Defendants Opposition to Summary Judgment

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Defendants respectfully oppose plaintiffs' motion for summary judgment in this matter for the reasons set forth below.

PRELIMINARY STATEMENT

The matters at issue in this action have been fully explicated by the parties in numerous previous pleadings. [l] Now pending before the Court is plaintiffs' motion for summary judgment in their favor. They assert that they "have demonstrated, beyond a doubt, a violation of their rights." Memorandum in Support of Plaintiffs' Motion for Summary Judgment and for Rule 11 Sanctions (referred to herein as "Plaintiffs' Mem."), at p. 6.

Review of plaintiffs' motion reveals that its essential thrust is a challenge to the letters written by the Richard Robbins,


[1 Plaintiffs" Motion for summary judgment, and this opposition thereto, is the third briefing of this case. In its ruling on April 12, 1995, the Court disposed of all but one claim in this action, although both sides have sought reconsideration of that ruling. Defendants filed a motion for summary judgment on May 15, 1995, followed by an opposition by plaintiffs, and a reply by defendants. Plaintiffs intended to file a surreply, see R. 83, but after the Court denied a motion to file a response to defendants' reply, apparently decided to file the instant motion. See Plaintiffs' Notice of Filing of Motion for Summary Judgment, R. 91.]

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Assistant Solicitor of the Department of Interior, and Randolph Myers, Attorney, National Capital Parks, United States Department of Interior, previously filed by defendants in this action.[2] Plaintiffs' primary assertion in this round of these proceedings is that the letters by Mr. Robbins and Mr. Myers should not be considered in this action. To the contrary, these letters reflect the Department of the Interisr's interppetation of the regulation at issue, an interpretation at the heart of the remaining issues before the Court. Therefore, in order to be consistent with plaintiffs' memorandum, and in an effort to avoid re-stating arguments made in their prior memoranda in support of dispositive motions, defendants focus their arguments in opposition on the question of whether the Court should consider the two letters of the agency's counsel in deciding whether the enforcement at issue violated plaintiffs' rights. As the case law in this Circuit has affirmed, this Court should defer to the letters of Mr. Robbins and Mr. Myers as providing interpretive guidance on the application of the regulation at issue.

I. The Myers and Robbins letters.

Mr. Myers' letter was written and transmitted to plaintiff William Thomas in response to the letter sent to Mr. Robbins by Mr. Thomas on or about November 30, 1994. See Declaration of Randolph Myers, 8 5, attached to this memorandum at Exhibit 1 (referred to


[2 See Letter from Randolph Myers, Attorney, National Capital Parks, dated January 20, 1995 attached to Defendants' Reply at Exhibit 1 (R. 65); Letter from Richard G. Robbins, Assistant Solicitor, Department of Interior, in Plaintiff's Notice to the Court at R. 62.]

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herein as "Myers Dec."). As Mr. Myers informs the Court, his letter was a response to a letter sent to the Department of the Interior by plaintiff William Thomas, concerning whether Mr. Thomas' signs were in conformity with the National Parks Service regulations. See Myers Dec. at 8 3. See also Letter to Assistant Solicitor Richard Robbins dated November 23, 1994, attached to this memorandum at Exhibit 2.

As made clear by the Myers Dec. and the letter itself, Mr. Myers' letter provides a reasoned and careful analysis of the relevant regulation and the sign and flag display at issue. Thus, it should be given weight by the Court in determining whether the sign-size regulations apply to plaintiffs' display of flags affixed to a stationary sign.

Similarly, the letter written by Richard Robbins provides a reasoned analysis applying the sign-size regulation to the display at issue. Mr. Robbins letter [3] was sent as a follow up to the letter sent by Mr. Myers, and also provides an analysis of why certain of plaintiffs' signs and displays were not in conformity with the relevant Park Service regulations. See Letter of Richard Robbins at R. 62. Thus, these communications by Department of the Interior counsel, solicited by plaintiff, addressing the very matters in dispute in this action, should be considered by the Court in deciding this action.

Consistent with the decisions in this Circuit in the cases of


[3 It is noted that plaintiffs themselves included Mr. Robbins' in record of this action. See Plaintiff's Notice to the Court at R. 62.]

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Marymount Hospital Inc. v. Shalala, 19 F.3d 658 (D.C. Cir. 1994), and Seigel v. Babbitt, 855 F. Supp. 402, 404 (D.D.C. 1994), this Court should defer to the Department of the Interior' s interpretation of its own regulations concerning whether plaintiffs' display was, or, for purposes of the individuals, reasonably could have been perceived as being, in violation of the sign-size regulation found at 36 C.F.R. 7.96(g)(5)(x)(B)(2).

II. The Court should defer to the Department of the Interior's interpretation of its regulation as articulated by its counsel.

Despite plaintiffs' prolific pleadings, the issues remaining before the Court are relatively straight-forward, and essentially not in dispute. The underlying facts concern plaintiffs' activities in connection with their Lafayette Park demonstration. In connection with those activities, the Park Police Officers applied various regulations promulgated by the Department of the Interior concerning activities in Lafayette Park. Those regulations reasonably regulate the activities of plaintiffs and others. In particular dispute at this stage in these proceedings is the fact that the Park Police Officers applied the regulations which restrict the size of stationary signs to the display of flags affixed to stationary signs . [4] Defendants contend that the


[4 By Memorandum Opinion dated April 12, 1995, the Court disposed of all of plaintiffs' claims save a claim concerning the application of the sign-size regulations to plaintiffs' display of flags affixed to a stationary sign. Though plaintiffs' have moved for reconsideration of dismissal of the other claims, since the Court's April 12th Order the pleadings in this action have focussed on the issue of the application of the sign-size regulations to the flags, and, indeed, the instant motion also focusses on that question. Thus, in an effort to avoid overburdening the Court with duplicative pleadings, defendants will focus on the flag claim.]

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application of the sign-size regulations to plaintiffs' display was reasonable in view of the regulation on its face, the regulatory background as published in the Federal Register, as well as the Department of the Interior's own interpretation of its regulations as illustrated in the correspondence to plaintiffs issued by Mr. Robbins and Mr. Myers. Therefore, plaintiffs have not stated claims showing that they are entitled to relief in this action, and summary judgment should be issued in favor of defendants. [5]

II. The enforcement of the sign-size regulation to plaintiffs' flag display was reasonable and did not violate plaintiffs' clearly established rights,

Despite plaintiffs' arguments to the contrary, the letters of Mr. Myers and Mr. Robbins [6] are directly relevant to the issues pending before the Court. In the first instance, the letters demonstrate that the defendant officers did not act unreasonably in applying the sign-size regulations to plaintiffs' flags. Indeed, the letters show that the Department of Interior viewed the scenario presented by plaintiffs' flags as falling within the coverage of 36 C.F.R. 7.96(g)(5)(x)(B)(2), which limits the height of anv sign displayed in Lafayette park to a maximum of 6


[5 Defendants will not waste the Court's time and resources by re-stating the arguments made in their original motion to dismiss, or in their motion for summary judgment filed May 15, 1995. Rather, the defendants incorporate herein the arguments presented in the memoranda filed in support of those motions.]

[6 Letter from Randolph Myers, Attorney, National Capital Parks, dated January 20, 1995 attached to Defendants' Reply at Exhibit 1 (R. 65) ; Letter from Richard G. Robbins, Assistant Solicitor, Department of Interior, in Plaintiff's Notice to the Court at R. 62.]

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feet above the ground, regardless of whether the display includes the attachment of flags. Thus, in the face of the regulation itself, and the agency's interpretation of the regulation to displays such as plaintiffs,' the officers cannot be seen to have acted with improper motive or in violation of a clear right in applying the regulations to plaintiffs.

Moreover, the letters by the agency's lawyers indicate that a fair reading of the regulation, along with its statement of purpose in the Federal Register, supports the conclusion that the display of flags in the manner chosen by plaintiffs is in violation of the sign-size regulations. Additionally, the manner of display is not protected by permit since permitees are on notice that their demonstrations must comply with otherwise applicable regulations.[7] The display also was not protected under the "small group" exception regulations found in 36 C.F.R. 7.96(g)(2)(i), which allows demonstrations involving fewer than 25 participants to display large signs or banners which are carried. 36 C.F.R. 7.96(g)(3)(vii)(E). Thus, to the extent that a question remains about the application of the regulations to the plaintiffs' flags display, the Court should defer to these interpretations of the coverage of the regulation. See Marymount Hospital Inc. v. Shalala, 19 F.3d 658 (D.C. Cir. 1994); Speigel v. Babbitt, 855 F. Supp. 402, 404 (D.D.C. 1994).

Plaintiffs argue against the Court's reliance on the letters


[7 See Permit, p. 1, at Exhibit 4 to Defendants' Motion for Summary Judgment.]

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of the agency's counsel as an after the fact rationalizations of the actions taken by the officers. Indeed, plaintiffs make much ofthe fact that the letters were received after this action was filed. This argument completely ignores that the fact that before this action was instituted, plaintiff Thomas, himself, sought that very correspondence with the agency seeking an interpretation. Plaintiffs cannot have it both ways in this action. They cannot ask the agency for its interpretation of a regulation, file a lawsuit, and then attempt to preclude the Court from consideration of the agency's response. The letters from Mr. Robbins and Mr. Myers go directly to the heart of the issue before the Court, and the Court should consider those letters as evidence of the Department of the Interiors' interpretation of the regulation at issue.

For these reasons, set forth herein and in defendants memoranda in support of their motion to dismiss or for summary

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judgment in their favor, plaintiffs' motion should be denied.

Respectfully Submitted,
__________________________
ERIC H. HOLDER, Jr. DC Bar #303115
United States Attorney

KIMBERLY N. TARVER, DC Bar #422869
Assistant United States Attorney

OF COUNSEL:
Randolph J. Myers, Esq.
Office of the Solicitor
United States Department of Interior

CERTIFICATE OF SERVICE

I HEREBY CERTIFY this 25th day of July, 1995, that service of the foregoing DEFENDANTS' MEYORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT was made by sending copies thereof by first class mail, postage prepaid, to:

William Thomas
Apartment B
2817 llth Street, N.W.
Washington, D.C. 20001

_____________________
KIMBERLY N. TARVER
Assistant United States Attorney
Judiciary Center Building
555 4th Street, N.W., Rm 10-106
Washington, D.C. 20001
202-514-7141