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