Friday, May 21, 2004

De Jesus vs. United States of America

JUAN DAVID DE JESUS
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210

In Pro Per



UNITED STATES DISTRICT COURT OF THE CENTRAL DISTRICT OF CALIFORNIA NINTH CIRCUIT

JUAN DAVID DE JESUS, a United States Citizen
Plaintiff,
vs.
UNITED STATES OF AMERICA
Defendant Case No.: CV 04-1207 NM (FMOx)

PLAINTIFF’S OPPOSSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT





Dated this 21st day of May, 2004


JUAN DAVID DE JESUS
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210



I. INTRODUCTION

P. Greg Parham, Special Assistant United States Attorney filed on behalf of the United States (Defendant) a Motion to Dismiss Plaintiff’s Complaint. The Motion is dated April 23, 2004. The Defendant contends that the court lacks subject matter jurisdiction and that the Plaintiff has failed to state a claim upon which relief can be granted.
The Plaintiff, Juan David De Jesus, opposes the Defendant’s Motion to Dismiss based on the contention that the court does possess subject matter jurisdiction and that the Plaintiff has clearly stated a claim upon which relief can be granted. Moreover, the Plaintiff denies being involved in any criminal activity.
Furthermore, the counsel for the Defendant did not follow Local Rule 7-3 which clearly states that, “counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution.” Counsel for the Defendant informed the Plaintiff only of his intentions to move to dismiss but failed to discuss any potential resolution.
In the introduction, the Defendant prefaces its statement by saying that the Plaintiff’s aircraft was seized by the Department of Homeland Security on September 10, 2003 during the course of an illegal alien smuggling investigation concerning the plaintiff. The plaintiff denies any connection to alien smuggling. The United States is well aware of the Plaintiff’s contentions.
Even though the Defendant claims Sovereign Immunity, the Plaintiff will show that this doctrine does not apply in this case. The concept of Equitable Relief does not apply in this circumstance because the Plaintiff has not requested a monetary award for damages. The Plaintiff has been previously denied an Injunction and a Restraining Order where the concept of Equitable Relief would apply.
The Plaintiff’s complaint should not be dismissed in its entirety because there are several issues addressed and not just the issue of the Plaintiff’s aircraft.
This document presented by the Defendant used in Exhibit B is full misstatements, ambiguities and contradictions; and the testimonies of those individuals giving the statements are not supported by a sworn statement at the end of the document.
II. STATEMENT OF FACTS
The Government is being unjustly enriched and is holding specific property of the plaintiff. This is a point that the court must address.
The Government has committed Fraud and Misrepresentation of material facts as well as perjury in its document labeled as Exhibit B.
In the Defendant’s introductory statement in Section II, (Statement of Facts), the Defendant cites McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988) as support for its contention that extrinsic evidence may be considered. This is a misuse of the principle considering that the Supreme Court has held that extrinsic evidence goes to impeach a witness to expose biases, prejudices, or ulterior motives as they may relate to issues or personalities in the case at hand, only then, evidence will be allowed. United States v. Abel, 469 U.S. 45, 54 (1984).
The Plaintiff contends that his aircraft is not subject to forfeiture because the Plaintiff has shown ample evidence pursuant to Section 274 (8 U.S.C. 1324) and Section 983 in both the Personal Interview with the Department of Homeland Security on December 10, 2003 and with the Plaintiff’s Petition for Remission or Mitigation of Forfeiture. The Plaintiff has not, knowingly or in reckless disregard of the law, committed any crimes.
III. ARGUMENT
The Government claims Sovereign Immunity. But the Government cannot claim this right because it is intended to be used when the United States is requested to withdraw money from the Treasury. My suit is not one for money rather one of principle. Sovereign immunity is a legal doctrine which, under some circumstances, protects the federal, state, and tribal governments within the United States from lawsuits which would cause those governments to pay out money, real estate, or goods from the governmental treasury. The basic idea behind sovereign immunity is that property held by the government (including assets in the public treasury) is in trust for all the citizens of that particular government. The public treasury and public property are, therefore, to be used for the benefit of all the citizens equally--not just a few individuals (such as the people who file lawsuits). If, through lawsuit, a plaintiff can collect money from the government for some wrong the government has done him, the public treasury will be reduced for the benefit of that one person. There will then be less money to provide services to all the other citizens of the government. All the citizens will suffer because of the drain on the public treasury caused by a single citizen. Courts have said that when someone claiming to have been injured by the government or its employees' files suit for money damages against the government, and the government has not expressly waived its immunity, the court will not even consider the lawsuit. Instead, the court will dismiss the suit and instruct the injured person to seek payment for his injuries from the legislature or chief executive of the government. The government, say the courts, is immune from any lawsuit seeking money damages against it. Because the legislative body and the chief executive are the elected representatives of all the people, only they should decide where public money (and other property) belonging to all the people should be spent. Many contend that this is not a decision for the courts. The Plaintiff’s case must be distinguished in that the Plaintiff is not seeking an award for monetary damages.
Even though the Plaintiff is not requesting award of monetary damages in the present complaint, the Plaintiff does not waive his right to do so in the future. The “BIVENS ACTIONS” allows for Damages remedies for constitutional violations committed by federal agents and became available in 1971. The Supreme Court had long held that federal courts had the power to grant relief not expressly authorized by statute as well as the power to adjust remedies to grant relief made necessary by the particular circumstances of the case at hand. However, it was not until the Court's decision in Bivens v. 6 unknown named federal agents 403US388, 91SCT1999, 29LE2d 619(1971) that a violation of a specific constitutional amendment by a Federal employee was recognized as a cause of action for monetary damages. In the case of Bivens vs. six employees of the US Department of Justice, the Plaintiff alleged that Federal Agents had arrested him and searched his home without a warrant or probable cause in violation of the 4th amendment's ban against unreasonable searches and seizures. The Court upheld the reasonableness of the complaint in the face of a motion to dismiss for failure to state a cause of action. They rejected the argument that a State Tort action provided an adequate and exclusive judicial remedy.
A Bivens claim can be based on conspiracy of federal agents by showing:
(1) the existence of an express or implied agreement among the defendants to deprive someone of constitutional rights, and
(2) an actual deprivation of those constitutional rights resulting from the agreement.
It is the Plaintiff’s contention that the above two acts have occurred. Furthermore, 28 USCS § 1346 (2004) provides that:
(b) (1) Subject to the provisions of chapter 171 of this title [28 USCS §§ 2671 et seq.], the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Moreover, the Plaintiff contends that the Defendant has committed intrinsic and extrinsic fraud along with other wrongful acts. The Defendant has submitted to the court, marked as Exhibit B, a statement that is misleading, conspiratorial and filled with error and conjecture. In a single word, the statement that is false. The Defendant has signed this document under penalty of perjury with the express intention of misleading the court, which constitutes the commission of intrinsic fraud. The Defendant has fraudulently kept the Plaintiff from accessing information and obtaining evidence that would further the Plaintiff’s cause and seeking justice, thus constituting extrinsic fraud. Given that the Department of Homeland Security has a history of placing false statements within its documents to further its position, an act which I have personal knowledge and which can be substantiated by evidence, this makes the Plaintiff’s plea for a trial all the more urgent. The Department of Homeland Security has a history of violating the constitutional rights of the inhabitants of this land as well as sidestepping the safeguards of the constitution. The Plaintiff further contends that the Defendant has committed Fraud and Abuse of Process as well as intentional and negligent infliction of emotional distress.
One should not blindly follow a system that, instead of awakening a sense of justice and truth, lulls the American people into a sleep which disallows their freedom. The Court must not forget that personal liberty is the indispensable ingredient of the American experience. Otherwise, in its zeal to constrain overarching federal power, the Court might frustrate the responsibility of the national government under the 14th Amendment to secure individual rights.
Many state supreme courts over the last decade have limited or abolished the defense of sovereign immunity, by finding that the doctrine was court made, and declaring it to be unfair. Most state legislatures in the United Sates have given up or waived some portion of their sovereign immunity. Waiver of some immunity is commonly done for public policy reasons.
Sovereign immunity at the Federal level is particularly indefensible since "We the People," who ordained and established these United States and created the Federal "sovereign," did not see fit to cloak "our sovereign" with immunity for its actions. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism. The 10th Amendment restricts national powers by limiting them to functions enumerated in the Constitution. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people (emphasis added). The 14th Amendment increases those powers by authorizing congressional intervention when states violate individual rights. And the 11th Amendment states in relevant part that "The Judicial power of the United States shall not . . . extend to any suit . . . against [a] State by Citizens of another State."
Despite its pernicious nature and logically indefensible character, the purpose of my opposition is not to argue for abolition of the doctrine but, rather, to discuss its operation, scope and effect as pertains to the Plaintiff’s particular case. The interest served by federal sovereign immunity (the United States' freedom from paying damages without Congressional consent) and Federal sovereign immunity is a defense to liability rather than a right to be free from trial. The Plaintiff has not asked for an award of monetary damages.
Federal Tort Claims Act (1948) which removes the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, giving jurisdiction to federal district courts. The United States of America provides for Congressional Withdrawal of Immunity. The Constitution delegates to Congress power to legislate to affect the government in some permissible ways. At least in some instances when Congress does so, it may subject the government themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon government powers and which expressly provide for congressional implementing legislation. Thus, ''the Eleventh Amendment and the principle of sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of Sec. 5 of the Fourteenth Amendment.''
Congress waived sovereign immunity for a wide range of tort claims when it enacted the Federal Tort Claims Act. The FTCA permits a tort suit against the United States 'where injury to person or property is "caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.' Tort Actions Against Government Officials .--In Tindal v. Wesley, 130 the Court adopted the rule of United States v. Lee, 131 a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the State and to obtain damages for the period of withholding. The immunity of a State from suit has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws. The reach of the rule is evident in Scheuer v. Rhodes, in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a State alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the officials. There was no ''executive immunity'' from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken.
28 U.S.C. §[1346[b] - Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
The Federal Tort Claims Act [FTCA] allows for the recovery of attorney fees as damages for abuse of process and malicious prosecution if "the law of the place" where the tort occurred so provides, the U.S. Circuit Court for the District of Columbia said on Sept. 2. Tri-State Hospital Supply Corp. v. U.S., No. 02-5045.
The U.S. Department of Justice sued Tri-State, a company that imported surgical instruments from Pakistan, for allegedly falsifying customs forms. After the DOJ dropped its fraud claim, the jury returned a verdict in Tri-State's favor on the remaining negligence claim. Tri-State then sued the DOJ under the FTCA, alleging malicious prosecution and abuse of process and seeking $3.2 million in compensation for the attorney fees it spent defending itself. But ruling that it lacked subject-matter jurisdiction, a D.C. federal court dismissed the case. Reversing, the circuit court noted that the FTCA grants exclusive jurisdiction to the district courts over civil actions against the U.S. seeking money damages for injury or loss of property under circumstances where the country, if it were a private person, would be liable to the claimant "in accordance with the law of the place where the act or omission occurred." It ruled that damages incurred in defending a suit later found to be malicious or abusive may be characterized as damages for "injury of loss of property."
Pursuant to 42 U.S.C. Sec. 1983 (Civil Action for the Deprivation of Rights), Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Generally, the United States can be held liable under the FTCA when liability would attach to a private actor under the law of the place where the tort occurred. Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001). However, the United States may be liable " 'for the performance of some activities that private persons do not perform,' . . . when a state or municipal entity would be held liable under the law where the activity occurred." Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc., 107 F.3d 1368, 1371 (9th Cir. 1997) (quoting Hines v. United States, 60 F.3d 1442, 1448 (9th Cir. 1995)). In such instances, liability attaches if the United States breaches "a mandatory duty for which a cause of action lies." Id.
Taking all of the allegations of the Plaintiff’s complaint as true, and construing these facts in the light most favorable to the nonmoving party of the Motion to Dismiss (Plaintiff), as the court must when reviewing entry of final judgment on a 12(b)(1) and 12(b)(6) motion to dismiss, see United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1131 n.1 (9th Cir. 1999), in deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 155, 91 L. Ed. 2d 202, 106 S. Ct. 2505 [1986]; Van v. City of New York, 72 F.3d 1040, 1048-49 [2d Cir. 1995], The Plaintiff holds that the Defendant has failed to carry its burden here.
The Defendant claims that the Plaintiff’s exclusive forum for addressing Plaintiff’s claims is the Civil In Rem Forfeiture Action. The Plaintiff disagrees. The cases cited by the Defendant in support of its supposition do not apply to the Plaintiff’s case and the Plaintiff’s case is thus differentiated based on the following federal codes:
Section 274.1 (8 U.S.C. 1324) (h) (2) describes the date of an action to be the date of postmark if filed by mail.
Section 274 (8 U.S.C. 1324) (b) (1) states:
(A) That no conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited unless it shall appear that the owner of other person in charge of such conveyance was a consenting party or privy to the illegal act. (The Plaintiff was not a consenting party or privy to an illegal act.)
Section 274.1 (8 U.S.C. 1324) (o) The term “record” means an arrest for a related crime followed by a conviction, except that a single arrest and conviction and the expiration of any sentence imposed as a result of the conviction, all of which occurred more than ten years prior to the date a claimant acquired a property interest in the seized or forfeited conveyance, is not considered a record. Also related 28 CFR Part 9.2 (q). (The Plaintiff does not have a record).
Section 274.5 (8 U.S.C. 1324)(c)(2,3) The owner of a seized conveyance shall be informed of the right to request a personal interview with an immigration officer and to present evidence to establish;
(2) That the conveyance is not subject to forfeiture; or
(3) That the conveyance was used in an act to which the owner was not privy, or did not consent, and the owner took all reasonable steps to prevent the illegal use of the conveyance (The Plaintiff requested and attended a personal interview with the Department of Homeland Security and provided overwhelming evidence of Plaintiff’s claim).
Section 274.6 Proof of property interest (Provided by Plaintiff).
Section 274.8 Notice to owner and lien holder of seizure.
One hundred sixth Congress of the United States of America on January 24, 2000 states:
§ 983 (a) (1)(A)(i) In any nonjudicial civil forfeiture proceeding under a civil forfeiture stature, with respect to which, the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of seizure. (The Defendant denied the Plaintiff due process by exceeding this limit).
§ 983 (a) (1) (F) (i) If the government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time (Again the Defendant denied the Plaintiff due process by not obeying this statute).
§ 983 (a) (3)(B) The Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
§ 983 (f) Release of Seized Property (3)(A) If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized (By this statute the Plaintiff challenges the Defendant’s argument that the Civil In Rem Forfeiture Action is the exclusive forum for addressing the Plaintiff’s complaint).
The Plaintiff’s complaint was initiated before the Defendant’s In Rem Forfeiture Action and thus takes precedence. The Defendant states that “Equity always has been hesitant to act if its remedy would disrupt an ongoing grand jury investigation.” The only way Justice could disrupt is if there is Injustice to be disrupted. The Defendant mentions an ongoing grand jury investigation. The Plaintiff has not knowingly or intentionally been involved in any criminal activity. The Defendant had the obligation of returning the aircraft on two separate occasions, as mentioned above, and failed to do so, violating the Plaintiff’s right under the federal law and the Constitution. The value of the aircraft has diminished enormously due to the lack of the Defendant to follow federal code. The aircraft is not subject to forfeiture because the Plaintiff did not violate 8 U.S.C. §1324(a)(1)(A)(ii) by knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the united States in violation of law.
The Defendant violated federal code by not returning the aircraft to the defendant as prescribed by 18 U.S.C. §983(a) (1) (F) which states, “If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.” In short, the Defendant is set on stealing the Plaintiff’s property.
IV. CONCLUSION
As set forth extensively above, even if the Defendant is successful in retaining the Plaintiff’s property under the argument it has presented, the court must not dismiss the Plaintiff’s complaint in its entirety because there are too many issues that must be addressed. Members from both the House of Congress and the House of Senate are investing the Department of Homeland Security because of the abuses mentioned above. This is a matter to which the American people cannot close their eyes.

V. VERIFICATION
I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Any discrepancies or faults in this document are not intentional and would be the result of lack of knowledge and experience in the subject matter.
Executed on May 21, 2004 by:


Juan David De Jesus