A Quaker Action Group v. Morton, 24845.

• Citation: 460 F.2d 854,148 US App. DC 346
• Decision Date: 21 October 1971
• Docket Number: No. 24845.,24845.
• Parties: A QUAKER ACTION GROUP et al., Appellants, v. Rogers C. B. MORTON, Secretary of Interior, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

148 US App. DC 346, 460 F.2d 854 (1971)

A QUAKER ACTION GROUP et al., Appellants, v. Rogers C. B. MORTON, Secretary of Interior, et al.

No. 24845.

United States Court of Appeals, District of Columbia Circuit.

Argued June 22, 1971.

Decided October 21, 1971.

Mr. Joseph L. Rauh, Jr., Washington, D. C., with whom Messrs. James F. Fitzpatrick, William A. Dobrovir, Ralph J. Temple and Mrs. Hope Eastman, Washington, D. C., were on the brief, for appellants. Mr. William Basil Calomeris also entered an appearance for appellants.

Mr. L. Patrick Gray, III, Asst. Atty. Gen., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, Joseph M. Hannon and Gil Zimmerman, Asst. U. S. Attys., were on the brief, for appellees.

Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.

LEVENTHAL, Circuit Judge:

This is an appeal from an order of the District Court granting appellees' motion for summary judgment. We reverse and remand for trial.

A. Prior Rulings of This Court

In 1967, a regional director of the National Park Service, a part of the Department of the Interior, released a memorandum that henceforth a permit would be required in fact for any gatherings in Lafayette Park and on the White House sidewalk, a requirement previously existing only nominally and in regard to all public gatherings in places within the area of the National Capital Region of the Park Service. The memorandum added a new provision, that no permit will be issued as to the White House sidewalk to a group of more than 100 persons, and no permit issued as to La-fayette Park to a group of more than 500 persons.

In early 1969, District Judge Bryant granted a preliminary injunction to appellants, pending a trial on the merits, restraining the enforcement of the permit regulation setting forth numerical restrictions on demonstrations, on the ground that plaintiffs were likely to prevail on the merits in their contention that application of this regulation violated First Amendment rights. This court declined to reverse the injunction, holding that no abuse of discretion had been shown. But this court modified the order of the District Court to permit enforcement of the regulation to the extent of requiring that groups wishing to protest give notice fifteen days in advance of any planned demonstration. The purpose of this notice requirement was to permit the Government to enjoin the demonstration through a judicial order, on the basis of a showing that the particular circumstances would present a threat to the life or safety of the President. A Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176, 421 F.2d 1111 (1969).

On remand Judge Hart granted summary judgment to the Government, on the basis of affidavits of Secret Service officials concerning the need to protect the President and preserve the integrity of the White House grounds. On February 10, 1970, this court reversed and remanded the case to the District Court, with directions to proceed to trial on an expedited basis, and reinstated the preliminary injunction against enforcement of the 100/500 rule, as modified by this court's requirement of a 15-day notice. A Quaker Action Group v. Hickel, 139 U.S.App.D.C. 1, 429 F.2d 185 (1970). In the course of our opinion, we noted that appellants had raised significant issues regarding the need for the restrictions on picketing contained in the regulations, as well as fairness in their administration, that these findings "were not negatived or superseded by any findings" in the grant of summary judgment. 139 U.S.App.D.C. at 3, 429 F.2d at 187. We did not decide whether the regulation was valid. We cautioned that that issue was to be determined "after a hearing at which evidence, that may be tested on cross-examination, establishes the reasons for the regulatory provisions" and we noted specifically that the issues at trial would include the possible feasibility of other regulatory provisions that would "provide satisfactory safeguards against violence with less interference with the right of peaceful protest." Id.

B. Proceedings Following 1970 Remand

A few days thereafter Judge Hart held a conference with attorneys for the parties, during which Government counsel informed the court that the Secretary of the Interior would be commencing new rule-making proceedings by issuing a notice transmitting new park-use permit regulations in proposed form, and offering interested persons an opportunity to participate in the rule-making. At the end of the conference Judge Hart apparently determined not to prescribe an expedited trial schedule for this case.¹

Secretary's Proposal For New Rules

On July 17, 1970, the Secretary of the Interior issued notice of proposed rulemaking regarding the use-permit system in the national parks. 35 F.R. 11485. After outlining the background of the controversy, the Secretary, citing both the maintenance of park values, and the need to guarantee Presidential safety, proposed new regulations retaining the 100/500 rule for Pennsylvania Avenue and Lafayette Park. In explaining this proposal, the Secretary put particular emphasis on a letter received from the Director of the Secret Service, contending that larger crowds would jeopardize the ability of "the available security force" to "contain or control a violent group intent upon entering the White House compound." The Secretary refused to question the Director's assessment, holding that the "matter is assigned to the Secret Service Director's competence by statute, and it is he who primarily bears the tremendous responsibilities to assure Presidential security," 35 F.R. 11491 (#138, 1970).

The Secretary's notice provided opportunity for "interested persons" to submit "such written data, views, objections and arguments as they desire to be considered by the Secretary" before the proposed regulations were issued in final form. In addition the Secretary would determine, "in the exercise of his discretion," whether to "allow the presentation of additional views orally before an official of the Department to be designated for this purpose, with the object of receiving into the informal record orally such additional views, etc., as interested persons desire to submit, and to have the designated official conduct such inquiry as may appear to be warranted relative to any particular representations made, or any other aspect of these proposed regulations," id. at 11486. On September 30, 1970, the Secretary issued notice that the proposed regulations, with slight modification, would become effective 30 days after publication in the Federal Register. They were published on October 2, 1970. 35 F.R. 15393. On the same day the Government filed a motion for summary judgment.

A week later, on October 9, 1970, the appellants filed a motion for an order directing the Secretary to show cause why he should not be held in contempt for reissuing the 100/500 regulation in violation of court order. This motion was heard and denied on October 30, 1970, upon assurances from Government counsel that a new notice would be published suspending the effectiveness of these regulations pending further order by this court. Such notices were in fact published. 35 F.R. 17042 (#216, November 5, 1970); 35 F.R. 17552 (#222, November 14, 1970).

Granting of Summary Judgment to Government

Although Judge Hart seemed ready at the beginning of the October 30 hearing, to bring the case on for trial,² he later agreed to hear argument on the Government's new motion for summary judgment. That motion was heard and granted on November 9, 1970.

In granting the Government's motion, the District Court relied on several arguments put forward by Government counsel. First the court referred to our decision in Women Strike for Peace v. Hickel, 137 U.S.App.D.C. 29, 420 F.2d 597, decided August 1, 1969, as perhaps qualifying the orders in the Quaker Action cases to "proceed to trial on an expedited basis."

Second, the District Court stated that the Secretary's regulations were "supported by what the Court believes to be competent reasons in evidence." The Government had contended that the Secretary's judgment must be accepted by the court if supported by substantial evidence on the administrative record, and that it would be error for the court at trial to entertain additional evidence on the same issues.

Third, the court referred to several recent outbreaks of violence—including the alleged attack on President Nixon in San Jose, the Jackson and Kent State incidents, the suspension of civil liberties in Canada, and restrictions on entry to the United States Courthouse—as support for the reasonableness of the Secretary's regulations, particularly in view of the fact that larger demonstrations could be held on the Ellipse and the grounds of the Washington Monument.

Finally, the District Court held the issue of maladministration to be moot, in view of the Secretary's assurances that he would be "especially cognizant" of the need to provide adequate accommodation in the national parks for the carrying on of First Amendment activity. The court also cited the "prompt and excellent cooperation" of the Department in handling 15-day notices, as well as the Secretary's express directions to process all applications with reasonable promptness, in order of receipt, as proof that the maladministration issue had dropped from the case. Judgment of November 24, 1970, Civil Action 688-69, at 2-3.

C. Error in Failure To Proceed with Trial In Accordance with This Court's Remand Order

1. The District Court erred in accepting the Government's contention that our order in this case remanding for trial had been qualified by our decision in the Women Strike for Peace case. That case was decided in August, 1969, months before our 1970 order in the present Quaker Action case, remanding with direction to proceed to trial on an expedited basis.

At issue in the Women Strike case was the validity of the refusal of the Park Service to issue a...