Defendants' Reply to Plaintiffs' Opposition


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
               v.                  |
     The United States, et. al.    |
           Defendants.             |


Defendants respectfully make the following reply to plaintiffs' opposition to their motion to dismiss or for summary judgement.

1. The Court Should Consider the Interpretation of the Agency as to the Application of the Signs Regulation to Flags

In their opposition, plaintiffs take great issue with the letters they received from Randolph Myers, Attorney, National Capital Parks, dated January 20, 1995 attached to Defendants' Reply at Exhibit 1 (R. 65); Letter from Richard G. Robbins, Assistant Solicitor, Department of Interior, in Plaintiff's Notice to the Court at R. 62. Plaintiffs focus on these communications because they recognize that those communications establish that the officers were reasonable in applying the sign size regulations to plaintiffs' flags, and that the Park Service's interpretation of its own regulations are entitled to deference by this Court. See Marymount Hospital Inc. v. Shalala, 19 F.3d 658 (D.C. Cir. 1994); Seigel v. Babbitt, 855 F. Supp. 402, 404 (D.D.C. 1994) (Mr. Robbins' interpretation of Park


Service regulation upheld), affirmed, No. 94-5184 (D.C. Cir. May 31, 1995).[1]

The fact that plaintiffs received Mr. Myers' letter after the filing of this action does not appear to be a critical point since, plaintiffs do not dispute the fact that the arrangement of the flags to Ms. Picciotto's sign as described in Mr. Myers' letter was the same as the arrangement at the time of this action was filed, and the same as the arrangement in the photographs attached to defendants' Memorandum in support of their motion.[2]

See generally Plaintiffs' Statement of Issue of Material Fact to Which There Exists a Genuine Dispute, attached to Plaintiffs' Opposition. Thus, despite plaintiffs' contentions to the contrary, the letters by Mr. Myers and Mr. Robbins should be considered by the Court in this action.

2. Plaintiffs Have Failed to Demonstrate a Violation of Their Rights Plaintiffs have failed to meet their burden 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 20, 1995.]


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, 740 F.Supp. 15, 24 (D.D.C. 1990) (claim of constitutional violation defeated when there is no showing of a constitutional 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 fact 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 should require resolution by a trier of fact.3 Thus, this matter should be resolved on the extensive record

[ In their opposition to defendants' motion to dismiss, plaintiffs now attempt to contend, in contradiction to their prior pleadings, that the manner of the officers' enforcement of the sign regulation was violative of their rights. See Statement of Issues, n 5. As defendants previously noted, plaintiffs have in other pleadings indicated that the officers treated them civilly. See Defendants' Statement of Material Facts at 8 5.]


before the Court, and that record demonstrates that defendants are entitled to judgment in their favor.


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 the flags in the arrangement in which they chose 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 defendants. Respectfully Submitted,

ERIC H. HOLDER, Jr. DC Bar #303115
United States Attorney

Assislstant United States Attorney