of such a brief inappropriate. Amicus begs the Court's pardon for
not having filed a brief along the lines that the Court expected,
and begs its indulgence in accepting this rather different brief,
which amicus hopes will be of assistance to the court. [2]
After the March 26 hearing, counsel for amicus had several
conversations with the plaintiffs in the course of which it
became clear that the Court and defense counsel (and, initially,
counsel for amicus) had misunderstood both the thrust of
plaintiff's motion and the theory of plaintiff's challenge to the
new regulations. Ultimately, plaintiff determined that his case
would be best served by withdrawing his motion for a preliminary
injunction, and amicus understands that a notice of withdrawal of
that motion has been or will be filed today. Counsel for amicus
offered his services in informally assisting plaintiff to make
his position clear to the Court, and plaintiff accepted that
offer;[3] counsel accordingly assisted plaintiff in drafting the
Memorandum to the Court that amicus understands has been or will
be filed today.
[2 The ACLU's views on the constitutionality of the proposed
regulations, which have now been promulgated without major
change, were set forth -- albeit with only the most sketchy
citation of legal; authority -- in the ACLU's comments submitted
during the rulemaking. Those comments are in the Administrative
Record that has been filed with the Court at pages III,A.3.14 to
III.A.3.57.]
[3 Counsel for amicus is unable to represent plaintiff
directly for reasons that were made known to the Court last
summer. That situation has not changed.]
2
In light of the withdrawal of plaintiff's motion, and ever
more importantly, in light of plaintiff's explanation of the
true theory underlying his inclusion of the new regulations in
his complaint, it is clear that the federal defendants' motion
for judgment on the administrative record is inappropriate. As
plaintiff has now explained, he has not attacked the facial
validity of the new regulations; rather, he alleges that their
promulgation was the latest overt act in furtherance of the
conspiracy to violate his civil rights that he has alleged.
Counsel for the federal defendants should, accordingly,
withdraw their motion at this time. If they do not, the Court
should strike the motion as irrelevant, since it addresses an
issue that the plaintiff has now explained is not in the case.
In effect -- although quite unintentionally -- the motion for
judgment on the administrative record seeks an advisory opinion
from this Court that the new regulations pass constitutional
muster -- an opinion that the Court has no jurisdiction to
grant in the absence of a challenge to the constitutional
validity of those regulations brought before the Court by a
plaintiff. [4]
[4 If for some reason the Court determines that the issue of
the facial validity of the new regulations does remain before the
Court, amicus will of course be prepared to submit an additional
brief expressing its views on that issue, if the Court so
requests.]
3
Amicus urges the Court to give favorable consideration to
the points made in the memorandum filed today by the plaintiff.
It appears to amicus that a trial of this case is probably
inevitable, sooner or later; the Court has already denied the
defendants' motion to dismiss, and amicus understands that
plaintiff believes he is able to attest to facts that will make
summary judgment for the defendants impossible. While further
motions practice might serve to narrow the issues or to eliminate
some defendants, it appears more likely that further motions
practice will just tie the plaintiff and his case up in an
ever-expanding cat's-cradle of procedural string.
The first rule of federal civil procedure admonishes the
courts "to secure the just, speedy, and inexpensive determination
of every action." Rule 1, F.R.Civ.P. In a pro se case, the Court
certainly has broad discretion to manage the litigation and
construe the rules so as to assist the unrepresented litigant to
get the merits of his case before the Court, Amicus suspects that
it will ultimately take less time for the Court and for defense
counsel to try this case than to continue to fight over the
preliminaries. Accordingly, the Court may wish to consider
putting this case on a straight track toward trial, and giving
the plaintiff his chance to
4
prove -- or fail to prove -- the existence of the conspiracy he
alleges.
Respectfully submitted,
(signed) Arthur B. Spitzer
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W.
Washington, D.C. 20036
(202) 457-0800
Counsel for Amicus Curiae
March 31, 1986
5
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Motion for
Leave to File Brief Amicus Curiae and Brief of the American Civil
Liberties Union Fund of the National Capital Area, Amicus Curiae
were served by hand delivery this 31st day of March, 1986, upon
william Thomas in Lafayette Park; upon John D. Bates, Assistant
United States Attorney, United States Courthouse, Washington,
D.C. 20001; and upon Peter Baas, Assistant Corporation Counsel,
Room 3101 District Building, Washington, D.C. 20004.
(signed)
Arthur B. Spitzer
Case Listing --- Proposition One ---- Peace Park