Federal Appellees' Motion for Summary Affirmance

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No.95-5338

September Term, 1995
USDC No. 95cv01018
William Thomas, et al., Appellants

v.

United States of America, et al., Appellees

MOTION FOR SUMMARY AFFIRMANCE

Federal appellees United States of America, United States Secret Service, and Robert Rubin, Secretary of the Treasury, respectfully move this Court for summary affirmance of the September 14, 1995 Order of the District Court, denying appellant's motion for reconsideration of the Court's August 31, 1995 Order, granting appellees' motions for summary judgment. Summary disposition is- appropriate here because "the merits of this appeal are so clear as to make summary affirmance proper.~ Taxpayers Watchdoq. Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987); Ambach v, Bell, 686 F.2d 974, 979 (D.C. Cir. 1982) (per curiam); Walker v. Washinqton, 627 F.2d 541, 545 (D.C. Cir.) (per curiam), cert. denied, 449 U,S. 994 (1980).

I.

Appellant filed suit challenging an order by the Secretary of the Treasury on May 19, 1995, directing the Director of the United States Secret Service to exclude general public vehicular traffic from portions of certain streets around the White House Complex to enhance security and fulfill his statutory mandate to protect the President and the First Family and the White House

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complex. Appellant also alleged that the Secretary intended to order Lafayette Park to be enclosed with permanent barriers, or to close the Park to members of the public in some unspecified fashion. Finally, appellant challenged his arrest by District of Columbia officials on May 26, 1995, when he placed a structure containing a sign with a seat on it in the closed portion of Pennsylvania Avenue as part of his demonstration activities and refused to remove the structure when ordered to do so by District of Columbia Metropolitan Police [D.C. Police]. (R. 1) [1]

The street restrictions appellant complained of were the end result of a thorough examination of White House security needs, prompted by several recent events demonstrating the need for increased security. The catalyst for the examination occurred on September 12, 1994, when a small airplane crashed onto the South Lawn of the White House, killing the pilot but injuring no one else. This action prompted then-Secretary of the Treasury Lloyd Bentsen to order " a 'thorough and comprehensive' investigation into the circumstances leading to the plane crash,n and to examine "the feasibility of techniques and measures . . . to safeguard the White House Complex and protectees therein from air and ground assaults . . . ." (R. 10, Background Information on the White House Security Review [Background·Information Report], attached as Exh. B, at 1, 3).

A White House Security Review [the Review] was established. The Review members interviewed and received briefings from over


[1 "R" designates items on the District Court docket.]

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250 individuals from various agencies and organizations and examined over 1OOO documents. (R. 10, Exh. B at 22). The Review members also met with groups concerned about public access and consulted with noted architects and urban planners. (Id. at 23). At the conclusion, the Review produced a Classified Report of.over 500 pages, with an appendix of 260 pages, which included a detailed discussion and analysis of the incidents reviewed and air security and ground security at the White House, and which set forth eleven major recommendations. (Id. at 25).

One of the recommendations concerned vehicular traffic around the White House Complex. In particular, the Review found that
[a]fter careful consideration of the information that has been provided, the Review is not able to identify any alternative to'prohibiting vehicular traffic on Pennsylvania Avenue that would ensure the protection of the President and others in the White House Complex from explosive devices carried by vehicles near the perimeter.
(Id. at 45). The Review also recommended, based on the same reasoning, that vehicular traffic on State Place and the portion of South Executive Avenue that connects into State Place also be prohibited. (Id.)

Based on the Review's recommendation, and pursuant to statutory authority, on May 19, 1995, Secretary of Treasury Robert E. Rubin ordered that:
1. The Director, United States Secret Service, is directed to close to vehicular traffic the following streets in order to secure the perimeter of the White House: (i) The Segment of Pennsylvania Avenue, Northwest, in front of the White House between Madison Place, Northwest, and 17th Street, Northwest, and (ii)

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State Place, Northwest, and the segment of South Executive Avenue, Northwest, that cannects into State Place, Northwest.
60 Fed. Reg. 28435 (May 31, 1995). On May 20, 1995, access to the streets arrounding the White House Complex were restricted with respect to general vehicular traffic. 60 Fed. Reg. 27882 (May 26, 1995). The streets remain open, however, to emergency vehicles.

On May 26, 1995, the Secret Service published a Final Rule, explaining that the Secret Service had restricted access to the streets at issue based on the Review's recommendation contained in the Classified Report.[2] 60 Fed. Reg. 27882. As the Director of the Secret Service found, the street restrictions were necessary to provide appropriate protection for the President, the First Family and thbse working in or visiting the White House Complex. The Director also noted that this urgency had been accelerated by recent events, including the bombing of a federal building in oklahoma City. Finding the rule involved a matter relating to public property, the Director concluded that the Administrative Procedure Act's [APA] notice and comment procedures and delayed effective date were not required. Nevertheless, even if such procedures had applied, the Director concluded that notice and public comment for the rule would be "impracticable and contrary to the public interest because any


[2 The Secret Service did not conclude that the action taken constitutes a "final rule' for purposes of the rulemaking requirements of the APA; rather, it merely used publication in the Federal Register as a means of informing the public of its action. 60 Fed. Reg. at 27883 n.l.]

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delay in this action will result in an unacceptably high risk of danger to the President, the First Family, and others in the White House Complex." 60 Fed. Reg. at 27885.

Appellant alleges that he is an individual who allegedly has since 1981 "devoted his life to regularly communicate with the geqeral public on issues of broad concern, in Lafayette Park." (R. 7, Amended Complaint at 2). On May 26, 1995, appellant placed a structure containing a sign and a seat in the restricted section of Pennsylvania Avenue. He was approached by appellee D.C. Police Captain Michael Radzilowski, who informed him that he would have to remove his structure from the street. When appellant refused to do so, Captain Radzilowski ordered him to remove his structure. Appellant again refused and was arrested and charged with failure to obey a police officer. (Id., Amended Complaint, ¶¶ 22-34).

Appellant commenced this action in May 1995, claiming that the foregoing actions violated his constitutional rights under the First, Fourth, Fifth and Ninth Amendments to the Constitution, as well as his rights under the APA, the National Environmental Policy Act [NEPA], and 36 C.F.R. § 1.5, which governs the closing of public parks, In June 1995, federal appellees moved to dismiss or, in the alternative, for summary judgment on the grounds that appellant lacked standing to raise any of the claims asserted against the federal government and that the government was entitled to a dismissal or summary judgment on appellant's statutory and constitutional claims. (R.

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10).

By Memorandum Opinion and Order dated August 31, 1995, the Honorable Judge Charles R. Richey granted federal appellees' motion for summary judgment. (R. 47). Judge Richey concluded that appellant "does not have standing to challenge the action of the Federal Defendants in restricting access to portions of the streets in the vicinity of the White House Complex or in allegedly planning unspecified future restrictions." (Id., slip op. at 9).

Judge Richey began his analysis by invoking the well established principle that in order to have standing to sue a plaintiff must have suffered an "'injury-in-fact,'" which is "'(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.'" (Id., citing United States v. Havs, No. 94-558, slip op. at 6 (U.S. June 26, 1995)). Moreover, Judge Richey noted that the plaintiff bears the burden of demonstrating the causal connection between the injury alleged and the conduct of the defendant and that the injury can be redressed by virtue of a favorable decision. (R. 47, slip op. at 9-10).

Judge Richey concluded here that, by voicing mere "generalized grievances and concerns . . . the Plaintiff has failed to allege facts that demonstrate that he, personally, has been adversely affected in a concrete and particularized manner by the traffic restrictions..." imposed by federal appellees. (Id., slip op. at 10-11). Judge Richey found that appellant had

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not alleged that he drives in the area and thus has been affected by the rerouted traffic flow. Nor had appellant alleged that the restrictions had forced him to change his demonstration location in Lafayette Park or impeded public access to the Park to witness his vigil. Indeed, Judge Richey observed that the barriers cuSrently in place around Lafayette Park allow pedestrian entry to the Park and that the Background Review had concluded that the street restrictions "'should significantly enhance the accessibility of the White House to visitors.'" (R. 47, slip op. at 11, quoting from the Background Review at 45-46 (emphasis added by the Court)), Judge Richey also found that appellant had failed to identify any adverse environmental impacts that the street restrictions would impose on him. (R. 47, slip op. at 11).

With respect to appellant's claims concerning future plans for the area surrounding the White House Complex, Judge Richey found that appellant's "vague allegations~ that future unspecified action would violate his First Amendment rights by chilling the exercise of his right to free speech failed to demonstrate nactual or imminent harm" to appellant. Finding that appellant thus had failed to assert anything more than "generalized and conjectural grievances, of·the type not cognizable by the federal courts," Judge Richey granted federal appellees' motion for summary judgment. (R. 47, slip op. at 12- 13).

On September 14, 1995, Judge Richey denied appellant's

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motion for reconsideration. (R, 49-50). This appeal followed.