Federal Appellees' Motion for Summary Affirmance - Continued

II.

The District Court's decision granting federal appellees' motion for summary judgment is so plainly correct that it warrants summary affirmance.
A. The District Court Correctly Determined That Appellant Lacks Standing to Challenge The Action Taken By Federal Appellees.
It is well settled that Article III of the Constitution "limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies.'" Vallev Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471 (1982). At an "irreducible minimum," Article III requires that the nparty who invokes the court's authority . . . show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," that the injury "fairly can be traced to the challenged action," and that the injury "is likely to be redressed by a favorable decision." Id. at 472. See, e.g., Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992); Branton v. FCC, 993 F.2d 906, 908 (D.C. Cir. 1993). As the District Court properly noted, the "burden is on the plaintiff to allege facts sufficient to support standing." United Presbvterian Church in the USA v. Reagan, 738 F.2d 1375, 1383 (D.C. Cir. 1984); (R. 46, slip op. at 10).

This Court stressed in Albuquersue Indian Riqhts v. Lujan, 930 F.2d 49 (D.C. Cir. 1991), that

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[n]o more fundamental component of standing doctrine exists than the requirement of a Dresentlv demonstrable injury in fact directly traceable to the defendant's supposedly unlawful actions.
Id. at 54 (emphasis added). The injury must be "'distinct and palpable' (citation omitted), and not 'abstract' or 'conjectural' or ~'hypothetical.'" Id. Accord The Humane Society of the United States v. Babbitt, 46 F.3d 93, 96 (D.C. Cir. 1995).

Prudential standing requires a party seeking relief for an alleged violation of a federal statute to demonstrate that nthe injuries they assert fall within the 'zone of interests' of the relevant statute." Animal Legal Defense Fund, Inc. v. Espy, 23 F.3d 496 (D.C. Cir. 1994). The "zone of interests~ test embodies the ~prudential concern that federal courts should not adjudicate generalized concerns." ~Id. at 499. Thus, a would-be plaintiff must establish that his particular interest falls within the interests Congress intended to protect. Legal Assistance for Vietnamese Asylum Seekers v. Department of State, 45 F.3d 469, 471 (D.C. Cir. 1995). See also Florida Audubon Society v. Bentsen, 45 F,3d 469, 471 (D.C. Cir. 1995) (to have standing under NEPA plaintiff must show alleged non-compliance with NEPA has created a risk that serious environmental impacts will be overlooked and that he may be expected to suffer whatever environmental consequences the project may have).

The District Court correctly concluded that appellant failed to allege any facts demonstrating that he has been adversely affected by the street restrictions surrounding the White House

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and the barriers erected around Lafayette Park.

As the District Court noted, appellant did not allege that he drives in this area, and thus has been aggrieved by the street restrictions, (R. 47, slip op. at 11). Rather, appellant alleged that he maintains a permanent presence in Lafayette Park. (R, 7, Amended Complaint at 2). He did not allege that the May 20th action has forced him to move from his location in Lafayette Park or that the action has prohibited people from coming into the Park to hear his message. He did not allege that serious environmental impacts may follow the street restrictions on May 20th or that the potential for such impacts would be overlooked as the federal government considers the future of this area; on the contrary, he alleged that an Environmental Impact Statement is scheduled to be performed during this process. (Id., Amended Complaint ¶ 13).

Appellant's failure to allege any concrete injury to himself from the May 20th street restrictions demonstrates his lack of standing to raise any claims associated with this action. Accordingly, the District Court properly granted summary judgment to federal appellees.

Nevertheless, even had the District Court found that appellant had standing to raise the issues complained of, summary judgment for federal appellees still would have been appropriate.
B. Appellant's Claims Under The Administrative Procedure Act Fail To State A Coqnizable Claim.
In Counts Three through Six of the Amended Complaint, appellant alleged that the federal government's action in

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restricting access to certain portions of streets on May 20, 1995, violates Section 553 of the APA because no proposed rule was published in the Federal Register for notice and comment and no final rule was published with a thirty-day delay before taking effect. Appellant's claim, however, erroneously assumed that the APA applied to the actions taken on May 20th.

On the contrary, the Secretary's restriction of general vehicular access to the streets at issue for the protection of the President is not a nrule~ within the meaning of 5 U.S.C. S 551(4). The APA defines a "rule" as "an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy~ or one which "describ[es] the organization, procedure or practice requirements of an agency . . . ." An "isolated agency act, which in no way propose[s] to effect or govern subsequent agency acts or decisions," is not considered a "rule" within the meaning of the APA. Daingerfield Island Protective Society v. Babbitt, 823 F. Supp. 950 (D.D.C. 1993), aff'd mem. 15 F.3d 1159 (D.C. Cir. 1993).

The Secretary's action in restricting public vehicular access to the streets at issue is isolated agency action that does not effect or govern subsequent agencyaction or decisions. Rather, the action was a specific response to unique facts carried out pursuant to the Secretary's statutory authority to

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protect the President. [3] See 18 U.S.C. § 3056(a) (1)-(2); 3 U.S.C. § 202.

Moreover, even if the Secretary's action in restricting certain streets constituted a "rule" under the APA, it still would have been exempt from the APA's requirements of publication for notice and comment and thirty day delay before becoming effective. The rulemaking provision of the APA states:
(a) This section applies, according to the provisions thereof, except to the extent that there is involved
***
(2) a matter relating to agency manage- ment or personnel or to public propertv, loans, grants benefits, or contracts.
5 U.S.C. § 553(a) (emphasis added). The Attorney General's Manual on the Administrative Procedure Act, 27 (1974), defines the "public property" exemption as follows:
Public Property. This embraces rules issued by any agency with respect to real or personal property owned by the United States. Thus the making of rules relating to the public domain, i.e., the sale or lease of public lands, or of mineral, timber or grazing rights in such lands, is exempt from the requirements of Section 4.
See Duke City Lumber Co. v. Butz, 382 F. Supp. 362, 373 (D.D.C. 1974) (quoting the above language), aff'd in part, 539 F.2d 220 (D.C. Cir. 1976), cert. denied, 429 U.S. 1039 (1977). See also,

[3 Indeed, in light of the fact that the street restrictions were based on exigent circumstances, it would have made no sense for the Secretary or the Director to engage in rule-making on the subject, therebv giving would-be terrorists advance notice that their opportunities were about to be foreclosed.]

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Story v. Marsh, 732 F.2d 1375, 1384 (8th Cir. 1984); Wilderness Public Riqhts Fund v. Kleppe, 608 F.2d 1250, 1253 (9th Cir. 1979), cert. denied, 446 U.S. 982 (1980).

Although the streets at issue in this case are under the administrative jurisdiction and control of the District of Columbia for purposes of maintenance and police jurisdiction and other matters of local concern, see Home Rule Act, D.C. Code Ann. SS 1-211 -- 1-299, the streets are located within the National Capital Service Area and remain the property of the federal government. See Techworld Development Corp. v. D.C. Preservation Leaque, 648 F. Supp. 106, 111-14 (D.D.C. 1986); see also R. 10, Exh. G.[4] Accordingly, because the Secretary's action in restricting vehicular access to certain streets within this area relates to public property owned by the federal government, the APA does not require action relating to such property to comply with the APA's rulemaking requirements.

Finally, although the Secretary's action in restricting vehicular access to the streets surrounding the White House does not constitute a rule subject to the APA, the Director of the Secret Service in fact published his action in the Federal Register on May 26, 1995. See 60 Fed. Reg. 27882-27885 (May 26, 1995). Significantly, in that rule the Director stated that even if the APA could be deemed applicable, the action was of such

[4 See also 40 U.S.C. § 136. The National Capital Service Area sets forth the boundaries of what has commonly been described as the federal enclave, a geographic area comprising many of our historical federal buildings, including the White House Complex.]

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urgent nature as to not require notice and comment rulemaking or a delay in the effective date of the rule. Id. at 27885; 5 U.S.C.. §§ 553(b) (B) and (d).

Appellant also alleged that the decision to restrict vehicular access to certain streets was arbitrary and capricious, and thus in violation of Section 706 of the APA. On the contrary, the Background Information on the White House Security Review makes clear that this action was undertaken only after a thorough and detailed analysis of the need for such action. Indeed, the tragedy experienced in oklahoma City amply demonstrates that a decision to protect the President from explosive devices carried by vehicles is clearly not arbitrary and capricious.

The foregoing demonstrates that appellant failed to state a claim under the APA with respect to the May 20, 1995 street restrictions.
C. Appellant's Claims Under The National Environmental Policy Act Were Also Subject to Dismissal.
The National Environmental Policy Act CNEPA] imposes a duty upon federal agencies to prepare an Environmental Impact Statement [EIS] before undertaking a major federal action that significantly affects the quality of the human environment. National Ass'n of Government Employees v. Rumsfeld, 413 F. Supp. 1224, 1229, (D.D.C. 1976), aff'd without opinion sub nom. National Ass'n of Government Employees v. Brown, 556 F.2d 76(D.C. Cir. 1977). The duties imposed under the statute are essentially procedural and are designed to compel the implementing agency to

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consider environmental issues before taking such action. Sierra Club v. United States Department of Transportation, 753 F.2d 120, 126, (D.C. Cir. 1985). To implement NEPA's mandate, the Council on Environmental Quality [CEQ] has promulgated regulations at 40 C.F.R. § 1500 et seq., which establish uniform procedures for determining whether, when and how environmentaL documentation should be prepared and require agencies to adopt agency-specific NEPA procedures that comply with CEQ regulations.

These regulations contain an emergency provision which permits an agency in appropriate circumstances to proceed with an action without complying with the CEQ regulations. Thus, pursuant to 40 C.F.R. § 1506,11,
[w]here emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.
The necessity found by the White House Security Review to restrict vehicular access to the streets surrounding the White House in order to enhance security of the area clearly qualify as an "emergency" within the meaning of this regulation. Prior to taking this emergency action the Department·of the Treasury attempted to consult with the CEQ the night before the street restrictions were put in place. (R. 10, Exh. E). Although such attempts proved unsuccessful, Department officials spoke with CEQ on the first business day following the May 20th action. In

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these discussions the Department explained in general the circumstances underscoring the emergency nature of the street restrictions and the unacceptably high risk of danger to the President, First Family and others in the White House Complex that would have resulted from any delay in taking action. In light of the circumstances, and the Review's conclusion that no acceptable alternative existed other than to restrict access to the streets as done on May 20th, the Department and the CEQ concurred that the situation was an emergency as contemplated by 40 C.F.R. § 1506.11, and that that provision was satisfied with respect to the specific actions taken, (R. 10, Exh. E at 2). Consultation with CEQ regarding future planning related to the area impacted by the street restrictions will continue. Consequently, the foregoing emergency exception amply covers the Secretary's action in restricting access to the streets at issue on May 20, 1995.

D. Appellant's Remaining Claims Were Also Subject to Dismissal.
Appellant alleged 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. (R. 7, Amended Complaint at 10-11). This claim is without merit. As has been noted, no public park has been closed; access to Lafayette Park remains as open as before May 20th. Appellant failed to allege that pedestrians cannot still move freely in and out of the Park as they did before May

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20th; the only change is that the barriers surrounding the Park would prevent a vehicle from entering the Park.

In Count Nine of the Amended Complaint appellant alleged that the federal government's actions with respect to the APA, the NEPA and 36 C.F.R. § 1.5 denied him due process, in violation of the Fifth Amendment. This claim similarly lacks merit. As demonstrated above, the APA does not apply to the action taken on May 20, 1995, nor was compliance with NEPA procedures required in light of the emergency identified. It is axiomatic, no process was due under 36 C.F.R. § 1.5 because no public parks were closed by this action. [5]

WHEREFORE, federal appellees respectfully submit that the District Court's Order should be summarily affirmed.

________________________
ERIC H. HOLDER,
United States Attorney

_______________________
R. CRAIG LAWRENCE
Assistant Uhited States Attorney

_______________________
MARINA UTGOFF BRASWELL
Assistant United States Attorney

[5 Appellant's remaining claims concern his arrest by the D.C. Police. For the reasons set forth by the District Court, federal appellees submit that the remainder of the District Court's opinion also should be summarily affirmed. (R. 47, slip op. at 13-20).]