OPINION AND ORDER

SCHWARTZ, ALLEN G., United States District Judge

Plaintiffs bring this action alleging violations of their rights under the First and Fourteenth Amendments of the United States Constitution, as well as under Sections 6 and 8 of Article I of the New York State Constitution. Plaintiffs seek an injunction preventing the Commissioner of the New York City Human Resources Administration ("HRA,", "the Agency," or "the City") from denying plaintiffs access to City offices in which welfare claimants apply for public assistance benefits. Before the Court are (i) plaintiffs' motion for summary judgment with respect to all of their claims; (ii) defendant's cross-motion for summary judgment; (iii) defendant's motion to strike plaintiffs' class action claims; (iv)defendant's motion to strike several pieces of evidence offered by plaintiffs; and (v) defendant's motion to amend his answer to assert res judicata as a partial affirmative defense.

For the reasons set forth below, (i) plaintiffs' motion for summary judgment is granted in part and denied in part; (ii) defendant's cross-motion for summary judgment is granted in part and denied in part; (ii) defendant's motion to strike plaintiffs' class claims is granted; (iii) defendant's motion to strike evidence is denied as moot; and (iv) defendant's motion to amend the answer is denied as moot.

I. Background

Plaintiff Make the Road by Walking ("MRBW") is a non-profit welfare advocacy organization based in Brooklyn, New York. (Plaintiffs' Statement Pursuant to Local Rule 56.1 ("Pl. 56.1") ¶ 1). MRBW seeks to provide information, assistance and representation to persons who apply for and receive federal and state welfare benefits. (Complaint ¶ 1). MRBW seeks to provide such assistance by setting up tables in the waiting areas of HRA's "Job Centers" and advising welfare claimants who are waiting there to be interviewed by HRA employees. The assistance that MRBW seeks to provide includes: informing individual welfare claimants of their rights under federal and state law; assisting claimants in completing application or recertification forms; and representing claimants during their interviews with HRA staff (Id. ¶¶ 46-63). Under current HRA policy MRBW advocates are only permitted into the Centers when they have been previously retained by a particular claimant and are serving as that claimant's representative. (See Pl. 56.1 ¶ 17).

Plaintiff Irania Sanchez, a resident of Brooklyn, applied for welfare benefits at an HRA Center in 1999. (Pl. 56. 1 ¶ 1999). Sanchez received welfare benefits for herself and for her daughter during 2000, and for her daughter during 2001. (See Affidavit of Irania Sanchez ¶¶ 30, 35, 37). Sanchez does not currently receive public assistance through an HRA Job Center. (See Transcript of Oral Argument, May 30, 2002 ("Tr.") at 23:17 to 24:5).

Plaintiff Emilio Vega's claims were dismissed by Order of the Court dated May 16, 2001.

Defendant Jason A. Turner was the Commissioner of HRA at the time this action was filed, and was named as a defendant in his official capacity. The Commissioner of HRA is now Verna Eggleston. HRA is an agency of the City of New York and is responsible for the distribution of federal and state welfare benefits to qualified New York City residents. Such benefits include temporary public assistance, food stamps, health benefits, child care, adult protective services, and eviction preventions. (Defendant's Statement Pursuant to Local Rule 56.1 ("Def. 56.1") ¶ 1, 2). The Court takes judicial notice of the fact that as of April, 2002, HRA administered public assistance benefits to roughly 439,000 claimants. (See HRA Fact Sheet, April 2002, at http://www.nyc.gov/html/hra/pdf/facts0402.pdf; last visited June 17, 2002). HRA is divided into a number of program areas, including the Family Independence Administration ("FIA"), the Medical Assistance Programs ("MAP"), and the HIV and AIDS Services Administration ("HASA"). (Id. ¶ 4). FIA is responsible for the operation of HRA's Job Centers, and all initial applications for public assistance are processed at those Centers. (Id. ¶¶ 6, 8).

Since 1974, HRA's Code of Conduct has contained a policy regarding access to its Centers. (See Pl. 56. 1 ¶ 20; Declaration of Philip G. Gallagher ("Gallagher Decl."), Exh. 18). That policy states: "The Use of Agency Premises shall be limited to the transaction of official business and such other activities as may be specifically authorized by the HRA/DSS [Department of Social Services] Administrator/Commissioner." (Id. ¶ V.C.). However, in 1977 HRA also issued regulations that allowed "[o]rganizations desiring to converse with clients and distribute literature" to be "stationed" at tables in the waiting rooms of the Centers. (See Pl. 56.1 ¶ 54; see also New York City Unemployed Welfare Council v. Brezenoff 677 F.2d 232, 235 (2d Cir. 1977) (quoting HRA regulation of March 15, 1977). In 1983, HRA's Income Maintenance Procedures Manual stated that each Center had to provide specially designated tables to "community agencies and welfare rights groups to enable them to conduct outreach programs and provide information to clients." (See Gallagher Decl., Exh. 25). The parties agree that the 1977 and 1983 regulations are no longer in effect, although it is unclear when these policies were rescinded. (See Def. 56.1 ¶¶ 28, 32; Def. Response to Pl. 56.1 ¶ 58). At present, the only Agency regulation governing access to the Centers is found in the Code of Conduct. The Code also contains the Agency's policy regarding the distribution of written material on Agency premises. Such policy states: "Distribution of written material on Agency premises is limited to releases issued or sponsored by the Agency, releases of recognized staff organizations or clubs approved for distribution by [HRA] . . . and releases of certified labor organizations pursuant to collective bargaining agreements." (See Gallagher Decl., Exh 18 ¶ V.D.).

Plaintiffs allege that on April 17, 1998, MRBW staff members entered two of HRA's Job Centers and began speaking with welfare claimants in the Centers' waiting rooms. (Complaint ¶¶ 69, 70). They further allege that at both of these Centers the MRBW representatives were asked to leave by 1-IRA employees, who stated that access to the Centers requires authorization from the agency. (Id.).Plaintiffs claim that on June 18, 1998, welfare advocates from MRBW met with the director of one of HRA's Centers and requested access to that Center. (Id. ¶ 72). After reviewing written materials about MRBW, the Center director told the MRBW representatives that in order to gain access to the Centers MRBW would need to obtain authorization from the deputy commissioner of HRA's Family Independence Administration. (Id.)

On August 19, 1998, counsel for MRBW wrote to HRA regarding access to the Job Centers. (See Complaint, Exh. D). In that letter, MRBW asserted that HRA's refusal to allow MRBW advocates into the Centers was unjustified, and requested that the City "grant ongoing access[,] . . . without requiring any application for prior permission, to legal representatives, advocates, and organizers for the purposes of providing `know your rights' information" to welfare claimants. (Id. at 4). The letter also requested that the City allow MRBW and other welfare advocacy groups to maintain "informational tables" in Center waiting rooms and that the advocates who staff the tables be allowed to move freely about the Center waiting areas. (Id. at 5). On September 8, 1998, HRA's deputy general counsel, Judy E. Nathan, sent a letter in response to MRBW's August letter. (See Complaint, Exh. E). In that response, HRA denied MRBW's request for access to the Centers, although HRA noted that MRBW advocates could enter the Centers "for the purpose of providing representation to a specific applicant or recipient, in accordance with 18 NYCRR § 351.1(d)." (Id. at 1). HRA's response also noted that while the Agency granted certain other outside organizations access to the Centers, those groups were transacting "official business" of HRA because they were under contract with the Agency to perform official agency functions, such as providing Medicaid benefits to claimants. (Id.)

Plaintiffs filed this action on March 6, 2000. (Complaint at 25).

II. Discussion

A. Defendant's Motion to Strike Plaintiffs Class Claims

The named claimant plaintiffs bring this action pursuant to Rule 23(a), (b)(2) of the Federal Rules of Civil Procedure. (See Complaint ¶¶ 83-89). However, defendant argues that plaintiffs' class claims should be stricken because the one remaining claimant plaintiff does not receive welfare benefits through an HRA Job Center and is thus an inadequate class representative. Also, defendant argues, the class claims should be stricken because plaintiffs have failed to move for class certification and should thus be deemed to have abandoned the class claims.

Plaintiffs' briefs do not contain any specific opposition to defendant's motion to strike the class claims, and during oral argument plaintiffs' counsel conceded that Sanchez is not currently receiving benefits through a Job Center. (See Tr. at 23:17 to 24:5). Thus, Sanchez lacks standing to assert any claims in this action and her individual claims must be dismissed. See Fed.R.Civ.P. 12(h)(3); see also Lichtenberg v. Besicorp Group, Inc., 43 F. Supp.2d 376, 388 (1999) (court should dismiss claims sua sponte for lack of standing because standing goes to jurisdictional basis of court's authority to adjudicate dispute). Accordingly, Sanchez is not an adequate representative of the proposed class. Also, because plaintiffs provide no justification for their failure to move for class certification during the more than two years that this action has been pending, the Court finds that plaintiffs have abandoned their class claims. Accordingly, defendant's motion to strike plaintiffs' class claims is granted.

B. Cross-Motions for Summary Judgment

1. Legal Standard

A district court may grant summary judgment only if it is satisfied that "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All inferences and ambiguities are resolved in the non-movant's favor. Gallo v. Prudential Residential Serv.s, Ltd. Partnership. 22 F.3d 1219, 1223 (2d Cir. 1994) (citations omitted). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 1418 (2d Cir. 1995). If the moving party meets its burden, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact to defeat the motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. See AGV Prods. v. Metro-Goldwyn-Mayer, Inc., 115 F. Supp.2d 378, 386 (S.D.N.Y. 2000) (citation omitted). When reasonable minds could not differ as to the import of the proffered evidence, then summary judgment is proper. See Anderson, 477 U.S. at 250-52; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). Moreover, "conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). On cross-motions for summary judgment, the rule governing inferences and burden of proof is the same as for unilateral summary judgment motions. That is, each cross-movant must present sufficient evidence to satisfy its burden of proof on all material facts. See AGV Prods., 115 F. Supp.2d at 386.

2. First Amendment Challenges

Plaintiffs claim that HRA's policies regarding access to Job Centers and distribution of written materials in the Centers violate the First Amendment. They assert that the policies are overly vague, and thus facially invalid, and that the application of the policies to plaintiff violates forum doctrine. The Court addresses each of these separate challenges in turn.

a. Vagueness

The restriction of First Amendment rights cannot be so vague as to grant unbridled discretion to a government authority seeking to abridge those rights; rather, restrictions must have definite objective standards. See Forsyth County v. Nationalist Movement. 505 U.S. 123, 130-31 (1992). Plaintiffs argue that the policies contained in HRA's Code of Conduct are overly vague — and therefore facially invalid — because they: (i) invest the HRA Commissioner with unbridled discretion to determine what "other activities" will occur on Center premises; (ii) do not sufficiently define what constitutes "official business" of the Agency, but rather leave this determination to the Agency's discretion; (iii) give the Agency unfettered discretion to decide what written material to "issue or sponsor"; and (iv) give the Agency the discretion to determine whether the Code of Conduct applies to non-HRA employees. (See Plaintiffs' Memorandum of Law in Support of Summary Judgment at 9-16). The Court addresses each of these contentions in turn.

(i) Defendant does not specifically refute plaintiffs' argument that the portion of HRA's access policy that makes Agency premises available for "other such activities as may be specifically authorized" by the HRA Commissioner is overly vague. Indeed, at oral argument counsel for HRA conceded that on its face this portion of the Agency's policy invests the Commissioner with broad discretion. (See Tr. at 39:17 to 40:2). And HRA has not pointed to any guidelines or regulations that specify what kinds of activities the Commissioner may or may not authorize. A policy that gives a government official the discretion to deny permission to speak based on presumably private criteria is invalid on its face. See. e.g. Million Youth March v. Safir 18 F. Supp.2d 334, 343-44 (condemning as unconstitutional a denial of permission to speak "based `presumably on the private criteria of a' City official") (quoting City of New York v. American Sch. Publications. Inc., 69 N.Y.2d 576, 582 (1987)). Accordingly, the Court finds that this portion of HRA's access policy is impermissibly vague.

However, the vagueness of the "specifically authorized" portion of HRA's access policy does not require the Court to hold that the entire policy is facially invalid. Rather, the Court may sever the impermissibly vague portion of the policy from the rest of the regulation if "what remains after severance is fully operative." INS v. Chadha, 462 U.S. 919, 934 (1983); see also e.g., Regan v. Time. Inc., 468 U.S. 641 (1984) (invalidating a portion of a statute affecting First Amendment rights on vagueness grounds but upholding a separate part of the statue as a valid time, place and manner restriction). Accordingly, the Court must also examine the remaining portions of HRA's policies to determine whether they are also void for vagueness.

(ii) Plaintiffs argue that the part of HRA's access policy that limits use of the Centers to "the transaction of official business" is overly vague because the Agency has unfettered discretion to determine what constitutes "official business." However, as defendant points out, HRA's official business is clearly defined by state and local law. Specifically, New York's Social Services Law establishes New York City as a "social services district" and requires that each social services district "shall be responsible for the assistance and care of any person who resides or is found in its territory and who is in need of public assistance and care which he is unable to provide for himself" N.Y. Soc. Serv. § 62(1); see also N.Y. Soc. Sew. § 56. Under the New York City Charter, HRA (referred to in the Charter as the Department of Social Services) is the mayoral agency charged with upholding the City's responsibilities under the social services law. See NYC Charter §§ 601-604. State law also requires that social services districts supply eligible persons with specific services, such as Medicaid and homeless intervention services. See N.Y.S.oc. Sew. §§ 50, 364-j. Since state and local law sufficiently define HRA's duties, the mere use of the term "official business" in the Agency's Center access policy does not render that portion of the policy overly vague.

Plaintiffs also assert that HRA's application of its "official business" policy shows the Agency has unfettered discretion to determine what constitutes "official business." Specifically, plaintiffs point out that 1-IRA grants access to other outside organizations, which, plaintiffs argue, engage in the same kind of speech activities that MRBW seeks to conduct. Plaintiffs assert that HRA's admission of these other outside organizations — coupled with the exclusion of MRBW — illustrates how the Agency's access policy allows it to define "official business" according to its own subjective criteria. However, all of these outside organizations engage in speech activities that are objectively distinguishable from the desired speech activities of MRBW.

The first of these other outside organizations are HRA contractors who have been engaged by the Agency to perform one of its official functions. The City Charter specifically allows heads of mayoral agencies such as HRA to enter into contracts to fulfill their official duties, see NYC Charter § 389, and thus the managed care companies that provide Medicaid services and the homeless intervention contractors are in effect extensions of the Agency itself. Accordingly, these contractors can objectively be viewed as engaging in activities which constitute official HRA business. The second group of outside persons that are permitted into the Centers are advocates who have been previously retained by a specific claimant. HRA is required to grant these advocates access to the Centers under 18 NYCRR 351.1(d) ("An applicant or recipient shall be permitted to appear with an attorney or other representative at any interview or conference with a representative of a social services district"). Thus, these advocates are clearly part of HRA's official business in a way that unretained advocates are not. Similarly, the New York State Department of Health, which was allowed into Centers to provide information regarding immunizations, and the U.S. Census Bureau, which conducted activities related to the 2000 Census in Center waiting rooms, were granted access to Centers in accordance with the City Charter which requires mayoral agencies to coordinate their activities with those of other government agencies. See NYC Charter § 386(c). Finally, the fact that HRA has conducted occasional academic tours in the Center does not support plaintiffs' contention that the access policy is vague. Tour groups cannot reasonably be said to be engaged in speech activity that is similar to the speech in which plaintiffs seek to engage, and thus the admission of such groups does not suggest that HRA has exploited the language of its access policy to exclude speakers based on subjective criteria. Accordingly, the Court finds that the first portion of HRA's access policy, which limits the use of HRA premises to the "transaction of official business," is not unduly vague.

(iii) Plaintiffs also argue that HRA's policy with respect to the distribution of written material — which limits literature distribution in Centers to releases that are "issued or sponsored by the Agency" — is vague because there are no guidelines defining what the phrase "issued or sponsored" means. Thus, plaintiffs argue, the City can chooses to "issue" or "sponsor" any written material whatsoever, and point out that HRA has permitted several outside organizations to distribute written materials in the Centers. HRA responds by maintaining that "issue" and "sponsor" are not inherently vague terms, and by noting that all of the specific written material cited by plaintiff as having been distributed in the Centers were posted or distributed by Agency contractors or by state and local agencies with which the Agency is required to cooperate.

However, the fact that HRA has only permitted the distribution of written material that was relevant to the Agency's official business does not fill the void left by the policy's lack of guidelines as to what types of material the Agency can sponsor. The policy on written material leaves HRA with broad discretion to determine what material it will "issue" or "sponsor," and provides no specific regulations as to what material the Agency can or should issue or sponsor. In this manner, the policy regarding written material is thus similar to the portion of the Center access policy that permits "such other activities as may be specifically authorized" by the Commissioner. See supra. Accordingly, the Court finds that the portion of HRA's written material policy that refers to "releases issued or sponsored by the Agency" is unduly vague and therefore facially invalid. Since the remaining language in the policy is clear enough to survive a facial challenge and can operate without the overly vague clause, the Court severs that clause from the policy and leaves the remaining language to stand on its own. See Chadha supra, 462 U.S. at 934.

(iv) Finally, plaintiffs assert that HRA's access policy and its policy regarding written material are unduly vague because the Agency has unbridled discretion to determine whether the Code of Conduct contained in Executive Order No. 651 even applies to non-employees of HRA. Plaintiffs maintain that because the Code of Conduct deals primarily with how HRA employees conduct themselves on the job, it cannot be used as a basis to exclude plaintiffs, who are not Agency employees, from the Centers. However, even if the Court were to accept, arguendo. plaintiffs contention regarding the limited applicability of Executive Order No. 651, HRA would not be prevented from invoking the access policy to exclude plaintiffs from Centers and prohibit them from distributing written material. If the Code applies only to HRA employees then Paragraph V.C. of the Code would simply be a directive to the Agency's employees to exclude from the Centers all those who do not have official business to transact. Likewise, Paragraph V.D. would be a directive to the employees to limit the distribution of written material to the specific categories listed in the Code. The Code itself might apply only to HRA employees, but those employees' adherence to the Code would achieve the same result as under HRA's current interpretation of the Code (i.e. that it applies to both employees and non-employees). Thus, the semantic issue of to whom the Code of Conduct "applies" is of little moment. Accordingly, the fact that Executive Order No. 651 addresses both the more mundane issues of employee conduct (e.g. telephone usage, smoking rules) and the weightier questions of Center access does not provide a basis to find that HRA's policies regarding access to Centers and distribution of written material are unduly vague and therefore facially invalid.

b. Forum Analysis

When deciding whether a government restriction on speech passes constitutional muster courts must first decide what type of forum is involved — a decision which then dictates the level of scrutiny that will be applied to the regulation. In traditional public fora, such as public streets and other places that have been devoted to public assembly and debate, restrictions on speech must survive strict scrutiny. See Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688 (2d Cir. 1991). Thus, the regulation at issue will be permitted only if the government can show the restriction is necessary to serve a compelling state interest and is narrowly drawn to achieve that interest. See Perry Educ. Ass'n. v. Perry Local Educators' Ass'n., 460 U.S. 37, 45 (1983). Government property that has not been traditionally open for assembly and debate but which the government has opened for expressive activity is referred to as a designated public forum. See General Media Communications, Inc. v. Cohen, 131 F.3d 273, 278 (2d Cir. 1997) (quoting Cornelius v. NAACP Legal Defense Educ. Fund, 473 U.S. 788, 802 (1985); Perry, supra, 460 U.S. at 45.). In designated public fora that are fully open to the public, regulations of speech are also subject to strict scrutiny, see International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). However, in designated public fora whose use is limited to particular purposes or speakers, i.e. in "limited public fora," restrictions on speech within those limits need only be reasonable and viewpoint neutral. See General Media, supra, 131 F.3d at 278 n. 6 (citing Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995)).

The Second Circuit has held that while welfare offices are not traditional public fora similar to public streets, they are public fora for the purposes of speech pertaining to welfare issues. See New York City Unemployed Wefare Council v. Brezenoff 742, F.2d 718 (2d Cir. 1984) ("Brezenoff II"), citing New York City Unemployed Wefare Council v. Brezenoff 677 F.2d 232 (2d Cir. 1982) ("Brezenoff I");see also Albany Welfare Rights Org. v Wyman, 493 F.2d 139 (2d Cir. 1974). And because the "public" character of welfare offices is limited to the discussion of welfare issues, HRA's Job Centers are best characterized as limited public fora. Thus, under General Media the Court will uphold HRA's policies if the Agency can show that the policies are reasonable and viewpoint neutral. See also Perry v. McDonald 280 F.3d 159, 166 n. 4 (2d Cir. 2001) (citing General Media and noting the Supreme Court's recognition of the "limited public forum" as a sub-category of the "designated public forum" in which restrictions on speech need only be reasonable and viewpoint neutral).

HRA's primary justification for limiting access to Job Centers to those transacting official business is the Agency's concern that allowing groups such as MRBW to set up tables in the Center waiting rooms would create physical congestion and disrupt Center operations. (See Def. 56.1 ¶ 50.a). This desire to maintain a professional atmosphere in the Centers and to prevent disruption of Center operations is clearly a legitimate aim. See Ig, supra, 505 U.S. at 683-84. And because "the HRA has much more experience in managing welfare offices than the courts have[, and] must be given some discretion in determining" how best to further its interests, Brezenoff II, supra, 742 F.2d at 723, the Court finds that HRA's access policy is a reasonable means for ensuring the peaceful and efficient operation of the Centers. Evidence in the record shows that during the 1970's, when HRA did allow advocacy groups to set up tables in Center waiting rooms, several disruptive incidents occurred after welfare advocates incorrectly told claimants they were entitled to certain benefits; when HRA employees informed the claimants that they would not receive the particular benefits, the claimants became angry, abusive and sometimes violent toward HRA employees. (See Deposition of Brenda Brown at 43:2-15; 45:12-15; 46:18-20). Several HRA employees also testified that MRBW advocates who have accompanied specific claimants into the Centers in recent years have created similar disturbances and have also physically blocked Center entrances and elevators. (See Deposition of Helen Benson at 32:3-25; Deposition of Sheryl Logan at 41:1 to 42:7). MRBW advocates have also entered Job Centers when not representing specific claimants (in violation of HRA's access policy), and, after leaving the Centers at the request of HRA staff have re-entered those same Centers. (See Deposition of Denise Stoute at 54:12 to 57:24). Based on HRA's experience allowing unretained advocates into its Centers, as well as on its experience with MRBW in recent years, it is not unreasonable for HRA to prohibit unretained MRBW advocates from setting up tables in Center waiting rooms. The Agency's polices do not prevent claimants from retaining MRBW advocates as their legal representatives, nor do they prevent MRBW from representing claimants vigorously once claimants have retained them as representatives. The policies also do not prohibit MRBW advocates from approaching claimants and giving them written materials about MRBW; they simply prohibit MRBW from conducting those activities within the Centers themselves.

Even if there were no history of disruptive incidents at the Centers, HRA's access policy would not necessarily be unreasonable because the potential for congestion and disruption would still exist. (See Deposition of Seth Diamond at 183:10-13, 200:14-24). But given the history, albeit limited, of disruption by MRBW and other groups, HRA's limited access policy is reasonably suited to help the Agency maintain a professional atmosphere in the Centers. And, as the City points out, the admission of MRBW would place the City in the untenable position of having to admit all unretained advocacy groups that seek to set up tables in Center waiting rooms (which would almost certainly create physical congestion), taking on the additional burden of choosing among advocacy groups, or further regulating their access and activities.

HRA's policy is also a reasonable way to address the Agency's interest in avoiding confusion among claimants, who, upon seeing MRBW' advocates at tables in Center waiting rooms, might mistakenly assume that MRBW is in some way associated with or approved by HRA. Plaintiffs argue that the City's assertion of this interest is disingenuous because the City is willing to bear the risk of claimant confusion when it permits other outside organizations (Medicaid contractors, the homeless intervention groups, etc. (see supra)) into Center waiting rooms. However, as discussed in Section II.B.2.a, supra, although these other groups are not officially part of HRA, by virtue of their contracts with the Agency they are associated with HRA in a way that plaintiffs are not; thus, it is reasonable for HRA to differentiate between MRBW and these contractors with respect to their potential to cause confusion among claimants. Plaintiffs also argue that defendant has not offered any evidence that claimants will adopt any misconceptions about MRBW if group were permitted to set up tables in the waiting areas. (Sed Pl. Resp. to Def. 56.1 ¶ 50.b). However, the City is not required to establish that such confusion would occur. Rather, the defendant must only show that its policy constitutes a reasonable solution to the problem of potential confusion. It might also be reasonable for HRA to allow MRBW to set up tables in the waiting rooms and require that the group's advocates wear identification or take other measures to insure that claimants know that MRBW is not endorsed by HRA. But it is not the Court's role to second guess the City and determine whether HRA's policy represents the least restrictive means for achieving HRA's interest. The policy passes constitutional muster because the Court finds that the Agency's interest is legitimate and its method for achieving that interest is reasonable.

And because HRA's policies do not represent "an effort to suppress the speaker's activity due to disagreement with the speaker's view" Lee supra 505 U.S. at 679, the policies are viewpoint neutral. Although limiting access to Centers to those transacting official business and limiting distribution of written material to the specific categories contained in the policy on written material does distinguish on the basis of content, content discrimination and viewpoint discrimination are not synonymous. See Rosenberger, supra, 515 U.S. at 829-30 (citing Perry Educ. Ass'n., supra, 460 U.S. at 46). In limited public fora, content discrimination is permissible as long as the regulations at issue preserve the purposes of the forum. See Id. Here the purpose of the forum is the efficient distribution of public assistance benefits. HRA's policies preserve that purpose and do not make any viewpoint-based distinctions among private speakers who seek access to Center waiting rooms.

Plaintiffs argue that HRA does not allow MRBW advocates to set up information tables in Job Center waiting rooms because MRBW's message conflicts with the City's views regarding welfare benefits. Specifically, plaintiffs maintain that while MRBW helps claimants obtain the maximum amount of benefits to which they are entitled, HRA seeks to discourage claimants from filing benefits applications. However, even assuming, arguendo that HRA's goal is to discourage claimants from receiving the benefits to to which they are entitled (i.e. assuming the Agency's actual goal is the direct opposite of its stated goals), HRA's access policy would still pass constitutional muster. In limited public fora the government cannot distinguish between private speakers based on viewpoint, but it may express its own viewpoint while excluding all others. CF. Rosenberger, supra, 515 U.S. at 834-35 (holding that content based restrictions constituted viewpoint discrimination when a governmental entity expended funds to encourage a diversity of views from private speakers). Here, the City has not taken any steps that favor one group of private speakers over another based on their viewpoint. Rather, the access policy distinguishes among speakers based on whether they have official business to conduct in the Centers, and the "official business" limitation applies to both supporters of the City's welfare policies as well as to opponents of those policies. Also, as discussed supra, the access policy does not bar plaintiffs from entering the Centers and voicing their opposition to HRA's benefits decisions; it only prevents MRBW from soliciting claimant clients in the Centers themselves. Accordingly, HRA's policies cannot be characterized as viewpoint discriminatory.

Because HRA's policies are both reasonable and viewpoint neutral, they do not violate the First Amendment. Accordingly, the Court severs the unduly vague portions of HRA's policies, see Section II.B.2.a., supra but otherwise denies plaintiffs' motion for summary judgment and grants defendant's cross-motion for summary judgment with respect to plaintiffs free speech claim.

3. Due Process

Plaintiffs also claim that HRA's access policy violates claimants' due process rights by "placing unnecessary obstacles in the way of claimants' ability to confer with lawyers, thereby increasing the risk that claimants will be wrongly deprived of subsistence benefits." (Pl. Memo in Support of Summary Judgment at 33) Defendant responds by arguing that due process does not require HRA to facilitate communication between claimants and potential advocates, and thus the Agency's policies are constitutional. These arguments present a threshold question for the Court, namely whether HRA's not allowing unretained advocates to set up tables in Center waiting rooms constitutes impeding contact between claimants and advocates or simply a failure to facilitate such contact. (See Plaintiffs' Reply Memorandum in Further Support of Summary Judgment at 16 n. 18).

Although this question is to some extent a matter of semantics, relevant case law regarding the government's obligations with respect to attorney-client relations indicates that HRA's access policy is more aptly viewed as a failure to facilitate communication between claimants and potential advocates. In Moran v. Burbine, 475 U.S. 412 (1986), the defendant was arrested in connection with a breaking and entering. After the police obtained evidence linking the defendant to a murder that had occurred in another jurisdiction, officers from that other jurisdiction traveled to the station house to question the defendant about the murder. Meanwhile, the defendant's sister, who did not know that her brother was under suspicion for murder, retained counsel for the defendant without his knowledge. The retained attorney then telephoned the station house where the defendant was being held and stated that she would act as defendant's counsel if the police intended to question him. The police told the attorney that the defendant would not be questioned further until the next day, but did not inform her that the defendant was a murder suspect and was about to be questioned by officers from the other jurisdiction. The police also did not tell the defendant that an attorney had tired to contact him, and, upon questioning, the defendant confessed to the murder. The Supreme Court held that the police conduct at issue did not constitute a due process violation because the government is not required to facilitate attorney-client communication unless the client asserts his right to counsel. See Moran, supra, 475 U.S. at 424-28, 432-34.

If due process does not require the government to inform a detained criminal suspect that a lawyer retained for his benefit has attempted to contact him, then it can hardly be said that due process requires that space be set aside in government offices for unretained advocates to solicit potential clients. Unlike the attorney in Moran, MRBW advocates do not need government officials to help them inform welfare claimants that MRBW is willing to represent them. Rather, they can offer their services to claimants directly by communicating with them outside the Centers or by using any publicly available means of communication. Plaintiffs maintain that setting up tables in Center waiting rooms is the most effective method for MRBW to offer its services to claimants. (See Pl. 56. 1 ¶¶ 85-99). However, HRA's failure to make available the most effective channels for communication between claimants and their potential representatives is not an impediment to such communication; it is more accurately described as a failure to facilitate. Since such failure to facilitate does not constitute a violation of the claimants' due process rights, the Court denies plaintiffs', motion for summary judgment, and grants defendant's cross-motion for summary judgment, with respect to plaintiffs' due process claim.

4. Equal Protection

Finally, plaintiffs also claim that HRA's access policy violates the equal protection clause of the Fourteenth Amendment. Specifically, plaintiffs argue that HRA's policy treats two similarly situated groups — those claimants who bring previously retained advocates with them to the Job Centers and those who do not — differently with respect to the exercise of their fundamental First Amendment rights. However, even assuming, arguendo. that the two groups are similarly situated, because the distinction between the two groups is not made on the basis of suspect criteria like race or alienage, HRA's policy will be deemed constitutional if the Agency can establish that it is rationally related to a legitimate governmental purpose. See. e.g., Selective Service System v. Minnesota Public Interest Research Group. 468 U.S. 841, 859 n. 17 (1984) (citing Harris v. McRae 448 U.S. 297, 322-324 (1980)). Because the Court has already found that HRA's policy is "reasonable" for First Amendment purposes, see Section II.B.2.b., supra the policy also satisfies rational basis review in the equal protection context. See Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480-81 (1989) (recognizing that a First Amendment reasonableness standard is more stringent than Fourteenth Amendment rational basis review). Accordingly, the Court denies plaintiffs' motion for summary judgment, and grants defendant's cross-motion for summary judgment, with respect to plaintiffs' equal protection claim.

C. Defendant's Motion to Strike Evidence

Defendant has moved to strike certain specific evidence offered by plaintiffs. However, because the Court has granted defendant's cross-motion for summary judgment it need not reach the specific issues raised by defendant's evidentiary motions. Accordingly, defendant's motion to strike evidence is denied as moot.

D. Defendant's Motion for Leave to Amend

Defendant has also moved for leave to amend his answer, contending that he should be allowed to assert the defense of res judicata. Specifically, defendant argues that the issues related to translation services in HRA Job Centers were resolved by Ramirez v. Giuliani. No. 99 Civ. 9287 (S.D.N.Y.) (Jones, J.). However, because the Court has granted defendant's cross-motion for summary judgment it need not reach the motion for leave to amend. Accordingly, defendant's motion for leave to amend is denied as moot.

III. Conclusion

For the reasons set forth above, (i) plaintiff Irania Sanchez's claims are dismissed for lack of standing; (ii) defendant's motion to dismiss plaintiffs' class claims is granted; (iii) plaintiffs' motion for summary judgment is granted with respect to their claim that certain portions of HRA's policies are overly vague (see Section II.B.2.a., supra), and denied with respect to all of plaintiffs other claims; (iv) defendant's cross-motion for summary judgment is denied with respect to plaintiffs' claim that certain portions of HRA's policies are overly vague (see Section II.B.2.a., supra), and granted with respect to all of plaintiffs' other claims; (v) defendant's motion to strike evidence is denied as moot; (vi) defendant's motion for leave to amend the answer is denied as moot.

The Clerk of the Court is directed to close the file in this action.