Plaintiffs' Reply to Def. Opposition to Motion to Strike
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
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v. |
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The United States, et. al. |
Defendants. |
PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION
PLAINTIFFS' MOTION TO STRIKE
THE JANUARY 20, 1995 LETTER OF RANDOLPH MEYERS' FROM THE RECORD
INTRODUCTION
The Complaint in this matter was filed on December 22, 1994. Appended to the Complaint was a Declaration by William Thomas, attached to Thomas' Declaration was a letter from Thomas, dated November 10, 1994 (with a signed certified mail return receipt) to Mr. Richard Robbins.
DISCUSSION
On January 23, 1995, as an appendage to Defendants' Opposition to Reconsider Denial of the TRO, or Alternatively to Dismiss the Complaint as Frivolous, counsel introduced a letter, dated January 20, 1995, purportedly "to Thomas," which claims to "respond to (Thomas' letter) to Mr. Robbins."
Because, among other reasons, Mr. Meyers' letter didn't come into existence until after this matter was well along in litigation, plaintiffs' filed a "Motion to Strike Randolph
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Meyers' Letter from the Record." February 3, 1995.[1]
February 14, 1995 defendants' filed a document styled, in pertinent part, "... Memorandum of Points and Authorities ,,, in Opposition to Plaintiffs' Motion to Strike."
In toto, defendants' "Opposition" reads:
"C. The Plaintiffs' Motion to Strike the January 20, 1995,
Letter of Randolph Myers Should Be Denied.
"With their complaint, plaintiffs filed a copy of a letter sent to defendant
Richard Robbins, and claimed that Mr. Robbins' failure to quickly respond to
their letter subjected him to a Bivens claim. Subsequently, Mr. Randolph Myers
of the Solicitor's Office investigated the claims made by Mr. Thomas in his letter,
and responded to Mr. Thomas with the results of his findings. This letter -- which
was prompted by and directly responds to the letter previously filed by the plaintiff
-- was filed with the defendants' opposition to the plaintiffs' motion to reconsider
the denial of the TRO. Plaintiffs now seek to strike this letter. This motion should
be denied.
"First, the January 20th Myers' letter is directly responsive to the letter filed
by the plaintiff and merely makes for a more complete record. Second, under Rule
803(8)(C), Fed.R.Evid., this letter is not excluded by the hearsay rule, regardless
whether Mr. Myers was available as a declarant. Accordingly, the Court can properly
consider this letter in ruling on the pending papers." Defendants' Reply/Opposition,
Memo (January 23, 1995), pgs. 13, 14.
1. DEFENDANTS SOLE "AUTHORITY"
A. THE GOVERNMENT MUST HAVE AN AUTHORITY
WHO GIVES AN IMPRESSION OF HAVING
SOME RESPECT FOR REALITY
"First," defendants claim, "the January 20th Myers' letter is
[1The Motion to Strike challenges the trustworthiness of Mr. Meyers' letter. Plaintiffs posit that Mr.Meyers' letter was fabricated as an ex post facto rationalization because defendants needed to come up with something to breathe life into an otherwise empty "well established" argument. Plaintiffs support this theory by pointing out that if all referenmces to Mr. Meyers' letter is deleted from "Defendants' Opposition to Plaintiffs' Motion to Reconsider Denial of the TRO" (January 23, 1995) the document just wouldn't be worth reading.]
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directly responsive to the letter filed by the plaintiff..." Supra; Opposition pgs. 13, 14.
There can be no doubt, in the Complaint (paras. 9-11) plaintiffs specifically state that after the letter to Mr. Robbins threats about the signs stopped. Threats about the flags did not began until "late November." Plaintiffs did not personally notify Mr. Robbins about the flag issue until filing the instant case. Yet fully half of Mr. Meyers' January 20, 1995 letter refers to the issue of the flags. In short Thomas' letter to Mr. Robbins did not raise the issues of flags, therefore Mr. Meyers' letter went far beyond being merely "responsive to the letter filed by plaintiffs."
B. THE GOVERNMENT MUST HAVE AN AUTHORITY
WHO WOULD APPEAR MORE TRUSTWORTHY ON THE RECORD
Plaintiffs hereby incorporate by reference "Third Motion for Rule 11 Sanctions (February 3, 1995), pages 15 - 25.
Coupling the chronological oddities posed by Mr. Meyers' letter with the fact that plaintiffs first received Mr. Meyers' letter from defense counsel (Exhibit 1, to Defendants' Opposition to Reconsider Denial of TRO [January 23, 1995]), rather than through the U.S. Post Office, plaintiffs have asserted,
"If there is no question that: (1) the letter first went to the U.S. Attorney,
who (2) attached the letter to Defendants' Opposition to Plaintiffs' Motion to
Dismiss for Frivolity, before (3) transmitting the letter to Thomas, it would seem
accurate to say the letter, which its proponents claim "responds to Thomas," was
actually intended as a tool with which the U.S. Attorney might avoid responding to
the merits of Thomas, et. al., thus sparing defendants from potentially
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messy cross-examination. Seen in this light, Mr. Meyers' letter is inadmissible
as evidence:
One problem for defendants: how can a letter, barely two weeks old, bear testament to a "well established framework?" Defendants' identify Mr. Meyers' retarded letter (it didn't even come into existence until a month after the Complaint was filed), as their sole authority on behalf of official immunity. Faced with the problem of trying to frame their "Opposition to Plaintiffs' Motion to Reconsider Denial of the TRO" (filed January 23, 1995) defendants found it necessary to concoct a well-established agency policy to justify the allegedly unconstitutional actions of Officers O"Neill and Keness.
Surely, Mr. Meyers' is not the only authority who has
[2 If this seems too abstract htere are more concrete examples. For instance, we notice that two pages of photocopied photographs attached to Mr. Meyers' letter contain the heading "Photographs taken on January 13, 1995." As it happens, at approximately 3:30 p.m. on January 13, 1995, a police officer, who was taking photographs of Ellen Thomas' signs, volunteered an apology to Mrs. Thomas for taking the photographs, indicating that they were intended for use in Court. Second Declaration of Ellen Thomas, January 30, 1995. Unless defendants can show that the photographs taken by that police officer arenot the photographs accompanying Mr. Meyers' letter, there must be a presumption that the photographs of the signs were not taken for the purpose of "responding to (Thomas') letter," as defendants proclaim, but rather were taken fro the distinctly different purpose of using them against plaintiffs, deceptively, in court.]
[3 "(T)he framework for analyzing a claim of qualified immunity by a federal official sued in his individual capacity in Harlow v. Fitzgerald, 457 U.S. 800 (1982). In Harlow, the Court made clear that government officials are
shielded from liability for civil damages insofar as their conduct does not violate clearly established statuory or constitutional reights of which a reasonable person would have known." Defendants' Motion to Dismiss (January 11, 1995), pg. 12.]
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authority to refute plaintiffs' "well established" claim. Thus Defendants will not be prejudiced after the Court strikes Mr. Meyers' disputed letter, defendants' need only replace it with a less questionable, more trustworthy authority to support their own "well established" claim.
C. THE GOVERNMENT MUST HAVE AN AUTHORITY
WHO WOULD APPEAR MORE AUTHORITATIVE ON THE RECORD
Plaintiffs hereby incorporate by reference "Third Motion for Rule 11 Sanctions (February 3, 1995), pages 15 - 25.
A second problem is that Mr. Meyers' letter lacks literal authority. Essentially he raises two points.
First, Mr. Meyers' claims, "We believe," Mr. Meyers says (letter, pg. 2, para. 2), "that your signs ... fail to conform to the regulations."
Even if Mr. Meyers sincerely believes his opinions are reasonable that doesn't prove his opinions are authoritative, correct, or that a jury would agree with him: [4]
D. THE GOVERNMENT MUST HAVE AN AUTHORITY
WHO GIVES AN IMPRESSION OF HAVING
SOME RESPECT FOR THE LAW
Second, Mr. Meyers' letter attempts to represent itself as a
[4 "The trial court properly excluded expert testimony which was proffered to prove the (well-established)state of the law and to support their claim of absence of willfulness. The expert's testimony had little probative value on the issue of defendants' states of mind at the time they acted because there was no evidence that they had relied on his opinion at the time they acted. United States v. Daily 756 F.2d 1076, 1083-84; cert denied. 106 S. Ct. 574. (1985)." Moored Rules of Evidence Pamphlet, pg. 94 (1990), (parentheses substituting for "confusion on the")]
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permit limitation. Defendants do not address plaintiffs' assertion that, in light of well established law in this Circuit, as a permit limitation Mr. Meyers' letter falls short of the law.
"The limitations attached to any given permit would be reviewable under the APA's arbitrary and capricious standard. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416-417 (1971)." United States v. Picciotto, 875 Fad 343, 347 (1989); States v. Abney, 534 F.2d 984, 985 (D.C.Cir 1976). Quaker Action Group v. Morton, 460 F.2d 854, et. seq..
2. DEFENDANTS' ONLY "POINT"
Second, In their "Memorandum of Points and Authorities," defendants cite only a single "point," i.e,
"... under Rule 803(8)(C), Fed.R.Evid., this letter is not excluded by the
hearsay rule..." Opposition, pg. 13.
An independent reading shows Fed.R.Evid 803(8)(C) for the admission of:
"Public records and reports ... in civil actions and proceedings and against the
Government in criminal cases, factual findings resulting from an investigation
made pursuant to authority granted by law, UNLESS THE SOURCES OF
INFORMATION OR OTHER CIRCUMSTANCES INDICATE LACK OF
TRUSTWORTHINESS." EMPHASIS ADDED.
As appears a strong argument could be made that in light of the issues raised in the Motion to Strike the "trustworthiness" of Mr. Meyers' letter, is rather hotly disputed. Thus defendants' single point merely begs the question.
A. DEFENDANTS OVERLOOKED SEVERAL OTHER POINTS
If that point isn't sufficient to render Defendants' Opposition point void, defendants stark reference to Rule (8)(C) fails to engage the challenges actually raised in the Motion to Strike, under Fed.R.Evid under 104(a)(b), 403 and 901(a).
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CONCLUSION
Defendants introduced (January 23, 1995) Mr. Meyers' letter, claiming it was "directly responsive" to Thomas' letter to Mr. Robbins.
Plaintiffs challenged (February 6, 1995)) whether Mr. Meyers' letter was (1) what it claimed to be and (2) had been interposed for any improper purpose. Plaintiffs discussed these issues in greater detail in their Third Motion for Sanctions (February 13, 1995).
Defendants utterly failed to respond to the factual points raised in plaintiffs pleadings, and don't say anything about plaintiffs clearly stated claims under Fed.R.Evid 104(a)(b), 403 and 901(a).
For these reasons Defendants' Opposition to the Motion to Strike should be seen as meritless, and Plaintiffs' Motion should be granted.
Respectfully submitted this 27th day of February, 1995
______________________
William Thomas
2817 11th Street N.W.
Washington, D.C. 20005
202-462-0757
CERTIFICATE OF SERVICE
I hereby state that, on February 27, 1995 I delivered copy of the foregoing Plaintiffs Reply to Defendants' Opposition to Plaintiffs' Motion to Strike the January 20, 1995 Letter of Randolph Meyers' from the Record upon the office of the united states attorney, 555 4th street NW, Washington, D.C. ROOM 10-808, by placing it in the U.S. Mail, first class postage prepaid.
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