MARY HUDDLE, et al.,

         v.                       Civil Action No. 88-3130 JHG



The Federal Defendants, by and through their undersigned counsel, hereby move to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1), (2), (4), (5) and (6). 1/ Reasons in support of this motion are set forth in the attached Memorandum of Law.

Respectfully submitted,

//s// Jay B. Stephens
United States Attorney

//s// John D. Bates
JOHN D. BATES, C Bar #934927
Assistant United States Attorney

//s// Michael L. Martinez
Assistant United States Attorney


1/ The "federal defendants" are all of the defendants in this case except the District of Columbia and Captain Michael Canfield.


MARY HUDDLE, et al.,

         v.                       Civil Action No. 88-3130 JHG




This case marks the latest chapter in the seemingly endless saga of William Thomas and his cohorts, all of whom are demonstrators in and around Lafayette Park and the White House sidewalk area in Washington, D.C. Not unlike the hydra of Greek mythology, this case is largely a replacement for two consolidated cases recently dismissed by Judge Oberdorfer of this Court. In fact this case, with minor exception, largely regurgitates many of the same claims against many of the same defendants as in the recently dismissed consolidated cases.

As is readily apparent from plaintiffs' Complaint and subsequent amendments, the Complaint 1/ is far from a model of clarity. Indeed, rummaging through plaintiffs' complaint in

1/ For ease of reference when defendants refer to "complaint" they are referring to the original complaint and the subsequent amendments taken together as a whole, unless otherwise specified.


search of clarity is no small task. Nevertheless, the federal defendants discern that plaintiffs assert the following issues in this case. First, plaintiffs assert a number of common law tort claims including, but not limited to, false arrest, false imprisonment, defamation, assault and intentional infliction of emotional distress. See Pls' Orig. Comp. 11 82-91. Second, plaintiffs assert a number of statutory violations and constitutional torts, including alleged violations of 42 U.S.C. §§ 1983, 1985(3) and 1986 and the First, Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the United States Constitution. Orig. Comp. 11 92-93; 1st Am. Comp. '' 11, 54, 56. Third, either concomitant with or as an extension of their 42 U.S.C. § 1985(3) claim, plaintiffs allege a conspiracy by the federal defendants to deprive plaintiffs of various rights. According to plaintiffs, this conspiracy was manifested in the promulgation and enactment of regulations governing demonstrations on the White House sidewalk and in Lafayette Park. 36 C.F.R. § 7.96. Specifically, plaintiffs assert that the regulations are based on official isrepresentations of fact and the perjurious testimony of various government officials. Orig. Comp. 11 9, 20, 63. Fourth and finally, plaintiffs assert what is in essence an equal protection or selective enforcement argument. They claim the committee in charge of making preparations for the forthcoming presidential inauguration on January 20, 1989, has been permitted to conduct activities in Lafayette Park while plaintiffs have been prohibited from conducting other, similar kinds of activities.

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As the federal defendants 2/ explain below, each of plaintiffs' claims should be rejected and this Court should dismiss this action. First, to the extent plaintiffs are seeking damages for common law torts, those claims should be rejected and this Court should dismiss this action. To the extent plaintiffs are seeking damages for common law torts, those claims should be dismissed because plaintiffs have not sued the proper defendant -- the United States -- and plaintiffs have not exhausted their administrative remedies under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. Second, to the extent plaintiffs seek to pursue constitutional tort, conspiracy and statutory claims plaintiffs' action must fail because it falls far short of pleading such claims as to each defendant with the requisite specificity, as well as for other reasons specified below. Third, the Court currently lacks jurisdiction over most of the federal defendants due to the lack of proper service. Fourth, the applicable statute of limitations has run on most of plaintiffs' claims. Fifth, each

2/ The federal defendants read the original complaint and its amendments to include only the following as the "federal defendants" in this case: President Reagan, the Office of Management and Budget ("OMB"), the Secret Service, Secretary of Interior Donald Hodel, Department of Interior Assistant Solicitors Richard Robbins and Randolph Myers, Interior Officials J.C. Lindsey, Sandra Alley and Manus J. Fish, Park Police Chief Lynn Herring, Assistant Chief Robert Langston, Captain Michael Barrett, Lieutenant Hugh Irwin and officers Kevin Fornshill, Leslie Waite and Michelle Berkowitz.

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individual federal defendant is entitled to immunity from suit -- absolute in the case of the President, qualified as to each of the other defendants. Sixth, the regulations at issue are valid time, place and manner restrictions that have been adjudged to be constitutional by various courts. Seventh and finally, there is no equal protection violation in this case because the regulations specifically permit the Inauguration Committee's activities about which plaintiffs complain in this case.


Plaintiff William Thomas is a perennial demonstrator in the White House/Lafayette Park area who has, since June 1981, sought to maintain a continuous vigil at those areas. Over the ensuing years Mr. Thomas has been joined in his efforts by each of the other plaintiffs; first by Concepcion Picciotto, later by Ellen Thomas (now his wife) and more recently by plaintiffs Huddle, Joseph, Harmony and Galindez. Although the specific focus of Thomas' demonstration has at times varied, the essence of his political message has since 1981 been "Peace through Love" and "Love your enemies" by way of eliminating nuclear weapons from the planet. See Thomas v. News World communications, 681 F.2d 55 (D.D.C. 1988).

The confluence of plaintiffs' continuous presence in the White House/Lafayette Park area with federal regulations at 36 C.F.R. §7.96 has resulted in numerous arrests of the plaintiffs in the years since 1981. Indeed, William Thomas has been


arrested at least twenty-five times in the 1981-88 period and been convicted at least fourteen times. See Exhibits 4-6 attached hereto. Those convictions have included camping in Lafayette Park, setting fire to a structure on the sidewalk next to the Old Executive Office Building thereby causing $5,000 worth of damage to a stone pillar and injury to a tree in Lafayette Park. Id.

In 1984, William Thomas and others filed suit in this Court, alleging much as in this case, a broad-based conspiracy by various federal government officials. In addition they challenged the constitutionality of the White House sidewalk regulations, 36 C.F.R. § 7.96(g)(5)(viii) and (ix) and later of the Lafayette Park regulations, 36 C.F.R. § 7.96(g)(5)(x). That case also raised a variety of common law and constitutional tort claims. See Thomas v. United States, C.A. No. 84-3552-LFO. 3/ After substantially narrowing the initial scope of that case in response to dispositive motions, Judge Oberdorfer in June 1986, referred the case to then United States Magistrate Arthur Burnett, Sr. for the purpose of presiding over limited discovery. As a result Magistrate Burnett, during the summer of 1986, personally presided over the depositions by Thomas of ten government officials including Assistant Solicitor Robbins.

3/ The federal defendants in that case were the United States, Robert Bedell of OMB, Secretary Hodel and former Secretaries of Interior James watt and William Clark, Assistant Solicitors Robbins and Patricia Bangert, Park Service officials Lindsey and Fish, Park Police official Christopher Merillat and Secret Service agent Jerry Parr.

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Subsequently the federal defendants moved anew to dismiss or for summary judgment.

While that motion was pending, Thomas and others filed a second civil action against various federal defendants, various officials of the Washington Times and others. Thomas v. News World Communications, C.A. No. 87-1820-LFO. 4/ Plaintiffs alleged the same conspiracy as in this and the earlier Thomas case as well as defamation and a variety of other common law torts, and constitutional torts and statutory claims.

On February 23,, 1988, Judge Oberdorfer dismissed all claims against the Times defendants holding, inter alia, that plaintiffs had failed as a matter of law to state a conspiracy claim. Thomas v. News World Communications, 681 F. Supp. 55, 67-72 (D.D.C. 1988). The remainder of the case was then consolidated with the pending earlier Thomas case. Id. at 74.

On September 16, 1988, Judge Oberdorfer dismissed the entirety of the consolidated cases. He held, inter alia, as to the conspiracy and other claims, that the rationale of the February 23 opinion applied with equal force to the federal defendants. He also held that the claims against the individual defendants should be dismissed due to failure to meet the applicable heightened pleading standard and that the Lafayette Park regulation is constitutionally valid. Thomas v. United

4/ The federal defendants in that case were Ronald Reagan, the Department of Interior, Robbins, Bangert, Irwin and Park Police Officer Brad Hewick.

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States, 696 F. Supp. 702 (D.D.C. 1988).

Plaintiffs subsequently moved for reconsideration; a motion that was denied by Judge Oberdorfer on November 22, 1988. Exhibit 1 attached hereto. 5/ In the meantime plaintiffs filed the instant suit in this Court on October 27, 1988. 6/


A. All Damage Claims For The Common Law Tort Claims As well As All Damage Claims Against The Agency Defendants And The Individual Defendants Sued In Their Official Capacities Should Be Dismissed.

Since plaintiffs seek damages for their various common law tort claims, it is clear that the only possible basis for relief is the FTCA. No other possible basis exists for recovery in tort against the federal government because sovereign immunity bars all tort claims against the United States unless the terms of the FTCA are complied with by plaintiffs. In other words sovereign immunity absolutely shields the government from tort actions unless it has been waived. The FTCA is one such waiver

5/ Plaintiffs have filed eleven separate notices of appeal from Judge Oberdorfer's decisions. The federal defendants have moved to consolidated ten of them. See App. Nos. 88-5367, 885368, 88-5386, 88-5387, 88-5383, 88-5389, 88-5407, 88-5408, and 88-5409. The eleventh, App. No. 88-5227, was dismissed on December 20, 1988.

6/ In addition, plaintiffs have previously filed several other civil actions in this Court relating to their activities in Lafayette Park. Each suit has been unsuccessful. See e.g.: Thomas v. U.S. Attorney's Office, C.A. No. 88-1034 (Sept. 16, 1988); Picciotto v. Hodel, C.A. No. 87-3290 (Jan. 26, 1988); In re Return of Property To Concepcion Picciotto, C.A. No. 87-2295 (Nov. 9, 1987). Saffron and Picciotto v. Clark, C.A. Nos. 841295, 84-1303 (June 26, 1985).

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of sovereign immunity. United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Mitchell, 445 U.S. 535, 538 (1980); Kline v. Republic of El Salvador, 603 F. Supp. 1313, 1316 (D.D.C. 1985).

As a prerequisite for filing a civil tort action, the FTCA unequivocally requires that the claimant first file an administrative claim with the agency from which he seeks relief. 28 U.S.C. § 2675(a). This provision is jurisdictional and cannot be waived by equitable considerations or otherwise. Hohri v. United States, 782 F.2d 227, 245-46 (D.C. Cir. 1986), rein. denied, 793 F.2d 304 (D.C. Cir. 1986), rev'd on other grounds sub nom. United States v. Hohri, 107 S. Ct. 2246 (1987). This statutory requirement requires the putative plaintiff to file with the agency: "(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim." GAF Corp. v. United States, 818 F.2d 901, 919 (D.C. Cir. 1987). The purpose of the requirement is to enable the agency "to determine whether settlement or negotiations to that end are desirable" and thus perhaps obviate the need for litigation. Id. at 920. In this case plaintiffs do not aver that they have filed an administrative tort claim. Indeed' as the attached Declaration of J.C. Lindsey establishes, a search of the Department of Interior's tort claim records has revealed no administrative tort claim. Exhibit 2 attached hereto.

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Notwithstanding the exhaustion requirement, all claims against OMB, the Secret Service and the individual defendants, insofar as they are sued in their official capacities, should in any case be dismissed. Under the terms of the FTCA only the United States is a proper defendant to an FTCA tort claim. 28 U.S.C. § 2679(a). A named agency such as the Department of Interior or OMB is not a proper defendant and thus should be dismissed as a party. Hagmeyer v. U.S. Department of Treasury, 647 F. Supp. 1300, 1304-05 (D.D.C. 1986)(dismissing FTCA claim against Treasury); Kline, supra, 603 F. Supp. at 1316. A similar analysis and result applies to federal officers sued in their official capacities. Clark v. Library of Congress, 750 F.2d 89, 103-04 (D.C. Cir. l984)(sovereign immunity bars tort actions for damages against federal officials sued in their official capacities).

Moreover, recent amendments to the FTCA establish that none of the federal defendants can be sued for common law tort claims. Specifically, on November 18, 1988, the President signed into law the Federal Employees Liability Reform and Tort Compensation Act of 1988, Public Law 100-694 (copy attached hereto as Exhibit 3). The Act was designed to substitute the United States, pursuant to the terms of the FTCA, as the exclusive defendant in actions against federal employees in their individual capacities for common law tort claims. Indeed, one of the findings made by Congress as a basis for the statute was that this enactment was necessitated by "[t]he erosion of

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immunity of Federal employees from common law tort liability" Exhibit 3, section 2(a)(5). The statute does not apply to constitutional tort claims.

The new statute provides in part that 28 U.S.C. § 2679(b) (1) is amended to read:

"The remedy against the United States provided by sections 1346(b) and 2672 of [] title [28] for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim. Any other civil action or proceeding arising out of or relating to the same subject matter against the employee or his estate is precluded without regard to when the act or omission occurred. Upon certification by the Attorney General or his designee that the individual defendant was acting within the scope of his employment, the action is deemed one against the United States under the FTCA and the united States must be substituted as the sole defendant. 28 U.S.C. § 2679(d); Exhibit 3, section 6. The changes made by this new statute are specifically applicable "to all claims, civil actions, and proceedings pending on, or filed on or after, the date of the enactment of this Act." Exhibit 3, section 8(b).

Pursuant to 28 C.F.R. § 15.3 (1988), the Attorney General has delegated to United States Attorneys the authority to certify that the federal defendants have each acted within the

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scope of their employment thus mandating substitution of the United States as a defendant. Given the newness of the statutory changes the United States Attorney's office has not yet ironed out the process by which such certifications will be made or the identity of the certifying official. This determination is expected to be made in the imminent future and the undersigned fully expect that each of the federal defendants in this case will be so certified. The federal defendants will notify the Court promptly once the certifications are made.

Assuming certification and in view of the foregoing, the Court should dismiss all common law tort claims against all of the federal defendants as well as dismiss all damage claims against the agency defendants and the individual defendants insofar as they are sued in their official capacities. 7/

B. Plaintiffs' Remaining Claims Against The Individually-Sued Defendants Should Be
Dismissed For Failing To Meet The Heightened Pleading Standard

1. The Standard.

The Supreme Court held in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), that a cause of action exists against federal officials individually for violations of a

7/ Even apart from these arguments the applicable statute of limitations for the FTCA, two years, bars any common law tort claims that accrued more than two years ago. See 28 U.S.C. §2401(b). Thus, most of plaintiffs' common law tort claims are time-barred. See discussion infra in part E. Moreover, to the extent plaintiffs assert a defamation claim it must be dismissed since such a claim is not permitted under the FTCA. Wilcox v. United States, 509 F. Supp. 381, 387 (D.D.C. 1981)(sovereign immunity not waived for defamation claims).

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person's constitutional rights while acting in an official capacity. It is fundamental, however, that for a federal official to be properly sued individually for actions taken by him in an official capacity, the Complaint must allege a specific deprivation of plaintiff's rights by each defendant with specific factual allegations as to each alleged deprivation. Failure to allege a specific factually detailed violation deprives the Court of subject matter jurisdiction over the individual and fails to state a claim as to any individual liability of the individual defendant for actions taken in his official capacity. In such a case the Complaint must be dismissed. See Carlson v. Green, 446 U.S. 14, 18 (1980); Baker v. McCollan, 443 U.S. 137, 140 (1979); Davis v. Passman, 442 U.S. 228, 239 (1979).

More recently our Court of Appeals has explained on several occasions that Bivens plaintiffs are held to a "heightened pleading standard" which requires plaintiffs "at the very least [to] specify the 'clearly established' rights they allege to have been violated with...precis[ion]". Martin v. Malhoyt, 830 F.2d 237, 253 (D.C. Cir. 1987), cert. denied, 833 F.2d 1049 (D.C. Cir. 1987), quoting Smith v. Nixon, 807 F.2d 197, 200 (D.C. Cir. 1986) and Hobson v. Wilson, 737 F.2d 1, 29 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985). This heightened pleading standard is applicable to all Bivens cases no matter what allegations are made, Martin v. Malhoyt, 830 F.2d at 253 and n.40. See also Hobson, supra, 737 F.2d at 29-31; Martin v. D.C.

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Metropolitan Police Dept., 812 F.2d 1425, 1434-36 (D.C. Cir. 1987), vacated in part, 817 F.2d 144 (D.C. Cir. 1987), vacated part reinstated, 824 F.2d 1240, 1246 (D.C. Cir. 1987), and requires the plaintiff to state facts with particularly in his Complaint that demonstrate "who did what to whom and why." Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir. 1982) cert. denied, 461 U.S. 944 (1983); Rochon v. FBI, 691 F. Supp. 1548, 1557-58 (D.D.C. 1988). Thus, as our Court of Appeals recently explained in the conspiracy setting,

[u]nsupported factual allegations which fail to specify in detail the factual basis necessary to enable [defendants] to intelligently prepare their defense, will not suffice to sustain a claim of governmental conspiracy to deprive [plaintiffs] of their constitutional rights.

Martin v. Malhoyt, 830 F.2d at 257.

When this standard is applied to this case it is apparent that plaintiffs have fallen far short of meeting the heightened pleading standard. First, plaintiffs at no place explain, despite their prolix complaint and affidavits how any of their identified constitutional rights were violated by any of the defendants. Indeed, many of the defendants are not mentioned at all in the complaint other than in plaintiffs' identification of each and their governmental position.

Moreover, the allegations of this Complaint are no more specific than were the allegations in the recently dismissed Thomas cases. In those cases Judge Oberdorfer dismissed all constitutional tort, statutory and conspiracy claims against the

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individual defendants largely because plaintiffs failed to meet their burden under the heightened pleading standard. Thomas v. United States, 696 F. Supp. at 704-05; Thomas v. News World Communications, 681 F. Supp. at 66-72. Notwithstanding that those cases were dismissed without prejudice, principles of collateral estoppel and judicial consistency counsel that in this case, where plaintiffs' claims are no more specific than in the earlier cases, the same result should be reached. Thus, the Court should dismiss all constitutional, statutory and conspiracy claims against the federal defendants.

2. The Conspiracy And Statutory Claims.

Even apart from the foregoing, plaintiffs have failed for other reasons to state a claim against the individual defendants. Turning first to plaintiffs 42 U.S.C. § 1985(3) claim, for plaintiffs to properly state a claim under this section, the complaint must allege: (1) the existence of a conspiracy; (2) for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws or of privileges and immunities under the law; (3) motivated by some class based, invidiously discriminatory animus; and (4) an act in furtherance of the conspiracy; (5) whereby a person is injured or deprived of a right. Hobson v. Wilson, supra, 737 F.2d at 14; Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Absent these requisite allegations in the complaint a section 1985(3) claim should be

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summarily rejected by the Court. Mundy v. Weinberger, 554 F. Supp. 811, 823 n.37 (D.D.C. 1982).

Even apart from the obvious lack of specifically pleaded facts, if the Court assumes arguendo that plaintiffs' conclusory allegations of a conspiracy are sufficient, the complaint is nevertheless totally devoid of any allegation of a "class-based discriminatory animus" on the part of any of the defendants in this case and it fails to allege any improper purpose for the alleged conspiracy. Accordingly, plaintiffs' 42 U.S.C. 1985(3) claim should be dismissed.

Furthermore, as to each of plaintiffs' conclusory conspiracy claims, even apart from the heightened pleading rule, allegations of conspiracy -- whether in a Bivens setting or not-"are insufficient unless amplified by specific instances of misconduct." Lombard v. United States, 530 F.2d 918, 923, aff'd, 690 F.2d 215 (D.C. Cir. 1982), cert. denied, 462 U.S. 1118 (1983), quoting Oster v. Aronwald, 567 F.2d 551, 553 (2nd Cir. 1977). Plaintiffs' conspiracy allegations fall far short of this requirement.

Plaintiffs' 42 U.S.C. § 1983 and § 1986 claims should also fail. As to section 1983, plaintiffs' claims must fail because that statute does not apply to the federal government or its officers or agents when, as here, they acted to apply or enforce federal regulatory provisions. Gomez v. Toledo, 446 U.S. 635, 640 (1980); Gibson v. United States, 781 F.2d 1334, 1342-43 (9th Cir. 1986), cert. denied, 107 S.Ct. 928 (1987). As to section

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1986, plaintiffs cannot prevail unless they have established a colorable scheme under 42 U.S.C. 1985. Mollnow v. Carlton, 716 F.2d 627, 632 (9th Cir. 1983), cert, denied, 465 U.S. 1100 (1984), rein. denied, 466 U,S. 954 (1984); Thomas v. New World communications, 681 F. Supp. at 72. Since plaintiffs have failed to state a claim under section 1985(3), their section 1986 claim should be dismissed. Id.

Moreover, since each of the above claims--42 U.S.C. § 1985(3), conspiracy, 42 U.S.C. ~ 1983 and 42 U.S.C. § 1986-were also rejected by Judge Oberdorfer for the same reasons set forth above, this Court should do so as well. Id. at 65-72; Thomas v. United States, 696 F. Supp. at 704-05.

3. The Constitutional Claims.

Plaintiffs' constitutional claims are equally deficient under the heightened pleading standard. First, the Fourteenth Amendment, since it is applicable only to the states, does not apply to this case. Even if it did, it is difficult to conjecture how it or the Fifth, Sixth and Ninth Amendments apply to the allegations of this case. Certainly the Complaint, failing as it does to meet the heightened pleading standard, sheds no light on the matter.

Plaintiffs' Fourth and First Amendment claims similarly must fail. As to the Fourth Amendment claim, even if plaintiffs ' arrests did constitute a Fourth Amendment violation, which they do not, Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 947 (D.C. Cir. 1988) (not

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every tort rises to the level of a constitutional tort), there was probable cause in each case to justify each arrest. In any case, plaintiffs have failed to meet the heightened pleading standard because they do not tie their alleged Fourth Amendment violations to specific facts as to each defendant and each claim.

As to the First Amendment, that claim too must fail. The essence of this claim appears to relate to the promulgation of the regulations applicable to the White House sidewalk and Lafayette Park. Apart from the fact that plaintiffs offer no specificity regarding their First Amendment claim other than their own conclusory averments, Judge Oberdorfer has already considered and rejected plaintiffs' First Amendment claims in the context of these regulations. Thomas v. News World Communications, 681 F. Supp. at 70-71. This Court should do likewise both because Judge Oberdorfer's conclusion was correct and because of principles of collateral estoppel and judicial consistency. Accordingly, each of plaintiff's constitutional claims should be rejected. 8/

8/ Plaintiffs' related claim that defendants perjured themselves in the promulgation of the regulations must fail. First, there is no evidence to support plaintiffs' conclusory averment. Second, defendants cannot be held liable for such a claim, even if true. Martin v. Malhoyt, 830 F.2d at 258 and n. 57. Absolute immunity attaches to such claims. Id.

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C. Plaintiffs Fail To Satisfy The Stringent Requirements For Naming The President As A Defendant In His Official Capacity.

The Court should dismiss President Reagan as a defendant in this action. The presence of the President as a defendant in a civil action is permitted only where it is absolutely necessary to grant the relief sought. When a plaintiff can be afforded complete relief in an action against governmental entities or federal officials other than the President, the President is considered to be immune from judicial process. Native America Rights Fund v. President Ronald Reagan, C.A. No. 83-1550 (D.D.C.), Memorandum filed June 1, 1984 (Flannery, J.) (Exhibit 7); Crisafulli v. Simon, C.A. No. 76-471 (D.D.C.), Order filed May 21, 1976 (Flannery, J.) (Exhibit 8).

The exceptions serve to explain the general rule. In National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974), the Court of Appeals concluded that the federal courts have jurisdiction to issue a writ of mandamus compelling the President to perform a non-discretionary ministerial duty owed to plaintiffs. There the Court found that the President statutorily was required to submit an alternative federal employee pay plan to Congress by a certain date after a pay comparability study had been completed and forwarded to the President. Finding that the preliminary steps had been completed, the Court concluded that the President therefore was obligated by statute to submit to Congress an adjusted pay plan for federal employees.

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In finding that NTEU properly could assert its claims against the President in that case, however, the Court of Appeals explained that, if an alternative defendant have been available, the President should have been dismissed as a defendant:

"It bears repeating that if the defendant were any one other than the President of the United States, there is little question but that NTEU would be entitled to have a writ of mandamus issue in this case. There is also little doubt that if it were for NTEU to enforce its rights by naming a defendant additional to or in substitution of the President, this Court would exercise its discretion not to answer the question of whether the President is subject to mandamus by a federal court to perform a purely ministerial duty."

492 F.2d at 606. 9/

A similar point had been made a year earlier in Minnesota Chippewa Tribe v. Carlucci, 358 F. Supp. 973 (D.D.C. 1973), where the Court determined that it should depart from the general rule barring suit against the President. There, the Court found that a section of the Indian Education Act required the President to make appointments to the National Advisory Council on Indian Education, and that the President neither had made those appointments nor had delegated his power to do so. Suit therefore was permitted against the President, although the Court noted that joinder of the President generally is

9/ The Court nevertheless declined to issue a writ of mandamus against the President, although it did issue a declaratory judgment.

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unnecessary because complete relief unusually can be afforded against a subordinate government official. 358 F. Supp. at 976.

The general rule, then, continues to be that the President of the united States is subjected to jurisdiction as a civil defendant only if complete relief can not be obtained by suing other parties. "In other words, it is only when the President is uniquely able to carry out the relief sought in the complaint that he must be joined as a defendant." Native America Rights Fund v. President Ronald Reagan, supra, slip op. at 2. Here, that general rule e is full applicable, because the entirety of the relief sought by plaintiffs, even if it were warranted, can be obtained from the other defendants in this action.

In light of these standards the Court should dismiss President Reagan as an officially sued defendant in this action. On the basis of the allegations in this Complaint it is clear that the President is not a necessary defendant because he is not "uniquely able to carry out the relief sought" in the plaintiffs' Complaint.

D. The Court Lacks Personal Jurisdiction Over Some of the Individually Sued Defendants Because They Have Not Been Properly Served.

Although service of process has been accepted as to President Reagan, Secretary Hodel, OMB and the Secret Service and service has been made as to Captain Barrett, the Court lacks personal jurisdiction over the remaining individual federal defendants because personal service has not to date been effected on each of them.

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Under Fed. R. Civ. P. 4(d)(1), service upon an individual must be made by delivering a copy of the summons and Complaint to that individual personally, or by leaving copies at his dwelling place "with some person of suitable age and discretion then residing therein" or by delivery "to an agent authorized by appointment or law to receive service of process." This is in addition to the requirement that the U.S. Attorney's office be hand served. Light v. Wolf, 816 F.2d 746 (D.C. Cir. 1987); Kaiser v. Miller, 115 F.R.D. 504 (D.D.C. 1987). Here, although the U.S. Attorney's Office was served properly, most of the individually sued federal defendants have not been served personally. Moreover, there has been no service of the Complaint and summons to their dwelling places. Service of process thus being defective as to the individual defendants, this action cannot proceed against them. Kaiser, supra, 115 F.R.D. at 505; Lawrence v. Acree, 79 F.R.D. 669, 670-71 (D.D.C. 1978); Navy Marshall & Gordon v. U.S. International Development-Coop. Agency, 557 F. Supp. 484, 489-90 (D.D.C. 1983); Micklaus v. Carlson, 632 F.2d 227, 240 (3d Cir. 1980); Griffith v. Nixon, 518 F.2d 1195, 1196 (2d Cir. 1975), cert. denied, 423 U.S. 995 (1975).

Additionally, although the federal defendants averred at the December 5, 1988 status hearing that it was their understanding that personal service was made on defendants Herring and Langston, defendants have subsequently learned that the summons and complaint was accepted by someone in their

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office not authorized to accept process personally for them. See receipt filed Nov. 14, 1988. There was therefore insufficient service since "where money damages are sought through a Bivens claim, personal service, and not service at the place of employment, is necessary to obtain jurisdiction over a defendant in his capacity as an individual." Dale-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). Thus, at this writing the Court lacks personal jurisdiction over federal defendants Robbins, Myers, Fish, Lindsey, Alley, Herring, Langston, Irwin, Fornshill, Waite and Berkowitz. 10/

E. Most of Plaintiffs' Claims Are Barred By the Statute of Limitations.

Most of plaintiffs' claims against the federal defendants are time-barred. As to those claims redressable under the FTCA, the applicable statute of limitations is, as noted supra, two years from the date of accrual. 28 U.S.C. §2401(b). As to plaintiffs' constitutional, statutory and conspiracy claims either a one year or a three year statute of limitations applies. To determine which limit applies to which claim, the Court must apply the applicable local jurisdictions statute of

10/ On December 21, 1988, AUSA Michael Martinez personally reviewed the docket sheets and the official file of this case in the Clerk's office to confirm who had and had not been properly served. we recognize that the Court, despite our objection offered at the December 5 status hearing, ordered the Marshals Service on December 19 to serve most of these defendants. Given the various other defenses to plaintiffs' action, service by the Marshals is really a futile act. we note moreover, for the record, that plaintiffs have not served the federal defendants with their December 16 "Objection to the Arrangement for Service of Process".

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limitations to individual claims. Doe v. U.S. Department of Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985); Hagmeyer v. U.S. Department of Treasury, 647 F. Supp. at 1305. Thus, in this case the District of Columbia statute of limitations applies to plaintiffs' claims against the federal defendants.

The District of Columbia statute of limitations provides that the limitations period for actions alleging "libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment" is one year. See D.C. Code § 12-301 (4). For most other claims the statute is three years. § 12-301(8). It is well-settled, moreover, that the statute of limitations for a civil conspiracy claim mirrors that set for the underlying tort allegation. Burns v. Spiller, 4 F.R.D. 299, 300 (D.D.C. 1945), aff'd, 161 F.2d 377 (D.C. Cir. 1947). Thus, the proper application of the statute of limitations will vary depending on which of plaintiffs' claims is at issue. What is clear, however, is that the vast majority of plaintiffs' claims should fail as being time-barred since the complaint identifies primarily events occurring more than three years ago. Indeed, this conclusion again is consistent with Judge Oberdorfer's resolution of the earlier Thomas cases. Thomas v. News World Communications, 681 F. Supp. at 72-73.

Furthermore, this conclusion is not altered by the fact that the previous Thomas suits were dismissed without prejudice. As the District of Columbia defendants correctly note in their

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dispositive motion, it is the law of this circuit that the statute of limitations is not tolled by an earlier dismissal without prejudice. Dupre v. Jefferson, 666 F.2d 606, 611 (D.C. Cir. 1981).

F. The President Is Absolutely Immune From Any
Claim Against Him In His Individual Capacity

Plaintiffs also seek money damages form all defendants including President Reagan. As President of the United States, however, Mr. Reagan is absolutely immune from any suit against him in his individual capacity for money damages or other relief. Nixon v. Fitzgerald, 457 U.S. 731 (1982). On that basis alone, therefore, plaintiffs' completely unsubstantiated, and indeed frivolous, claim for money damages against President Reagan must be dismissed at the outset.

G. The Other Individually-Sued Federal Defendants Are
Entitled To Qualified Immunity From Suit.

To the extent any of the plaintiffs' claims survive the foregoing hurdles, each of the individually-sued federal defendants is entitled to qualified immunity from suit. The starting point for discussion of any claim of qualified immunity by a federal official sued in his personal capacity is the Supreme Court's opinion in Harlow v. Fitzgerald, 457 U.S. 800 (1982). Since that decision was issued it is clear that government officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 818.

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Under Harlow this determination requires an objective not subjective analysis. McSurely v. McClellan, 697 F.2d 309, 316 (D.C. Cir. 1982). Harlow thus places squarely on the plaintiff the burden of showing a "prima facie case of defendants' knowledge of impropriety , actual or constructive." Krohn v. United States, 742 F.2d 24, 31-32 (1st Cir. 1984); Davis v. Scherer, 468 U.S. 183, 191 (1984). As the Supreme Court has more recently held,

"Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

More recently the Supreme Court has held:

[t]he contours of the right [the official is alleged to have violated] must he sufficiently clear that a reasonable officer would understand that what he is doing violates that right.

Anderson v. Creighton, 107 S. Ct. 3034, 3038 (1987); Martin v. Malhoyt, 830 F.2d at 253. Thus, the Supreme Court held in Anderson, that even though plaintiff's Fourth Amendment rights were violated in that case, the defendant officers were entitled to assert and obtain qualified immunity from suit individually if they could show they acted reasonably. As the Supreme Court
explained in another case, qualified immunity protects from suit "all but the plainly incompetent or those who knowingly violate the law." Briggs v. Malley, 475 U.S. 335, 341 (1986).

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Plaintiffs have manifestly failed in this case to demonstrate either that the individual defendants are incompetent or that they knowingly violated the law. Indeed, plaintiffs have simply not met their prima facie burden of demonstrating constitutional, statutory, conspiratorial or other violations by the individual defendants, Krohn v. United States, 742 F.2d at 31-32, let alone establish a violation of clearly established law and unreasonableness. Thus, the individually sued federal defendants are entitled to qualified immunity from suit.

The While House Sidewalk and Lafayette Park
Regulations Are Constitutionally Valid.

Plaintiffs also appear to challenge the constitutionality of various portions of 36 C.F.R. § 7.96 (1988). That challenge should be flatly rejected since a variety of Courts have upheld the constitutionality of the regulations. First, insofar as the regulation proscribes camping (36 C.F.R. § 7.96(g)(5)(vii)), the Supreme Court has already held in Clark v. CCNV, 468 U.S. 288 1984), that the regulation is constitutional.

Similarly, insofar as the plaintiffs challenge provisions of the regulation relating to demonstrations on the While House sidewalk (36 C.F.R. § 7.96(g)(5)(vii) and (ix)), the Court of Appeals for this Circuit has on at least three occasions spoken on those regulations and upheld them as constitutional. White House Vigil For the ERA Committee v. Clark, 746 F.2d 1158 (D.C. Cir. 1984); United States v. Grace, 778 F.2d 818, 820-22 (D.C.

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Cir. 1985), cert. denied, 479 U.S. 844 (1986), Juluke v. Hodel, 811 F.2d 1553, 1559-62 (D.C. Cir. 1987). Plainly, this Court is bound by those determinations.

At this writing the only comprehensive review of the regulation insofar as the Lafayette Park demonstration provisions are concerned (36 C.F.R. § 7.96(g)(5)(x)), is that conducted recently by Judge Oberdorfer in the earlier Thomas cases. Judge Oberdorfer, as noted, found the provisions concerning demonstrations in Lafayette Park to be constitutional. Thomas v. United States, 696 F. Supp. at 705-12. This Court should also find the regulation to be constitutional since Judge Oberdorfer's comprehensive analysis of the Lafayette Park provisions is plainly correct. 1l/

First, the regulation is plainly a valid time, place and manner restriction. The regulation is content neutral since it is silent as to viewpoint. The regulation also serves the significant government interests of aesthetics, safety and resource conservation in Lafayette Park and imposes at most a minimal and indirect burden on plaintiffs. The regulation is

11/ Judge Richey of this Court has also found the three foot attendance aspect of the regulation (36 C.F.R. §7.96(g)(5)(x)(B)(2)), to be constitutional. United States v. Musser, Cr. No. 87-157 (D.D.C. June 17, 1987). Exhibit 9 attached hereto. We note moreover, that William and Ellen Thomas currently have pending in the Court of Appeals challenges to two March 1987 arrests and convictions under the Lafayette Park regulations. U.S. v. Thomas, Nos. 88-3034, 88-3035; U.S. v. Thomas, Nos. 88-3015, 88-3023 The underlying District Court convictions of the Thomases are attached hereto as Exhibits 5 and 6.

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also narrowly tailored, balancing as it does concerns for the Park while allowing demonstrations to continue in the Park. Moreover, ample alternative channels of communication are available. Thus, the regulation is a constitutional time, place and manner restriction. See Frisby v. Schultz, 108 S. Ct. 2495, 2500 (1988), Clark v. CCNV, 468 U.S. at 293; Thomas v. United States, 696 F. Supp. at 705. And since the regulation is within the zone of constitutionality, this Court is not permitted to substitute its judgment for the Executive as to how best to manage the resources of Lafayette Park. Juluke v. Hodel, 811 F.2d at 1560; White House Vigil, 746 F.2d at 1531. 12/

The regulation is also not void for vagueness. Indeed, Judge Oberdorfer, while expressing some concern for potential vagueness, upheld the regulation as constitutional in part because these plaintiffs have had significant experience with the regulation and have continually been advised of its terms and in part because any vagueness problem can be cured by plaintiffs applying for a permit, which when granted, will spell

12/ For a mere comprehensive discussion of time, place and manner as applied to this regulation, the Court is respectfully referred to defendants' opposition to plaintiffs' Motion for Preliminary Injunction filed on July 22, 1987 in Thomas v. News World Communications. Defendants also note that this regulation is fully consistent with the Administrative Procedure Act. Indeed, the administrative record for the Lafayette Park regulation consists of twelve volumes of comments, photographs, letters and other items. Due to its size, defendants have not filed a copy here. we note, however, that a copy is on file in the Clerk's office in connection with Thomas v. United States, C.A. 84-3552 and Mr. Thomas is in possession of a copy of the complete administrative record.

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out what is and is not permitted in the Park. These and other factors led Judge Oberdorfer to conclude that the Lafayette Park regulation escapes the "evils of vagueness". Thomas v. United States, 696 F. Supp. at 711. This Court should reach the same conclusion especially given the comprehensive and inciteful analysis conducted by Judge Oberdorfer.

Furthermore, Judge Oberdorfer's resolution of the issue should act as res judicata and/or collateral estoppel at least as to Williams Thomas, Ellen Thomas, Conception Picciotto and the organizational plaintiffs since each was a plaintiff in the earlier Thomas cases. This is true notwithstanding the fact that Judge Oberdorfer dismissed those cases without prejudice, since the merits as to the constitutionality of regulation was reached on the identical facts presented here. Such a resolution would clearly further the goals of the preclusion doctrine -- relief from "the cost and vexation of multiple lawsuits", the conservation of "judicial resources," and the prevention of "inconsistent decisions". United States v. Mendoza, 464 U.S. 154, 158 (1984) quoting Allen v. McCurry, 449 U.S. 90,94 (1980). See also 18 Wright, Miller & Cooper, Federal Practice & Procedure, § 4416 at 136 (1981) ("later courts should honor the first actual decision of a matter that has actually been litigated.") 13/

13/ The fact that Thomas has appealed Judge Oberdorfer's decision does not diminish its preclusive effect. Martin v. Malhoyt, 830 F.2d at 264.


The Court should find, therefore, that insofar as plaintiffs seeks declaratory and injunctive relief regarding the constitutionality of 36 C.F.R. § 7.96 and various of its parts, the challenge should fail. The Court should also hold that the Thomases, Picciotto and the organizational plaintiffs are precluded from asserting this argument.

I. There Is No Equal Protection Or selective Enforcement Violation In This Case.

The only new issue plaintiffs present in this case -- new in the sense that these plaintiffs did not present it in the earlier Thomas cases -- is an equal protection claim that compares the application of the Lafayette Park regulation to them with the application of the same regulation to the Committee in charge of planning the forthcoming Presidential Inauguration. The essence of plaintiffs' argument is that while the regulation has been enforced as to them it has not been enforced as to the Inauguration Committee. See Second Am. Comp. and Pls' Memo. in support of Pre. Inj. Although this argument is new to these plaintiffs it is not novel. Indeed, the argument has previously been rejected by our Court of Appeals in United States v. Grace, supra, and should similarly be rejected here.

First, there is more than ample authority to support activities being conducted by the Inaugural Committee including the construction of grandstands and the other activities cited by plaintiffs. 36 U.S.C. § 724 is the statute by which Congress has granted authority to the Secretary of the Interior to permit

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various activities on federal park land in conjunction with the Inaugural celebration. The statute states in applicable part that:

"The Secretary of the Interior . . . is authorized to grant to the Inaugural Committee permits for the use of such reservations or grounds during the inaugural period, including a reasonable time prior and subsequent thereto . . . with respect to public space, no reviewing stand or any stand or structure . . . shall be built on any sidewalk, street, park, reservation, or other pubic grounds in the District of Columbia, except with the approval of the Inaugural Committee, and with the approval of the Secretary of the Interior. . ."

36 U.S.C. § 724 (Emphasis added).

Moreover, 16 U.S.C. § 3 commands the Secretary of the Interior to promulgate rules and regulations "as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service." There is no question here that the white House sidewalk and Lafayette Park are under the Secretary's jurisdiction.

Here the American Bicentennial Presidential Inaugural Committee applied for and was granted a permit for various inaugural activities. Exhibit 10 attached hereto. The letter granting the permit and the permit itself provide, inter alia, for the construction of reviewing stands and other activities that would otherwise be prohibited by 36 C.F.R. § 7.96. The letter and permit provide further that construction and/or removal of all facilities shall occur between November 20, 1988

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and February 17, 1989. various conditions precedent have been imposed on the committee, most particularly that it leave the Park undamaged and in the same condition as before, that it obtain substantial insurance policies for personal injuries and that it provide a Letter of Credit of $50,000 to cover any damage to the Park not repaired by the committee. Each condition has been met.

These activities are not inconsistent with the enforcement of the regulation against plaintiffs. For in the regulation itself the Secretary of Interior has provided that certain "National Celebration Events" of which the Presidential Inauguration is one, shall "have priority use of the particular park area during the indicated period." 36 C.F.R. §§ 7.96(g)(1)(iii), (g)(4) and (g)(4)(F). However, use of Lafayette Park for demonstrations conducted by plaintiffs continues to be permitted in the northeast quadrant during the period of the Inaugural Committee's permit. 36 C.F.R. § 7.96(g)(4)(F).

More importantly, the Court of Appeals has already disposed of the issue plaintiffs present. In United States v. Grace, supra, the defendant was prosecuted and convicted for violating the "center zone" provision of the White House sidewalk regulation. Specifically, Grace held a sign while she was stationary in the center zone -- a violation of 36 C.F.R. § 7.96(g)(5)(viii). In challenging her conviction, Grace argued, inter alia, that her equal protection rights were

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violated because in constructing grandstands for the 1985 inaugural, the Committee placed the Presidential seal -- a sign on the center of the grandstands and therefore in the center zone of the sidewalk. Because the Committee and its members were not prosecuted Grace contended a violation of equal protection had occurred.

The Court of Appeals flatly rejected the argument, holding that the statute and regulations permitted the government's conduct and that the question was "really whether the Park Service ha[d] forbidden appellant's conduct based on the content of her sign." 778 F.2d at 822. The Court concluded that the Park Service could reasonably "differentiate between appellant's sign and the Inaugural Committee's Seal based solely on conduct rather than content." Id. A similar result should occur here. No evidence has been produced by plaintiffs that the difference in treatment of plaintiffs versus the Inaugural Committee is based on the content of plaintiffs' message or actions. Rather, the difference stems from the nature of the Committee's activities during a time period of limited duration and thus is permissible. Id.

The Court of Appeals also noted that Grace's argument might be analyzed as a selective prosecution claim. Id. at 822, n.7. If the Court were to use that analysis here, it would likewise be unsuccessful for plaintiffs. The standard for showing selective prosecution is a rigorous one. Plaintiffs must "prove that (1) they were singled out for prosecution among others

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similarly situated and (2) that their prosecutions or arrests were improperly motivated, i.e., based on race, religion or another arbitrary classification." United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983)(per curiam); United States v. Mangieri, 694 F.2d 1270, 1273 (D.C. Cir. 1982); United States v. Diggs, 613 F.2d 988, 1003 (D.C. Cir. 1979); cert. denied, 446 U.S. 982 (1980). This rigorous test imposes a heavy burden on the plaintiffs and this circuit has consistently expressed its agreement with the Supreme Court that the mere conscious exercise of some selectivity in prosecution or enforcement, is not enough to show a constitutional violation. United States v. Washington, supra, 705 F.2d at 494; United States v. Mangieri, supra, 694 F.2d at 1273; United States v. Diggs, supra, 613 F.2d at 1003 (all citing Oyler v. Boles, 368 U.S. 448, 456 (1962)). Deliberate and intentional discrimination must be shown. United States v. Mangieri, 694 F.2d at 1273. Moreover, "even to initiate discovery to prove impermissible motives [plaintiffs] must make a colorable showing." United States v. Washington, 705 F.2d at 494.

Plaintiffs have manifestly fallen far short of making even a colorable showing of selective prosecution in this case. Similarly, plaintiffs have failed to establish any arbitrary or other reason to support their contentions that they have been prosecuted for violating the various regulations. As has already been demonstrated, the Inaugural Committee has a permit and thus authority to construct the presidential review

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grandstand and engage in related activities for the national celebration of the inauguration. This conduct, permitted under both statute and regulation, is entirely separate and distinct from the regulation-violative conduct engaged in by plaintiffs over the past several years. Plaintiffs' equal protection/selective prosecution claims should, therefore be rejected.


For each of the foregoing reasons, this action should be dismissed with prejudice.

Respectfully submitted,

//s// Jay B. Stephens
JAY B. STEPHENS, DC Bar #177840
United States Attorney

//s//John D. Bates
JOHN D. BATES, DC Bar #934927
Assistant United States Attorney

//s//Michael L. Martinez
Assistant United States Attorney


I HEREBY CERTIFY that this 21st day of December, 1988, I sent one copy of the foregoing Federal Defendants' Motion to Dismiss via first class U.S. mail to

Arthur D. Burger, Esquire
Assistant corporation Counsel
Room 314 District Building
1350 Pennsylvania Avenue, NW.
Washington, D.C. 20004

and a copy was provided by hand to:

William Thomas, pro se
1440 N Street, NW.
Washington, D.C. 20005

//s//Michael L. Martinez

Assistant United States Attorney
Judiciary Center Building
555 4th Street, NW. Room 4126
Washington, D.C. 20001
(202) 272-9195


MARY HUDDLE, et al.,

         v.                       Civil Action No. 88-3130 JHG



UPON CONSIDERATION of defendants' Motion to Dismiss, the opposition thereto and the entire record in this matter, it is by the Court this day of , 1989, hereby

ORDERED' that the motion be and hereby is GRANTED and that this case be and hereby is DISMISSED WITH PREJUDICE.


Assistant U.S. Attorney
Judiciary Center Building
555 4th Street, NW.
Room 4126
Washington, D.C, 20001

Assistant Corporation Counsel
1350 Pennsylvania Avenue, NW.
Room 314 District Building
Washington, D.C. 20004

1440 N Street, NW.
Washington, D.C. 20005