UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CONCEPCION PICCIOTTO, 
ELLEN THOMAS, and 
WILLIAM THOMAS,
               Plaintiffs,

          v.                        Civ. Action No. 99-2113 (TPJ)

UNITED STATES OF AMERICA
BRUCE BABBITT, STAN E. LOCK, and
UNITED STATES PARK POLICE,

c/c United States Attorney's Office
Judiciary Center Building
555 Fourth Street, N.W.
Washington, D.C. 20001,
               Defendants.

MOTION TO DISMISS

Pursuant to Fed. R. Civ. P. 12(b)(1), (5), and (6), defendants hereby move the Court to dismiss plaintiffs' Complaint in its entirety with prejudice. In support of this Motion, defendants respectfully refer the Court to the accompanying Memorandum in Support of Defendants' Motion to Dismiss. A proposed Order consistent with this Motion is attached.

Dated: August 13, 1999

Respectfully submitted,
(signed) Wilma A. Lewis /illegible initial
WILMA A. LEWIS. D. C. Bar #358637
United States Attorney

Mark E. Nagel / illegible initial
MARK E. NAGLE, D.C. Bar #416364
Assistant United States Attorney

(signed) Eric M. Jafee
ERIC M. JAFEE,
Assistant United States Attorney D.C. Bar #454471
Judiciary Center Building, 10th Floor
555 Fourth Street, N.W.
Washington, D.C. 20001
(202) 514-7153

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CONCEPCION PICCIOTTO, et al.,
                     Plaintiffs,

             v.                          Civ. Action No. 99-2113 (TPJ)

UNITED STATES OF AMERICA, et al.,
                     Defendants.

MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

On August 6, 1999, plaintiffs filed their Complaint in this matter. In their Complaint, plaintiffs challenge certain restrictions limiting their access to Lafayette Park for a brief period of time on August 7, 1999. Plaintiffs also filed on August 6 a Motion for a Temporary Restraining Order, which sought to prevent defendants from imposing these limited restrictions on August 7. After hearing argument from both sides on August 6, the Court denied the plaintiffs' Motion. Moreover, because the date on which the challenged restrictions were imposed has passed, plaintiffs' claims in this matter now are moot. Accordingly, plaintiffs' Complaint should be dismissed.

Argument

Article III of the United States Constitution provides that the judicial power of the United States Courts extends only to "cases" or "controversies." U S. Const. Art. III, §§ I and 2. To give meaning to Article III's case-or-controversy requirement, the "courts have developed a series of principles termed 'justiciability doctrines,' among which [is] ... mootness ...." National Treasury Employees Union v. U.S., 101 F.3d 1423, 1427 (D.C. Cir. 1996), citing Allen v. Wright,


468 U.S. 737 (1984). An action is moot when nothing turns on its outcome. Schering v. Shalala, 995 F.2d 1103, 1105 (D.C. Cir. 1993).

The Court previously determined that plaintiffs failed to satisfy the requirements for imposition of a Temporary Restraining Order ("TRO"). Specifically, the Court found that the First Amendment implications of the defendants' conduct, if any, were minimal, that plaintiffs had not demonstrated sufficient harm to warrant issuance of a TRO, and that it properly should defer to the defendants' expertise in establishing security precautions in connection with the August 7 demonstrations that were scheduled to take place in Lafayette Park.

At this time, the restrictions to plaintiffs' access to Lafayette Park already have been imposed and no longer are in effect. Accordingly, plaintiffs' stake in this litigation no longer exists. and no relief could be granted to them. Plaintiffs' claims, without question, are moot. Bois v. Marsh, 801 F.2d 462, 466 (D,C. Cir. 1986) (where plaintiff has nothing to gain from equitable relief sought, claim is moot). Therefore, plaintiffs' Complaint should be dismissed.'

Plaintiffs also have not effected proper service on, possibly among others, the United States Attorneys Office as required by Fed. R. Civ. P. 4(i). Thus, pursuant to Fed. R. Civ. P. 12(b)(5), this provides an additional ground for dismissal of plaintiffs' Complaint.


Conclusion

For the foregoing reasons, defendants respectfully request that the Court dismiss plaintiff's Complaint in its entirety with prejudice.

Dated: August 13, 1999

Respectfully submitted,

(signed) Wilma A Lewis / illegiable initial
WILMA A. LEWIS, D.C. Bar #358637

United States Attorney
(signed) Mark E. Nagel / illegiable initial
MARK E. NAGLE, D.C. Bar #416364
Assistant United States Attorney

(signed) E. M. Jaffe
ERIC M. Jaffe,
Assistant United States Attorney D.C. Bar #454471
United States Attorney Judiciary
Center Building, 10th Floor
555 Fourth Street, N.W.
Washington, D. C. 20001
(202) 514-7153

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on August 13, 1999, I served a copy of the foregoing Motion to Dismiss, Memorandum in Support thereof, and proposed Order by first class mail, postage pre-paid, on the following:

Concepcion Picciotto
1424 12th Street, N.W.
Washington, D.C. 20005

Ellen Thomas
1424 12th Street, N.W.
Washington, D.C. 20005

William Thomas
1424 12th Street. N.W.
Washington, D.C. 20005

(signed) Eric M Jaffee
ERIC M. JAFFEE D.C. Bar #454471
Assistant United States
Attorney
Judiciary Center Building, l0th Floor
555 Fourth Street, N.W.
Washington, D. C. 20001
(202) 514-7153

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CONCEPCION PICCIOTTO, et al.,
                     Plaintiffs,

             v.                          Civ. Action No. 99-2113 (TPJ)

UNITED STATES OF AMERICA, et al.,
                     Defendants.

ORDER

UPON CONSIDERATION OF Defendants' Motion to Dismiss, any Opposition thereto, and the entire record herein, it is this day of_______, 1999,

ORDERED that Defendants' Motion to Dismiss is GRANTED, and it is

FURTHER ORDERED that plaintiffs' Complaint is DISMISSED with prejudice in its entirety.

_______________________
United States District Judge

Copies to:

Concepcion Picciotto
1424 12th Street, N.W.
Washington, D.C. 20005

Ellen Thomas
1424 12th Street, N.W.
Washington, D.C. 20005

William Thomas
1424 12th Street, N W
Washington' D.C. 20005

Eric M. Jaffe
Assistant United States Attorney
Judiciary Center Building, I 0th Floor
555 Fourth Street, N.W.
Washington, D.C. 20001