No. 91-5304
(C.A. No. 88-3130)

Mary Huddle, et al,


Ronald W. Reagan, et al,


Pro Se appellants are challenging the dismissal of their action which alleged a variety of tort, constitutional and conspiracy claims. The federal appellees 1/ move this Court to affirm summarily the District Court's dismissal, because the merits of the case are sufficiently clear to justify expedited action, and no benefit would be gained from further argument. Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297-98 (D.C. Cir. 1987).

I. Background

For ten years, appellants have been attempting to maintain a continuous demonstration in and around Lafayette Park and next to the White House. They have been arrested and convicted numerous

1/ Ronald W. Reagan; Director, Office of Management and Budget; United States Secret Service, Manuel Lujan, Richard Robbins, Randy Meyers, Manus J. Fish, James Lindsey, Sandra Alley, Lynn Herring, Deputy Chief Langstrom, Captain Barrett, Lt. Hugh Irwin, Private Kevin Fornshill, Private Leslie Waite, Private Michelle Berkowitz, George Walker Bush, United States Park Police, Major Holmberg, Lt. Clipper, Sgt. McNally, Sgt. Rule, Officer Ferebee


times for their violating Interior Department regulations that proscribe certain activities in the Lafayette Park and White House area. See 36 CFR §§ 7.96 (g) (5) and 7.96(i); see, e.g., United States v. Thomas, 864 F.2d 188 (D.C. Cir. 1988). Appellants alleged that appellees conspired to extinguish their constitutional and statutory rights, that prior and threatened enforcement of Interior Department regulations inhibits the free flow of ideas and information in violation of the First Amendment, that appellants have been subjected to a pattern and practice of malicious harassment, and that the regulations have been selectively enforced against appellants because of their protest activities; See Huddle v. Reagan, No. 88-3130, Mem. at 2 (D.D.C. May 24, 1991).

This case largely repeats many of the same claims that were dismissed in Thomas v. News World Communications, 681 F. Supp. 55 (D.D.C. 1988) and Thomas v. United States, 696 F. Supp. 702 (D.D.C. 1988). Those cases were consolidated on appeal and the dismissals summarily affirmed by this Court. No. 88-5367 (D.C. Cir. July 17, 1989), rein. denied, (D.C. Cir. Sept. 26, 1989).

The District Court granted summary Judgment in favor of appellees.

II. Argument

The standard for summary judgment accurately noted by the District Court requires that there be no "genuine issues that properly can be resolved only by a finder of fact because they


may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Huddle Mem. at 7.

A. The District Court Properly Held that Appellants Failed to
State a Claim Upon Which Relief Can Be Granted.

1. The District Court Correctly Held
that Any Common Law Tort Claim Was Barred.

The District Court noted that appellants have not explicitly alleged any common law tort claims. Huddle, Mem. at 9. Moreover, the Court found that any such claim would be barred by the administrative claim requirements of the Federal Tort Claims Act (FTCA). Id. 28 U.S.C. § 2675(a). Under that statute, a claimant must first file an administrative claim with the relevant agency before filing a civil tort action. Here, appellants have not contended that they have filed the appropriate administrative claims. 2/ Furthermore, none of the claims against the federal agencies or the individual appellees could proceed, because the relief provided by the FTCA against the United States is the exclusive remedy for common law torts from acts of federal employees. 28 U.S.C. § 2679(b)(1); see Mem. at 9-10.

2/ Indeed, as the federal appellees argued in District Court, most of appellants' claims are time-barred, the applicable statute of limitations having run long ago. Moreover, many of appellants' claims, since they previously have been advanced and rejected, are barred by the doctrines of issue preclusion and claim preclusion.


2. The District Court Correctly Denied Appellants'
Constitutional Tort Claims.

Some of appellants, claims can be interpreted as claims alleging violations of constitutional or statutory rights, which are cognizable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392-94 (1971) and its progeny. As the District Court noted, however, such a complaint must meet this Court's heightened pleading standard and allege specific deprivations of appellants' rights and include specific factual allegations as to each alleged deprivation. Martin v. Malhoyt, 830 F.2d 237, 257 (D.C. Cir.), rein. denied, 833 F.2d 1049 (D.C. Cir. 1987); Huddle Mem. at 10-11.

Appellants would have to demonstrate five elements to support their claim under 42 U.S.C. § 1985(3): (1) a conspiracy; (2) an act in furtherance of the conspiracy; (3) for the purpose of depriving any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (4) which conspiracy was motivated by some class-based, invidious, discriminatory animus; (5) whereby a person is injured or otherwise deprived of a right or privilege. See Hobson v. Wilson, 737 F.2d 1, 30 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985) Huddle, Mem. at 11-12. However, appellants have offered nothing but conclusory allegations and alleged incidents in which they claim to have been wronged. Appellants' allegations utterly failed to demonstrate the existence of a conspiracy. As the District Court found, the mere enforcement of these regulations would not permit the inference of an improper


motive to extinguish appellants, rights. Huddle, Mem. at 12-13.

Because appellants have failed to establish a claim under 42 U.S.C. § 1985, their claim under § 1986 must also fail. That section only provides an action against a person who has knowledge that one of the wrongs mentioned in § 1985 are about to be committed, has power to prevent or aid in preventing the commission of that wrong, and neglects or refuses to do so if the wrong is committed. Without a claim under § 1985, the claim under § 1986 must also be dismissed. See 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, 681 F. Supp. at 72; Huddle, Mem. at 13, n.11.

Appellants claims under 42 U.S.C. § 1983 must also fail, because appellants have not plead such a conspiracy with sufficient specificity. See Huddle, Mem. at 14. Moreover, a claim under 5 1983 requires a showing that the acts in question were taken under color of state law. Here, appellants are complaining of violations of their First Amendment rights, which are federal rights. Section 1983 does not pertain to actions taken under color of federal law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980); Thomas, 681 F. Supp. at 67-68; Huddle, Mem. at 14-15.

Similarly, appellants' claims under the Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments also fail to meet the heightened pleading standard. See Huddle, Mem. at 15. Appellants simply fail to tie the alleged violations of their


rights to specific facts as to each defendant and to each claim. 3/

3. The District Court Properly Rejected Plaintiff's
Selective Enforcement Claim

Appellants' Fifth Amendment selective enforcement claim alleges that the Interior Department regulations have been applied vigorously against them, but not as vigorously against others, particularly the 1989 Presidential Inauguration Committee. A selective prosecution claim requires a showing both that appellants were singled out and that the decision to prosecute was improperly motivated. United States v. Mangieri, 694 F.2d 1270, 1273 (D.C. Cir. 1982); Huddle, Mem. at 15-16. Here, appellants have shown neither element.

First, the Inaugural Committee received lawful permits for all of its activities in Lafayette Park and around the White House. Indeed, 36 U.S.C. § 724 specifically authorizes the grant of permits for the use of federal grounds during an inaugural. Thus, the Inaugural Committee's actions were lawful, and appellants, prosecution can not be deemed to have been selective.

Second, there is no indication that appellees' treatment of appellants was improperly motivated. A similar claim was rejected by this Court in United States v. Grace, 778 F.2d 818, 822 (D.C. Cir. 1985), cert. denied 479 U.S. 844 (1986). That defendant was prosecuted for violating the regulation prohibiting demonstrations in the "center zone" of the White House sidewalk by holding a sign in a stationary position in that zone.

3/ The federal appellees also asserted in District Court that even if appellants could negotiate these hurdles, the President was entitled to absolute immunity from suit and all other individual defendants were entitled to qualified immunity from suit.


She argued that the presidential seal, also a sign, was displayed on the grandstand for the 1985 inaugural with no prosecutions. This Court held that the relevant inquiry was whether the Interior Department had forbidden her conduct based on the content of her sign. Id. Here, the content of appellants' messages has played no role in appellants, treatment. Instead, appellants' prosecution results from their refusal to apply for necessary permits and otherwise abide by the regulations.

4. The District Court Properly Rejected Appellants' Claim that Appellees Have Engaged in a Pattern and Practice of Harassment in Violation of Appellants' First Amendment Rights.

As an initial matter, the individual federal appellees would be entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Appellees are shielded from liability as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. Here, there is no evidence that appellees violated any of appellants' rights. Rather, appellees have been enforcing regulations which have been upheld as constitutional. The regulation proscribing camping was upheld in Clark v. CCNV, 468 U.S. 288 (1984). Similarly the regulations limiting demonstrations on the White House sidewalk have been upheld by this Court on several occasions. See, e.g., Juluke v. Hodel, 811 F.2d 1553, 1559-62 (D.C. Cir. 1987); Grace, 778 F.2d at 820-22;


White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518, 1534-41 (D.C. Cir. 1984). The regulation prohibiting unattended signs was upheld in United States v. Musser, 873 F.2d 1513, 1516-18 (D.C. Cir.), rein. denied, 883 F.2d 84 (D.C. Cir ), cert. denied, 493 U.S. 983 (1989), and in Thomas, 696 F. Supp. at 70512.

Moreover, there is no evidence that appellants have been arrested without cause. All they can point to are their own arrests. Even where the arrests did not result in a conviction, however, one can not simply conclude that appellees violated the law. See Huddle, Mem. at 20. Furthermore, even the isolated incidents about which appellants complain do not amount to a pattern and practice of harassment.

B. The District Court Had No Obligation to Conduct a Hearing
into Appellants' Motions for Sanctions.

Appellants' complain that the District Court erred by not conducting a hearing into their motions for sanctions. This argument is without merit. District Courts enjoy wide discretion in determination of sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. See Westmoreland v. CBS, Inc., 770 F.2d 1168, 1173-75 (D.C. Cir. 1985); MacArthur Area Citizens Assoc. v. Republic of Peru, 823 F.2d 606, 607 (D.C. Cir. 1987). Nothing in the rule or case law mandates that a District Court conduct a hearing into a motion for sanctions. Therefore, the District Court's decision not to conduct a hearing, see Huddle, Mem. at 24, n.20, can not be deemed erroneous.


1. The District Court Properly Declined to Address Appellants' Class Action Claims.

Appellants protest that the District Court erred by not resolving appellants, class action claims. Although, a class action was mentioned in appellants, amended complaint, that issue was never formally presented to the District Court. Local Rule 203(b) requires a prospective class action plaintiff to move for certification within 90 days after the filing of his complaint. Here appellants never filed a motion for class certification or otherwise sought class treatment. Therefore, it was unnecessary for the District Court to resolve this issue; appellants' had let it drop through their own inaction. 4/

4/ Appellants also allege that the District Court erred by failing to resolve their allegations with respect to the publication of RN 1024-AB93, 55 Fed. Reg. No. 193 at 40879-40881. Appellees' counsel can locate no such publication, and do not know to what appellants are referring. Similarly, appellants' claim that the District Court erred by failing to resolve their allegations with respect to 36 CFR § 2.12. This regulation controls audio disturbances in parks. Appellees' counsel are unaware of any allegations relating to this regulation. Finally, to the extent appellants made allegations with regard to the District of Columbia's Disorderly Conduct Statute, those allegations were directed to the District of Columbia. In any event, the District Court adequately resolved those claims. See Huddle, Mem. at 21-24.


III. Conclusion

For the foregoing reasons, the federal appellees respectfully urge the Court to affirm summarily the District Court's dismissal of the claims against the federal appellees.

\m /s/ Jay B. Stephens
United States Attorney -

/s/ John D. Bates
Assistant United States Attorney

/s/ R. Craig Lawrence
Assistant United States Attorney

/s/ Robert L. Shapiro
Assistant United States Attorney