Memorandum in Reply to Plaintiff's Opposition


William Thomas, et. al.       |   
      Plaintiffs pro se,      | 
       v.                     |          C.A. No. 95-1018
                              |       Judge Charles R. Richey
The United States, et. al.    |      
      Defendants.             | 



In this suit challenging the action on May 20, 1995, by the Director of the United States Secret Service restricting access to portions of certain streets around the White House complex to general public vehicular traffic, federal defendants moved to dismiss or, in the alternative, for summary judgment. In that motion federal defendants demonstrated that the action taken was necessary in order to enhance security for the President and others occupying and visiting the White House Complex and that none of plaintiff's statutory and constitutional rights were violated as a result of this action.

Plaintiff's opposition to federal defendants' motion [Plaintiff's Opp.], however, is predominately concerned with his arrest by the District of Columbia Metropolitan Police [D.C. Police], following the street restrictions, which involved no federal personnel. Plaintiff's failure to address many of federal defendants' arguments with respect to other claims raised by plaintiff in his Amended Complaint renders those arguments


abandoned and subject to dismissal for the reasons advanced by defendants. To the extent plaintiff does address his claims against the federal defendants, his argument essentially is that federal defendants' explanation of the street restrictions at issue is insufficient and the action taken has violated his First Amendment rights.

On the contrary, the Background Information on the White House Security Review [Background Information Report], attached to federal defendants' previous memorandum [Fed. Defs. Mem.] as Exhibit B, provides an ample explanation of the need for the action taken on May 20, 1995. In addition, plaintiff has failed to demonstrate that the street restrictions at issue and the intermittent concrete barriers placed in Lafayette Park, which affect only general vehicular access to these areas, have impinged upon any of his First Amendment rights.

Consequently, for the reasons set forth below, and those advanced in federal defendants' previous memorandum, federal defendants respectfully submit that their motion should be granted and this case dismissed.


I. Plaintiff Has Failed to Demonstrate Any
Error With Respect to The Closing of Portions
of Certain Streets to General Public Vehicular
Traffic on May 20, 1995.

In their memorandum federal defendants argued that the street restrictions were well within the authority of the Secretary of the Treasury and the United States Secret Service, pursuant to 18 U.S.C. S 3056(a)(1)-(2), (c)(1)(F), and 3 U.S.C. 202. Fed. Defs. Mem, at 10-12. Plaintiff does not dispute this.


Indeed, plaintiff concedes that "'there is a legitimate public interest in preserving the safety of the President,'" and does not contest the fact that "'protection of the President from explosive devices carried by vehicles' might justify the closing of Pennsylvania Avenue 'to vehicular traffic.'" Plaintiff's Opp. at 2. However, plaintiff argues that defendants have failed to show any link between this legitimate concern and his arrest on May 26, 1995. Id. at 2-4.

Plaintiff's argument mixes apples with oranges. Contrary to plaintiff's apparent claim that his arrest was based on a "fear of 'vehicle carried bombs" which could threaten the ability of the executive branch to carry on its business and respond to any crises that might arise, Plaintiff's Opp. at 7, 30, the concern with such security threats had nothing to do with plaintiff's arrest. These concerns lay at the heart of the decision to restrict access to the streets in question to general vehicular traffic, By contrast, plaintiff's arrest was related to his violation of 24 D.C.M.R. 100.1, which prohibits the unauthorized occupation of a public space such as a street. Fed. Defs. Mem., Exh. A at 31.

Plaintiff's arrest was prompted by his placement of a structure in a closed portion of Pennsylvania Avenue and his refusal to heed a D.C. Officer's order to remove it. Id. Plaintiff's Exhibit V.T., a video-tape of his arrest, amply demonstrates the nature of his structure and its placement in a public space. It is undisputed that plaintiff did not have a


permit to place his structure in this space. But none of this has any bearing on the Secretary of the Treasury's decision to order portions of certain streets surrounding the White House Complex restricted to general vehicular access. These two issues are completely separate; the only ground they have in common is that the street restrictions, by preventing general traffic in the area, permitted plaintiff to attempt to place his structure in the street. Consequently, plaintiff's claims concerning his arrest provide no basis for setting aside the Secretary's decision to restrict access in the manner accomplished on May 20, 1995, nor does plaintiff argue in his opposition brief that that decision should be set aside.

Plaintiff does take issue with the fact that the Background Information Report does not reveal publicly many of the White House Security Review's findings, see Exh. B at 26 to Fed. Defs. Mem., and argues that federal defendants are thus effectively attempting to render their decision "unaccountable to the law." Plaintiff's Opp. at 32. On the contrary, while certain of the Review's findings are classified and cannot be publicly revealed, the extensive public report does in fact discuss in detail certain recent attempts to breach the security of the White House Complex, analyze the threats posed to the White House by explosives transported in vehicles, and sets forth the Review's conclusion that no alternative could be identified to prohibiting general vehicular traffic on the streets surrounding the White House Complex in order to ensure the protection of the President


and others in the White House Complex. Fed. Defs. Mem., Exh. B. Thus, the Review provides ample public record information for this Court to conclude that the decision to restrict access to certain streets surrounding the White House Complex was not arbitrary or capricious.

Plaintiff also disputes the accuracy of the maps submitted by federal defendants documenting the street restrictions at issue. Plaintiff's Opp. at 37-38. Those maps were attached to the Federal Register Notice dated May 31, 1995, announcing the Secretary of the Treasury's May 19, 1995 order to the Director of the Secret Service to restrict access to the streets in question, and to the Federal Register Notice dated May 26, 1995, announcing the Secret Service's May 20, 1995 action. See Fed. Defs. Mem., Exhs. C-D.

Plaintiff correctly notes, however, that additional adjustments to the street restrictions have been made on Madison Place, N.W. See Plaintiff's Opp. at 38. Plaintiff incorrectly states, however, that Jackson "Street" (federal defendants presume that plaintiff means Jackson Place, N.W.) has been closed. Id.

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 vehicles.

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." Id.

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
Lafayette Park.

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 federal defendants.

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 dismissed.

IV. Plaintiff's Remaining Claims Must Be Dismissed.

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 108(b).

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.

Respectfully submitted,

ERIC H. HOLDER, JR., D.C. BAR #303115
United States Attorney

Assistant Unite States Attorney



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.

Assistant United States Attorney
Judiciary Center Building -- Rm. 10-820
555 4th Street, N.W.
Washington, D.C. 20001
(202) 514-7226