UNITED STATES DISTRICT COURT
Defendants Opposition to Summary Judgment
FOR THE DISTRICT OF COLUMBIA
William Thomas, et. al. | C.A. No. 94-2742
Plaintiffs pro se, | Judge Charles R. Richey
The United States, et. al. |
DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR
Defendants respectfully oppose plaintiffs' motion for
summary judgment in this matter for the reasons set forth below.
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,
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.
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.]
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  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.]
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 .  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.]
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. 
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  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.]
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. 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
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
For these reasons, set forth herein and in defendants
memoranda in support of their motion to dismiss or for summary
judgment in their favor, plaintiffs' motion should be denied.
ERIC H. HOLDER, Jr. DC Bar #303115
United States Attorney
KIMBERLY N. TARVER, DC Bar #422869
Assistant United States Attorney
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:
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