Indeed, the undisputed arrangement, at a minimum, ran afoul of the agency's own view of the regulations according to the agency's counsel. In addition, the undisputed arrangement at least arguably ran afoul of the plain language of the
[1 For the convenience of the Court, the Judgment of the
District of Columbia Circuit is attached hereto.]
[2 Defendants' inadvertently failed to indicate in their
Memorandum that the photographs attached thereto at Exhibit 2
were taken on or about January 20, 1995.]
2
regulation, as well as the interpretive guidance by the Park
Service provided in the Federal Register at the regulation was
made final. See Exhibit 3 to Defendants' Motion. In the face of
the agency guidance accompanying the regulation, as well as the
application of the regulation to the type of display used by
plaintiffs, it can hardly be said that plaintiffs had a well
settled right to display their flags in the manner they chose.
Thus, plaintiffs have failed to meet their essential burden of
demonstrating a violation of a clearly established right
sufficient to establish Bivens liability. See Richardson v. Dept.
of Interior, 740 F.Supp. 15, 24 (D.D.C. 1990) (claim of
constitutional violation defeated when there is no showing of a
constitutional proscription).
3. Plaintiffs Have Not Presented Any Genuinely Disputed Issues to the Court.
In their Statement of Issues of Material Fact, plaintiffs
fail to dispute the essential fact in this case: that they
displayed their flags as attachments to plaintiff Picciotto's
stationary sign. Plaintiffs' other alleged "facts" are no more
than bald assertions or arguments which do not state any factual
matters which should require resolution by a trier of fact.3
Thus, this matter should be resolved on the extensive record
[ In their opposition to defendants' motion to dismiss,
plaintiffs now attempt to contend, in contradiction to their
prior pleadings, that the manner of the officers' enforcement of
the sign regulation was violative of their rights. See Statement
of Issues, n 5. As defendants previously noted, plaintiffs have
in other pleadings indicated that the officers treated them
civilly. See Defendants' Statement of Material Facts at 8 5.]
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before the Court, and that record demonstrates that defendants
are entitled to judgment in their favor.
CONCLUSION
In view of the undisputed facts and the regulation at issue,
plaintiffs have failed to show that they had a clearly
established right to display the flags in the arrangement in
which they chose to display them, or that the officers violated
their rights in applying the sign-size regulation to their
display. For these reasons, this matter should be dismissed, or
summary judgment should be entered in favor of all defendants.
Respectfully Submitted,
__________________________________
ERIC H. HOLDER, Jr. DC Bar #303115
United States Attorney
__________________________________
KIMBERLY N. TARVER, DC Bar #422869
Assislstant United States Attorney