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.]
2
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)
3
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.]
4
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.
5
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
6
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
7
motion for reconsideration. (R, 49-50). This appeal followed.