The accompanying Declaration of Norbert E. Vint [Vint
Decl.], Assistant Special Agent in charge of the Secret Service's
Washington Field Office, explains the discrepancy plaintiff
identifies between the maps published in the Federal Register and
the street restrictions as they exist today. As Mr. Vint
explains, consistent with the Secretary's May 19, 1995 Order, on
May 20, 1995, the Secret Service restricted general public
vehicular traffic on Pennsylvania Avenue, N.W. between Madison
Place, N.W.,and 17th Street, N.W., State Place, N.W., and the
segment of South Executive Avenue, N.W. that connects into State
Place, N.W. Vint Decl. 8 9. However, prior to and subsequent to
this action the Secret Service and representatives from the
Department of the Treasury had met with District of Columbia
officials to discuss the street restrictions and the traffic
congestion that was expected to result. In light of these
considerations, action was taken to restrict general vehicular
access at Madison Place, N.W., between H Street, N.W. and
Pennsylvania Avenue, N.W., as well as in the 1500 Block of
Pennsylvania Avenue, N.W., between Madison Place, N.W. and 15th
Street, N,W. Id. This action was reflected in the District of
Columbia's rulemaking notice. See Vint Decl., Exh. A. Moreover,
contrary to plaintiff's claim, no action was taken with respect
to Jackson Place, N.W.; this street already had limited vehicular
access prior to the May 20th action. Id. Further, it should be
noted that all of these streets may still be accessed without
restraint by pedestrians, as well as necessary authorized
The restricted access in Madison Place, N.W. and the 1500
Block of Pennsylvania Avenue, N.W. has been the subject of
rulemaking by the District of Columbia's Department of Public
Works [DPW]. Vint Decl, ¶ 11 & Exh. A. As the DPW's Notice
states, "[t]his emergency action is being taken to provide the
immediate preservation of the public health, safety and welfare."
Thus, contrary to plaintiff's claims that defendants have
been busily closing additional streets and attempting to mislead
the public concerning their actions, in fact defendants have only
restricted general vehicular access to streets where such access
posed a potential threat to the President and other occupants and
visitors of the White House Complex from explosive devices
carried by vehicles and where, with consultation with District of
Columbia officials, such restrictions were necessary to address
traffic flow patterns and transportation problems. Any action
taken was promptly announced to the public through both the
Federal Register, see Fed. Defs. Mem., Exhs C-D, and District of
Columbia rulemaking. Vint Decl. Exh. A. The Federal Register
Notices and the Vint Declaration make plain that plaintiff's
claims of inappropriate street restrictions based on which
streets have actually been restricted is without merit.
II. Plaintiff Has Failed to Demonstrate Any
Error With Respect to The Intermittent
Barriers Around Certain Portions of
In federal defendants' previous memorandum, federal
defendants pointed out that U.S.C. S 3056(a)(1)-(2), (c)(1) (F),
and 3 U.S,C. § 202 also authorized the placement of intermittent
barriers around certain portions of Lafayette Park. Id. at 11-
12. Plaintiff does not dispute this. Although plaintiff does
appear to argue that defendants have failed to demonstrate a
nexus between their security concerns and the need for the
intermittent barriers in the Park, plaintiff's Amended Complaint
does not seek relief from those barriers; plaintiff only seeks
relief from any "further changes" to the Park. Amended
Complaint, p. 2; Plaintiff's Opp. at 2.
Although federal defendants believe that the need for such
barriers to prevent vehicles from gaining access to the area near
the White House Complex is clear, see Fed. Defs. Mem. at 11-12,
plaintiff has failed to address defendants' argument that he
lacks standing to raise any challenge to any of the changes made
by the May 20, 1995 action, including the placement of the
intermittent barriers. See Fed. Defs. Mem. at 14-16. Plaintiff
has certainly alleged no facts that indicate he has been
adversely affected by these intermittent concrete barriers.
While he states that the barriers enclose" the Park and thus it
is not "open,R see Plaintiff's Opp. at 36, he does not allege any
facts that show his activities have been adversely affected by
these barriers. Absent a showing that he has been personally
injured by the action taken, the law is clear that plaintiff
lacks standing to raise such a challenge. See, e.s., Lujan v.
Defenders of Wildlife, 112 S. Ct. 2130 (1992); Branton v. FCC,
993 F.2d 906, 908 (D.C. Cir. 1993).
Federal defendants also demonstrated that plaintiff's claim
that defendants plan to replace these barriers with more
permanent structures resulting in a closure or restriction of
access to the Park was speculative and not ripe for review. Fed.
Defs. Mem. at 12-13. Plaintiff responds that because the
intermittent barriers are presently in the Park, the issue of
whether defendants may make further changes is in fact "ripe for
discussion,p Plaintiff's Opp. at 36.
On the contrary, absent a final agency action with respect
to what any future changes might consist of, this Court has no
agency action before it to review. Plaintiff provides no support
for the novel proposition that this Court should guess what
future action federal defendants might take with respect to
Lafayette Park and then issue a ruling with respect to any such
hypothetical action. Indeed, such a ruling would run directly
counter to the Supreme Court's admonition in Abbott Caboratories
v. Gardner, 387 U.S. 136 (1967), that courts should avoid
entangling themselves in abstract disagreements over
administrative policies" that have not been solidified in a
formal administrative decision and "felt in a concrete way by the
challenging parties." Id. at 148-49.
III. Plaintiff Has Failed to Demonstrate Any
Violation of His First Amendment Rights.
While most of plaintiff's opposition brief addressing his
First Amendment claims in relation to his arrest by the D.C.
Police, plaintiff does make broad allegations that federal
defendants have also violated his First Amendment rights.
Plaintiff argues that the facts in this case, presumably
including the street restrictions enacted by the federal
defendants, have been designed "to circumvent the First
Amendment." Plaintiff's Opp. at 38. Plaintiff also argues in
general that the First Amendment has been violated by
"restricting access to the symbol of our free and Democratic
nation," Id. at 33.
As explained in federal defendants' previous memorandum,
plaintiff has simply failed to show that any action taken by the
federal defendants has impinged upon his First Amendment rights.
Federal defendants have restricted only general vehicular access
to certain streets surrounding the White House Complex.
Plaintiff, however, is still free to walk into those streets and
spread his message, as long as the manner in which he chooses to
convey his message does not violate any local or federal laws.
In addition, plaintiff does not allege that he has been forbidden
from maintaining a presence on the White House sidewalk and
southern part of Lafayette Park where he has been since 1981.
Amended Complaint at 2. Plaintiff does not allege that federal
defendants have prohibited him from communicating with members of
the public. Consequently, plaintiff has failed to state a claim
of a First Amendment violation stemming from any action taken by
Even if plaintiff's Amended Complaint can be read to state
such a claim, federal defendants have demonstrated that the
street restrictions are valid time, place and manner restrictions
under the First Amendment. Fed. Defs. Mem. at 18-22. See also
ISKCON v. Kennedy, No. 93-5301 (D.C. Cir. Aug. 8, 1995) (content
neutral regulations will be upheld as valid time, place and
manner restrictions when narrowly drawn to serve significant
governmental interest). Plaintiff has not responded to this
argument and thus it should be taken as conceded. Cf. Rule
108(b) of the Rules of the United States District Court for the
District of Columbia [Local Rules] (Court may treat motion for
summary judgment as conceded if opposing party fails to respond).
Consequently, plaintiff's First Amendment claims in
connection with the May 20th street restrictions should be
IV. Plaintiff's Remaining Claims Must Be
In his Amended Complaint plaintiff alleges that the federal
government's action in restricting portions of streets on May 20,
1995, violates Sections 553 and 706 of the Administrative
Procedures Act [APA] because no proposed rule was published in
the Federal Register for notice and comment, no final rule was
published with a thirty-day delay before taking effect, and the
decision to close the streets was arbitrary and capricious.
Federal defendants responded by demonstrating that the APA does
not apply to the actions taken on May 20th. Fed. Def. Mem. at
22-27. Plaintiff has failed to respond to defendants' showing
and thus the issue should be considered conceded. Cf. Local Rule
Plaintiff also alleged in his Amended Complaint that
defendants had violated the National Environmental Policy Act
[NEPA] by failing to prepare an Environmental Impact Statement
[EIS] before undertaking a major federal action that
significantly affects the quality of the human environment.
Federal defendants responded that they had complied with NEPA
regulations enacted by the Council on Environmental Quality [CEQ]
at 40 C.F.R. § 1500 et seq., and that the street restrictions
qualified under the emergency provision found at 40 C.F.R. §
1506.11. Fed. Defs. Mem, at 28-29. In addition, the Department
of the Treasury has begun working with the Federal Highway
Administration to prepare an environmental assessment in
compliance with NEPA.
Plaintiff responds that the Court should issue an injunction
requiring an Environmental Impact Study before any "further
action" is taken with respect to Lafayette Park. Plaintiff's
Opp. at 35. Again, as explained above, see supra at 8, plaintiff
is requesting this Court to rule in the absence of any planned
government action with respect to Lafayette Park. Such claims
are simply not ripe for review. Without knowing what, if any,
further action may be taken with respect to Lafayette Park, it is
impossible to determine whether such hypothetical, unknown action
would require an Environmental Impact Study. Plaintiff's claim
in this regard is clearly without merit.
Plaintiff alleges in count Eight of his Amended Complaint
that the street restrictions on May 20, 1995 violate the
requirements of 36 C.F.R. § 1.5, which regulates the closing of
public parks and explains the circumstances under which such
closing may occur. Amended Complaint at 10-11. Plaintiff's
failure to respond to federal defendants' argument on this issue,
see Fed. Defs. Mem. at 30, renders this issue conceded as well.
Accord Local Rule 108(b).
In Count Nine of the Amended Complaint plaintiff alleges
that defendants' actions with respect to the APA, the NEPA and 36
C.F.R. § 1.5 have denied plaintiff due process, in violation of
the Fifth Amendment. Plaintiff's failure to respond to federal
defendants' argument on this issue, see Fed. Defs. Mem. at 30,
renders this issue conceded as well. Accord Local Rule 108(b).
Finally, in their previous memorandum federal defendants
noted that plaintiff cites to Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1970), in his Amended Complaint
but that he had raised no Bivens allegations against any federal
defendant, Fed. Defs. Mem. at 31. Plaintiff responds by
discussing at length alleged Bivens claims against defendant D.C.
Officer Captain Michael Radzilowski. Plaintiff's Opp. at 23-27.
Since defendant Radzilowski is not a federal employee, and
plaintiff has failed to plead any facts that could give rise to a
Bivens claim against any federal employees, plaintiff's Bivens
claim against the federal defendants also must be dismissed.
For the reasons stated above, and those set forth in federal
defendants' previous memorandum, plaintiff's Complaint fails to
state a claim upon which relief can be granted. Accordingly, his
Amended Complaint should be dismissed, or in the alternative, the
Court should enter summary judgment in favor of defendants.
ERIC H. HOLDER, JR., D.C. BAR #303115
United States Attorney
MARINA UTGOFF BRASWELL D.C. #416587
Assistant Unite States Attorney
CERTIFICATE OF SERVICE
I certify that a copy of federal defendants' reply to
plaintiff's opposition to federal defendants' motion to dismiss
or for summary judgment was served upon plaintiff by first-class
mail, addressed to:
Mr. William Thomas
2817 11th Street, N.W.
Washington, D.C. 20001
on this 23 day of August, 1995.
MARINA UTGOFF BRASWELL, D.C. Bar #416587
Assistant United States Attorney
Judiciary Center Building -- Rm. 10-820
555 4th Street, N.W.
Washington, D.C. 20001