423 E 7th street (RM 528)
Los Angeles, CA 90014
Ph.: (213) 622-1508
Emails: email@example.com, firstname.lastname@example.org
United States District Court For the Central District
of California Western Division
Complaint for damages – Intentional Misrepresentations and Suppression of Facts (involving risk of physical harm by public employees guilty of actual fraud, corruption and malice), collateral to negligence in performance of operational tasks.
[28 USC 1346 (b)]
Pierre Genevier (Plaintiff) |
VS | Complaint For Damages:
| Amount demanded $ 1 800 000
Department of Homeland Security |
| Demand for Jury Trial
The document contains the complaint (24 pages including the list of exhibits and a table of contents) and 10 exhibits (46 pages). It is filed concurrently with a notice of interested party and an affidavit to proceed in forma pauperis. LASS stands for Los Angeles County Department of Public Social Services, and CASS for California Department of Social Services.
Cause of action.
1.&2. Defendant addresses
Defendant Department of Homeland Security (DHS) (including the former ‘INS’ office) is, and all times herein mentioned as ‘INS’ was, a public entity existing under the laws of the State of California with its principal place of business in Washington. (DHS, Washington, DC 20528) (DHS-USCIS Los Angeles District Office and DHS-USICE, 300 North Los Angeles Street, Los Angeles, CA 90012) (DHS-Office of the District Counsel, 606 South Olive Street, Room 800,Los Angeles, CA 90014) (DHS- USCIS LA Asylum Office, 290 South Anaheim Blvd, Anaheim, CA 92805)
3. Public employees responsibilities.
Plaintiff is informed and believes and thereon alleges that Mr. Robert Looney, Mrs. Janie Lee and Mr. Earl Dotson who made the representations alleged below, were the Director of the Los Angeles Asylum office, the LA-‘INS’ attorney in charge of the plaintiff’s case, and the deportation officer who studied the plaintiff case, and, at all time of the making of the representations herein alleged and all times herein mentioned were acting within the course and scope of their employment and authority for the defendant DHS (formerly ‘INS’).
4. Plaintiff is ignorant of the true name of the ‘INS’ employee mentioned herein as (do) LA-INS-duty-attorney-1, and therefore refers to this employee by such fictitious name. Plaintiff will amend this complaint to allege the true name and capacity when ascertained. (Plaintiff is informed and believes and thereon alleges that the fictitious named employee is responsible in some manner for some of the occurrences herein alleged, and that plaintiff’s damages as herein were proximately caused by his conduct.)
4.1 Statement of Jurisdiction.
28 USC 1346 (b) gives jurisdiction to District Court for claims against the United States, for money damages. It states ‘Subject to provision of chapter 171 of this title, District Court,…, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on or after January 1 1945, for injury or loss of property, or personal injury or death caused by negligent or wrongful act or omission for 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’.
4.2 Factual Backgrounds / Summary of Facts.
Plaintiff is a native citizen of France who entered the United States on April 16, 2002, on the visa waiver program, then applied for political asylum to obtain the protection guaranteed to refugees (and to obtain indirectly a legal decision from the US justice that could help him to obtain justice against France). The LA ‘INS’ Asylum office transferred the case to the Immigration Court on July 16 2002. On September 5, 2002, plaintiff applied for Los Angeles County General Relief benefits, and as part of the application, was directed to the INS office to obtain a verification of his immigration status. The ‘INS’ status verifier, Mr. Mahoney, identified the plaintiff as a ‘refugee’, which entitled plaintiff to reside in the United States for an indefinite period of time (exh. 1).
On September 25, 2002, plaintiff applied for Refugee Cash Assistance benefits and his application was approved, effective the same day, but certain benefits associated with the refugee status were denied, the cash benefit and medical protection were eventually and incorrectly terminated 2 months later on 11/30/02, and the DPSS pretended that the plaintiff was not a refugee anymore on 12/01/02! The plaintiff contested the denial and early termination of the benefits and the allegations concerning his refugee status in a request for hearing at the administrative court and obtained an administrative law judge decision mostly in his favor confirming his refugee status (exh. 3.1).
At about the same time, end of September 2002, the plaintiff went to present his verification of status at the Immigration Court. The Clerk Supervisor told him that it was not unusual that an asylum seeker receives his refugee status after his case had been transferred to the Immigration Court, and asked him to inquire about the steps to be taken to have his case closed at the ‘INS’ counsel office. The plaintiff presented his verification of status to the 4 INS employees listed above (2 INS attorneys, the Director of the LA INS Asylum office, and a deportation officer) to have his case closed, and to obtain both the date his asylum was granted and another document stating his refugee status.
These 4 INS employees pretended directly or indirectly that the INS status verifier, Mr. Mahoney, had made a mistake in reading the record, and that they could not see on the computer or record where the status verifier had seen that the plaintiff had been given the refugee status. But on November 13 2002, several status verifiers confirmed to the plaintiff that he had been given the refugee status and that they even had the date at which the refugee status was granted, which contradicted without any doubt their 4 INS colleagues affirmations (or assessments).
It seems that after November 14 2002, date at which the plaintiff filed his complaint against the social services and wrote to the press and media to explain that he had been granted the refugee status (and before December 1 2004), the INS record was changed, because the status verifiers eventually said that the plaintiff was no longer listed as a refugee on December 1st 2002 (but the plaintiff does not know for sure, if the record was changed or if the status verifier started to lie).
This change of the record (or new lie) conveniently ‘covered’ the lies made by the 4 INS employees, the errors made by the LASS on the plaintiff’s case, punished the plaintiff for complaining at the administrative court, and ‘discouraged’ the press and media from discussing publicly the plaintiff’s case and proposals. But the INS management never denied the validity of the initial verification of status (listing the plaintiff as a refugee) certified by the administrative law judge, and instead the INS Refugee center accepted a certification made under the penalty of perjury under law stating that the plaintiff is a refugee (att. 6).
The plaintiff alleges and the evidences show that the INS (and related LASS and CASS) misrepresentations (and other wrongdoings) had for objective to deprive the plaintiff from his rights and safety, to physically harm him, to make him loose his asylum case, to diminish the responsibility of the social services employees in the errors made on his case, to discourage him from (and to punish him for) denouncing the dishonest behavior of the different social services civil servants, and finally, to ‘discourage’ the press and media from discussing publicly his unusual grant of asylum and his 2 proposals made to the international community (particularly the 65 age limit proposal for Leaders that could still have prevented the war in Iraq at the time).
The plaintiff asylum case was complex, because he not only explained that he was victim of a widely ‘advertised’ political scandal in France and that he received grave threats from the administration, but also that the persecutions he was victim of were due to the 2 special proposals he submitted to the international community. One of the proposals is a complicated computer project proposal designed to improve the transfer and integration of statistical data at the worldwide level (proposal that was supported by many experts around the world, exh. 7). And the other is a management proposal whose objective is to establish a 65-age limit for country Leaders and I.O Chiefs (Mr. Saddam Hussein was 65 in early 03).
‘INS’ intentional misrepresentations and suppression of facts.
5. On or about September 30, October 31 and November 13 2002, INS-duty-attorney-1, Mr. Robert Looney, Mr. Earl Dotson, and Mrs. Janie Lee pretended directly or indirectly (or suggested as a fact):
1_ That the plaintiff did not have the refugee status;
2_ That the INS status verifier who had signed and stamped the verification of status listing him as a refugee (exh.1) had made a mistake in reading the record. They also directly or indirectly pretended that they could not see on their computer where the status verifier had read that the plaintiff had been given the refugee status (, which is more than ‘surprising’ for the director of the asylum office, INS-attorneys and a deportation officer).
6. The representations made by these 4 ‘INS’ employees (verbally for INS-duty-attorney-1 and Mrs. Lee, in writing for Mr. Looney, and both in writing and verbally for Mr. Doston, see exh. 2.2 and 2.3) were in fact false. The true facts were:
1_ The plaintiff had the refugee status as the status verifier had written it on his initial verification of status (att. 1), as several of his colleagues status verifiers confirmed it on November 13th 2002 and as administrative law judge Tolentino ‘certified’ it in his decision dated February 5 03 (att. 3);
2_ The status verifier did not make a mistake in reading the record (even after they changed their position on December 1 02, they did not say that they had made a mistake).
Moreover, despite several complaints or requests for information (see exh. 10), the ‘INS’ (DHS) management and ‘INS’ office of internal audit never denied the validity of the initial verification of status listing the plaintiff as a refugee, (instead the Nebraska refugee center accepted the plaintiff’s refugee employment authorization application containing a certification made under the penalty of perjury under law stating that he is a refugee in October 2003, see exh. 6).
7.1 When these 4 ‘INS’ employees made these representations, they knew them to be false, because either they did not have the same information that the status verifier had to establish the verification of status listing the plaintiff as a refugee, and in this case they had no reason to doubt the status verifier’s reading of the record and to doubt that the plaintiff had obtained the refugee status, particularly when one knows that it can happen that asylum seekers receive their refugee status after their case has been transferred to the immigration court (as the clerk supervisor of the immigration court mentioned it).
Or they did have the same information that the status verifier had, and in that case they should not have blamed the status verifier for making a mistake and should not have pretended that the plaintiff did not have the refugee status, because they could see on their computer that the plaintiff had been given the refugee status.
Moreover, the Director of the Asylum office, the INS attorneys perfectly knew that asylum seekers must be given the benefit of the doubt, that they were not competent to judge certain aspects of the case, and that the plaintiff had asked for the intellectual support of several US universities (on July 16 2002, the asylum office had even said verbally that ‘they’ could not take a decision on the case, this is why ‘they’ were transferring the case to the immigration court). The plaintiff’s application contained the description of a computer project proposal he submitted to the international community and around 20 letters of supports from experts and politicians around the world, including 2 G8 leaders.
It also contained several letters he sent to ‘Leaders’ to explain the importance of the 65 age limit for country and I.O. leaders proposal to maintain peace around the world. One of the letters even mentioned that the proposal could prevent a then possible war with Iraq. So the fact that someone else had judged the case and granted the plaintiff the refugee status made sense (and since only 3 French nationals obtained the refugee status in 2002 according to the ‘INS’ statistics, the possibility of an error was very low).
7.2 These 4 ‘INS’ employees made these representations with the intention to deceive and defraud plaintiff and to induce plaintiff (and others like the immigration judge, the press and media,) to act in reliance on these representations in the manner hereafter alleged, or with the expectation that plaintiff (and others) would so act.
They (director of the asylum office, INS-attorneys) knew that whoever had given the plaintiff his refugee status had pointed out their wrong appreciation of the case, so in putting the responsibility of an error in reading the record on the status verifier, they simply wanted to hide the fact that the plaintiff’s case had been judged already by people more competent, more willing to respect the rights of asylum seekers, and, without any doubt, more responsive of the plaintiff’s extreme situation.
They wanted the immigration judge to ignore the fact that the case had been judged already and the plaintiff to continue with the procedure at the immigration court to make him loose his asylum case, and the possibility to obtain justice against France, to cover their error, to hurt one individual who could not defend himself properly and most probably for ‘political’ reasons too.
They did not want the plaintiff to obtain any (refugee) assistance to resettle in the US, or even to live in decent conditions until the next hearing that had been unfairly set for January 23 2003. They did not want to give any conformation of the plaintiff refugee status that could have been used by the press and media to report this unusual grant of asylum.
7.3 Suppression of fact. It seems that (between November 14 and December 1 2002) someone at the INS changed the INS record and erased the fact that the plaintiff had been given the refugee status and the date at which the status was granted (but the plaintiff is not sure if the record was really changed). This change of the record (or the lies of the status verifiers) conveniently covered the lies made by the 4 INS employees, covered or diminished the gravity of the errors made by the social services, and avoided the INS to give any confirmation of the plaintiff refugee status that could have been used by the press and media to report this special and unusual grant of asylum.
In 2001 the press and media, here and in France, had extensively reported that a Frenchman had been given the refugee status in Los Angeles, so the press and media would have talked about the plaintiff case, if the refugee status had been confirmed. The plaintiff had used the newspapers articles written on this Frenchman case in his asylum application to point out that the French justice can make grave errors on cases involving political and corruption scandal.
The refusal of the INS management (office of Internal Audit,…) and of the US officials (Mr. Bush, …) to respond to the plaintiff complaint and letters demonstrates that the INS management and US officials also did not want that the press and media talk about the important issues raised by the plaintiff’s case (political, legal and scientific issues), particularly the 65 age limit for leaders proposal that, at that time, could still have prevented the war with Iraq (proposal which also has political implications in the US). ‘They’ did not want to ‘promote’ any peaceful solution to the Iraqi crisis, to give any form of credit or recognition to the plaintiff for his work through a presentation by the press of his proposals, which could have helped him to obtain a job and to resettle.
Finally, it is possible, even probable, that the plaintiff was granted the refugee status before the hearing of August 27 2003, and that both the immigration judge and Mrs. Lee knew it during the hearing, but said nothing (this would certainly explain why the immigration judge was discourteous, and why he unfairly delayed the next hearing to January 03, since the refugee benefits are given for only 8 months after the status is granted, in delaying the hearing 5 months, the judge and Mrs. Lee may have tried to prevent the plaintiff from getting any help to resettle).
8. Actual and justifiable actions taken by the plaintiff.
a) Status verifiers confirmation and complaint sent to the INS.
Plaintiff at the time the INS employees pretended (suggested as a fact) that the status verifier had made a mistake in reading the record and that he did not have the refugee status had to believe that they could be right (everyone can make a mistake), even though the decision to grant him asylum made sense, and the probability of an error was low as stated above; and he had to try to obtain an explanation, because it is not possible that two different entities of the same organization have a different point of view on such an important matter (again the refugee status is a matter of life and death for the one who asks for it and obtains it).
This is why the plaintiff went back to see the status verifier on November 13 2002 and mentioned that several of their colleagues had questioned their reading of the record. After that several other status verifiers confirmed that the document was valid, that Mr. Mahoney did not make a mistake in reading the record, and that they even had the date at which the plaintiff was given the refugee status (but that they could not give this date to him, because the social services had to ask for it in writing), it was obvious that a fraud was taking place and that the plaintiff could not trust the point of view of the INS attorneys, of the director of the asylum office, and soon after of the deportation officer.
But the plaintiff still had to trust the administration (INS, DHS, defendant) and to rely on its capacity to resolve this grave problem (cheating and lying on a matter of life and death is nothing else than an attempted murder, so their behavior was criminal). The plaintiff first asked to see the supervisor of the deportation officer and information officer, but they refused to let the plaintiff see anyone else and asked a security officer to escort the plaintiff to the door! Then on January 14, 2003, he sent a complaint for employees misconduct to the ‘INS’ office of Internal Audit.
First this office said that it had not received the documents, then the plaintiff sent the same documents (plus the decision of the administrative law judge certifying his refugee status) in a registered letter, and they still said that they had not received the letter! Finally, he sent a fax (that was received) in which he explained that the status verifier had issued an altered verification of status that was used by the social services to deny him his refugee benefits, but the investigation branch gave no explanation for the described problems, they only forwarded the complaint to the management without saying to which manager they had sent it to (see exh. 10.1)! Their response was not fair at all, and the INS manager to whom the complaint was forwarded never responded.
b) Procedures at the immigration courts and administrative court.
For the plaintiff (and according to some ‘INS’ attorneys), he should not have had to go in front of the immigration judge with a document listing him as a refugee (moreover an Immigration Judge does not judge cases ‘INS’ against ‘INS’, he judges case asylum seekers against INS, and the problem was clearly a problem within the ‘INS’), but at the same time the plaintiff needed a proper decision, which confirmed that he had suffered persecutions and a great prejudice in France to have his case reopened at the international justice (the ECHR had rendered an unmotivated decision on his case) and to obtain justice against France. And he was not sure of the role of the immigration judge in these errors also, even if his behavior had been more than questionable when he refused to hear the case on August 27 02 and delayed (so much) the hearing until January 23 2003.
The plaintiff filed a ‘motion’ to close the case on November 25 02 thinking that it was the ‘INS’ that should have asked to close the case, the motion was ignored. The decision of the judge on a recommendation of the INS Attorney, Mr. Lee, to deny the plaintiff the asylum because he was sick and could not attempt the hearing, was the proof of their dishonesty, because they totally ignored the fact that the plaintiff had already been granted the refugee status. The plaintiff sent an appeal to the Board of Immigration Appeal to denounce the bad behavior of the judge and the INS attorney and to try to obtain a decision which confirmed his grant of asylum and the fact that he had been victim of persecutions in France, but his appeal was not studied (the problem was a problem within the ‘INS’ anyway).
The plaintiff also denounced this fraud and the INS wrongdoings to the administrative law judge with the same words he used to explain the problems to the INS Office of Internal Audit. The decision of Judge Tolentino (exh. 3.1) certifying the plaintiff refugee status confirmed, in some way, that a fraud was taking place at the INS, but the LASS refused to comply with this decision and to follow the appropriate procedure to criticize it. The plaintiff filed several complaints to have the LASS comply with the decision or follow the correct legal procedure to criticize it at the Superior court, but they refused. He also complained to the CASS management and to the Governor ‘who’ suggested him to file a formal complaint against the LA Presiding Judge and the Chief Administrative Law Judge at the Commission on Judicial Performance (,which he did), but this agency pretended that they did not have jurisdiction.
c) Letters to the INS management, to politicians and other officials.
On January 14 03, the plaintiff also wrote a letter to several politicians (Mr. Bush, Mr. Frist, Mr. Daschle,…) and administration officials including Mr. Garcia (the ‘INS’ director at the time) to explain the problems he had with the INS and the social services and to present (again for some) his proposals that are important for everyone. He stressed the importance of his 65 age limit proposal for Leaders and the role it could play to prevent a then imminent conflict with Iraq. He also explained that the development and presentation of his two proposals created him many unfair problems although he was working in the best interest of everyone and had received the support of well known international experts and some high level politicians (2 G8 Leaders). But he received no response.
More recently in October 03, the plaintiff wrote to Mr. Aguirre, the new Director of the USCIS. The customer service responded to the letter, but did not give any explanation of what happened (see exh. 10.2 ). Only the Nebraska refugee center accepted the refugee employment authorization application containing a certification made under the penalty of perjury under law that the plaintiff is a refugee (exh. 6). He also wrote (in November 03, March and April 04) to the same US officials (Mr. Bush, Senators, representatives,…) he had contacted on January 03, to describe the wrongdoings, the prejudice he suffered and the implications or the consequences of the silence on his proposals, but received no answer.
d) Complaint for damages filed at the State court against the USCIS, LA County DPSS, CA Department of Social service on February 04/04.
On February 4 2004, the plaintiff filed a complaint for damages at the LA Superior Court against the INS (USCIS), the LA County DPSS, and the California Department of Social Services, but the Assistant US Attorney removed the case to the Federal Court and the claim against the INS was eventually dismissed because the complaint did not follow the FRCP 8. The judge asked the plaintiff to file a new complaint.
The plaintiff files this new complaint against the DHS and filed an appeal against the dismissal of the claims against the LASS and the CASS, but since the DHS refused to be judged at the state court with the other defendants, it must assume the responsibility for the entire damage ($1 800 000). The 3 defendants have a joint responsibility in the damage, but the plaintiff cannot determine the level of responsibility for each of them without an appropriate joint legal procedure.
9._As a proximate result of the fraudulent conduct of the ‘INS’ (and of the LASS and CASS employees) as herein alleged, plaintiff was sent in the street or forced to change shelters more than 16 times since September 5 2002, he was forced to sleep in the street several nights (exh. 8.2), and to live in homeless shelters for several months with a great risk of catching the tuberculosis or other serious diseases, of being robed or even being killed (the plaintiff was threatened to be killed by another homeless for refusing to buy a small bottle of water for 25 cents!).
He also was/is not able to cook or to store food, and therefore could not / cannot nourish himself properly and suffered (es) health problems on a regular basis; he became sick every month or more (chronicle bronchitis, stomach aches, hart problems due to the high stress, etc.). Recently he broke his right elbow and was not even able to have any physical therapy or to buy medicine to cover the pain, and the swelling.
He was also forced to complain constantly to defend his rights at the administrative court, the immigration courts, and at the INS, and spent a lot of time (under difficult conditions) writing the complaints and finding the articles of law that referred to his case, so he was (is) greatly handicapped in his search for work. Moreover, the doubt on his refugee (permanent) status makes it impossible to find an appropriate job, because employers need to know that the job seeker can work here and stay here on a permanent basis to offer a job). He is also victim of constant ‘pressure’, surveillance, discrimination, … (often associated with this kind of cases and situation) that makes it even harder to find a job and make the plaintiff life miserable.
Finally, the plaintiff never received a document confirming that he suffered a grave prejudice in France (document that could help him to obtain justice against France), by reason of which plaintiff has been damaged in the sum of $1 800 000. Subdivided as follow:
1_ Wage loss, estimated at $400 000 (from November 02 to July 04, 20 months) and increasing by $20 000 every month until the dispute is resolved.
2_ Loss of years of life expectancy. The plaintiff was put in extremely difficult living condition that caused him health problems and great stress, which means that his life expectancy will be reduced significantly (according to different statistics the life expectancy of people who are exposed to great stress, difficult living condition and long unemployment is greatly lowered). The damage is estimated at $380 000.
3_ Loss of earning capacity. The plaintiff did not receive any decision confirming his refugee status and the fact that he suffered severe persecutions in France. Decision that should have helped him to obtain justice against France and a compensation, he has then suffered a loss of ‘earning’ capacity estimated at $1 000 000.
4_ ‘Psychological’ damage. The plaintiff felt very unwelcome and has lost his trust in the administrations, because of a small group of people did everything to make his life absolutely miserable. This is a terrible feeling to have for someone who studied here, and had always had a great respect for this country. The damage is estimated at $20 000.
10._The aforementioned conduct of defendant was an intentional misrepresentation, deceit, and suppression of material facts known to the defendant with the intention on the part of the defendant of thereby depriving plaintiff of ‘property’ (intellectual, …), legal rights and otherwise causing injury, and was despicable conduct that subjected plaintiff to a cruel and unjust hardship in conscious disregard of plaintiff’s rights. Defendant also intentionally avoided to inform the public on a proposal, which obviously not only could have prevented the war with Iraq, but also could help solve some other difficult problems of society.
The ‘INS’ (DHS) employees who lied about the plaintiff’s status (and reviewed the plaintiff’s case) have demonstrated an extreme cruelty, because they knew that the refugee status is a matter of life and death, that the plaintiff had waited for a long time (in extremely difficult living condition in refugee or homeless shelters in two other countries) for this refugee status, and that this refugee status was given among other reasons to improve his living conditions. To create a doubt after the ‘INS’ had finally granted the asylum was/is not only a real torture for the plaintiff, but also a criminal behavior from these employees. They were guilty of malice, oppression, corruption, and fraud, and deserve no immunity for their misrepresentations according to Government code 822.2.
The INS (DHS) management and US officials (Mr. Bush, ..) who were informed on the wrongdoings without any doubt and who, it seems, at first granted the plaintiff his refugee status, also had ‘questionable’ behavior. It was very easy for them to explain what happened and erase the doubt created by these 4 ‘INS’ employees, instead of remaining silent. They did not just deprive the plaintiff from his legal rights (the right to housing assistance, and other RCA benefits, intellectual property rights for his two ‘original’ proposals, … ), and subject him to cruel and unjust hardship in conscious disregard of his right and safety, they also hurt the US and the world.
[They could not / cannot ignore that his 65 age limit proposal could have prevented the war with Iraq and the immediate death of hundred of thousands of people including US soldiers (a war which, we know now, was without any doubt motivated by wrong intelligence from the CIA according to a recent Senate report)].
Moreover, the processing of asylum applications and the resettlement of refugees are operational tasks, that the US has voluntarily accepted when it signed the 1951 Refugee Geneva convention, and it has performed them negligently. Two INS offices not even ten meters apart from each other could not agree on the status of the plaintiff although this is a matter of life and death (the deportation officer even said that ‘status verifier are clerks, they are lower than nothing’, when the plaintiff reminded him that several status verifiers had just confirmed that he had been given the refugee status).
And it was not possible to see a supervisor to have an explanation. Then the status verifier issued an altered document although the INS, itself, does not accept altered document as valid document (exh. 4). And the INS management never responded to the plaintiff’s complaints or request for information, although they knew that an administrative proceeding was going on. Therefore, the described intentional misrepresentations involving risk of physical harm, are collateral to negligence in operational tasks, and are not covered by the immunity granted by 28 USC 2680 (h) (see paragraph below).
11. Statutes, Jurisprudences and Claim Requirement.
a) State Statutes and cases.
Government Code 815.2 stating that ‘ a public entity is liable for injury proximately caused by an act or omission of an employees of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employees or his personal representative’, and GC 822.2 stating that ‘a public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption, or actual malice.’, render the defendant liable for the wrongdoings described in the complaint because, as mentioned above, employees are guilty of actual malice, and corruption in this case.
The immunity for misrepresentation given by Government Code (GC) 818.8 is not ‘absolute’ in this case, because it does not apply for:
1) Misrepresentations in the social service area [see note and decision 6 of the West annotated California Code of Government 1-939, ,Michael J. V. Los Angeles County, Dept. Of adoption (app. 2 Dist 1988) 247 Cal. Rptr..];
2) Misrepresentations involving risk of physical harm, [see California Form of Pleading and Practice volume 40 page 118.7, jurisprudences Johnson v. State of California (1968) 69 cal. 2d 782.., Garcia v. Superior Court (1990) (citing Johnson; case remanded to permit plaintiff leave to amend complaint to state cause of action for negligent misrepresentation involving risk of physical harm…]; and
3) Misrepresentations of civil servant who are also guilty of corruption and actual malice [see California Form of Pleading and Practice volume 40 page 123, jurisprudence Schonfeld v. City of Vallejo (1974) 50 cal App. 3d 401, 404 411, 123 Cal. Rptr. 669]!
Moreover according to the California Form of Pleading and Practice volume 40 page 118.7: ‘The Supreme Court has interpreted the term ‘misrepresentations’ to mean interference in the nature of the common law action for deceit with financial or commercial interests and not any conduct that literally could be called a misrepresentation such as misleading turn signal by a driver or the failure of state authorities to disclose the criminal and violent tendencies of a juvenile parole having placed in a forth home [Johnson v. State of California (1968) 69 cal . 2d 782..].’ The court has stated that the immunity from liability for misrepresentations does not apply to intentional misrepresentations involving a risk of physical harm.
b) Federal cases.
Similarly USCA 28 section 2680 (h) which gives immunity for misrepresentation to federal agencies, has several important exceptions that applies in this case. For example, the notes on 28 USCA section 2680 explains that the immunity does not apply ‘for personal injury or property damages arising from negligent performance of operational tasks’, which is the case here. (It applies only ‘for injury resulting from commercial decisions taken in reliance on governmental misrepresentation’, which is not the case here).
Several jurisprudences described in the USCA 28 notes for section 2860 confirmed also that the immunity does not apply in this case. For example it states: ‘Designing and planning dam and reservoir was an operational task and the government performed it negligently and any communication of misinformation in connection therewith was collateral; thus misrepresentation exception to federal tort Claim Act did not apply since in essence of complaint was one for failure to take due care in performance of voluntary task. [Guild v. US, CA 9 (cal) 1982,685 F.2d 304].’
Or ‘Claim for damages sustained as result of Social Security Administration’s stopping payment on benefits checks was not claim covered by misrepresentation ‘exception to this chapter and section 1346 (b) of this title, even though harm occurring was caused by keypunching error resulting in entry into a social security record erroneous ‘facts’ of the date of recipient’s death, where such false keypunch statement was not made to plaintiff and he did not rely upon it. [Jimenez- Nieves V. US, CA 1 (Puerto Rico) 1982, 682 F. 2d1, remand 618 F. supp. 66].’
The exceptions to the immunity for misrepresentation described in federal jurisprudences are similar to the exceptions described in State jurisprudences (in some ways), and it appears clearly that this immunity does not apply in the social services area, when the misrepresentation leads to the termination of social benefits (which is the case here). We also clearly see that the Government performed negligently his duty related to the asylum application process, and therefore that it is liable for the wrongdoings described.
c) Claim requirement.
USC 2675 states that ‘an action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or omission …., unless the claimant shall have first presented the claim to the appropriate agency….’. The plaintiff made several efforts to encourage the ‘INS’ to start an investigation, by sending letters and complaints that described the problems and valued the grave prejudice he suffered, and can be considered as claim. His complaint of employee misconduct sent to the INS office of internal Audit on January 14 2004, for example, can be considered as a claim, because it encouraged the INS to start an investigation and described the prejudice.
The plaintiff also sent a letter to the US president and other US officials on November 11 2003 in which he described the problems and valued the prejudice, this letter can therefore be considered as a claim also. Finally, he sent a more ‘formal’ claim to the USCIS on March 25 2004 describing in the same term as the complaint the wrongdoing and the damages he suffered, but never received any response (see exh. 9.1). Recently on July 14 2004, the plaintiff sent an updated or amended claim to Mr. Ridge, Mr. Ashcroft, Mr. Bush, and other US officials written in the same term as this complaint (exh. 9.2).
Wherefore, plaintiff prays judgment as follows:
1. For general damages in the sum of $ 400 000 increasing by $20 000 every month until the dispute is resolved.
2. For special damages for loss of earning capacity, loss of years of life expectancy, and psychological damage in the sum of $1 400 000.
3. For Cost of suits incurred herein.
4. For an order on the DHS to change the erroneous information kept on the official record under the plaintiff’s name, and to list him as a refugee (if it is not the case); and
5. For such other and further relief as the court may deem proper.
Dated: September , 2004
Demand for jury trial
Plaintiff hereby demands a jury trial as provided by rule 38(a) of the Fed. R. Civ. Procedure.
Table of contents
1.&2. Defendant addresses. P. 2
3. Public employees responsibilities. P. 2
4. Plaintiff is ignorant of some of the true name of the defendant P. 2
41. Statement of jurisdiction.
4.2 Factual Backgrounds / Summary of Facts P. 3
‘INS’ intentional misrepresentations and suppression of facts.
5. On or about September 30. P. 6
6._The representations made by defendants. P. 6
7.1 When the defendants made these representations. P. 7
7.2 The defendants made these representations. P. 8
7.3 Suppression of fact. P. 9
8. Actual and justifiable actions taken by the plaintiff. P. 10
a) Status verifier confirmation and complaint to the INS. P. 10
b) Procedure at the immigration courts and administrative court. P. 12
c) Letter sent to the INS management, and US officials. P. 13
d) Complaint for damages filed at Superior court. P. 14
9. As a proximate result of the fraudulent conduct of defendants. P. 15
10._The aforementioned conduct of defendants was an intentional... P. 16
11. Statutes, Jurisprudences and Claim Requirement. P. 18
Table of contents. P. 23
list. p. 24
Exh. 1: Verification of status listing the plaintiff as a refugee (1 page double sided, 2 pages).
Exh. 2: Response from Mr. Looney dated October 31 2002 (2.2, 1 page), response made on November 13 2002 by the Deportation officer (2.3, 1 page).
Exh. 3: Decision of Judge Tolentino dated February 5 2003 (6 pages).
Exh. 4: G845S and G845 Supplement forms (2 pages).
Exh. 5: Notice of action dated 03/13/03 (5.1, 1 page), notice of action dated 04/02/03 (5.2, 1 page), notice of action terminated GR (5.3, 1 page), altered verification of status sent at the end of March (5.4, 2 pages).
Exh. 6: Employment authorization application confirming the plaintiff refugee status (4 pages).
Exh. 7: Computer project proposal and letters of support (8 pages), special facts (3 pages).
Exh. 8: Article concerning the violence on homeless (1 page).
Exh. 9: First pages of the Claim sent to the USCIS (4 pages), and firs t page of amended claim (3 pages).
Exh. 10: Response sent by this INS office of internal audit (10.1, 1 page), letter sent to the director of the BCIS (10.2, 2 p), response sent by the customer service office (10.3, 1 p).
(Total pages = 44)
Los Angeles, the