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.
- 3 -
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
- 4 -
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.
- 6 -
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.
- 7 -
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/
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
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
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).
- 8 -
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.
- 9 -
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
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
- 10 -
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  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
- 11 -
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).
- 12 -
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.
- 13 -
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,
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.
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
- 14 -
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
- 15 -
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
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
- 16 -
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
- 17 -
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.
- 18 -
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.
- 19 -
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:
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
"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
9/ The Court nevertheless declined to issue a writ of
mandamus against the President, although it did issue a declaratory
- 20 -
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
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
- 21 -
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
- 22 -
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
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".
- 23 -
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
- 24 -
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.
F. The President Is Absolutely Immune From Any
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.
Claim Against Him In His Individual Capacity
G. The Other Individually-Sued Federal Defendants Are
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.
Entitled To Qualified Immunity From Suit.
- 25 -
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
"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).
- 26 -
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,
- 27 -
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.
- 28 -
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.
- 29 -
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
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
- 31 -
on federal park land in conjunction with the Inaugural celebration.
The statute states in applicable part that:
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
"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. . ."
- 32 -
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
- 33 -
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.
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
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
- 35 -
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.
//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
MICHAEL L. MARTINEZ, DC Bar #347310
Assistant United States Attorney
CERTIFICATE OF SERVICE
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
MICHAEL L. MARTINEZ DC Bar #347310
Assistant United States Attorney
Judiciary Center Building
555 4th Street, NW. Room 4126
Washington, D.C. 20001
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARY HUDDLE, et al.,
v. Civil Action No. 88-3130 JHG
RONALD WILSON REAGAN, et al.,
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.
UNITED STATES DISTRICT JUDGE
MICHAEL L. MARTINEZ
Assistant U.S. Attorney
Judiciary Center Building
555 4th Street, NW.
Washington, D.C, 20001
ARTHUR D. BURGER, ESQUIRE
Assistant Corporation Counsel
1350 Pennsylvania Avenue, NW.
Room 314 District Building
Washington, D.C. 20004
WILLIAM THOMAS, PRO SE
1440 N Street, NW.
Washington, D.C. 20005