Plaintiffs have failed to meet their bruden of demonstrating that a "clearly established" right has been violated by the officers' application of the sign-size regulation to their flag arrangement. Indeed, the undisputed arrangement, at a minimum, ran afoul of the agency's own view of the regulations according to the agency's counsel. In addition, the undisputed arrangement at least arguably ran afoul of the plain language of the
[1 For the convenience of the Court, the Judgment of the District of Columbia Circuit is attached hereto.]
[2 Defendants' inadvertently failed to indicate in their Memorandum that the photographs attached thereto at Exhibit 2 were taken on or about January 2, 1995.]
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regulation, as well as the interpretive guidance by the Park Service provided in the Federal Register at the regulation was made final. See Exhibit 3 to Defendants' Motion. In the face of the agency guidance accompanying the regulation, as well as the application of the regulation to the type of display used by plaintiffs, it can hardly be said that plaintiffs had a well-settled right to display their flags in the manner they chose. Thus, plaintiffs have failed to meet their essential burden of demonstrating a violation of a clearly established right sufficient to establish Bivens liability. See Richardson v. Dept. of Interior, 74 F. Supp. 15, 24 (D.D.C. 1990) (claim of constitutional violation defeated when there is no showing of a constutional proscription).
3. Plaintiffs Have Not Presented Any
Genuinely Disputed Issues to the Court.
In their Statement of Issues of MAterial Fact, plaintiffs fail to dispute the essential facts in this case: that they displayed their flags as attachments to plaintiff Picciotto's stationary sign. Plaintiffs' other alleged "facts" are no more than bald assertions or arguments which do not state any factual matters which would require resolution by a trier of fact.[3] Thus, this matter should be resolved ont he extensive record
[3 In their opposition to defendants' motion to dismiss, plaintiffs now attempt to contend, in contradition to their prior pleadings, that the manner of the officers' enforcement of the sign regulation was violative of their fights. See Statement of Issues, ¶ 5. As defendants previously noted, plaintiffs have in other pleadings indicated that the officers treated them civilly. See Defendants' Statement of Materail Facts at ¶ 5.]
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before the court, and that record demonstrates that defendants are entitled to judgment in their favor.
CONCLUSION
In view of the undisputed facts and the regulation at issue, plaintiffs have failed to show that they had a clearly established right to display them, or that the officers violated their rights in applying the sign-size regulation to their display. For these reasons, this matter should be dismissed, or summary judgment should be entered in favor of all defendant.
Respectfully Submitted,
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ERIC H. HOLDER, Jr. DC Bar #303115
United States Attorney
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KIMBERLY N. TARVER, DC Bar #422869
Assistant United States Attorney