Response To Federal Appellees' Reply To Appellant's Opposition To Federal Appellees' Motion For Summary Affirmance

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No.95-5338
(C.A. No. 95-1018)


William Thomas, et al., Appellants

v.

United States of America, et al., Appellees

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

On November 13, 1995, federal appellees represented that "the merits of this appeal are so clear as to make summary affirmance proper" (Motion for Summary Affirmance, pg. 1), and moved this Court to summarily affirm District Court orders of September 14, 1995, and August 31, 1995. On November 29, 1995 appellant filed an Opposition ("Opposition"), on December 14, 1995 federal appellees filed a Reply to appellant's Opposition ("Reply"), to which appellant now responds.

It is important to recall that this action is rooted in a location rightly described by the Committee for the Comprehensive Design Plan for the White House and President's Park as both the "symbol of our free and democratic nation," and the "symbol of openness in government." [1]

Historically, stemming from conflicts over the question of balancing "national security" against "individual rights," this location has been the site of repeated clashes between United States enforcement agencies (e.g., Secret Service and/or U.S. Park

[1 Record at 7, Exhibit 1 & 2, National Park Service, National Park Service, U.S. Department of the Interior.]

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Police/DOI) and the people of this country. See, Opposition, pgs. 6-8, and cases cited. As explained below, appellees' Reply does not resolve factual issues which, among others previously stated, render this case inappropriate for summary disposition.

A. Appellant has Not Conceded That Appellees are Totally Exempt
from All Provisions of the Administrative Procedure Act

Despite counsel's contrary arguments, if anything is "obvious" (Reply, pg. 6) about the tons of concrete barriers surrounding Lafayette Park since appellees' May 20th action, it is that those obstacles do nothing to protect the White House from low flying small aircraft, bomb-laden or not. Record, 47, pg. 2. Less obvious is whether those barricades are a rational reaction to earthbound bomb scares.

Appellant did not originate the concept that officials in authority might "easily mask (an illegitimate) objective by asserting (a legitimate objective)," or that courts "must avoid unquestioned acceptance" of such assertions. City Council v. Taxpayers for Vincent, 104 S.Ct. 2118, 2139 (1984).

Under normal APA procedures, issues of this nature were intended to be addressed through the public comment process. Appellant contends appellees may not forego the APA's public comment requirements, then assert the that rationale of their actions cannot be judicially challenged simply because appellees determined that their "action" wasn't a "rule."

By stating they have "demonstrat(ed) that the APA does not apply to the actions taken on May 20th" (Reply, pgs. 1, 2), appellees proceeded from a faulty first

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premise. [2] By going on to conclude, "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" (Id., pg. 3), appelles thus arrive at an illogical conclusion.

Appellant realizes that appellees contend their actions cannot be held accountable to the law, because they are doing such an important job, but denies that counsel's arguments have convinced him appellees may place themselves above the law simply by yelling, "bomb-laden vehicle."

The fact that, through ignorance, appellant alleged appellees had violated a certain section of the APA which appellees actually had not violated, does not logically lead to the conclusion that appellees are free to disregard other sections of the APA either with impunity, or judicial blessing. Appellant realizes that law changes, and if this Court chooses to validate appellees' contention, so be it In the meantime, appellant persists in asserting that:

"It is not consistent with the policy of our political institutions, or the manners of the people of the United States, that any ministerial officer, having public duties

[2 Appellant did not concede that appellees can just say the APA doesn't apply to them, and then do whatever they like. Appellant admitted that in connection with Counts Five and Six, summary affirmance was proper because, "When the Complaint in this matter was filed on May 30, 1995, appellant was unaware that appellees had published a public notice in the Federal Register, 60 Fed. Reg. 27882 (May 26, 1995). In light of this fact appellant would agree that summary affirmance would be appropriate with respect to Counts Five and Six of the Amended Complaint. Record at. 7." Opposition, pg. 1.]

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to perform, should be above the compulsion of the law, in the exercise of those duties." Marbury v. Madison, 1 Cranch 149 (1803). [3]
B. The Record Appellees Developed Below is Neither a Full
nor Accurate Representation of the Issues at Bar,
And the Vint Explanation Does not Resolve the Deficiencies,
While Introducing another Problem

Appellees note appellant's claim that "significant information was intentionally miscast, or omitted," and, more "specifically, appellant charges that the maps submitted in District Court by federal appellees misrepresent the extent of street restrictions ... and (the fact that) Lafayette Park has been surrounded by concrete barriers." Reply at 3 (parenthesis added). But, they argue: "Appellant has simply failed to consider record submissions...."

"Submissions," as used in this context, apparently refers to the Declaration of Nobert E. Vint (dated August 21, 1995), which it seems was filed to counter the fact that certain maps published in the Federal Register, and relied upon by appellees in the Court below, inaccurately depict the extent of appellees' actions. Clearly, the Vint Declaration does not establish that the maps are accurate, rather it only offers explanations for the inaccuracies. [4]

The Vint Declaration was introduced on August 23, 1995, as the Exhibit appended to Defendants' Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss or for

[3 Alternatively, assuming the APA does not provide pro se appellant the proper venue for a factual judicial determination, it is the Court's duty to ascertain the proper venue. Haines v. Kerner, 404 U,S. 519, 520 (1972)]

[4 Had appellees explained that the inaccuracies were the result of drafting or typographic errors in the preparation or publication of the map, things would be different, but they didn't and we are discussing the Vint explanations.]

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Summary Judgment. Record, 44. Some of the explanations in the Vint Declaration were unexpected, [5] and imaginative. But, on August 31, 1995, the Court dismissed the case, unless appellant is mistaken, [6] more than five days before appellant's response to the Vint explanation was due.

Therefore, it seems (1) not entirely accurate for counsel to imply that the issues raised by the Vint Declaration were fully briefed, and (2) that the District Court's termination of the case before allowing appellant to respond to the Vint explanations might create an impression of prejudice running contrary to the requirement that the District Court take a plaintiff's "allegations as true." Rueber v. United States, 750 F.2d 1057 (D.C. Cir. 198_).

In addition to unexpected explanations, other evidence in the Record prior to the Vint Declaration, indicates that aspects of other points in the in the Vint explanation, are less clear than to merit summary affirmance of District Court's opinion.

For example, the Vint explanation goes on at some length (Reply, pgs. 3-6) about "coordinating the May 20 action ... with District of Columbia municipal officials." Id. 5. Yet, there is evidence in the Record, disposed of as "moot," [7] which strongly indicates that the District of Columbia City Council was far less than entirely satisfied with the degree of coordination, because, "Secret Service officials ... met privately with Council

[5 As no action is without reaction, appellant was surprised to see appellees imply that no effects had resulted from the changes they enacted with respect to Jackson Place, (Reply, pg. 6.), and had been preparing to address that assertion in particular.]

[6 Unless appellant is mistaken, under the F.R.C.P. he should have been allowed ten days, plus three days for delivery by mail, within which to reply to the Vint Declaration.]

[7 Record, 46, pg. 2.]

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members earlier in the week (but they) declined to participate (later). They say they can override local and federal laws to protect the president." Record 30, Videotape Exhibit, Segment: 5: 1m 22s - 2m 27s (parenthesis substituting). [8]

"Finally," appellees assert, "appellant persists in asserting that ... intermittent concrete barriers have been placed along the Park's eastern, western and northern boundaries.... Moreover," appellees go on to insist, "the rationale for the intermittent concrete barriers is obvious; the barriers would prevent a bomb-ladened vehicle from entering the Park and making its way to the White House." Reply, pg. 6.

Because the Vint explanation makes no reference to these "intermittent concrete barriers," which are not mentioned in the Background Security Review, or anything else appellees have submitted to the Record, the Court should not allow itself to be swayed by counsels' "obvious" argument alone.

As clearly indicated by appellee Radzilowsi's testimony at the TRO hearing (Record 9), upon which the District Court took the position that placement of an "obstruction to travel" in a "street closed to vehicular traffic," even a light "barrier" can be considered enough of an "injury" to justify the arrest of an individual.

Because counsel has not addressed the seeming logical contradiction of how the placement of a barrier, on a small scale, is a crime for appellant, but when done by appellees on a much larger scale it becomes a heroic act, [9] it is not clear how

[8 For the Courts' convenience, as part of his Motion for Judicial Notice (Record, 30), appellant also filed a "Index of Videotape Exhibit."]

[9 If appellees are correct, by preventing the placement of appellant's sign/obstacle 15 feet closer to the White House, they have preserved "the ability of the executive branch to function in an orderly fashion and the capacity of the United States to respond to threats and crises affecting the entire free world." Record at 10 (Memorandum), pg. 10.]

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appellees' placement of many "intermittent (perhaps) barriers" all around the Park can be considered as any other than an "injury" to "the symbol of our free and democratic nation," and "openness of government," not to mention appellant's unimpeded exercise of free expression in, and ingress or egress to and from the Park.

Notwithstanding the lower Court's opinion "that this plan should significantly enhance the accessibility of the White House to visitors," [10] it is by no means clear (1) what facts support this notion, (2) how it might effect Lafayette Park, (3) whether these assumedly porous "barriers" are actually an "obvious" necessity, or even (4) just how "intermittent" these admitted "concrete barriers" might be.

On a Record with no clear answers to such simple questions, and particularly if one also considers that "the court must consider the pleadings, related documents, and evidence in a light most favorable to the non-moving party," it is not so clear that the District Court did not err in granting summary judgment. Adickes v. Kress C Co., 398 U.S. 144 (1970).

[10 Record at 47, pg. 11, citing Record at 10, pgs 45-46, emphasis in the original.]