For ten years, appellants have been attempting to maintain
a continuous demonstration in and around Lafayette Park and next
to the White House. They have been arrested and convicted numerous
1/ Ronald W. Reagan; Director, Office of Management
and Budget; United States Secret Service, Manuel Lujan, Richard
Robbins, Randy Meyers, Manus J. Fish, James Lindsey, Sandra Alley,
Lynn Herring, Deputy Chief Langstrom, Captain Barrett, Lt. Hugh
Irwin, Private Kevin Fornshill, Private Leslie Waite, Private
Michelle Berkowitz, George Walker Bush, United States Park Police,
Major Holmberg, Lt. Clipper, Sgt. McNally, Sgt. Rule, Officer
Ferebee
1
times for their violating Interior Department regulations that
proscribe certain activities in the Lafayette Park and White House
area. See 36 CFR §§ 7.96 (g) (5) and 7.96(i); see, e.g.,
United States v. Thomas, 864 F.2d 188 (D.C. Cir. 1988).
Appellants alleged that appellees conspired to extinguish their
constitutional and statutory rights, that prior and threatened
enforcement of Interior Department regulations inhibits the free
flow of ideas and information in violation of the First Amendment,
that appellants have been subjected to a pattern and practice
of malicious harassment, and that the regulations have been selectively
enforced against appellants because of their protest activities;
See Huddle v. Reagan, No. 88-3130, Mem. at 2 (D.D.C. May
24, 1991).
This case largely repeats many of the same claims that
were dismissed in Thomas v. News World Communications,
681 F. Supp. 55 (D.D.C. 1988) and Thomas v. United States,
696 F. Supp. 702 (D.D.C. 1988). Those cases were consolidated
on appeal and the dismissals summarily affirmed by this Court.
No. 88-5367 (D.C. Cir. July 17, 1989), rein. denied, (D.C.
Cir. Sept. 26, 1989).
The District Court granted summary Judgment in favor of
appellees.
II. Argument
The standard for summary judgment accurately noted by the
District Court requires that there be no "genuine issues
that properly can be resolved only by a finder of fact because
they
2
may reasonably be resolved in favor of either party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
Huddle Mem. at 7.
A. The District Court Properly Held that Appellants
Failed to
State a Claim Upon Which Relief Can Be Granted.
1. The District Court Correctly Held
that Any Common Law Tort Claim Was Barred.
The District Court noted that appellants have not explicitly
alleged any common law tort claims. Huddle, Mem. at 9.
Moreover, the Court found that any such claim would be barred
by the administrative claim requirements of the Federal Tort Claims
Act (FTCA). Id. 28 U.S.C. § 2675(a). Under that statute,
a claimant must first file an administrative claim with the relevant
agency before filing a civil tort action. Here, appellants have
not contended that they have filed the appropriate administrative
claims. 2/ Furthermore, none of the claims against the
federal agencies or the individual appellees could proceed, because
the relief provided by the FTCA against the United States is the
exclusive remedy for common law torts from acts of federal employees.
28 U.S.C. § 2679(b)(1); see Mem. at 9-10.
2/ Indeed, as the federal appellees argued in District
Court, most of appellants' claims are time-barred, the applicable
statute of limitations having run long ago. Moreover, many of
appellants' claims, since they previously have been advanced and
rejected, are barred by the doctrines of issue preclusion and
claim preclusion.
3
2. The District Court Correctly Denied Appellants'
Constitutional Tort Claims.
Some of appellants, claims can be interpreted as claims
alleging violations of constitutional or statutory rights, which
are cognizable under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388, 392-94 (1971) and
its progeny. As the District Court noted, however, such a complaint
must meet this Court's heightened pleading standard and allege
specific deprivations of appellants' rights and include specific
factual allegations as to each alleged deprivation. Martin
v. Malhoyt, 830 F.2d 237, 257 (D.C. Cir.), rein. denied, 833
F.2d 1049 (D.C. Cir. 1987); Huddle Mem. at 10-11.
Appellants would have to demonstrate five elements to support
their claim under 42 U.S.C. § 1985(3): (1) a conspiracy;
(2) an act in furtherance of the conspiracy; (3) for the purpose
of depriving any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities under the laws;
(4) which conspiracy was motivated by some class-based, invidious,
discriminatory animus; (5) whereby a person is injured or otherwise
deprived of a right or privilege. See Hobson v. Wilson,
737 F.2d 1, 30 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985)
Huddle, Mem. at 11-12. However, appellants have offered
nothing but conclusory allegations and alleged incidents in which
they claim to have been wronged. Appellants' allegations utterly
failed to demonstrate the existence of a conspiracy. As the District
Court found, the mere enforcement of these regulations would not
permit the inference of an improper
4
motive to extinguish appellants, rights. Huddle, Mem.
at 12-13.
Because appellants have failed to establish a claim under
42 U.S.C. § 1985, their claim under § 1986 must also
fail. That section only provides an action against a person who
has knowledge that one of the wrongs mentioned in § 1985
are about to be committed, has power to prevent or aid in preventing
the commission of that wrong, and neglects or refuses to do so
if the wrong is committed. Without a claim under § 1985,
the claim under § 1986 must also be dismissed. See Mollnow
v. Carlton, 716 F.2d 627, 632 (9th Cir. 1983), cert denied,
465 U.S. 1100 (1984), rein. denied, 466 U.S. 954 (1984);
Thomas, 681 F. Supp. at 72; Huddle, Mem. at 13,
n.11.
Appellants claims under 42 U.S.C. § 1983 must also
fail, because appellants have not plead such a conspiracy with
sufficient specificity. See Huddle, Mem. at 14. Moreover, a claim
under 5 1983 requires a showing that the acts in question were
taken under color of state law. Here, appellants are complaining
of violations of their First Amendment rights, which are federal
rights. Section 1983 does not pertain to actions taken under color
of federal law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980);
Thomas, 681 F. Supp. at 67-68; Huddle, Mem. at 14-15.
Similarly, appellants' claims under the Fourth, Fifth,
Sixth, Ninth and Fourteenth Amendments also fail to meet the heightened
pleading standard. See Huddle, Mem. at 15. Appellants simply fail
to tie the alleged violations of their
5
rights to specific facts as to each defendant and to each
claim. 3/
3. The District Court Properly Rejected Plaintiff's
Selective Enforcement Claim
Appellants' Fifth Amendment selective enforcement claim
alleges that the Interior Department regulations have been applied
vigorously against them, but not as vigorously against others,
particularly the 1989 Presidential Inauguration Committee. A selective
prosecution claim requires a showing both that appellants were
singled out and that the decision to prosecute was improperly
motivated. United States v. Mangieri, 694 F.2d 1270, 1273
(D.C. Cir. 1982); Huddle, Mem. at 15-16. Here, appellants
have shown neither element.
First, the Inaugural Committee received lawful permits
for all of its activities in Lafayette Park and around the White
House. Indeed, 36 U.S.C. § 724 specifically authorizes the
grant of permits for the use of federal grounds during an inaugural.
Thus, the Inaugural Committee's actions were lawful, and appellants,
prosecution can not be deemed to have been selective.
Second, there is no indication that appellees' treatment
of appellants was improperly motivated. A similar claim was rejected
by this Court in United States v. Grace, 778 F.2d 818,
822 (D.C. Cir. 1985), cert. denied 479 U.S. 844 (1986). That defendant
was prosecuted for violating the regulation prohibiting demonstrations
in the "center zone" of the White House sidewalk by
holding a sign in a stationary position in that zone.
3/ The federal appellees also asserted in District
Court that even if appellants could negotiate these hurdles, the
President was entitled to absolute immunity from suit and all
other individual defendants were entitled to qualified immunity
from suit.
6
She argued that the presidential seal, also a sign, was displayed
on the grandstand for the 1985 inaugural with no prosecutions.
This Court held that the relevant inquiry was whether the Interior
Department had forbidden her conduct based on the content of her
sign. Id. Here, the content of appellants' messages has
played no role in appellants, treatment. Instead, appellants'
prosecution results from their refusal to apply for necessary
permits and otherwise abide by the regulations.
4. The District Court Properly Rejected Appellants' Claim
that Appellees Have Engaged in a Pattern and Practice of Harassment
in Violation of Appellants' First Amendment Rights.
As an initial matter, the individual federal appellees
would be entitled to qualified immunity under Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Appellees are shielded from liability
as long as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known. Id. Here, there is no evidence that appellees
violated any of appellants' rights. Rather, appellees have been
enforcing regulations which have been upheld as constitutional.
The regulation proscribing camping was upheld in Clark v. CCNV,
468 U.S. 288 (1984). Similarly the regulations limiting demonstrations
on the White House sidewalk have been upheld by this Court on
several occasions. See, e.g., Juluke v. Hodel,
811 F.2d 1553, 1559-62 (D.C. Cir. 1987); Grace, 778 F.2d
at 820-22;
7
White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518,
1534-41 (D.C. Cir. 1984). The regulation prohibiting unattended
signs was upheld in United States v. Musser, 873 F.2d 1513, 1516-18
(D.C. Cir.), rein. denied, 883 F.2d 84 (D.C. Cir ), cert. denied,
493 U.S. 983 (1989), and in Thomas, 696 F. Supp. at 70512.
Moreover, there is no evidence that appellants have been
arrested without cause. All they can point to are their own arrests.
Even where the arrests did not result in a conviction, however,
one can not simply conclude that appellees violated the law. See
Huddle, Mem. at 20. Furthermore, even the isolated incidents
about which appellants complain do not amount to a pattern and
practice of harassment.
B. The District Court Had No Obligation to Conduct a Hearing
into Appellants' Motions for Sanctions.
Appellants' complain that the District Court erred by not
conducting a hearing into their motions for sanctions. This argument
is without merit. District Courts enjoy wide discretion in determination
of sanctions pursuant to Rule 11 of the Federal Rules of Civil
Procedure. See Westmoreland v. CBS, Inc., 770 F.2d
1168, 1173-75 (D.C. Cir. 1985); MacArthur Area Citizens Assoc.
v. Republic of Peru, 823 F.2d 606, 607 (D.C. Cir. 1987). Nothing
in the rule or case law mandates that a District Court conduct
a hearing into a motion for sanctions. Therefore, the District
Court's decision not to conduct a hearing, see Huddle,
Mem. at 24, n.20, can not be deemed erroneous.
8
1. The District Court Properly Declined to Address
Appellants' Class Action Claims.
Appellants protest that the District Court erred by
not resolving appellants, class action claims. Although, a class
action was mentioned in appellants, amended complaint, that issue
was never formally presented to the District Court. Local Rule
203(b) requires a prospective class action plaintiff to move for
certification within 90 days after the filing of his complaint.
Here appellants never filed a motion for class certification or
otherwise sought class treatment. Therefore, it was unnecessary
for the District Court to resolve this issue; appellants' had
let it drop through their own inaction. 4/
4/ Appellants also allege that the District Court erred
by failing to resolve their allegations with respect to the publication
of RN 1024-AB93, 55 Fed. Reg. No. 193 at 40879-40881. Appellees'
counsel can locate no such publication, and do not know to what
appellants are referring. Similarly, appellants' claim that the
District Court erred by failing to resolve their allegations with
respect to 36 CFR § 2.12. This regulation controls audio
disturbances in parks. Appellees' counsel are unaware of any allegations
relating to this regulation. Finally, to the extent appellants
made allegations with regard to the District of Columbia's Disorderly
Conduct Statute, those allegations were directed to the District
of Columbia. In any event, the District Court adequately resolved
those claims. See Huddle, Mem. at 21-24.
9
III. Conclusion
For the foregoing reasons, the federal appellees respectfully
urge the Court to affirm summarily the District Court's dismissal
of the claims against the federal appellees.
\m /s/ Jay B. Stephens
JAY B. STEPHENS
United States Attorney -
/s/ John D. Bates
JOHN D. BATES,
Assistant United States Attorney
/s/ R. Craig Lawrence
R. CRAIG LAWRENCE
Assistant United States Attorney
/s/ Robert L. Shapiro
ROBERT L. SHAPIRO
Assistant United States Attorney
10