CONCEPCION PICCIOTTO, et al.,
Plaintiffs,
v.
Civil Action No. 87-3290 LFO
DONALD HODEL, et al.,
Defendants.
Defendants, by and through their undersigned counsel, hereby move to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Reasons in support of this motion are set forth in the attached Memorandum of Law which also opposes plaintiffs' Motion for a Preliminary Injunction.
Respectfully submitted,
JOSEPH E. DIGENOVA,
DC Bar #073320
United States Attorney
JOHN D. BATES,
DC Bar #934927
Assistant United States Attorney
(signed) Micheal L. Martinez .
MICHAEL L. MARTINEZ
DC Bar #347310
Assistant United States Attorney
CONCEPCION PICCIOTTO, et al.,
Plaintiffs,
v.
Civil Action No. 87-3290 LFO
DONALD HODEL, et al.,
Defendants.
INTRODUCTION
This is an action in which the pro se plaintiffs, four regular protesters in Lafayette Park, seek injunctive relief from the Court that would, if granted, have prevented defendants from temporarily moving persons in Lafayette Park during the December 7-10, 1987 visit to the United States of Soviet General Secretary Mikhail Gorbachev. On December 7, 1987 the Court held an evidentiary hearing on plaintiffs' Motion for a Temporary Restraining Order ("TRO") and, after considering the evidence, denied the plaintiffs' request for a TRO. Because Secretary Gorbachev has now left the United States, defendants submit that this civil action is moot and should be dismissed. Alternatively, if this action is not dismissed, the Court should in any case deny plaintiffs' motion for a preliminary injunction.
As was explained at the TRO hearing, plaintiffs received a notice prior to the visit of General Secretary Gorbachev informing them that during the General Secretary's visit they might be asked to move 50-100 feet away from Pennsylvania Avenue in Lafayette Park "for short periods of time". Pl's. Ex. 1. The necessity of moving persons in the Park was as the notice indicated "to provide a secure route of access for the visiting Head of State." Id. The authority to make such moves in the Park is provided at 18 U.S.C. §3056(a)(5) and 36 C.F.R. §1.5(a).
During the General Secretary's visit defendants took the action anticipated by the notice only one time--on December 10, 1987. The movement of persons in Lafayette Park was conducted without incident and no damage was done either to plaintiffs' signs or to any other signs in Lafayette Park. The temporary movement of persons in the Park lasted a total of 60-90 minutes.
The sole focus of plaintiffs' Complaint is the Notice issued in connection with the Gorbachev visit. Now that General Secretary Gorbachev has departed from the United States the Notice is no longer operative. Indeed, the Notice itself states that the movement of persons may occur only during the period of December 7-10, 1987. In light of these facts it is plain that there is no longer a "live" issue before the Court. The case is thus moot and dismissal is appropriate. See Conyers v. Reagan, 765 F.2d 1124, 1127 (D.C. Cir. 1985).
Even if the Court were to determine that the case is not moot for some reason, denial of plaintiffs' request for a preliminary injunction is appropriate. Application of the well-recognized standard in this Circuit for deciding a motion for a preliminary injunction, compels a denial in this case of plaintiffs' request for injunctive relief. See Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985), Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977).
First, plaintiffs cannot demonstrate a likelihood of success on the merits since, as noted, the movement anticipated by defendants in the Notice is justified by statute and regulation. 18 U.S.C. §3056(a)(5); 36 C.F.R. §1.5(a). Similarly, plaintiffs cannot demon-strate irreparable harm since the temporary movement of plaintiffs and others occasioned by the Notice does not deprive plaintiffs of any constitutional right. Plaintiffs were allowed to keep their signs at their current location thus permitting the messages plain-tiffs seek to convey to continue being conveyed notwithstanding any moves. Moreover, the balance of hardships and the public interest favor denial of a preliminary injunction since the security of the General Secretary--the underlying reason for the Notice--far outweighed any minimal inconvenience plaintiffs had to endure when movement in Lafayette Park was necessary.
In conclusion, therefore, this action should be dismissed as moot. If the action is not dismissed, plaintiffs' request for a preliminary injunction should nevertheless be denied.
Respectfully submitted,
JOSEPH E. DIGENOVA, DC Bar #073320
United States Attorney
JOHN D. BATES, DC Bar #934927
Assistant United States Attorney
(signed) Michael L. Martinez
MICHAEL L. MARTINEZ, DC Bar #347310
Assistant United States Attorney
I HEREBY CERTIFY that this 21st day of December, 1987, I
sent one copy of the foregoing Defendants' Motion to Dismiss via
first class U.S. mail to:
William & Ellen Thomas, Pro Se
1440 N Street, NW. #410
Washington, D.C. 20005
Concepcion Picciotto, Pro Se
P.O. Box 4931
Washington, D.C. 20008
Robert Dorrough, Pro Se
P.O. Box 27217
Washington, D.C. 20038
(signed) Michael L. Martinez
MICHAEL L. MARTINEZ, DC Bar #347310
Assistant United States Attorney
Judiciary Center Building
555 4th Street, NW. Room 4822
Washington, D.C. 20001
(202) 272-9258
CONCEPCION PICCIOTTO, et al.,
Plaintiffs,
v.
Civil Action No. 87-3290 LFO
DONALD HODEL, et al.,
Defendants.
UPON CONSIDERATION of Defendants' Motion to Dismiss and the
entire record in this matter, it is by the Court this ____ day
of _______________, 1987 hereby
ORDERED, that defendants' motion should be and hereby is GRANTED.
It is further
ORDERED, that this civil action should be and hereby is DISMISSED.
_____________________________
UNITED STATES DISTRICT JUDGE