Untitled Document

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Concepcion Picciotto, et. al.                             
                                      
          vs.                         Civil Action 99cv02113 (TPJ)
                                                                                                     F I L E D
United States of America, et. al.

DEFENDANTS' REPLY TO PLAINTIFFS' MEMORANDUM
IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

On August 13, 1999, defendants moved the Court to dismiss this action on the grounds that plaintiffs' claims are moot and that plaintiffs have failed to effect proper service on the defendants. In response, plaintiffs raise a number of arguments that they contend warrant denial of defendants' motion to dismiss. Plaintiffs have failed to demonstrate that the claims raised in their Complaint still are viable, however. Therefore, the Court should grant defendants' motion and dismiss this matter in its entirety.

Argument

As defendants previously explained, see Memorandum in Support of Defendants' Motion to Dismiss at 1-2, Article III of the Constitution allows federal courts to decide only actual, ongoing controversies. See also National Black Police Assoc. v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997). "Moreover, a live controversy must exist at all stages of review." Id.

Consequently,

"[e]ven where litigation poses a live controversy when filed, the [mootness]
doctrine requires a federal court to retrain from deciding it if 'events have so
transpired that the decision will neither presently affect the parties' rights nor have
a more-than-speculative chance of effecting them in the future."'

Columbian Rope Co. v. West, 142 F.3d 1313, 1316 (D.C. Cir. 1998), quoting Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (quoting Transwestern.n Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990)); see also National Black Police Assoc., 108 F.3d at 349 (also quoting Clarke). A case becomes moot when the issues no longer are "live" or the parties lack a legally cognizable interest in the outcome of the matter. Murphy v. Hunt, 455 U.S. 478, 481 (1982).

Plaintiffs in the instant matter admit that their Complaint "challenge[s] certain restrictions limiting [plaintiffs'] access to Lafayette Park for a 'brief period of time' on August 7, 1999." See Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss ("Plaintiffs' Opposition") at 1. August 7, 1999, however, has come and gone, as have the restrictions limiting plaintiffs' access to Lafayette Park on that day. Unquestionably, therefore, the parties no longer have a stake in this litigation, and no "live" issue remains to be resolved.

Indeed, in their Complaint, plaintiffs seek as relief to restrain defendants from imposing restrictions on their access to Lafayette Park on August 7, which conduct plaintiffs viewed as a deprivation of their constitutionally protected rights. The Court, however, already has denied plaintiffs' request for issuance of a temporary restraining order, which would have provided the relief plaintiffs seek in their Complaint. Because August 7 has passed and the restrictions plaintiffs challenge already have been imposed and no longer are in effect, the Court now cannot grant plaintiffs the relief they request. See, e.g. Henderson v. Babbitt, Civ. Action No. 97-3061, slip op. at 3-4 (August 27, 1998) (attached hereto as Exhibit 1). Consequently, contrary to plaintiffs' assertion, the prayer for relief in their Complaint supports the conclusion that this

matter is moot. See, City of Houston Texas v. Department of Housing and Urban Development, 24 F.3d 1421, 1426 (D.C. Cir. 1994) (case moot where Court can offer no relief that can redress asserted grievance); see also Picciotto v. United States, Civ. Action No. 94-1935, slip op. at 4-5 and Order at 1-2 (September 9, 1994) (attached hereto as Exhibit 2) (temporary nature of Park closure and complaint's prayer for relief made matter moot).

Moreover, plaintiffs' contention that this matter presents an issue that is "capable of repetition, yet avoiding review" is equally fallacious. This exception to the mootness doctrine applies when (1) the challenged action was too short in duration to be fully litigated prior to its cessation, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. See e.g., Murphy, 455 U.S. at 482, Columbian Rope, 142 F.3d at 1317. Plaintiffs cannot demonstrate that the instant matter presents either situation. First, plaintiffs filed their Complaint and sought the issuance of a temporary restraining order prior to the imposition of the challenged restrictions on August 7. The Court, however, denied plaintiffs' request that it issue a restraining order, finding such an order to be unwarranted. Because a stay of defendants' conduct potentially was available if appropriate, however, the issues raised by plaintiffs' Complaint did not avoid review. See, e.g., City of Houston, 24 F.3d at 1427 (where imposition of preliminary injunction could have stayed lapse of appropriation bill, the expiration of which made matter moot, case did not present issue capable of avoiding review).

And, second, in determining whether the same complaining party will be subject to the same action again, a mere physical or theoretical possibility that the action will recur is insufficient. Murphy, 455 U.S. at 482. Rather, there must be a "reasonable expectation" or "demonstrated probability" that the same controversy will recur involving the same complaining

party. Id. Plaintiffs have failed to demonstrate that such is the case in the instant matter, but, instead, merely speculate that, since they have filed suits raising like issues previously, similar controversies also may arise in the future. This speculation, however, is not sufficient to sustain a case with issues that otherwise are moot. See, e.g., Murphy, 455 U.S. at 482-83; Columbian Rope, 142 F.3d at 1317. Accordingly, contrary to plaintiffs' assertion, the "capable of repetition, but avoiding review" exception to the mootness doctrine simply does not apply.

In their Opposition, plaintiffs also revisit certain of the Court's August 6 determinations, including whether they sustained irreparable injury due to the complained about conduct on August 7, what constitutes a "brief period of thee" for restrictions such as those imposed on August 7, whether plaintiffs' assessment of the risks warranting security measures on August 7 should have been accorded more weight than the National Park Service's assessment of these risks, and whether defendants complied with 36 C.F.R. §I .5·(b) in providing notice to plaintiffs of the imposition of the restrictions in question on August 7. See Plaintiffs' Opposition at 2-6. These issues all relate to restrictions imposed upon plaintiffs on August 7 that no longer are in effect. Thus, they do not present "live" questions the resolution of which would have any meaningful effect. Accordingly, it is not necessary or appropriate to revisit now the Court's prior decisions on these questions.'

Plaintiffs also refer in their Opposition to the purported conduct of Esyededeea Aesfyza in allegedly temporarily displacing plaintiffs from what they perceive to be their "customary location" in Lafayette Park. To the extent plaintiffs believe defendants somehow have acted improperly in connection with Mr. Aesfyza's alleged conduct, they can file a lawsuit challenging such action. Any such claim, however, is beyond the scope of plaintiffs' Complaint in the instant matter, and it cannot serve to resuscitate the otherwise moot claims therein. In any event, plaintiffs apparently now are re-occupying their purported ' customary location," and, therefore, any conceivable challenge in connection with Mr. Aesfyza's alleged conduct likely also is moot.

Moreover, to the extent plaintiffs now seek; to challenge generally the defendants' conduct in restricting plaintiffs' access to Lafayette Park, and not just the specific conduct that occurred on August 7, plaintiffs' claims are inappropriate. In this regard, where, as here, a plaintiff attacks an isolated agency action, and not an ongoing, underlying policy, the mooting of the specific claim also moots any claim for a judgment that the particular action was unlawful. See City of Houston, 24 F.3d at 1429. Although Plaintiffs' Opposition attempts to characterize plaintiffs' claims as challenging general underlying policies and/or practices of defendants, plaintiffs' Complaint, which focuses solely on defendants' conduct with respect to the August 7 demonstrations and access restrictions, proves otherwise. Thus, to the extent plaintiffs now attempt to challenge broad, ongoing policies of defendants, their claims are not proper.

In any event, any such claim by plaintiffs otherwise is not ripe for review. "A claim is unripe for review when it rests 'upon contingent future events that may not occur as anticipated, or indeed may not occur at all."' New York State Electric & Gas Corp. v. Federal Energy Regulatory Commission, 177 F.3d 1037, 1040 (D.C. Cir. 1999) (quoting Texas v. United States, 523 U.S. 296 (1998)). In evaluating ripeness, a Court must consider the fitness of the issues for judicial review and the hardship to the parties of withholding Court consideration. Id. The primary focus of the ripeness doctrine is to balance the plaintiffs' "'interest in prompt consideration of allegedly unlawful agency action against the agency's interest in crystallizing its policy before that policy is subject to review and the court's interest in avoiding unnecessary adjudication and in deciding issues in a concrete setting. "' City of Houston, 24 F.3d at 1430-31, quoting Eaole-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985).

Plaintiffs contend that defendants' conduct in restricting plaintiffs' access to Lafayette

Park for a brief period of time on August 7 violated their constitutionally protected rights and that defendants' notice to plaintiffs of the imposition of these restrictions was inadequate. Plaintiffs' claims are specific to the type and location of restriction imposed, the manner in which it is imposed, and the reasons for and duration of any such restriction. Similarly, to the extent plaintiffs challenge defendants' compliance with the notice provisions of 36 C.F.R. § 1.5(b), the Court must make a case-specific determination, as it did here. of whether the situation involves the closure of a park space or portion thereof that is of a nature, magnitude and duration that will result in a significant alteration in the public use of the park area, adversely affect the park's natural, aesthetic, scenic, or cultural values, or require a long-term or significant modification in the resource management objectives of the unit, or that is of a highly-controversial nature.

Without a doubt, the Court can make these determinations only when confronted with a concrete situation in which these issues have arisen and a definite agency position in connection with the particular situation. Accordingly, "[j]udicial review of th[ese] issue[s] 'is likely to stand on a much surer footing in the context of a specific application of [defendants' regulations] than could be the case in the framework of the generalized challenge made here. "' City of Houston, 24 F.3d at 1431, quoting Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 164 (1967). Any generalized challenge to the defendants' policies and practices, therefore, presently is not fit for review by this Court. See. e.g., id.; Henderson, slip op. at 5-7.

Moreover, plaintiffs will not suffer any hardship if the Court does not consider a broad challenge to defendants' policies. Indeed, the only hardship to plaintiffs will be the burden of having to file another suit should one become warranted in the future. Such a burden, however, is insufficient to outweigh the agency's and Court's respective interests in considering defendants'

policies in a more concrete and fact-specific setting. See, e.g., City of Houston, 24 F.3d at 143 1
32; Henderson, slip op. at 7-8. Thus, even if a general challenge to defendants' policies was appropriate in this matter, which it clearly is not, the Court still should reject such a challenge as it presently is not ripe for judicial review. 2/

Conclusion

For the foregoing reasons, and the reasons stated in the Memorandum in Support of Defendants' Motion to Dismiss, defendants' respectfully request that the Court dismiss plaintiff's Complaint in its entirety with prejudice.

Dated: September 17th 1999
Respectfully submitted,

(signed Wilhma A. Lewis)
WILMA A. LEWIS, D.C. Bar #358637
United States Attorney

(signed Mark E. Nagle)
MARK E. NAGLE, D.C. Bar #416364
Assistant United States Attorney

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

________________________________________

2/ In their Opposition, plaintiffs also concede that they have not effected proper service on the defendants. See Plaintiffs' Opposition at 6-7. Plaintiffs assert that they have not properly served the defendants because they do not know when, or if, the Court will conduct a preliminary injunction hearing. Contrary to plaintiffs' assertion, and certain references in the materials accompanying plaintiffs' Complaint and Motion for a Temporary Restraining Order, plaintiffs do not appear to have filed a petition for a preliminary injunction. In any event, however, even if plaintiffs had filed a motion for a preliminary injunction, the lack of a hearing date for such a motion does not justify plaintiffs' failure to serve properly defendants with process. Thus, as is noted in Defendants' Motion to Dismiss, in addition to the foregoing reasons, plaintiffs' Complaint also should be dismissed pursuant to Fed. R. Civ. P. 12(b)(5).