USDC Cr. No. 84-3552


v.                               Civil Action No. 84-3552         
                       (Oberdorfer, J.)


The American Civil Liberties Union of the National Capital Area respectfully submits this brief as amicus curiae pursuant to a request made by the Court at a status hearing held on March 26. 1986, at which counsel for amicus was present. [1] Amicus understood the Court's request to be for a brief that would assist the Court in its consideration of plaintiff's then-pending motion for a preliminary injunction and of the federal defendants' motion for judgment on the administrative record. This would have involved a presentation of the ACLU's views on the facial constitutionality of the new Lafayette Park regulations, published at 51 Fed. Reg. 7556 (March 5, 1986). However, subsequent developments appear to have made the filing

[1 We note our appreciation both to the plaintiff and to defense counsel for having provided us very promptly with copies of the relevant papers and of the voluminous Administrative Record.]


of such a brief inappropriate. Amicus begs the Court's pardon for not having filed a brief along the lines that the Court expected, and begs its indulgence in accepting this rather different brief, which amicus hopes will be of assistance to the court. [2]

After the March 26 hearing, counsel for amicus had several conversations with the plaintiffs in the course of which it became clear that the Court and defense counsel (and, initially, counsel for amicus) had misunderstood both the thrust of plaintiff's motion and the theory of plaintiff's challenge to the new regulations. Ultimately, plaintiff determined that his case would be best served by withdrawing his motion for a preliminary injunction, and amicus understands that a notice of withdrawal of that motion has been or will be filed today. Counsel for amicus offered his services in informally assisting plaintiff to make his position clear to the Court, and plaintiff accepted that offer;[3] counsel accordingly assisted plaintiff in drafting the Memorandum to the Court that amicus understands has been or will be filed today.

[2 The ACLU's views on the constitutionality of the proposed regulations, which have now been promulgated without major change, were set forth -- albeit with only the most sketchy citation of legal; authority -- in the ACLU's comments submitted during the rulemaking. Those comments are in the Administrative Record that has been filed with the Court at pages III,A.3.14 to III.A.3.57.]

[3 Counsel for amicus is unable to represent plaintiff directly for reasons that were made known to the Court last summer. That situation has not changed.]


In light of the withdrawal of plaintiff's motion, and ever more importantly, in light of plaintiff's explanation of the true theory underlying his inclusion of the new regulations in his complaint, it is clear that the federal defendants' motion for judgment on the administrative record is inappropriate. As plaintiff has now explained, he has not attacked the facial validity of the new regulations; rather, he alleges that their promulgation was the latest overt act in furtherance of the conspiracy to violate his civil rights that he has alleged. Counsel for the federal defendants should, accordingly, withdraw their motion at this time. If they do not, the Court should strike the motion as irrelevant, since it addresses an issue that the plaintiff has now explained is not in the case.

In effect -- although quite unintentionally -- the motion for judgment on the administrative record seeks an advisory opinion from this Court that the new regulations pass constitutional muster -- an opinion that the Court has no jurisdiction to grant in the absence of a challenge to the constitutional validity of those regulations brought before the Court by a plaintiff. [4]

[4 If for some reason the Court determines that the issue of the facial validity of the new regulations does remain before the Court, amicus will of course be prepared to submit an additional brief expressing its views on that issue, if the Court so requests.]


Amicus urges the Court to give favorable consideration to the points made in the memorandum filed today by the plaintiff. It appears to amicus that a trial of this case is probably inevitable, sooner or later; the Court has already denied the defendants' motion to dismiss, and amicus understands that plaintiff believes he is able to attest to facts that will make summary judgment for the defendants impossible. While further motions practice might serve to narrow the issues or to eliminate some defendants, it appears more likely that further motions practice will just tie the plaintiff and his case up in an ever-expanding cat's-cradle of procedural string.

The first rule of federal civil procedure admonishes the courts "to secure the just, speedy, and inexpensive determination of every action." Rule 1, F.R.Civ.P. In a pro se case, the Court certainly has broad discretion to manage the litigation and construe the rules so as to assist the unrepresented litigant to get the merits of his case before the Court, Amicus suspects that it will ultimately take less time for the Court and for defense counsel to try this case than to continue to fight over the preliminaries. Accordingly, the Court may wish to consider putting this case on a straight track toward trial, and giving the plaintiff his chance to


prove -- or fail to prove -- the existence of the conspiracy he alleges.

Respectfully submitted,

(signed) Arthur B. Spitzer
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W.
Washington, D.C. 20036
(202) 457-0800

Counsel for Amicus Curiae
March 31, 1986



I hereby certify that copies of the foregoing Motion for Leave to File Brief Amicus Curiae and Brief of the American Civil Liberties Union Fund of the National Capital Area, Amicus Curiae were served by hand delivery this 31st day of March, 1986, upon william Thomas in Lafayette Park; upon John D. Bates, Assistant United States Attorney, United States Courthouse, Washington, D.C. 20001; and upon Peter Baas, Assistant Corporation Counsel, Room 3101 District Building, Washington, D.C. 20004.


Arthur B. Spitzer

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