.S.C. § 78o. Between 2004 and 2005, Bartko also oversaw two private equity funds: the Caledonian Fund and the Capstone Fund (Funds). These two Funds were at the center of Bartko’s subsequent criminal prosecution.

Bartko’s troubles began in early 2004, when, after creating the two Funds, he began to recruit investors. Rather than undertaking the search for capital himself, Bartko joined John Colvin and Scott Hol-lenbeck, who took on that task for him. There was a significant problem with this arrangement, however: Colvin and Hollen-beck had a history of using questionable sales tactics. Both had previously been accused of fraudulent sales practices and Hollenbeck was the subject of a cease and desist order regarding securities sales in North Carolina. Despite having access to his two partners’ history, see Joint Appendix 54-57, Bartko made no effort to distance himself from them. Instead, he entered into agreements under which Colvin and Hollenbeck were to raise millions of dollars for the two Funds.

Over the next two years, both Funds’ coffers were filled by way of fraud and deception. For example, Hollenbeck held numerous seminars across the country, inducing investors to give him their money with false claims that their investments were fully insured and had a guaranteed return. His tactics achieved their purpose, as approximately two hundred investors poured hundreds of thousands of dollars into the two Funds.

The actions of Bartko’s partners did not go unnoticed. In March 2005, an SEC lawyer warned Bartko of Hollenbeck’s questionable fund-raising techniques. Bartko insisted that Hollenbeck was merely a “finder” for the Funds and further claimed that Hollenbeck only “forward[ed] the names of interested and qualified investors” to him. Joint Appendix 79. In the months that followed, Bartko attempted to work with the Commission. He offered Capstone Fund materials for SEC inspection, allowed the Commission to undertake unannounced “spot” examinations of Barb-ko’s business and voluntarily disclosed many confidential financial documents, all — Bartko alleges — in reliance on the Commission’s assurances that the information was confidential and to be used to investigate Hollenbeck’s actions only. Additionally, Bartko filed an interpleader action on behalf of the Capstone Fund in the Middle District of North Carolina in a purported attempt to return funds to investors. Investors in. the two Funds ultimately lost a total of $885,946.89.

C. Procedural History

In January 2010, Bartko was indicted in the Eastern District of North Carolina on one count of conspiracy, one count of selling unregistered securities and four counts of mail fraud. After a thirteen-day trial, a jury convicted Bartko on all six counts. Bartko sought a new trial, claiming that the prosecution failed to disclose material exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963), and that it knowingly allowed government witnesses to testify falsely in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The district court denied Bartko’s motion, emphasizing that “Bartko’s case was not a close one” as “overwhelming evidence of Bartko’s guilt” had been presented at trial. United States v. Bartko, No. 5:09-CR-00321-D, at 116-18 (E.D.N.C. Jan. 17, 2012). The Fourth Circuit affirmed Bartko’s conviction and sentence. United States v. Bartko, 728 F.3d 327, 347 (4th Cir. 2013). Although it recognized that “serious errors” by the government had infected Bartko’s prosecution, see id. at 343, it found those errors insufficient to overturn his conviction, id. at 342 (“[0]ur confidence in the jury’s conviction of Bartko was not undermined by the government’s misconduct in this case.”).

On January 18, 2011, the Commission issued an Order Instituting Administrative Proceedings Pursuant to Section 15(b) of the Exchange Act and Section 203(f) of the Advisers Act to further sanction Bartko for his misconduct. In his response, Bartko argued that the government had “unclean hands” based on its misconduct during his criminal trial and on improper collusion between the governmental authorities. Accordingly, Bartko argued that the Commission “should be barred or estopped” from using his tainted conviction as the basis of follow-on action. Joint Appendix 4. An ALJ recommended against Bartko, however, rejecting Bartko’s discovery request related to his unclean hands defense and applying Dodd-Frank’s enhanced penalties to bar him from associating with not only the broker-dealer class but also the investment adviser, municipal securities dealer and transfer agent classes.

Bartko then petitioned the Commission for review of the ALJ order. The Commission iterated barring Bartko from acting as a broker-dealer, investment adviser, municipal securities dealer and transfer agent was in the public interest — Bartko demonstrated “a fundamental lack of commitment to investor protection principles,” thereby creating a “risk that he would engage in similar conduct if presented with future opportunities.” Id. at 372. The Commission also rejected Bartko’s unclean hands defense, noting that the defense “is not generally available in a Commission action.” Id. at 382. But the Commission did not stop there. Instead, it extended Bart-ko’s bar to exclude him from the municipal advisor and NRSRO classes as well. The Commission reasoned that imposing Dodd-Frank’s collateral bar on Bartko (whose misconduct, again, occurred before the enactment of Dodd-Frank) did not constitute an impermissibly retroactive penalty because “[s]uch collateral bars ... are appropriately applied as ‘prospective remedies whose purpose is to protect the investing public from future harm.’ ” Id. at 376-77.

Bartko timely petitioned for review. Our jurisdiction is based on 15 U.S.C. §§ 78y(a), 80b-13(a).

II. Analysis

A. Retroactive Application of Dodd-Frank

Bartko first argues that the Commission’s imposition of Dodd-Frank’s collateral ban constitutes an impermissibly retroactive penalty because it is premised on pre-Dodd-Frank misconduct. We agree.

The United States Supreme Court has recognized a “deeply rooted presumption against retroactive legislation,” requiring that “courts read laws as prospective in application unless Congress has unambiguously instructed retroactivity.” See Vartelas v. Holder, 566 U.S. 257, 132 S.Ct. 1479, 1483, 1486, 182 L.Ed.2d 473 (2012) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 263, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). The presumption against retroactive legislation is embedded in several provisions of the Constitution, “among them, the Ex Post Facto Clause, the Contract Clause, and the Fifth Amendment’s Due Process Clause.” Id. at 1486; accord Ralis v. RFE/RL, Inc., 770 F.2d 1121, 1127-29 (D.C. Cir. 1985) (warning against retroactive application of law given “the inherent repugnance of ex post facto imposition of civil liabilities”).

To determine if a statute runs afoul of the retroactivity prohibition, we ask whether its provisions attach new legal consequences to events completed before its enactment. Landgraf, 511 U.S. at 269-70, 114 S.Ct. 1483. That is, we look to see if the law “impair[s] rights a party possessed when he acted, increase[s] a party’s liability for past conduct, or impose[s] new duties with respect to transactions already completed.” Nat'l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 859 (D.C. Cir. 2002) (alterations in original) (internal quotation marks omitted). In looking for new legal consequences, material adjustments to the “extent of a party’s liability” may suffice. Landgraf, 511 U.S. at 28-84, 114 S.Ct. 1483. Not all retroactive application is out of bounds, however — Landgraf recognized that procedural rules “regulate secondary rather than primary conduct” and therefore raise no retroactivity concern. Id. at 275, 114 S.Ct. 1483. Consequently, “[t]he critical question is whether a challenged rule establishes an interpretation that changes the legal landscape.” Nat'l Mining Ass’n, 292 F.3d at 859 (internal quotation marks omitted).

We recently applied these principles in a case similar to the instant case. See Koch v. SEC, 793 F.3d 147 (D.C. Cir. 2015). In Koch, an investment adviser petitioned our Court for review of Commission penalties. Id. at 149-50. The Commission had sanctioned him for pre-Dodd-Frank trading violations by, inter alia, barring him from associating with the municipal advisor and NRSRO classes. Id. at 149-51. As noted earlier, however, see supra at 1220-21, the Commission assumed the authority to ban a market participant from those two new classes only after the enactment of Dodd-Frank. See Koch, 793 F.3d at 157-58. Thus, the Koch Court considered a specific question: was “the Commission’s order barring [the petitioner] from associating with municipal advisors or rating organizations ... impermissibly retroactive!?]” Id. at 152.

We held that the bar was impermissibly retroactive. Id. at 157-58. In so holding, we stated that “by including additional associations from which one could be barred, the Act enhanced the penalties for a violation of the securities laws.” Id. at 158 (emphasis in original). Following Landgraf, we found that “[a]pplying [Dodd-Frank] to [the petitioner] ‘attache[d] new legal consequences’ to his conduct by adding to the industries with which [the petitioner] may not associate.” Id. (fourth alteration in original). Because the Congress did not expressly authorize retrospective application of Dodd-Frank, see id. at 157-58, we vacated the portion of the Commission order that applied Dodd-Frank’s broader sanctions to Koch’s pre-Dodd-Frank misconduct, see id.

Here, Bartko had no cognizable association with the investment adviser, municipal securities dealer or transfer agent classes when his misconduct occurred. Nonetheless, the Commission has again attempted to retroactively apply Dodd-Frank to bar Bartko from the investment adviser, municipal securities dealer and transfer agent classes. Thus, as we did in Koch, we conclude that the Commission’s use of Dodd-Frank’s collateral bar against Bartko constitutes an impermissibly retroactive penalty. The application of posh-Dodd-Frank penalties to pre-Dodd-Frank misconduct constitutes a quintessential example of “attach[ing] new legal consequences to events completed before [Dodd-Frank’s] enactment.” Vartelas, 132 S.Ct. at 1491 (internal quotation marks omitted).

The Commission’s attempt to avoid this conclusion is unpersuasive. It primarily rests on its claim that Koch already decided the issue before us. Resp’t’s Br. 29-33. According to the Commission’s reading, Koch implicitly allowed the retroactive application of a collateral bar on the broker-dealer, investment adviser, municipal securities dealer and transfer agent classes notwithstanding the fact that, at the same time, it explicitly prohibited the Commission from extending that bar to the newly regulated municipal advisor and NRSRO classes. See id. To support its reading, the Commission believes Koch held that the “limited” collateral bar — that is, the broker-dealer, investment adviser, municipal securities dealer and transfer agent prohibitions — constituted a mere 'procedural change and therefore did not run afoul of the retroactivity prohibition. Id. at 29. The Commission misreads Koch.

Koch addressed only one issue related to this case: whether the Commission order barring Koch from associating “with municipal advisors or rating organizations” was impermissibly retroactive. Koch, 793 F.3d at 152 (emphasis added). We held that it was and went no further. See id. at 157-58. In fact, we expressly stated that our holding did “not apply to the other securities industries with which Koch may not associate,” id. at 158 — that broader issue was neither before nor considered by the Court.

Footnote three of the Koch decision — on which the Commission heavily relies — is not inconsistent with this analysis. Id. at 157 n.3. Footnote three reads in full:

Koch also argues that applying the Dodd-Frank Act to him is impermissibly retroactive because it changed the Commission’s procedures for imposing sanctions. It is true that under the Act, the SEC may bar Koch from associating with all industries in the securities market in one proceeding, whereas before the Act the Commission had to initiate “follow-on proceeding^]” for separate industries in the securities market. This change in procedure, however, does not give rise to retroactivity concerns.

Id. (alteration in original) (internal citations omitted). Plainly, footnote three focuses on “the Commission’s procedures for imposing sanctions,” adding that under Dodd-Frank, “the SEC may bar [a participant] from associating with all industries in the securities market in one proceeding, whereas before the Act the Commission had to initiate follow-on proceeding[s].” Id. (emphases added). Stated differently, to the extent the Commission was required pre-Dodd-Frank to bring separate follow-on proceedings to bar a market participant from each class he was associated with, Dodd-Frank changed that procedure, instead allowing for one omnibus proceeding at the end of which the Commission could ban a participant from all classes he was associated with. Consolidating separate proceedings into one omnibus proceeding, however, is a procedural change that raises no retroactivity concern. See Landgraf, 511 U.S. at 275, 114 S.Ct. 1483 (“Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.”).

To repeat, Koch does not go further. Although Koch permits consolidation of pending proceedings, it says nothing about endorsing a collateral bar aimed at classes a market participant is neither associated with nor has sought to become so. Whereas the former is a procedural — and therefore permissibly retroactive — change, the latter has undeniable impermissibly retroactive ramifications. See Martin v. Hadix, 527 U.S. 343, 357-58, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (outlining Supreme Court’s “commonsense” and “functional” approach to retroactivity). For example, the imposition of a collateral bar significantly diminishes the possibility that a market participant will be able to associate with new classes regardless of the extent of his subsequent rehabilitation. Before Dodd-Frank, the Commission had to establish that a ban on each class was in the public interest, a task it often accomplished by considering the Steadman factors. See Steadman v. SEC, 603 F.2d 1126, 1140 (5th Cir. 1979), aff'd, 450 U.S. 91, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981). In addition, the Commission had to show that the market participant had been, inter alia, convicted of a specified offense within the last ten years or enjoined from working in the industry and that the market participant was associated with — or seeking to become associated with — each class from which debarment was sought. 15 U.S.C. §§ 78o, 78o-4, 78q-1, 80b-3 (2000). Although the Commission could ban a market participant from, for example, the broker-dealer class at “T0,” ⅛ had to wait until “T]” — the point at which the market participant sought to associate with a new class — before imposing a ban covering that class. See Teicher, 177 F.3d at 1016. Moreover, even at Tx, the burden remained on the Commission to show that the broader ban was also in the public interest. See 15 U.S.C. §§ 78o(b)(6)(A), 78o-4(c)(4), 78q-1(c)(4)(C), 80b-3(f) (2000). If a market participant was sufficiently rehabilitated by Tx that applying the Steadman factors made the broader ban contrary to the public interest, the Commission could not prevent him from associating with that second class.

Dodd-Frank changed this landscape. Now, the Commission may impose a collateral bar covering each class during an omnibus proceeding at T0. See 124 Stat. at 1850-51. In effect, then, Dodd-Frank changed when the Commission must apply a Steadman analysis to determine whether it is in the public interest to bar a market participant from classes that he was not associated with at T0 — whereas before Dodd-Frank, the Commission was required to wait until Tx before making that determination (a delay that required the Commission to take into account any intervening rehabilitation that may have occurred since T0), the Commission may now use its T0 public interest analysis to bar the participant from those additional classes in the first proceeding. This front-loading deprives the participant of the ability to avoid a broader ban at Tx by undergoing “Steadman rehabilitation” after T0. Moreover, Dodd-Frank’s enactment also switches the burden of persuasion. After Dodd-Frank, it is the responsibility of the market participant (not the Commission) to show at Tx that reinstatement to (rather than debarment from) a given class “would be consistent with the public interest,” 17 C.F.R. § 201.193, a burden that even a wholly rehabilitated offender might struggle to establish. Collectively, these changes constitute a “new legal consequence[ ]” that cannot fairly be characterized as procedural. See Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (“[C]hange [to] standards of proof and persuasion ... goes beyond ‘mere’ procedure to affect substantive entitlement to relief.”); Landgraf, 511 U.S. at 270, 275, 114 S.Ct. 1483.

Accordingly, we conclude that the Commission abused its discretion in barring Bartko from associating with the investment adviser, municipal securities dealer and transfer agent classes because those bars are impermissibly retroactive. See 5 U.S.C. § 706(2)(a); Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995) (decision-maker “abuses its discretion if it did not apply the correct legal standard” or “if it misapprehended the underlying substantive law” (internal quotation marks omitted)).

B. Unclean Hands

Bartko also claims that the Commission erred in failing to consider, or allow discovery regarding, his unclean hands defense. In light of government misconduct affecting both the Commission investigation of Bartko and his subsequent criminal prosecution, Bartko suggests that equitable principles should estop the Commission from using his conviction as the basis for a follow-on proceeding. See Pet’r Br. 48. That is, Bartko argues that unclean hands is a “viable defense” to the follow-on proceeding. Id. We disagree.

Generally speaking, the unclean hands doctrine requires that a party seeking equitable relief “show that his or her conduct has been fair, equitable, and honest as to the particular controversy in issue.” 27A Am. Jur. 2d Equity § 98 (Nov. 2016). If a plaintiff does not act “fairly and without fraud or deceit,” the unclean hands doctrine affords a defendant a complete defense. See Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814-15, 65 S.Ct. 993, 89 L.Ed. 1381 (1945). Ultimately, the unclean hands doctrine rests on the principle that “he who comes into equity must come with clean hands.” Shondel v. McDermott, 775 F.2d 859, 867-68 (7th Cir. 1985).

The application of the unclean hands doctrine to the government, however, is far from categorical. Although the Supreme Court has left open the question of whether there exists a “flat rule that [unclean hands] may not in any circumstances run against the Government,” it has nonetheless recognized that “the Government may not be estopped on the same terms as any other litigant.” Heckler v. Cmty. Health Servs., 467 U.S. 51, 60, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984). The government receives this special treatment based on the notion that “[w]hen the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined.” Id.-, accord SEC v. Gulf & W. Indus., 502 F.Supp. 343, 348 (D.D.C. 1980) (denying unclean hands defense “because it may not be invoked against a governmental agency which is attempting to enforce a congressional mandate in the public interest”). Nevertheless, Heckler suggests that the unclean hands doctrine may apply where “the public interest in ensuring that the Government can enforce the law free from estoppel [is] outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government.” Heckler, 467 U.S. at 60-61, 104 S.Ct. 2218. “Where courts have permitted equitable defenses to be raised against the government, they have required that the agency’s misconduct be egregious and the resulting prejudice to the defendant rise to a constitutional level.” SEC v. Elecs. Warehouse, Inc., 689 F.Supp. 53, 73 (D. Conn. 1988), aff'd, 891 F.2d 457 (2d Cir. 1989).

Bartko’s case does not fit within the narrow window outlined in Heckler and Electronics Warehouse. The Fourth Circuit expressly held that any prejudice stemming from the government’s misconduct during Bartko’s investigation and prosecution failed to rise to a constitutional level. Bartko, 728 F.3d at 331-32, 342 (“[0]ur the jury’s conviction of Bartko was not undermined by the government’s misconduct in this case.”). Nothing in the record casts doubt on that conclusion. Moreover, underscoring Bartko’s failure to meet Heckler’s and Electronics Warehouse’s threshold requirement is the Commission’s finding that Bartko demonstrated “a fundamental lack of commitment to investor protection principles” and that there existed a “risk that he would engage in similar conduct if presented with future opportunities.” Joint Appendix 371-72. Here, then, “the public interest in ensuring that the Government can enforce the law free from estoppel” is significant. See Heckler, 467 U.S. at 60-61,104 S.Ct. 2218.

For the foregoing reasons, the portion of Bartko’s petition that challenges the investment adviser, municipal securities dealer and transfer agent bar is granted. The remainder of Bartko’s petition is denied.

So ordered.

      . In its order, the Commission barred Bartko from the broker-dealer, investment adviser, municipal securities dealer, transfer agent, municipal advisor and nationally recognized statistical ratings organization (NRSRO) classes. But see infra at 1124 n.6.

      . The legislative history reveals in part that, in 2009, then-SEC Chairman Mary L. Schapi-ro asked the Congress to give "the SEC the authority to bar a regulated person who violates the securities laws in one part of the industry, for example a broker-dealer who misappropriates customers funds, from access to customer funds in another part of the securities industry (such as an investment adviser).” Hearing Before the H. Comm, on Fin. Servs., 111th Cong., 65-66 (2009). She also noted that, by authorizing the SEC to "impose collateral bars,” the Congress would enable it "to more effectively” regulate the various classes. Id.

      . The facts herein set forth are only those relevant to the petition before us. The complete details of Bartko’s crimes are set forth in United States v. Bartko, 728 F.3d 327 (4th Cir. 2013).

      . The Fourth Circuit first noted that the prosecution made specific promises to Hollenbeck (who testified against Bartko) that information he provided would not later be used against Hollenbeck. Bartko, 728 F.3d at 335-37. At trial, however, it failed to "correct Hollenbeck’s answers when he testified falsely that [the government] had not made any promises” to him. Id. at 337. The Fourth Circuit also found that government acted improperly when it failed to disclose proffer agreements with Hollenbeck and his wife. Id. at 338-39. "If Bartko had had the ... agreements, he could have used them in an attempt to attack Scott Hollenbeck’s credibility.” Id. at 338. Finally, the government improperly failed to disclose a tolling agreement that, according to Bartko, would have been useful to his defense as impeachment material. Id. at 339-40.

      . The Commission originally charged Bartko as an investment adviser as well as a broker-dealer but it later determined that the “public record [did] not indicate that Bartko was associated with a registered investment adviser during the relevant period.”

      . After Koch issued, the Commission acknowledged that the bar on the municipal advisor and NRSRO classes should be vacated, See Commission’s Rule 28(j) Letter at 1-2 (Sept. 2, 2015).

      . Based on an over-reading of Koch's reply brief, the Commission claims that Koch timely made the argument that Bartko now makes. Resp’t’s Br. 32. But Koch’s opening brief failed to expressly raise the issue, referencing the retroactivity issue in only the most general terms. Corrected Brief for Petitioner at 53, Koch v. SEC, 793 F.3d 147 (D.C. Cir. 2015) (“The SEC’s determination ... to retroactively apply a collateral bar, which Congress added to the securities laws in 2010, to conduct that occurred in 2009 is impermissible as a matter of law. It is beyond dispute that sanctions cannot be applied retroactively.”). It contained no discussion of the six market participant classes, no discussion of Teicher's class-specific nexus and no discussion of the procedural and substantive effects of a retroactive application of Dodd-Frank. Id. at 53-54. It failed to clarify whether Koch was attempting to challenge the Commission's imposition of multiple bars in a single, omnibus proceeding, its debarment of Koch from classes with which he had not tried to associate or its debarment of Koch from the two classes it could not regulate before Dodd-Frank (i.e., the municipal advisor and NRSRO classes). See id. “It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work.” Bryant v. Gates, 532 F,3d 888, 898 (D.C. Cir, 2008). Although Koch’s reply brief came closer to raising the point Bartko raises, see Reply Brief for Petitioner at 25, Koch v.

        SEC, 793 F.3d 147 (D.C. Cir. 2015) (“Previously, the SEC could not just bring proceeding after proceeding to impose multiple bars until they added up to the collateral bar it seeks to impose on Mr. Koch. Rather, the SEC could only bring another action seeking an additional bar as a remedy after 'the violator attempted to associate in a different capacity.' ”), an argument first made in a reply brief is forfeited, see Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008).

      , The Steadman factors include "the egregiousness of the defendant’s actions, the isolated or recurrent nature of the infraction, the degree of scienter involved, the sincerity of the defendant’s assurances against future violations, the defendant’s recognition of the wrongful nature of his conduct, and the likelihood that the defendant’s occupation will present opportunities for future violations.” Steadman, 603 F.2d at 1140.

      . As noted earlier, see supra at 1221-22, Bart-ko insisted that he provided information to Commission investigators only to aid their investigation of Hollenbeck. Joint Appendix 5-7,211-16.

      . In accordance with the SEC's concession, see supra at 1224 n.6, the portion of Bartko's petition challenging the municipal advisor and NRSRO bars is also granted.