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.
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.
"[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
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
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).
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.
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/
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
(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
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).