Tuesday, May 04, 2004

Justice-Denied.net
Without Bivens Actions, the right to hold Federal employees personally liable for malicious, vicious and even depraved actions is severely limited under the Civil
Rights Act of 1964 and subsequent revisions. For example, a Federal, former Federal employee or non Federal employee treated with grievous and malicious indifference, would have no recourse to file suit against the parties involved in US Federal Court. A Federal Employee would only have recourse to filing against the "Department Head," such as the Attorney General. Thus, people responsible for acts of brutality and sadism in violation of the United States Constitution, would be protected by the Federal Government. This allows for a continuation of these actions against others.

Justice-Denied.net

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.

2003 U.S. App. LEXIS 10856,*;330 F.3d 1186;
2003 Cal. Daily Op. Service 4562;2003 Daily Journal DAR 5874

JOSE AGUADO CERVANTES, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.

No. 01-56929

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

330 F.3d 1186;2003 U.S. App. LEXIS 10856;2003 Cal. Daily Op. Service 4562;2003 Daily Journal DAR 5874



June 2, 2003, Filed


Although rare, on occasion, we see arguments that simply fail the straight-face test. The United States' assertion that the "detention of goods" exception to the sovereign immunity waiver under the Federal Tort Claims Act applies to its negligent failure to remove 119 pounds of marijuana hidden in a car it sold to Jose Aguado Cervantes, whom it later incarcerated for "transporting" those very drugs, is one. Although we agree with the district court that Cervantes cannot recover damages for false imprisonment or false arrest because the customs agents had reasonable cause [*2] to believe his arrest was lawful, the United States' defense to his negligence claim is patently without merit. We therefore affirm the district court's order dismissing Cervantes's false imprisonment and false arrest claims, and reinstate Cervantes's negligence claim.
C. Negligence

Cervantes's claim for negligence is an entirely different matter. We are compelled to note that the United States' assertion, as its sole defense, that this claim is barred by the "detention of goods" exception is so off-the-mark as to be embarrassing. n1

28 USCS § 1346 (2004)

§ 1346. United States as defendant

(a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court [United States Court of Federal Claims], of:
(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws;
(2) Any other civil action or claim against the United States, not exceeding $ 10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978 [41 USCS §§ 607(g)(1), 609(a)(1)]. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.

(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.
(2) No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury.
Extrinsic fraud on a court is, by definition, not an error by that court. It is, rather, a wrongful act committed by the party or parties who engaged in the fraud. Rooker-Feldman therefore does not bar subject matter jurisdiction when a federal plaintiff alleges a cause of action for extrinsic fraud on a state court and seeks to set aside a state court judgment obtained by that fraud.

B. Other [*15] Alleged Wrongful Acts

Kougasian's remaining four causes of action are based on other alleged wrongful acts by the defendants. All of these causes of action were previously adjudicated by the state courts in Kougasian I and/or II. Because Kougasian is attempting to have the judgments of these two courts set aside based on the alleged extrinsic fraud by defendants, however, these four causes of action are not barred by Rooker-Feldman.

However, even if Kougasian were not seeking to set aside the judgments because of extrinsic fraud (or even if the federal court concludes that there was no extrinsic fraud), Rooker-Feldman still does not bar these four causes of action. Kougasian does not, in these causes of action, allege legal errors by the state courts; rather, she alleges wrongful acts by the defendants, such as negligently designing the ski run and negligently placing or failing to remove the rock. It is true that factual allegations and legal claims in these four causes of action are almost identical to the allegations and claims asserted in state court in Kougasian I and II, but that is not sufficient reason to find the causes of action barred by Rooker-Feldman [*16] .

If issues presented in a federal suit are "inextricably intertwined" with issues presented in a forbidden de facto appeal from a state court decision, Rooker-Feldman dictates that those intertwined issues may not be litigated. See Feldman, 460 U.S. at 483 n.16. But the issues in Kougasian's four causes of action are not "inextricably intertwined" within the meaning of Rooker-Feldman. In an ordinary language sense, the issues in Kougasian's claims are indeed "inextricably intertwined" with the issues in Kougasian I and II. But, as we explained in Noel v. Hall, "inextricably intertwined" has a narrow and specialized meaning in the Rooker-Feldman doctrine. See Noel, 341 F.3d at 1166.
It has long been the law that a plaintiff in federal court can seek to set aside a state court judgment obtained through extrinsic fraud. In Barrow v. Hunton, 99 U.S. (9 Otto) 80, 99 U.S. 80, 25 L. Ed. 407 (1878), the Supreme Court distinguished between errors by the state court, which could not be reviewed in federal circuit court, and fraud on the state court, which could be the basis for an independent suit in circuit court. (The federal circuit court was [*13] a trial court at that time.) Anticipating the Rooker-Feldman doctrine, the Court wrote:
Lexis-Nexis
A. Alleged Extrinsic Fraud

Three of Kougasian's causes of action are based, in whole or in part, on alleged extrinsic fraud on the state court. n1 The alleged extrinsic fraud primarily consisted of submitting the false declaration to the state court in Kougasian I at the last minute and refusing to supply the telephone number or address of the declarant, thereby preventing Kougasian from deposing or otherwise questioning him. "Extrinsic fraud is conduct which prevents a party from presenting his claim in court. [*11] " Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981). Under California law, extrinsic fraud is a basis for setting aside an earlier judgment. See Zamora v. Clayborn Contracting Group, Inc., 28 Cal. 4th 249, 121 Cal. Rptr. 2d 187, 47 P.3d 1056, 1063 (Cal. 2002).

Lexis-Nexis
Kougasian alleges seven [*6] causes of action. In one of the causes of action, she seeks to set aside the state court judgments in Kougasian I and II, alleging that the defendants obtained those judgments through extrinsic fraud on the court. The allegations supporting her cause of action for extrinsic fraud also support two other causes of action in which she seeks damages for fraud and abuse of process. Kougasian particularly emphasizes the allegedly false declaration submitted in Kougasian I, upon which she partially relied in her complaint in Kougasian II. Kougasian alleged none of these three causes of action in her complaints in Kougasian I and II. In her remaining four causes of action, Kougasian seeks damages based on wrongful death, premises liability, and intentional and negligent infliction of emotional distress. Kougasian alleged these same four causes of action in Kougasian I and/or II.

Lexis-Nexis
extrinsic fraud
n. fraudulent acts which keep a person from obtaining information about his/her rights to enforce a contract or getting evidence to defend against a lawsuit. This could include destroying evidence or misleading an ignorant person about the right to sue. Extrinsic fraud is distinguished from "intrinsic fraud," which is the fraud that is the subject of a lawsuit.
See also: fraud intrinsic fraud

intrinsic fraud
n. an intentionally false representation (lie) which is part of the fraud and can be considered in determining general and punitive damages. This is distinguished from extrinsic fraud (collateral fraud) which was a deceptive means to keeping one from enforcing his/her legal rights.
See also: extrinsic fraud fraud

Law.com
We conclude that Rooker-Feldman does not deprive the district court of subject matter jurisdiction. We therefore reverse and remand for further proceedings. On remand, the district court may determine, [*2] inter alia, whether the suit should be dismissed under California preclusion law pursuant to 28 U.S.C. § 1738.
28 U.S.C. § 1738.
The government moved to dismiss, and the district court granted the 12(b)(1) and (b)(6) motion on the grounds that the discretionary-function exception to the FTCA shielded the government from liability on plaintiffs' claims, and that no tort action was available for similar conduct under Arizona law. We disagree on both counts, and, accordingly, we reverse and remand.

I

[1] The FTCA waives sovereign immunity for specified torts of federal employees, including negligent or wrongful acts or omissions "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, [*3] would be liable under the law of the state "where the act or omission occurred." 28 U.S.C. § 1346(b). A limitation on this waiver of sovereign immunity exists where the government is performing a "discretionary function," whether or not the discretion is abused. Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998). However, the discretionary-function exception covers acts which involve an element of choice; it does not apply where a "federal statute, regulation, or policy specifically "prescribes a course of action for an employee to follow," because "in this event, the employee has no rightful option but to adhere to the directive." Berkovitz v. United States, 486 U.S. 531, 536, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988). Further, the exception protects only government actions and decisions based on "social, economic, and political policy." Id. at 537. The government bears the burden of establishing that the test is met and that discretionary immunity applies. Miller, 163 F.3d at 594.

[2] Taking all of the allegations of the complaint as true, and construing these facts in the light most favorable [*4] to the nonmoving party, as we 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), we hold that the government has failed to carry its burden here.

[7] In sum, the government has failed to establish that discretionary immunity applies with respect to either Kirk's or Varland's actions. See Miller, 163 F.3d at 594.

II

[8] Because [*7] the FTCA does not create liability, but merely waives sovereign immunity to the extent that state-law would impose liability on a "private individual in similar circumstances," 28 U.S.C. § 2674, we must also determine whether plaintiffs have pled facts sufficient to justify the imposition of liability under ordinary state-law principles.

[9] Generally, the United States can be held liable under the FTCA only 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.

2004 U.S. App. LEXIS 6246
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 U.S. government, like other sovereign entities, enjoys sovereign immunity from liability for its agents' tortious acts. Doe v. U.S., 838 F.2d 220 (7th Cir. 1988). Congress waived this 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.' " While this waiver of sovereign immunity is broad, it is not without limit. Calderon v. U.S., 123 F.3d 947 (7th Cir. 1997) (explaining that 'many important classes of tort claims are excepted from the act's coverage'). For example, the government has not consented to be sued for the intentional torts of its employees and agents. 28 U.S.C. sec2680(h); Sheridan v. U.S., 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). The FTCA contains a jurisdictional limitation that specifies that its 'broad grant of jurisdiction "shall not apply to ... any claim arising out of assault, battery" or other specified intentional torts.' (28 U.S.C. sec2680(h))."

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.

28 U.S.C. §[1346[b].
Copyright 2003 ALM Properties, Inc. All Rights Reserved.
National Law Journal

September 15, 2003

SECTION: DECISIONS; Vol. 26; No. 3; Pg. 12

LENGTH: 2542 words

HEADLINE: DECISIONS

BODY:
ATTORNEY FEES

Defendant, vindicated, can get fees as damages

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 was 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."

Decisions - Federal Tort Claims Act (FTCA)
In May 2003, the U.S. Supreme Court held that states are subject to private lawsuits under the Family and Medical Leave Act. The decision, in Nevada Dept. of Human Resources v. Hibbs, left many court watchers wondering if the justices had concluded that their long effort to rehabilitate 11th Amendment state sovereign immunity had gone far enough.
Copyright 2003 ALM Properties, Inc. All Rights Reserved.
New Jersey Law Journal

October 27, 2003
SECTION: POINTS OF VIEW; Pg. 74

LENGTH: 1863 words

HEADLINE: People v. State
The law should protect citizens' dignity, not states' immunity. Even the Supreme Court's Hibbs decision doesn't do that.

BYLINE: By Robert A. Levy

BODY:
What a difference a year makes. In an unbroken string of seven cases from 1996 through 2002, the Supreme Court expanded the doctrine of sovereign immunity, which bars most private lawsuits against state governments for damages without their consent. In May, however, the Court reversed course in Nevada Department of Human Resources v. Hibbs. Writing for a five-member majority, Chief Justice William Rehnquist held that the 14th Amendment sometimes does permit Congress to abrogate a state's sovereign immunity. That's the right result, but the chief justice used the wrong reasoning to get there.

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.

For that reason, Hibbs is an important case and a welcome turn in the Court's view of sovereign immunity. Congress may now abrogate state immunity in enforcing the 14th Amendment if three conditions are met. First, Congress' intent to abrogate immunity must be unmistakably clear. Second, as laid out in City of Boerne v. Flores [1997], Congress must identify an extensive history of discrimination, weighty enough to justify prophylactic legislation. Third, the Court said in Hibbs, Boerne also requires that there be "congruence and proportionality" between the injury and the statutory remedy.

Three constitutional amendments are at the heart of the debate. The 10th Amendment restricts national powers by limiting them to functions enumerated in the Constitution. 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 that crystalline text, until Hibbs, the Rehnquist Court had distended the 11th Amendment, using it to constrict the reach of federal power under the 14th.

No matter. The Court acknowledged but one exemption from its ballooning immunity doctrine: States would be vulnerable to private suits pursuant to federal laws that enforce the 14th Amendment. But then, in four cases from 1999 through 2001, the Court steadily chipped away at that exemption.

But if state dignity is the justification for sovereign immunity, what can explain the numerous exceptions that have been carved out? Municipalities, which are creations of the state, can be sued under the 11th Amendment. So can state officials in their personal capacity. A state itself can be sued, by the federal government or another state. And Hibbs confirms that a state can be sued by private individuals in certain enforcement actions under the 14th Amendment.

Until we have the good sense to repeal the 11th Amendment, state sovereign immunity must reach no further than the amendment's unambiguous text. In that respect, Justice Stevens comes closest to the mark in his Hibbs concurrence. He first concedes uncertainty about whether the FMLA "was truly needed to secure the guarantees of the 14th Amendment." Stevens did not have to resolve that question. Even without a 14th Amendment pedigree, observed Stevens, the FMLA fits comfortably under a commerce clause rubric that has been decades in the making. Notwithstanding Lopez and Morrison, the Rehnquist Court is not prepared to restore the commerce clause to its original purpose -- preventing states from impeding the free flow of interstate trade.

http://80-web.lexis-nexis.com.hokhmah.stmarys-ca.edu:2048/universe/document?_m=54aac404bd63ef58c5aeec5ca6bb490a&_docnum=7&wchp=dGLbVzb-zSkVA&_md5=49770467a4a5d09fbeae293668e25de8
FEDERAL TORT CLAIMS ACT - The FTCA provides a limited waiver of the federal government's sovereign immunity when its employees are negligent within the scope of their employment. Under the FTCA, the government can only be sued '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.' 28 U.S.C. S 1346(b). Thus, the FTCA does not apply to conduct that is uniquely governmental, that is, incapable of performance by a private individual.

28 U.S.C. S 2680(h) provides that the government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. However, it also provides an exception. The government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. The government is not liable if the claim against law enforcement officers is for libel, slander, misrepresentation, deceit, or interference with contract. Congress has not waived the government's sovereign immunity against all law enforcement acts or omissions.

Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim 'based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.' 28 U.S.C. S 2680(a).

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 ('88). See Kennewick Irrigation Dist. v. U.S., 880 F.2d 1018, 1025 (9th Cir.'89). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 ('91) (quotation omitted). This requirement is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' Berkovitz, 486 U.S. at 536. Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, 499 U.S. at 322-23.

Absent specific statutes or regulations, where the particular conduct is discretionary, the failure of the government properly to train its employees who engage in that conduct is also discretionary. See, e.g., Flynn v. U.S., 902 F.2d 1524 (10th Cir.'90) (failure of National Park Service to train its employees as to proper use of emergency equipment was discretionary).

The FTCA specifies that the liability of the U.S. is to be determined 'in accordance with the law of the place where the [allegedly tortious] act or omission occurred.' 28 U.S.C. S 1346(b). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. See Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84); see also Richards v. U.S., 369 U.S. 1, 11-13 ('62).

Under California law, a California court would apply federal law to determine whether an arrest by a federal officer was legally justified and hence privileged. See Trenouth v. U.S., 764 F.2d 1305, 1307 (9th Cir.'85) (applying federal law in an FTCA action for false imprisonment to determine legality of arrest by Department of Defense officers in California); cf. Gasho v. U.S., 39 F.3d 1420, 1427-32 (9th Cir.'94) (applying federal law in FTCA false imprisonment action against federal customs officials to determine if probable cause justified arrest in Arizona).

A plaintiff cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law. See FDIC v. Meyer, 114 S.Ct. 996, 1001 ('94).

The substitution provision of the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA) provides that '[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose . . . the United States shall be substituted as the party defendant.' 28 U.S.C. S 2679(d)(1). The purpose of this amendment to the Federal Tort Claims Act was to 'remove the potential personal liability of Federal employees for common law torts committed within the scope of their employment, and . . . instead provide that the exclusive remedy for such torts is through an action against the United States under the FTCA.' H.R. Rep. No. 700, 100th Cong., 2d Sess. 4 (1988)

Under the FTCA, the U.S. is subject to liability for the negligence of an independent contractor only if it can be shown that the government had authority to control the detailed physical performance of the contractor and exercised substantial supervision over its day-to-day activities. See U.S. v. Orleans, 425 U.S. 807, 814-15 ('76); Letnes v. U.S., 820 F.2d 1517, 1519 (9th Cir.'87).
http://www.lectlaw.com/def/f071.htm