A group of plaintiffs is urging a federal court to mandate the architect of the U.S. Capitol Complex to “adhere to the law” by placing a commemorative plaque for police officers who defended the Capitol on January 6, 2021.

Earlier this year in June, former U.S. Capitol Police officer Harry Dunn and Metropolitan Police Officer Daniel Hodges initiated legal action against Thomas Austin, the Architect of the Capitol. Their lawsuit seeks to compel Austin, appointed by Congress in June 2024, to install the plaque, as stipulated by a 2022 congressional law.

However, the proceedings took an unexpected turn when convicted and pardoned rioters argued the plaque should be “inclusive,” acknowledging the perspectives of the pro-Trump crowd involved in the unrest.

Dunn and Hodges, who had previously dismissed the calls for inclusivity on the plaque, are now contesting a dismissal motion filed by the Capitol architect.

Their latest motion states, “Harry Dunn and Daniel Hodges were among the officers who defended the Capitol on January 6, 2021. In recognition of their courage, a plaque was to be installed by March 15, 2023. With the deadline long passed and the plaque absent, Dunn and Hodges aim to have the Architect of the Capitol fulfill the law’s requirements and preserve the memory of those events.”

In early December, Austin contended that the plaintiffs lacked standing, had submitted a flawed complaint by seeking relief unavailable to them legally, and were misguided in their approach.

“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.”