Appellee's Opposition to Appellants' Motion for Remand

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No.95-5340

September Term, 1995
USDC No. 94cv02747
William Thomas, et al., Appellants

v.

United States of America, et al., Appellees

APPELLEES' OPPOSITION TO APPELLANTS' MOTION FOR REMAND

Appellees respectfully file this opposition to appellants' motion, filed as of October 23, 1996, for remand of this appeal to the District Court on the basis of this Court' s decision in Crawford-El v. Britton, 93 F.3d 813 (D.C. Cir. 1996). For the reasons stated in their renewed motion for summary affirmance filed as of October 23, 1996, which will not fully be repeated here, and for the reasons stated in this opposition, remand is not necessary in this case. Because appellants have failed to demonstrate a violation of a clearly established right, and the District Court's dismissal of their claims was proper. Moreover, review of this record demonstrates that appellants presented no clear and convincing evidence that appellees acted with improper motive. Therefore, summary affirmance of the District Court's decision is proper.

I.

Appellants' own summary of the District Court record in appellants' memorandum in support of their motion for remand demonstrates that remand is not necessary in this appeal. As appellees demonstrated in their renewed motion for summary

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affirmance, this Court's decision in Crawford-El is limited to motive-based claims, and does not disturb the settled law of qualified immunity and the right of a governmental official to have qualified immunity determined before discovery. Mitchell v. Forsvth, 472 U.S. 511, 526 (1985); Anderson v. Creiahton, 483 U.S. 635, 640 (1987). See Crawford-El v. Britton, 93 F.3d at 815. As appellees stated in their renewed motion, the District Court properly concluded that appellants did not state a claim of violation of a clearly established right. Therefore, the District Court's dismissal of appellants' claims on summary judgment was appropriate and need not be disturbed by Crawford-El.

Moreover, even applying the "clear and convincing" standard established in Crawford-El. there is no basis for remand of this action. Review of the record demonstrates that the "evidence" upon which appellants rely does not defeat appellees qualified immunity. Appellants cite to "evidence" they believe supports their claims against appellees, none of which clearly and convincingly establishes a claim of improper motive on the part of appellees. To the contrary, the "evidence" to which appellants refer in their memorandum, which consists mostly of affidavits filed by appellants and other Lafayette Park protestors, demonstrates that all of appellees' actions were in furtherance of their authority to enforce park regulations. The District Court properly reviewed this record to conclude that appellees acted lawfully in enforcing National Park Service regulations, and that appellants did not establish a violation of a clearly established right. This same

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record properly can and should be reviewed to conclude that appellants lacked clear and convincing evidence that any of appellees acted with improper motive.

None of the "evidence" cited by appellants' would give a trier of fact a "firm belief or conviction" that their claim of unlawful motive is true. United States v. Montaque, 40 F.3d 1251, 1255 (D.C. Cir. 1994). Rather, the only record "evidence" of unlawful motive consists of appellants unsupported assertions that appellees acted with intent to violate their rights. On such a record, remand to the District Court to would undermine the very protection from litigation and discovery qualified immunity is intended to provide. Crawford-El does not eviscerate this protection; rather it confirms that a Bivens litigant must come forward in the motion phase with evidence that clearly and convincingly demonstrates that the government officials were animated by an improper motive. 93 F.3d at 815. In this case, appellants did not present such evidence.

II.

The extensive record developed in the District Court provides ample basis for this Court to review appellants' claims under the standards established by Crawford-El. Such review demonstrates that the Distridt Court was correct in its dismissal of appellants

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claims, and that the judgment of the District Court should be affirmed summarily.

ERIC H. HOLDER, JR.
United States Attorney

R. CRAIG LAWRENCE
Assistant United States Attorney

KIMBERLY N. TARVER
Assistant United States Attorney


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing motion has been mailed, postage prepaid, this 12th day of November 1996, to:

William Thomas
P.O. BOX 27217
Washington, D.C. 20038

KIMBERLY N. TARVER
Assistant United States Attorney
Judiciary Center Building
555 4th Street, N.W., l 0th Floor
Washington, D.C. 20001
202-514-7141