In a federal lawsuit, plaintiffs are urging a court to mandate that the Architect of the U.S. Capitol Complex adhere to legal requirements by installing a commemorative plaque honoring police officers who defended the Capitol on January 6, 2021.

Back in June, former U.S. Capitol Police officer Harry Dunn and Metropolitan Police Officer Daniel Hodges filed a lawsuit against Thomas Austin, the Architect of the Capitol. Their goal is to compel Austin, appointed by Congress in June 2024, to install the plaque as required by a law passed in 2022.

This legal action has been met with opposition from individuals convicted and pardoned for their roles in the riot. They argue that the plaque should be “inclusive” and reflect the experiences of the pro-Trump group involved in the events of that day.

Dunn and Hodges have previously dismissed these calls for inclusivity on the plaque. Now, they are challenging a motion to dismiss filed by the Capitol architect.

The latest motion emphasizes, “Harry Dunn and Daniel Hodges were among the officers who defended the Capitol from rioters on January 6, 2021. In recognition of their courage, a plaque was to be installed at the Capitol by March 15, 2023. Despite the passing of this deadline, the plaque remains absent. Officers Dunn and Hodges are seeking compliance with the law to ensure this chapter of history is preserved.”

In early December, Austin argued the plaintiffs lacked standing, had filed a defective complaint by asking for relief that is not legally available to them, and were generally barking up the wrong tree.

“The Act states that the list of names to include on the plaque shall be compiled by certain committees and subcommittees of Congress and that the names on the list so compiled “should be included on the plaque,’” the architect’s motion to dismiss reads. “The list that ultimately has been provided to the Architect consists of approximately 3,648 names. The Act does not confer any private right of action to any individual who may be included on the list of names or impose any duty on the Architect to them.”

Dunn and Hodges insist they do have standing to sue.

“Plaintiffs have suffered injuries because the office of the Architect—an agency within the United States Congress—has failed to follow the law,” their opposition to the motion to dismiss filed this week reads.

To hear the architect tell it, Dunn and Hodges are claiming injuries that stem from the Jan. 6 riot itself and therefore are “not plausibly traceable to the Architect’s alleged failure to install the plaque.”

The plaintiffs, however, say the proof is in the pudding because the plaque has not been hung and their injuries have been “compounded by their government’s refusal to recognize their service.”

“Success in this case will directly redress the harms that Plaintiffs have experienced,” the opposition motion goes on. “If the government finally acknowledges Plaintiffs’ sacrifice, the psychic injuries caused by the government’s failure to follow the law will be lessened. And because people take their cues to some degree from national political leaders, the reputational harm to plaintiffs—to say nothing of the threats and accusations that follow from that reputational harm—will diminish.”

Dunn and Hodges say the architect has not even come up with a plausible reason for why the plaque is not hanging.

From the opposition motion, at length:

Defendants argue that if their violation of the law is to be evaluated under rational basis review, Plaintiffs must foreclose the possibility of every permissible reason for their treatment in order to survive a motion to dismiss. Defendants then try to manufacture a permissible reason by submitting an affidavit from an employee of the Architect. In that affidavit, the employee claims that a memorial plaque would need to include the names of approximately 3,648 people. In their brief, Defendants then speculate—though, notably, the affidavit does not say—that this explains why they have not complied with the law.

In other words, the defendants want a very limited review where the courts traditionally grant great latitude to the government. Such frameworks of review tend to result in victories for the government if a “rational basis” can be argued for the disputed action at issue.

Here, Austin seems to be angling toward the idea that the plaque would be quite cumbersome to produce – though the plaintiffs say the architect has not even gone so far as to conclusively make that argument. Dunn and Hodges reject this notion out of hand.

“Plaintiffs have explained that Defendants have broken the law, and have done so because of a political effort to rewrite the history of the attack on the Capitol,” the opposition motion continues. “There is no rational explanation for Defendants’ failure to follow the law and the disparate treatment Plaintiffs and their fellow officers have experienced, and Defendants have been unable to manufacture one.”

Rather, Dunn and Hodges say, the architect’s “failure” is as obvious as the plaintiffs’ “connection to the memorial is direct.” And, to that end, any exacerbated injuries stemming from Austin’s failure are “clear.”

The motion ends with a broadside request for the court to force compliance with the law honoring law enforcement.

“The effort to compel Defendants to follow the law and install the January 6 memorial plaque is about making sure that history is not rewritten, and that the horror—and heroism—of that day is not forgotten,” the opposition motion concludes. “It is also about making sure that Officers Dunn and Hodges, along with all the other women and men who protected those inside the Capitol that day, are afforded the recognition they deserve. So that the harm to them is remedied, and that history is not erased, Plaintiffs ask that Defendants’ motion be denied.”