Memorandum Continued

C. Plaintiff’s Claims Under The Administrative
Procedure Act Fail To State A Cosnizable Claim.

In Counts Three through Six of the Amended Complaint, plaintiff alleges that the federal government's action in closing portions of streets on May 20, 1995, violates Section 553 of the APA because no proposed rule was published in the Federal Register for notice and comment and no final rule was published with a thirty-day delay before taking effect. Plaintiff's claim, however, erroneously assumes that the APA applies to the actions taken on May 20th,

On the contrary, the Secretary’s action restriction of the streets at issue for the protection of the President is not a rule" within the meaning of 5 U.S.C. ~ 551(4). The APA defines a "rule as "an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy or one which describ[es] the

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organization, procedure or practice requirements of an agency ..." An isolated agency act, which in no way propose[s] to effect or govern subsequent agency acts or decisions, is not considered a "rule" within the meaning of the APA. Daingerfield Island Protective Society. Babbitt, 823 F. Supp. 950 (D.D.C. 1993), aff'd mem. 15 F.3d 1159 (D.C. Cir. 1993).

The Secretary's action in restricting access to the streets at issue is clearly isolated agency action that does not effect or govern subsequent agency action or decisions. Rather, the action consists of a specific response to a unique set of facts carried out pursuant to the Secretary's statutory authority to protect the President.[7] It would be senseless to attempt to characterize a decision on an isolated question such as the need to close certain streets to protect the White House as a rule of general applicability. If it were, then virtually every decision of every government officer would be a "rule," subject to APA rulemaking requirements. This surely is not the result contemplated by Congress in enacting the rulemaking section of the APA; indeed, such a result would effectively bring government decision-making to a grinding halt.

Even if this Court were to conclude that the Secretary's action in restricting certain streets constituted a "rule" under the APA, it still would be exempt from the APA's requirements of

[7 Indeed, in light of the fact that the street restrictions were based on exigent circumstances, it would have made no sense for the Secretary or the Director to engage in rule-making on the subject, thereby giving would-be terrorists advance notice that their opportunities were about to be foreclosed.]

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publication for notice and comment and publication thirty days before its effective date. The rulemaking provision of the APA states:

(a) This section applies, according to the
provisions thereof, except to the extent
that there is involved
*************

(2) a matter relating to agency management or personnel or to public property, loans, grants benefits, or contracts.

¶ U.S.C. S 553(a) (emphasis added). The Attorney General's Manual on the Administrative Procedure Act, 27 (1974), defines the "public property exemption as follows:

Public Property. This embraces rules issued by any agency with respect to real or personal property owned by the United States. Thus the making of rules relating to the public domain, i.e., the sale or lease of public lands, or of mineral, timber or grazing rights in such lands, is exempt from the requirements of Section 4.

See Duke City Lumber Co. v. Butz, 382 F. Supp. 3~2, 373 (D.D.C. 1974) (quoting the above language), aff'd in part, 539 F.2d 220 (D.C. Cir. 1976), cert. denied, 429 U.S. 1039 (1977). See also, Story v. Marsh, 732 F.2d 1375, 1384 (8th Cir. 1984); Wilderness Public Rights Fund v. Kleppe, 608 F.2d 1250, 1253 (9th Cir. 1979), cert. denied, 446 U.S. 982 (1980).

While the streets at issue in this case are under the administrative jurisdiction and control of the District of Columbia for purposes of maintenance and police jurisdiction and other matters of local concern, see Home Rule Act, D,C. Code Ann. §§ 1-211 -- 1-299, the streets are located within the National

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Capital Service Area and remain the property of the federal government. See Techworld Development Corp. v. D.C. Preservation League, 648 F. Supp. 106, 111-14 (D.D.C. 1986); see also Exh. G, attached.[8] Accordingly, because the Secretary's action in restricting access to certain streets within this area relates to public property owned by the federal government, the APA does not require action relating to such property to comply with the APA's rulemaking requirements.

Finally, it should be noted that although the Secretary's action in restricting access to the streets surrounding the White House does not constitute a rule subject to the APA, the Director of the Secret Service in fact published his action in the Federal Register on May 26, 1995. See Exh. D, 60 Fed. Reg. 27882-27885 (May 26, 1995). Moreover, as noted earlier, in that rule the Director stated that even if the APA could be deemed applicable, the action was of such urgent nature as to not require notice and comment rulemaking or a delay in the effective date of the rule. Id, at 27885.

As the Director noted in the May 26th regulation, 5 U.S.C. SS 553(b) (B) and 553(d) provide exceptions to the notice and comment and thirty-day delay procedures of rulemaking. In particular, Section 553(b) (B) states that notice and comment procedures will not apply

[8 See also 40 U.S.C. § 136. The National Capital Service Area sets forth the boundaries of what has commonly been described as the federal enclave, a geographic area comprising many of our historical federal buildings, including the White House Complex.]

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when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

Section 553(d) provides that the required publication of a final rule thirty days before its effective date applies except

(3) as otherwise provided by the agency for good cause found and published with the rule.

As noted earlier, the Director expressly addressed both of these issues in the May 26th rule. The Director stated that:

I find that notice and public procedure on this rule is impracticable and contrary to the public interest because any delay in this action will result in an unacceptably high risk of danger to the President, the First Family, and others in the White House Complex. Moreover, any delay in implementing the street closures after the announcement of an intent to take such action would increase these risks.

Exh. D, 60 Fed. Reg. at 27885.

An inquiry into whether the "good cause" exceptions have been properly invoked must be analyzed on a case-by-case basis, with due regard to the "totality of factors at play. Alcatraz v. Block, 746 F.2d 593, 612 (9th Cir. 1984). However, good cause is established where compliance with notice and comment procedures or a thirty-day delay in effective date of the rule or regulation "could result in serious damage to important interests." National Fed'n of Fed. Employees v. Devine, 671 F.2d 607, 611-12 (D.C. Cir. 1982). These important interests have been construed to include potential harm to parties involved. Id. at 609-11; Woods Psychiatric Institute v. United States, 20 C1. Ct. 324, 333 (C1. Ct. 1990), aff'd 925 F.2d 1457 (Fed. Cir. 1991).

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As described above, the Secret Service regulation makes crystal clear the important interests to be served and the clear need to dispense with the notice and comment procedures and the delay in effective date. Thus, even if the APA's rulemaking requirements were to apply in this case, there can be no question that the Secret Service properly invoked the "good cause" exception.

In Count Ten plaintiff argues that defendants' decision to close the streets was arbitrary and capricious, and thus in violation of Section 706 of the APA. On the contrary, the Background Information on the White House Security Review makes clear that this action was undertaken only after a thorough and detailed analysis of the need for such action. While many of the detailed reasons for the street restrictions are classified and thus cannot be revealed, the Court can certainly take judicial notice of the savage power that can be unleashed by explosive devices carried by vehicles, as was recently experienced in the Oklahoma City tragedy. Even the mere possibility that the White House and the President could ever be vulnerable to such an attack amply justifies the actions taken on May 20th. Plaintiff's claims in this regard are thus clearly without merit.

The foregoing amply demonstrates that plaintiff has failed to state a claim under the APA with respect to the May 20, 1995 closing of portions of certain streets surrounding the White House.

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C. Plaintiff's Claims Under The National
Environmental Policy Act Should Be Dismissed.

The National Environmental Policy Act NEPA] imposes a duty upon federal agencies to prepare an Environmental Impact Statement [EIS] before undertaking a major federal action that significantly affects the quality of the human environment. National Ass'n of Government Employees v. Rumsfeld, 413 F. Supp. 1224, 1229, (D.D.C. 1976), aff'd without opinion sub nom. National Ass'n of Government Employees v. Brown 556 F.2d 76 (D.C. Cir. 1977). The duties imposed under the statute are essentially procedural and are designed to compel the implementing agency to consider environmental issues before taking such action. Sierra Club v. United States Department of Transportation, 753 F.2d 120, 126, (D.C, Cir. 1985). To implement NEPA mandate, the Council on Environmental Quality [CEQ has promulgated regulations at 40 C.F.R. ~ 1500 et sea., which establish uniform procedures for determining whether, when and how EISs should be prepared and require agencies to adopt agency-specific NEPA procedures that comply with CEQ regulations.

These regulations contain an emergency provision which permits an agency in appropriate circumstances to proceed with an action without complying with the CEQ regulations. Thus, pursuant to 40 C.F.R. ~ 1506.11,

[W]here emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts

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of the emergency. Other actions remain subject to NEPA review.

The necessity found by the White House Security Review to restrict access to the streets surrounding the White House in order to enhance security of the area clearly qualify as an emergency" within the meaning of this regulation. Prior to taking this action the Secretary attempted to consult with the CEQ before the street restrictions were put in place. Exh. E. Although such attempts proved unsuccessful, Department officials spoke with CEQ on the first business day following the May 20th action. In these discussions the Department explained in general the circumstances underscoring the emergency nature of the street restrictions and the unacceptably high risk of danger to the President, First Family and others in the White House Complex that would have resulted from any delay in taking action. In light of the circumstances, and the Review's conclusion that no acceptable alternative existed other than to restrict access to the streets as done on May 20th, the Department and the CEQ concluded that the situation was an emergency as contemplated by 40 C.F.R. ~ 1506.11, and that that provision was satisfied with respect to the specific actions taken. Id. at 2. Consultation with CEQ regarding future planning related to the area impacted by the street restrictions will continue. Id. Consequently, the foregoing emergency exception amply covers the Secretary's action in restricting access to the streets at issue on May 20, 1995.

D. Plaintiff's Remaining Claims Must Be Dismissed.

Plaintiff alleges in Count Eight of his Amended Complaint

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that the street restrictions on May 20, 1995 violate the requirements of 36 C.F.R. S 1.5 (copy attached as Exhibit F), which regulates the closing of public parks and explains the circumstances under which such closing may occur. Amended Complaint at 10-11. This claim is without merit. As has been noted, no public park has been closed; access to Lafayette Park remains as open as it was before May 20th. Plaintiff does not allege that pedestrians cannot still move freely in and out of the Park as they did before May 20th; the only change is that the barriers surrounding the Park would prevent a vehicle from entering the Park.

In Count Nine of the Amended Complaint plaintiff alleges that defendants' actions with respect to the APA, the NEPA and 36 C.F.R. ~ 1.5 have denied plaintiff due process, in violation of the Fifth Amendment. This claim also lacks merit. As demonstrated above, the APA does not apply to the action taken on May 20, 1995, nor was compliance with NEPA procedures required in light of the emergency identified. similarly, no process was due under 36 C.F.R. ~ 1.5 because no public parks were closed by this action.

Counts Twelve through Sixteen address plaintiff's arrest by defendant D.C. Metropolitan Police Officer Radzilowski. While these claims involve defendant District of Columbia, as opposed to the federal defendants, it should be noted that this Court heard testimony on this issue at the hearing on plaintiff's motion for a temporary restraining order, and the Court concluded

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that plaintiff's arrest was legal. Exh. A at 53. As such, plaintiff's arrest could not have violated his First or Fourth Amendment rights, as he alleges in the Amended Complaint.

Finally, federal defendants note that plaintiff cites to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1970), and 42 U.S.C. S 1983 and 1985(3). Plaintiff's Amended Complaint, however, raises no Bivens allegations against any federal defendant nor does he state the nature of his claims under 42 U.S.C. §§ 1983 and 1985(3). [9] Moreover, those two statutes do not apply to action taken by the federal government.

Thus, plaintiff's remaining claims must be dismissed for failure to state a claim. [10]

CONCLUSION

For the reasons stated above, plaintiff's Complaint fails to state a claim upon which relief can be granted. Accordingly his motion for preliminary injunction should be denied and his

[9 Sections 1983 and 1985, by their own terms, apply to state action as opposed to federal action. 42 U.S.C. § 1983 and 1985(3).]

[1O Plaintiff should be aware that under Fed. R. Civ. P. 56 the evidence submitted by federal defendants will be accepted by the Court as true unless plaintiff submits his own affidavits or documentary evidence. See Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992). A copy of Rule 56 is attached as Exhibit H.]

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Amended Complaint should dismissed, or in the alternative, the Court should enter summary judgment in favor of defendants.[11]

Respectfully submitted,

___________________________
ERIC H. HOLDER, JR.
D.C. BAR #303115
United States Attorney

_________________________
MARINA UTGOFF BRASWELL
D.C. BAR #416587
Assistant United States Attorney

[11 In light of the fact that defendants have filed a dispositive motion, plaintiff's motion for a preliminary injunction is largely moot, as the Court is now presented with an opportunity to rule on the merits of the case. Nevertheless, the foregoing makes amply clear that not only do defendants have a substantial likelihood of success on the merits, but plaintiff faces no irreparable injury from the action taken. Plaintiff is still free to disseminate his message in the manner in which he has been communicating in the past. Meanwhile, the street closures serve defendants' and the public's significant interest in protecting the President and his family from the possibility of harm. Accordingly, plaintiff's request for a preliminary injunction, if not moot, should be denied.]

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