Reply to Appellant's Opposition

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

REPLY TO APPELLANT'S OPPOSITION TO FEDERAL APPELLEES' MOTION FOR SUMMARY AFFIRMANCE

On November 13, 1995, federal appellees, United States of America, United States Secret Service, and Robert Rubin, Secretary of the Treasury, moved 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' motion for summary judgment. Appellant has responded to that motion by conceding certain claims and arguing that other claims are not appropriate for summary disposition. On the contrary, the District Court's well reasoned decision amply demonstrates that full briefing and argument in this case is unnecessary. Accordingly, for the reasons set forth in that decision, and those advanced by federal appellees in their motion for summary affirmance, federal appellees' motion should be granted.

I.
A. Appellant Concedes That Summary Affirmance Is Appropriate With Respect To Alleged Administrative Procedure Act Violations
In his Amended Complaint appellant alleged that the federal

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government's action in restricting portions of streets near the White House on May 20, 1995, violates Sections 553 and 706 of the Administrative Procedure 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. (R. 7). Federal appellees responded by demonstrating that the APA does not apply to the actions taken on May 20th. (R. 10 at 22-27). Indeed, the record below is replete with references to the Federal Register publications regarding Pennsylvania Avenue, issued both by the Department of Treasury, see 60 Federal Register 28435 (May 31, 1995), and by the United States Secret Service, see 60 Federal Register 27882 (May 26, 1995).

Appellant now concedes that based on such publication he "agree[s] that summary affirmance would be appropriate with respect to Counts Five and Six of the Amended Complaint." Appellant's Opp. at 1. Appellant fails to explain, however, why summary affirmance is inappropriate with respect to Counts Three and Four of his Amended Complaint, which also advance claims under the APA.

In Count Three appellant alleged that the "[d]efendants' actions in restricting access to the areas closed on May 20th violate[d] the APA requirement requiring that proposed rulemakings be published in the Federal Resister." (R. 7 at 9). In Count Four appellant alleged that federal appellees had violated the "APA requirements for public comment on proposed

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regulations.R (Id.)

In the District Court federal appellees explained that the APA does not apply to the action taken restricting the streets at issue, because that action does not constitute a "rule," within the meaning of the APA. (R. 10 at 22-23). Moreover, even if the action were deemed a "rule" under the APA, the public property exception found at 5 U.S.C. S 553(a) applies.

Since appellant freely admits in his opposition brief in this Court that he harbors no opposition to summary affirmance in connection with Counts Five and Six alleging APA violations, and he raises no arguments concerning any other APA claim, federal appellees are clearly entitled to summary affirmance with respect to all claims raising APA violations.
B. The Record Developed Below Fully and Accurately Apprised The Court Of Federal Appellees' Actions Concerning The White House Perimeter on May 20, 1995 And Thereafter.
In his opposition brief,. appellant argues that significant information was intentionally miscast, or omitted, by appellees which denied him a full consideration of the various actions taken at or around the White House perimeter on May 20, 1995 and thereafter. Specifically, appellant charges that the maps submitted in District Court by federal appellees misrepresent the extent of street restrictions, as "both Jackson Place and Madison Place have also been closed," and "Lafayette Park has been surrounded by concrete barriers." Appellant's Opp. at 4. Appellant further asserts that "appellees offer no reason for concrete barriers around [Lafayette] park." Id. at 5. Indeed,

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he claims that these "are not issues appellees' have addressed" below. Id. at 4.

On the contrary, similar to the numerous Federal Resister publications discussed, supra, appellant misunderstands the record. Appellant has simply failed to consider record submissions again, both his and those by appellees, that are relevant to both Jackson Place and Madison Place, as well as the security measures taken around Lafayette Park. In fact, in District Court federal appellees submitted a thirteen-page affidavit by the Secret Service's Assistant Special Agent In Charge for the Washington Field Office, who was directly responsible for implementing the White House perimeter security measures and coordinating the federal actions with the District of Columbia Government, the Metropolitan Police Department and Metrobus. This declaration [Vint Declaration] fully addressed appellant's concerns regarding the actions taken.

With respect to the accuracy of the maps, the Vint Declaration notes that the maps attached to the Federal Register publications of May 26 and 30, 1995, only reflect the street restrictions implemented directly by the Secret Service consistent with the White House Security Review's recommendation, and in compliance with the Secretary's May 19 Order to the Director. (R. 44, Vint Declaration, ¶ 9). As such, the limited vehicular access restrictions existing for years prior to May 20, 1995, on Jackson Place, N.W., were not included in the relevant Federal Register publications. According to the Vint

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Declaration, which addressed all the streets contiguous to the White House, "only vehicles bearing an authorized parking permit were permitted to enter [Jackson Place, N.W.] before the May 20 action." (Id.) Since the Secret Service had taken no action that changed the limited access status of any of these streets, the Federal publications did not address such streets.

The Vint Declaration also addresses Madison Place. In coordinating the May 20 action, the Secret Service met with District of Columbia municipal officials numerous times, both before and after the May 20 action. ((R. 44, Vint Declaration, ¶¶ 6-10)· In particular, the Secret Service met with representatives of the Metropolitan Police Department and the Department of Public Works. (Id. at 9 8). Since May 20, the Secret Service has also met with representatives of the Washington Metropolitan Area Transportation Authority - Metrobus. (Id. at ¶ 10).

The result of these discussions was that both Madison Place, between H Street, N.W. and Pennsylvania Avenue, N.W., and the 1500 Block of Pennsylvania Avenue, N.W., between Madison Place, N.W. and 15th Street,.N.W., are open to limited vehicular traffic. Only police, fire, and ambulance, motorcade, and Metrobuses may use Madison Place. (Id. at ¶ 9). Madison Place is now used to stage approximately seven Metrobus lines= in total approximately 159 Metrobus trips use Madison Place during peak traffic hours. (Id. at ¶ 13). Traffic using Madison Place now moves in only a southerly direction, in order to accommodate the

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various traffic direction changes made on surrounding city streets. (Id. at 4 12).

The changes made to Madison Place were announced in a "Notice of Emergency and Proposed Rulemaking" issued by the District of Columbia Department of Public Works, pursuant to the District of Columbia Administrative Procedure Act. This rulemaking implemented the limited vehicular access restrictions relevant to Madison Place discussed above. (Id. at 9 12 & Exh. A).

Finally, appellant persists in asserting that somehow Lafayette Park has been closed and that no rational explanation has been provided as to why intermittent concrete barriers have been placed along the Park's eastern, western and northern boundaries. As federal appellees noted in District court, Lafayette Park has not been closed because access to the Park remains as open as it was before May 20th. (R. 10 at 30). Appellant does not seriously dispute that pedestrians remain free to enter, enjoy and exit Lafayette Park as they did before the May 20th action. Moreover, the rationale for the intermittent concrete barriers is obvious; the barriers would prevent a bombladened vehicle from entering the Park and making its way to the White House. This security interest is no less compelling than the need to restrict vehicular access on Pennsylvania Avenue near the White House.

C. The District Court Properly Denied Appellant's Motion To Consolidate.
Appellant also argues that the District Court's denial of

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his motion to consolidate this case with Thomas v. United States, No. 95-5340 (D.C. Cir.) (appeal docketed Sept. 29, 1995) [Thomas 1], is not "ripe for summary affirmance," Appellant's Opp. at 11.[1]

Under Fed. R. Civ. P. 42, a district court may consolidate "actions involving a common question of law or fact" in order to avoid unnecessary costs or delay. Id. In the District Court, appellant conceded that Thomas 1 consists of an action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1970), alleging constitutional violations from appellant's presence in Lafayette Park. Moreover, the defendants in Thomas 1 consist of the United States Park Service, two Park Police officers, and a Park Service employee. None of these individuals or the Park Service are defendants in the instant case.

Additionally, appellant's claims in Thomas 1 relate to his activities in Lafayette Park, including his challenge to the manner in which the Park Police is enforcing its signs and structure regulation and its camping regulation. None of these issues is present in the current case. Rather, the instant case involves action by the United States Secret Service in restricting vehicular access to certain streets surrounding the White House Complex.

Because there are no common issues of fact or law that would warrant consolidating these two cases, the District Court


[1 This issue was not identified by appellant pro se as an issue to be raised on appeal.]

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properly denied appellant's motion to consolidate.

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 United States Attorney

_________________________
MARINA UTGOFF
Assistant United States Attorney