UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No. 91-5304                              SEPTEMBER TERM, 1991
                                               CA No. 88-3130
Mary Huddle, et. al.,
                Appellants
                                          RECEIVED
          v.                            NOV 25 1991
                                 CLERK OF THE UNITED STATES
Ronald W. Reagan, et. al.,            COURT OF APPEALS
                Appellees.

APPELLANT WILLIAM THOMAS' OPPOSITION TO FEDERAL APPELLEES' MOTION FOR SUMMARY AFFIRMANCE OF THE
DISTRICT COURT'S REFUSAL TO CONDUCT A SANCTIONS HEARING

On November 14, 1991 the Federal Appellees filed a Motion for Summary Affirmance, asserting that "(t)he district court had no obligation to conduct a hearing into appellants' motions for sanctions." Id. pg. 8.

Appellants' Motions for Sanctions were predicated on the validity of factual representations proffered in two of appellees' earlier motions. Because the District Court apparently relied on these allegedly false representations in its dismissal of this matter -- but sanctions are a matter independent of the complaint appellants address the question of sanctions separately. BACKGROUND

1. Appellants' First Motion For Sanctions

Appellants were compelled to file two motions for sanctions. 1/

The first motion (Exhibit 1, hereto), February 8, 1989, was prompted by two considerations:

1/ In a related matter of misrepresentation, on January 3, 1989, appellants filed a Motion to Strike Federal Defendants' Exhibit A, on the grounds that it would not further "the end that truth may be ascertained (Fed. R. 102)," that it would "confuse the issues (Fed. R. 403)," that it could not be authenticated . (Fed R. 803 and 902), and that it was factually incorrect Fed. R. 104(b). That motion was finally granted. Dismissal Order, May 24, 1991, pg. 4, Ftn. 4.

1

1) AUSA Michael Martinez, counsel for defendants, purported, "Plaintiffs' religion is in any case newly found.... (R)eligious belief was never asserted as a basis for their actions until early 1987." Federal Defendants' Reply to Plaintiffs' Opposition to the Motion to Dismiss and to All of Plaintiffs' other Submissions, January 27, 1989, page 5, ftn. 3.

Owing to his participation in previous litigation, Mr. Martinez certainly should have known his assertion concerning appellants' religious beliefs was not well grounded in fact.

The claim seemed so egregious that appellants' initial motion for sanctions merely referenced quotes from the previous litigation detailing religious claims dating back to 1981.

Next Mr. Martinez opposed plaintiffs' motion for sanctions by simply reiterating the misrepresentation that "religious beliefs were not asserted as a basis for plaintiffs' actions until early 1987." Federal Defendants' Opposition to Plaintiffs' Motion for Sanctions or Other Disciplinary Action, February 17, 1989, pg. 2. He even had the temerity to threaten appellants with sanctions. Id. pg. 4, ftn. 4.

On March 2, 1989 appellants responded to appellees' opposition in greater detail including documents from the previous litigation and declarations by five of the plaintiffs.

2) Appellants' second motion for sanctions was filed on April 15, 1991, and challenged -- among other issues 2/ the

2/ For one thing, appellees' three (3) page motion, "responding" to the detailed allegations of appellants' March 21, 1991 pleadings, was attached to 1 3/4 inches of unreferenced, unexplained, and often unrelated papers.

2

veracity of certain factual assertions with respect to the increase of police in the area of Lafayette Park, and the manner of enforcing the regulations. See, Declaration of Major Carl Holmsberg in Support of Federal Defendants' Opposition to Plaintiffs' Motion to Renew their Motions for TR0, April 8, 1991

Discussion

"The signature of an attorney constitutes a certificate by him that the pleading, motion, or other paper ... is well grounded in fact and is warranted by existing law or good faith argument for the extension. modification. or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading. motion. or other paper is signed in violation of this rule. the court. upon motion or upon its own initiation, shall impose upon the person who signed it ... an appropriate sanction...." Westmoreland v. CBS, 770 F.2d 1168, 1173, emphasis in original.

In dismissing this case the Court determined, "that there was a substantial increase in activities ... in Lafayette ... and a corresponding increase Park Police presence and enforcement of the ... regulations." Huddle Memo, pg 18. These two representations entered the record of this case only through Major Holmeburg's Declaration (pgs. 2 and 3). Clearly, and despite the fact that appellants (entitled to have their allegations taken as true) had straightly challenged the veracity of Major Holmsburg's claims, the Court deemed those questionable claims poignant enough to memorialize as if they had been true.

Because "animus" is a crucial aspect of this case, the issue of appellants' religious beliefs took on added significance. In fact, the District Court also noted that as one of its grounds for dismissal. Huddle Memo, pg. 12.

3

Despite the fact that the veracity of both issues challenged by appellants' motions for sanctions were cited by the District Court as reasons for terminating the case, the Court summarily denied appellants' motion for sanctions.

"Because plaintiffs have failed to show cause for imposing sanctions against defendants, their motions for sanctions are denied." Pg. 24, ftn. 20.

Now, in moving for summary affirmance of the District Court's denial of sanctions, appellees generally cite two cases, neither of which seem to support their contentions. While it is true that case law vests the courts with "wide discretion" in the matter of sanctions, it is also clear that the court's discretion is not boundless.

"Under amended Federal Rule of Civil Procedure 11 ... the new provision that the court 'shall impose' sanctions mandates the imposition of sanctions when warranted by groundless or abusive practices. The rule's provision that kite court 'shall impose' sanctions for motions abuses thus concentrated the district court's discretion on the SELECTION of an appropriate sanction rather than on the DECISION to impose sanctions. Westmoreland at 1174, EMPHASIS in original, see also, AM Int'l Inc. v. Eastman Kodak, 39 Fed.R.Serv.2d (Callaghn) 433 Eastway Construction Corp v. City of New York, 762 F.2d 243, 254 n. 7;

Appellees purport, "Nothing in the rule or case law mandates that a district court conduct a hearing into a motion for sanctions." Appellees' Motion at 8. 3/

Although it may be semantically correct to say "nothing ... mandates ... a hearing," the clearly stated purpose of the rule, coupled with the most rudimentary common sense, dictates that a hearing is the only method of trying fact. Moreover, it is literally correct to say case law strongly indicates a hearing is expected when factual, as opposed to legal, issues are raised.

3/ After reading MacArthur Area Citizens Association v. Republic of Peru, 823 F. 2d 606, appellant is clueless as to how appellees might imagine that case bolsters their position. In that case, after conducting hearings, the court determined that the "attorneys acted in good faith."

4

"(S)anctions may be imposed, if a reasonable inquiry discloses the ... motion ... is (1) not well grounded in fact, (2) not warranted by existing law or a good faith argument ... or (3) interposed for any improper purpose...." Westmoreland at 1174.

In the present case, the District Court was bound to take "(t)he factual allegations of the complaint (as) true and liberally construed in favor of (appellant)." Huddle Memo at 7. Not only do the facts involved here go to the allegations of the complaint, but appellants also supplied documents to support those factual allegations, while appellees supplied nothing but argument to refute appellants.

It seems that in dismissing the complaint, largely on the strength of crediting the very assertions challenged in appellants' motions for sanctions, without even conducting "a reasonable inquiry" to test the validity of those assertions, the Court was clearly in error .

Respectfully submitted,

William Thomas, appellant
2817 11th Street N.W.
Washington, D.C. 20001
202-462-0757

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No. 91-5304                              SEPTEMBER TERM, 1991
                                               CA No. 88-3130
Mary Huddle, et. al.,
                Appellants

          v.

Ronald W. Reagan, et. al., 
                Appellees.

CERTIFICATE OF SERVICE

I, William Thomas, hereby certify that, on November 25, 1991, a true copy of Appellant's Opposition to Federal Appellees' Motion for Summary Affirmance of the District Court's Refusal to Conduct a Sanctions Hearing was served upon Robert L. Shapiro, Assistant U.S. Attorney for the District of Columbia, by mailing it first class U.S. mail, postage pre-paid to Judiciary Square, 555 4th Street NW, Washington, D.C. 20001, and upon Victor Long, Assistant Corporation Counsel for the District of Columbia, by mailing it first class U.S. mail, postage pre-paid to 1350 Pennsylvania Avenue, NW, Room 314, Washington, D.C. 20004.

/s/ W. Thomas

William Thomas, appellant
2817 11th Street N.W.
Washington, D.C. 20001
202-462-0757