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FOP, D.C. v. RUBIN

October 30, 1998

FRATERNAL ORDER OF POLICE, D.C. et al., Plaintiffs,
v.
ROBERT E. RUBIN, et al., Defendants.



The opinion of the court was delivered by: KENNEDY

MEMORANDUM OPINION AND ORDER

 This case involves an investigation by the United States Secret Service Uniformed Division into the release of a videotape recording of a meeting at which the division's policy regarding the enforcement of District of Columbia laws was announced. The plaintiffs allege that the policy is illegal and that the defendants violated their First and Fifth Amendment rights during the investigation. The plaintiffs seek declaratory and injunctive relief as well as monetary damages.

 Presently before the court is the defendants' motion to dismiss. After consideration of the motion, the responses thereto, and the entire record of the case, the court concludes that the motion as to the policy claim (Count 1) and the Fifth Amendment claim (Count 4) should be granted and that the motion as to the First Amendment claims (Counts 2, 3, and 5) should be granted in part and denied in part.

 I. BACKGROUND

 The Uniformed Division of the United States Secret Service (the "Uniformed Division") is a permanent police force under the supervision of the Secretary of the Treasury and the management of the Director of the United States Secret Service. 3 U.S.C.A. § 202 (West 1998). As the successor to the White House Police and the Executive Protective Service, the Uniformed Division since 1977 has performed such duties as protecting the White House, the Treasury Building, and foreign diplomatic missions. See id.

 At an informal meeting on April 24, 1996, Deputy Chief Steve Johnson of the United States Secret Service Uniformed Division announced a policy that Uniformed Division officers would no longer enforce minor traffic laws and would no longer request a "rolling tag check," and should refer persons in non-life-threatening situations to the D.C. Metropolitan Police. Complaint P 22-24; Def.'s Motion to Dismiss at 2-3. Johnson then allegedly threatened officers with transfer or disciplinary action *fn1" for non-compliance with this policy ("Johnson policy"). *fn2" Complaint P 25.

 Certain officers secretly videotaped the April 24 meeting. The Fraternal Order of Police, D.C. Lodge 1, USSS/UD Labor Committee came into possession of the videotape and released portions of it to the news media. Defendants Eljay Bowron and Richard Friedman subsequently ordered an internal investigation to determine who was responsible for videotaping the meeting and who had made the decision to release the videotape. Pursuant to the investigation, Defendants Dana A. Brown and Michael Prendergast questioned officers, including the plaintiffs, at length. Brown and Prendergast allegedly threatened the officers with disciplinary action if they failed to disclose confidential conversations between the Fraternal Order of Police and its counsel, or if they disclosed the questions asked or the statements given.

 The plaintiffs have brought this action against the four defendants named above and Secretary of the Treasury Robert Rubin, each of them individually and also in his respective official capacity. The complaint requests a declaratory judgment stating in effect that the Johnson policy violates 3 U.S.C. § 202, the statute creating the Uniformed Division. The complaint also includes various counts alleging violations of the plaintiffs' First and Fifth Amendment rights and seeking declaratory and injunctive relief, monetary damages, and the exclusion of evidence obtained during the investigation.

 II. STANDARD OF REVIEW

 This matter is before the court on a motion to dismiss. Accordingly, the court must take the allegations in the plaintiffs' pleading as true and must construe them in a light most favorable to the plaintiffs. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Sinclair v. Kleindienst, 229 U.S. App. D.C. 13, 711 F.2d 291, 293 (D.C. Cir. 1983). Dismissal is appropriate only when it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley, 355 U.S. at 45-46.

 III. DISCUSSION

 A. The Policy Claim

 Count I of the Labor Committee's complaint asks the court to imply a cause of action under 3 U.S.C. § 202 whereby Uniformed Division officers would have "a legal right and obligation to enforce all the laws that they are authorized to enforce." Complaint P 82(B)(1), at 14. The recognition of this "legal right" would then serve as the logical predicate for the officers' "legal right not to be threatened with transfer and/or disciplinary action by its managers for enforcing laws which they are sworn to uphold," their "right not to be exposed by the [Uniformed Division] to an unreasonable and increased risk of injury or death because of its illegal policy," and their right to enjoin the defendants from taking disciplinary action against any Uniformed Division officer "solely because the police officer enforces the laws of the District of Columbia." Id. at P 82(B)(2)-(4).

 Reading the complaint literally, the Labor Committee is asking for the judicial recognition of a tautology (that the officers may do what they have the right to do) and the judicial imposition of a duty of omniscience on the officers they represent (that they must enforce every law within their jurisdiction at all times). Under the construction most favorable to the Labor Committee, however, Count I of the complaint essentially seeks a declaration that the statute gives Uniformed Division officers the right to enjoin their managers from limiting the scope of their law enforcement activities. Even under this reading, however, the Labor Committee lacks standing to pursue its claim.

 For a plaintiff to have standing, the complaint must fall within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." National Credit Union Admin. v. First National Bank & Trust Co., 140 L. Ed. 2d 1, 522 U.S. , , 118 S. Ct. 927, 933 (1998) (quoting Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970)). The Labor Committee contends that their claim is supported by the last sentence of § 202: "The members of [the Uniformed Division] shall possess privileges and powers similar to those of the members of the Metropolitan Police of the District of Columbia." The Labor Committee interprets this language as requiring that Uniformed Division officers be assigned the same range of duties as Metropolitan Police officers. See Pl. Resp. Opp'n Def.'s Mot. Dismiss at 14 n.19 ("The Congress has already made the determination that Uniformed Division officers possess the same privileges and powers similar [sic] to the Metropolitan Police. There is no discretion for the Agency to exercise."); id. at 15 ("Simply stated, the statute leaves nothing committed to the Agency's discretion."). This appeal to textualism is the Labor Committee's sole argument in support of their policy claim. It is without merit.

 The flaw in the committee's reasoning is that "sameness" is a symmetric relationship. Were the court to adopt the committee's conflation of the terms "similar" and "the same," the unintended result would be that the officers of the Uniformed Division and the Metropolitan Police would be left with the same privileges and powers. The court declines the invitation to find that the Uniformed Division and the Metropolitan Police had the same law enforcement authority not only in the District of Columbia at large, but also in the White House, in the Treasury Building, and in foreign diplomatic missions.

 The Labor Committee's claim remains meritless even if removed from this unfortunate line of reasoning. Far from having "determined the Uniformed Division's authority" to undertake law enforcement activities in the District of Columbia, Pl. Resp. Opp'n Def.'s Mot. Dismiss at 14, Congress has specifically provided that such activities may be the subject of cooperative agreements between the Uniformed Division and the Metropolitan Police. See D.C. Code § 4-192 (1998). *fn3" For example, the two agencies may coordinate their law enforcement activities by defining the areas of the District of Columbia where Uniformed Division officers have the power to arrest and the authority to paper and process suspects. See id. It would be beyond the court's sound discretion to declare that individual officers of the Uniformed Division have the right to final review over such a Congressionally-authorized management effort. See Hanes Corp. v. Millard, 174 U.S. App. D.C. 253, 531 F.2d 585, 591 (D.C. Cir. 1976) (noting that a district court's exercise of its discretion to grant or deny declaratory relief must be "sound" and is subject to "quite searching" appellate review).

 Although the Labor Committee has not stated a claim under the Administrative Procedure Act, 5 U.S.C. § 701-06 (1970), the court will also examine this possible alternative source of statutory standing. The Administrative Procedure Act grants standing to challenge a "final agency action for which there is no other adequate remedy in a court," id. at § 704, to any "person suffering legal wrong . . . or adversely affected or aggrieved" by it, *fn4" id. at § 702. See Heckler v. Chaney, 470 U.S. 821, 828, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985). There are, however, certain exceptions. Specifically, § 701(a) provides that the statute's provision for judicial review "applies except to the extent that -- (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." See id. ("Before any review at all may be had, a party must first clear the hurdle of § 701(a).").

 The "committed to agency discretion by law" exception is "very narrow." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). Despite this, an agency's decision not to take enforcement action is presumed to lie within this exception. Heckler, 470 U.S. at 832. A party may rebut the presumption of non-reviewability "where the substantive statute ...


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