[HTML below, click for pdf and Appellate Appendix A-1 through A-692 attached as exhibits A, B, C, D & E.]
__________________________________________
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
|
KHALID ELHASSAN Appelle,
v.
UNITED STATES; MICHAEL HAYDEN; PORTER GOSS; GEORGE TENET; JAMES PAVITT; ROBERT MUELLER; GRANT ASHLEY; CHRISTOPHER WRAY; MICHAEL MASON; NOEL HILLMAN; CENTRAL INTELLIGENCE AGENCY; TRAVIS CLOSE; PATRICK EAGER; WANDA MITCHELL; "ERIC"; FEDERAL BUREAU OF INVESTIGATIONS; MEGHAN MATULKA; MARTHA TREESE; PHILIP LEZENBY; JOHN and JANE DOE 1-100 (such names being fictitious); and CORPORATIONS ABC 1-10 (such names being fictitious),
Appellants.
|
Appellate Docket No. 07-1407
Civil Action
ON APPEAL FROM ORDER OF THE Hon. PETER G. SHERIDAN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
District Court No. 06-cv-1000 (PGS)
|
BRIEF AND
APPENDIX VOLUME I of II
ON BEHALF OF
APPELLANT
(Pages A-1
to A-37)
JURISDICTIONAL STATEMENT
Appellate
jurisdiction is proper pursuant to 28 USC § 1291. The District Court had subject matter
jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337, 1343, 1346, 2201, 2671 et
seq., Bivens v. Six Narcotics Agents, 403 U.S. 388 (1971), and
supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
STATEMENT OF THE ISSUES
1. Whether
the lower Court, under the guise of a 12(b)(1) motion, improperly decided the
case’s merits and weight of evidence.
2. Whether
it was appropriate for the lower Court to decide the merits and weight of
evidence in a Fed. R. Civ. P. 12(b) motion.
3. Whether
it was appropriate for the lower Court to decide the merits and weight of
evidence in a Fed. R. Civ. P. 12(b) motion, before any discovery had been
conducted, evidence gathered, or witnesses deposed.
4. The
propriety of a District Court judge in a 12(b) motion hearing, before any
discovery had been conducted, evidence gathered, or witnesses deposed, asking
defense counsel who had no first hand knowledge of the events surrounding the
complaint, to describe the factual evidence of events underlying the Complaint.
5. Whether
Respondents’ conduct preserved Appellant’s claims under the continuing wrong
doctrine.
6. Whether
Appellant’s claims were equitably tolled.
7. Whether
it was appropriate for the Court below to dismiss Appellant’s complaint on
grounds that suit was not brought within six months of an FTCA notice of claim,
without addressing the issues of equitable tolling and continuing wrong
doctrine, and their applicability
8. Whether
the very egregiousness or “bizarreness” of a defendant’s conduct is grounds for
dismissal of Appellant’s complaint.
9. Whether
the extensive and prolonged nature of a defendant’s wrongdoing, necessitating a
lengthy complaint to describe such wrongdoing, is grounds for dismissal of
Plaintiff’s complaint.
10. Whether
the lower Court’s assertion that Appellant “declined” at oral argument to
describe the events giving rise to the Complaint can be reconciled with the
transcript of that hearing showing the Appellant describing the events giving
rise to the Complaint; asking the Court whether there was any particular matter
it wished Appellant to address only to be told that there were none; the lower
court’s repeatedly cutting off Appellant; or the lower Court concluding the
hearing with the assertion that it had read and was familiar with Appellant’s Statement
of Facts.
11. Whether
it is appropriate for a defendant to seek to influence a Court’s decision with
the irrelevant assertion that a named defendant has, since the date of
wrongdoing giving rise to liability, been appointed to the federal bench.
12. Whether
the decision of the Court below was improperly influenced by the fact that a
named defendant has, since the date of wrongdoing giving rise to liability,
been appointed to the federal bench.
13. Whether
the Court below abused its discretion.
STATEMENT OF THE CASE
On March 3, 2006, Appellant/
Plaintiff pro se Khalid Elhassan
filed suit in the United States District Court for the District of New Jersey,
alleging violations of civil rights, violations of 42 USC § 1981, 42 USC §
1982, 42 USC § 1983, 42 USC § 1985, 42 USC § 1986, violations of rights under
Title VII U.S.C., invasion of privacy, abuse of process, malicious prosecution,
common law fraud, wrongful interference with business opportunities,
intentional infliction of emotional distress, and violation of Plaintiff’s
constitutional rights under the Fourth and Fifth Amendments so as to give rise
to a Bivens action [A1 – A37,
and Amended Complaint, A609 – A650]. The case was assigned to the Hon. Joseph
Greenway, USDJ, and the Hon. Madeline Arleo, USMJ. Service was obtained as to the United States and Defendant Goss in official
capacity, and on Defendants Eager and Mitchell in their individual capacities [A166 – A184].
On
April 16, 2006, Appellant sought pro
hac vice admission in this case.
Despite having admitted him pro
hac vice in another case months earlier, the Hon. Madeline Arleo
inexplicably denied Appellant’s motion in the instant matter. An appeal was duly filed made to the Hon.
Joseph Greenway, but was never acted upon [A185
– A198, and A296].
On
May 30, 2006, Respondent filed a Fed. R. Civ. P. 12(b) motion to dismiss
the Complaint, and briefs in support and in opposition were duly filed [A297 – A566].
On
July 5, 2006, the case was reassigned from the Hon. Joseph Greenway to
the Hon. Peter Sheridan [A567].
On
August 1, 2006, Defendant Mitchell entered her Answer to the Complaint [A568 – A570].
On
August 7, 2006, the Hon. Ronald Hedges, USMJ, sought submissions for a
Scheduling Order. Respondent objected,
and the Scheduling Order was deferred pending resolution of the motion to
dismiss [A571 – A576].
On
August 24, 2006, Defendant Mitchell, citing the Respondent’s CIA General
Counsel as witness, filed a complaint with the Virginia Board of Bar Examiners,
citing as grounds thereof Appellant’s filing of suit [A577 – A583].
On
December 1, 2006, oral argument was made on the 12(b) before the Hon.
Peter Sheridan, who informed the parties that a decision would be made within a
week to ten days.
On
January 5, 2007, when no decision had issued, Appellant sought leave
to amend, accompanied by an Amended Complaint [A604 – A651].
On
January 29, 2007, Respondent opposed leave to amend, noting among
other things that amongst the named Defendants in that Amended Complaint, was a
former US Department of Justice official who had since the time of the events
described in the Complaint, joined the federal bench [A652 – A665, A660].
On
January 30, 2007, the Hon. Peter Sheridan issued an Opinion and Order
dismissing the Complaint with prejudice, and denying leave to amend [A666 – A678].
STATEMENT
OF FACTS
Amongst its grounds for dismissal,
the lower court characterized the claims contained in the original Complaint
and Amended Complaint as “vague and ambiguous” and subject to dismissal under
Fed. R. Civ. P. 8(a) [A675 – A677]. Plaintiff submits that both the original and
Amended Complaints went far beyond the requirements of the Federal Rules of
Civil Procedure, which require little more than notice pleading with the
details to be fleshed out during discovery.
Indeed, even if one sets aside the requirement that complaints be read
“in the light most favorable” to plaintiffs, the Complaint in this case spells
out that:
I. INTRODUCTION
Shortly
after the terror attacks of 9/11/2001, Appellant, a public interest consumer
rights attorney who happened to be a fluent speaker of Arabic, thought a career
change might be the patriotic thing to do, and applied for an Operations
Officer position with the Central Intelligence Agency’s (“CIA”) Directorate of
Operations [A4, ¶ 19]. Soon thereafter, Appellant was invited by the
CIA to attend an employment seminar, which purported to explain the steps leading
to, and training involved with, the job for which he had applied – a structured
and regimented year-long paramilitary and clandestine service training (“CST”)
or spycraft course, commencing in December of 2002 at the earliest, at a
government facility in Virginia [A4,
¶ 20 and Exhibit C thereto].
II. INTERVIEWS, NONCONSENSUAL BEHAVIORAL
MODIFICATION, AND “CONDITIONINING”
In
the months following the employment seminar, Appellant underwent a series of
CIA interviews, tests, physical examinations, and psychological evaluations,
after which he was informed that his application had been placed on an
expedited track, was asked if he could begin training in July of 2002 rather
than December, and given a conditional offer of employment [A4,
¶ 20].
Soon thereafter, Appellant underwent
an additional examination with a CIA polygrapher-psychiatrist, during which he
was hypnotized without his consent. Appellant
was informed later by the Respondents that hypnosis and other troubling
psychological methods were part of a conditioning and behavioral modification
process intended to “forge” suitable Directorate of Operations
instruments. Appellant had not been
informed of such “conditioning” beforehand and had never consented to being so
conditioned [A4 – A5, A10 – A11, A 21, ¶¶
22-24, 50-51, 56, and 99-100].
III. ABUSES IN THE INDUCTION PROCESS: QUID
PRO QUO SEXUAL HARASSMENT, HAZING, “PRAGGING,” AND APPELLANT’S WITHDRAWAL OF
HIS JOB APPLICATION
Appellant
was to soon discover that, rather than the structured training course described
in the employment seminar and subsequent interviews, entry into the CIA’s
Directorate of Operations was more akin to induction into a cult or
criminal enterprise than into a federal agency.
Poor command and control created an
environment rife with opportunities for corruption and abuse, and lax oversight
allowed many employees and agents to brazenly take advantage of such
opportunities for purposes ranging from hazing and perverse power trips, to
quid pro quo sexual harassment, to kickback schemes, solicitation of bribes,
and extortion of monies and things of value from job applicants either as a
condition for advancement or under the threat of adverse official action [A6 – A17, ¶¶ 29-79].
Respondents
intercepted, tapped into, and manipulated Appellant communications and means of
correspondence so as to arrange for him to meet and date a series of female
agents, including Defendant Mitchell [A6,
¶¶ 29-31]. After commencement of a
physical relationship, Defendant Mitchell revealed to Appellant that she was
part of the induction process into the Directorate of Operations, and that she
was to be his “mentor.” Mitchell informed Appellant that the process
would be convoluted, difficult to understand, entailed significant hazing which
Appellant was expected to endure, as one needs to be a “glutton for punishment” in order to thrive in the Directorate of
Operations. She likened the process to
what she termed “prags” and “pragging,” and informed Plaintiff that his progress
within the recruitment process was contingent upon his continuing to date her [A6 – A7, ¶¶ 32-33].
Defendant
Mitchell grew angry when Appellant informed her that he would prefer to
withdraw his job application and do without her or the Directorate of
Operations rather than go through such an unprofessional process. Likening the CIA’s Directorate of Operations
to “God” in its ability to
manipulate, interfere, and toy with people’s lives, Mitchell began threatening Appellant
with dire consequences unless he changed his mind [A7, ¶¶ 34-36]. Appellant withdrew
his application for employment with the CIA on July 12,
2002 [A8 – A9, ¶¶ 39-42].
IV. ABUSES FOLLOWING APPELLANT’S WITHDRAWAL OF
HIS JOB APPLICATION: FURTHER QUID PRO QUO SEXUAL HARASSMENT,
KICKBACK SCHEMES, EXTORTION, INVASION OF PRIVACY, INTERFERENCE WITH ECONOMIC
ADVANTAGE, RACIAL DISCRIMINATION, HAZING, AND LIFE THREATS
The
following day, July 13, 2002, Defendants arranged for Appellant to
be evicted from his residence [A7 – A9,
¶¶ 37-38, 43-44]. Defendant Mitchell
visited Appellant that same day, taunted him about the eviction, and asked
about his future residential plans [A9,
¶ 45].
Soon
thereafter, Appellant inquired via email about rooms-for-rent. Respondents intercepted Plaintiff’s emails,
and impersonating an advertiser for a room to rent, Defendant Close responded
to Appellant and rented him a room.
Defendant Close did not disclose at the time that he was involved with
the CIA or Appellant’s application for employment with the Directorate of
Operations, and instead described himself as an employee of a defense
contractor working on national security programs [A9 – A10, ¶¶ 46-47].
Similarly, Defendant Eager, another roommate who moved in soon after
Plaintiff, did not disclose at the time his involvement with the CIA, and
instead described himself as a recent member of a secretive first responder
biological-chemical-and-nuclear U.S. Marine Corps unit, who had begun working
in the same field for a private contractor [A13, ¶ 58].
Defendant
Mitchell, who still sought to continue dating Appellant, invited him to go
sightseeing at the Baltimore Inner Harbor in early August of 2002, where she
arranged for him to cross paths with a former fiancé whom he had not seen in
over a year in order to see how he would react.
Defendant Mitchell informed Appellant that the CIA had determined he was
“ready to move on to” an unidentified
“next level,” that Appellant’s former
fiancé, a U.S. citizen of Arab descent, was the last thing holding him back,
and that he needed to “let her go”
because lingering affection for her as revealed by his “subconscious mind” during his hypnosis might cause problems in the
future [A10 – A11, ¶¶ 48-51].
Defendant
Mitchell then sought to rekindle her relationship with Appellant, iterated that
his progress in the Directorate of Operations was contingent upon continuation
of the relationship, and sought to move into the “pragging” phase of the induction process by ordering him to
accompany her home and spend the night with her [A12, ¶ 55]. She grew angry
when Appellant refused and responded that in addition to being offended by the
intrusion into his privacy, he had withdrawn his application for employment
with the CIA nearly a month earlier.
Mitchell asked Appellant whether he thought he was being “sought after,” and threatened Appellant that
his life would be in jeopardy if he made waves about the abuses to which he had
been subjected to date. She grew even
more angry and acted in an extremely unprofessional manner when Appellant made
it clear soon thereafter that he was breaking up with her completely [A11 – A12, ¶¶ 53-55].
In
the following months, Defendants Close and Eager methodically quizzed Appellant
about his CIA interviews, his views and attitudes on matters of relevance to
the security clearance process, and expressed problematic views regarding the
concept of oversight over intelligence agencies and agents [A12 – A13, ¶¶ 57-60]. They informed Appellant that he was being “checked out” as part of a security
clearance process, and that he should simply be patient and put up with the
hazing, which they thought was funny [A13
– 14, and A16, ¶¶ 61-62, 65, 73
and 76].
Respondents also interfered with Appellant’s
job search as his then-fellowship with Trial Lawyers for Public Justice, a
public interest consumer rights law firm, neared its end. They then offered to introduce him to a CIA
recruiter who would give Appellant a highly lucrative job. Appellant declined [A15, ¶¶ 69-70].
Defendants Close and Eager grew angry
when Appellant questioned the legitimacy of government officials abusing their
authority to harass, under the pretext of a security clearance process, a
person who had withdrawn his application months earlier, or to seek personal
pecuniary gain from Appellant in the form of rental payments – which Appellant was
told he should be happy to make as their CIA supervisor, Defendant Eric, had
recently gotten married, had a newborn, and “needed a new porch” [A14 – A15, ¶¶ 64 and 67]. Eager and Close then brought in Defendant
Eric, whom they identified as their CIA boss and supervisor. Defendant Eric told Appellant to “just play along,” and criticized him for
“exhibiting signs of independent
thinking. The CIA doesn’t like
independent thinkers – we’re looking for yes men” [A16, ¶¶ 74-75].
V. RETALIATION
When Appellant iterated his view that
Respondents had no legitimate basis to invade his privacy, haze or otherwise
harass him after he had withdrawn his application, and otherwise interfere with
his life, they threatened him with dire consequences if he spoke out about the
abuses in the recruitment process, and as with Defendant Mitchell, promised him
that the CIA would show Appellant that “they’re
God” should he refuse to “just go
along” and be “cool” [A16 – A17, ¶¶ 77-79].
Respondents then changed Appellant’s
status from a sought after recruit with a top-secret security clearance, to a
terrorism suspect, and began inquiring whether he knew how to make ricin or
explosives, whether he knew any terrorists, intensified their harassment of Appellant,
began sprinkling conversations with gratuitous references to “niggers,” and otherwise acted so as
intentionally distress Appellant that they caused him to suffer a nervous
breakdown and become suicidal [A17 – A18,
¶¶ 80-83, and Exhibit G thereto].
VI. C.I.A. CHAIN OF COMMAND: COVERUP,
INTIMIDATION, DEPRAVED “HUMOR” AND FURTHER RETALIATION RATHER THAN CORRECTIVE
ACTION
Respondents
also arranged for Eager to cause Appellant’s false arrest on a weapons
brandishing charge. CIA liaison officials to local state
authorities then arranged for a “pretend” criminal case that appeared nowhere
in the docket, in a court cleared of spectators, and in which Plaintiff was
threatened with imprisonment unless he agreed to keep silent about the
recruitment abuses to which he had been subjected [A18, ¶¶ 84-87, and Exhibit H thereto].
Appellant finally managed to deliver
a letter describing the corruption and abuses involved with that case. The following day, he was instructed to
appear before the presiding judge for a special hearing, in which he was
informed that he was “released” and “free to go” [A19 – A20, ¶¶ 90-94, and Exhibit I thereto]. Even then, Defendants sought to further
intimidate Appellant by falsely informing him that the case had been
“appealed,” and further threatened him with dire consequences in that
non-existent “appeal” unless he stopped “trying
to cause trouble” [A Complaint, ¶¶ 95-96, and
Exhibit J thereto.
Simultaneously,
Defendants intercepted Appellant’s correspondence seeking assistance against
the abuses to which he was being subjected by the Defendants, and even
impersonated some of the people whose assistance Appellant had sought,
including legal counsel, in an attempt to dissuade Appellant from seeking legal
redress [A18, ¶¶ 88-89, and A391 – A392, ¶].
When Appellant persisted, Respondents
intensified their attempts to intimidate Plaintiff and dissuade him from
seeking redress by prank calling, stalking, harassing, and directing life
threats at Appellant [A19, ¶ 91].
When that failed, Respondents
attempted to convince Appellant that what he had been subjected to was not
merely an effort by CIA Directorate of Operations officials attempting to
coverup their corruption and wrongdoing, and instead offered a dubious
explanation that it was all an esoteric CIA process and “test” intended to
condition and otherwise forge him into a suitable instrument to be added to
their East Africa intelligence network [A21, ¶¶ 99-100, and 103].
That
depraved “test” presumably included a CIA official coaching Appellant on
marksmanship, then giving him a scope-mounted rifle and pointing him at the
President as a lark and example of CIA humor.
The US Secret Service did not think it was funny, and asked Plaintiff to
help them set a sting. The day after the
sting, then CIA Director George Tenet, as well as the head of the CIA
Directorate of Operations, announced their sudden “resignation” [A22, ¶¶ 104-107].
Soon
thereafter, in July of 2004, Respondents, acting without a warrant, seized a
computer belonging to Appellant and containing documents relating to the Respondents’
wrongdoing. They then asked Appellant’s
permission to read the computer’s contents.
When Appellant refused and insisted that Defendants either obtain a
warrant or return his property, the seizing official responded “I’ll give it back when I get around to
getting a warrant, and I’ll call you then.”
Defendants have yet to return Appellant’s computer [A22, ¶ 108].
In
the spring of 2005, Respondents intercepted Appellant’s electronic correspondence,
and again arranged for a CIA girlfriend to attempt to seduce him. When she finally informed Appellant that she
was sent by the CIA, he immediately broke up with her, at which point, and as
with Defendant Mitchell, she grew extremely angry, threatened Appellant that
people in the CIA “want to hurt” him,
and that he was a fool for breaking up with her “because I am the only person who can save you from the people in the
CIA trying to hurt you” [A22 – A23,
¶¶ 109-110].
VII. RETALIATION, INTIMIDATION, AND HARASSMENT
AFTER COMMENCEMENT OF LITIGATION
Respondents
continued their brazen wrongdoing and disregard for Plaintiff’s legal rights even after Appellant filed suit. As described in the Amended Complaint [A609 – A650], on May
3, 2006, Appellant
contacted some members of the congressional intelligence oversight committees,
by way of whistleblowing on some of the abuses in the CIA’s recruitment
process. That same day, Appellant returned
home only to find that he had been burglarized.
No valuables were taken, but a legal filing cabinet dedicated solely to
this litigation had been ransacked and left wide open for Appellant to see –
just the latest example of the Defendants’ intimidation tactics and what they
describe as “mind fucking” [A391, ¶ 4(a); Police Report attached
thereto, A398 – A400; A15, ¶ 66; and A635, ¶ 136].
Plaintiff had moved to New Jersey in October of 2004, and successfully
took and passed the New Jersey bar examination of February,
2005. The CIA Defendants, acting in
concert with Defendants Lezenby and Treese, abused the process of Appellant’s
Certification to the New Jersey State Bar as a means of retaliation and
harassment, and so as to obtain an advantage in the instant litigation at a
time when litigation was anticipated, and thereafter after litigation
commenced. After Appellant passed the
New Jersey bar examination of February, 2005, the CIA Defendants, and Defendant
Matulka specifically, contacted Defendants Lezenby and Treese and procured
their assistance, as a result of which Appellant underwent an ethics interview
or hearing presided by Defendants Lezenby and Treese in October of 2005, which
interview amounted to a defense deposition of Appellant regarding the facts
underlying his then-anticipated claims against the other Defendants, and which
overwhelmingly focused on Appellant’s interactions with the CIA and its
personnel and agents [A633, ¶¶
126-127].
According to Defendant Lezenby,
Defendant Matulka had submitted a defamatory letter to the New Jersey Board of
Bar Examiners, that among other things falsely claimed that Appellant had pled
guilty to a criminal charge in the court room of judge Gallahue. Defendants Lezenby and Treese did not inform
Plaintiff at the time of the October, 2005, hearing of their contacts with the
other Defendants. When the instant
litigation commenced in March of 2006, Defendants Lezenby and Treese had a
personal interest therein, of which interest they were aware, in the form of
co-conspirator liability and other liability stemming from their utilization of
Appellant’s certification process as a means to benefit the other Defendants. Appellant had specifically sought discovery
from the Defendants identified in the original complaint regarding any
communication between said Defendants and the New Jersey Board of Bar
Examiners. Appellant also specifically
notified Defendant Lezenby of the litigation then pending [A633 – A634, ¶¶ 128-132].
Notwithstanding, Defendants Lezenby
and Treese sought to further assist the interests of the other Defendants, as
well as their own interests, by failing to either recuse themselves in light of
their conflicting interests, or even disclose their personal interest in the
instant litigation. Instead, said
Defendants, after delaying a decision on Appellant’s application for admission
to the New Jersey bar for over a year and a half, knowingly and willingly
authored a Report and Recommendation in September of 2006 to withhold Appellant’s
certification to the New Jersey bar, which Report furthered said Defendants’
personal interest, and which Report said Defendants knew or should have known
was rife with material misrepresentations, material omissions, and unreasonable
conclusions unsupported or contradicted by the facts on record, including
concealment of the instant litigation from the Supreme Court of the State of
New Jersey, despite awareness of said litigation, and concealment of their
personal interest and stake in the instant litigation in a purportedly neutral
Report [A634 – A635, ¶¶ 129-134].
Additionally, as if to emphasize Appellant’s
claims of retaliation, defamation, and tortious interference with economic
advantage in the original Complaint, as well as the Defendants’ disdain for lower
Court’s authority over a case to which it had been assigned, Defendant Mitchell,
citing Respondent CIA’s General Counsel as a witness, filed an ethics complaint
against Plaintiff with the Virginia State Bar in August of 2006, specifically
citing as grounds thereof Appellant’s filing of suit in this Court and the
exercise of his civil right to seek redress in same [A635, ¶ 136].
In
short, both the original and Amended Complaints alleged that Appellant was
subjected to improper hazing, discrimination, quid pro quo sexual harassment,
and extortion by the Respondents and their negligently supervised employees or
agents. When Appellant balked at such
treatment, he was threatened with dire consequences, up to and including
threats to life. When Appellant sought
redress, Respondents subjected Appellant to unlawful retaliation ranging from
malicious prosecution to tortious interference with economic advantage to
invasions of privacy to literal threats to life and limb [A1 – A37, and A609 – A650]. Despite such specificity, the lower court
opined that the preceding is vague and ambiguous, and subject to dismissal
pursuant to Fed. R. Civ. P. 8(a).
Appellant submits that a plain reading of either the original or Amended
Complaint demonstrates that the lower court’s characterization of vagueness and
ambiguity is clearly erroneous, unreasonable, and constitutes an abuse of
discretion.
STANDARD
OF REVIEW
A
District Court’s order granting a motion to dismiss is reviewed de novo upon appeal. Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 386 (3d Cir.
2005). When considering a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must accept as
true all well-pleaded allegations and view them in the light most favorable to
the plaintiff. Scheuer v. Rhodes, 416 US 232, 236 (1974). A court must also
accept as true any and all reasonable inferences derived from those facts. Unger v. National Residents Matching
Program, 928 F.2d 1392, 1400 (3d Cir. 1991). Moreover, it is not necessary for the
plaintiff to plead evidence, and it is not necessary to plead the facts that
serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561
F.2d 434, 446 (3d Cir. 1977). The question before the court is not whether the plaintiff
will ultimately prevail; rather, it is whether the plaintiff can prove any set
of facts in support of the asserted claims that would entitle the plaintiff to
relief. Hishon v. King &
Spalding, 467 US 69, 73 (1984). A complaint may not be dismissed “unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.” Conley, 355 US at 45-46. See, also, Brown v. Phillip
Morris, Inc., 250 F.3d at 796.
SUMMARY
OF ARGUMENT
Respondents
failed to demonstrate that, beyond a doubt, Appellant can prove no facts in
support of his claims so as to entitle him to relief, and as such their instant
motion for dismissal should have been denied.
The Complaint is a proper suit against the United States, as suit against a federal agency or
a federal official in his or her official capacity is a suit against the United States.
As Respondents affirmatively engaged in wrongful conduct to obstruct
Appellant’s access to the courts, the statute of limitations is equitably
tolled, and the Respondents should have been barred from raising the limitations
period as a defense. Additionally,
Appellant’s claims are preserved by the continued wrong doctrine because they
assert an ongoing pattern of civil rights violations and conspiracy to violate
civil rights, with the latest wrongful conduct in furtherance thereof occurring
well within the limitations period. As
to Appellant’s intentional torts claims, they fall within the sovereign
immunity waiver of 28 USC § 1280(h).
Appellant also meets the requirements for a writ of mandamus, and is
accordingly entitled to same.
In
light of the specificity of Appellant’s original and Amended Complaints which
exceeds the notice pleading requirements of the Federal Rules of Civil
Procedure, and which adequately put the Defendants on notice of the grounds
upon which they were being sued, the lower court also abused its discretion in
dismissing Appellant’s claims as vague and ambiguous under Fed. R. Civ. P.
8(a).
The
lower court also abused its discretion in denying Appellant leave to amend the
Complaint, and in dismissing the Complaint against parties named therein, as
well as additional parties named in the Amended Complaint, against whom redress
was sought for conduct occurring well within the limitations period and on
grounds other than the FTCA which the lower court had deemed barred by the
statute of limitations.
ARGUMENT
I. THE LOWER
COURT’S FAILURE TO ADDRESS THE EQUITABLE
WRONG DOCTRINE AND THE CONTINUING WRONG DOCTRINE WAS AN ABUSE OF DISCRETION
The
lower court’s opinion failed to address the continuing wrong doctrine or the equitable
tolling doctrine, notwithstanding that arguments about those doctrines comprised
a significant portion of the briefing surrounding the motion to dismiss [A372 – A380, and A559 – A563].
This,
further notwithstanding that the lower court specifically noted that at least
two incidents – the Defendants’ warrantless seizure of Plaintiff’s laptop
computer (which computer contained many documents relevant to Plaintiff’s
claims), as well as what the lower court characterized as an “attempted seduction,”
occurred within the limitations period [A675].
The
lower court’s opinion did not address whether those incidents, or any of the
subsequent incidents of wrongful retaliation that occurred after the filing of
the original complaint and which serve as grounds for additional claims against
the Defendants named in the original Complaint, as well as additional
Defendants from the Amended Complaint [A633
– A635, ¶¶ 126-136], are sporadic in nature or sufficiently linked so as to
trigger the continuing wrong doctrine or equitably toll Plaintiff’s
claims. This, notwithstanding the lower
court’s awareness of the significance of the continuing wrong and equitable
tolling doctrines to resolution of the motion to dismiss [A602, 17:10 – 17:18].
Plaintiff submits that the lower court’s failure to address such a
significant matter is an absence of the “why and wherefore” underlying its
reasoning, such as amounts to an abuse of discretion. See, e.g.; Aruanno v. Cape
May County Jail, 2007 WL 70898., *3 (3d Cir. March 8, 2007) (not
released for publication) (reversing District Court’s grant of a motion to
dismiss and finding an abuse of discretion for lack of reasoning).
A. AS
RESPONDENTS HAD WRONGFULLY OBSTRUCTED APPELLANT FROM ACCESSING THE COURTS, THE
STATUTE OF LIMITATIONS SHOULD HAVE BEEN EQUITABLY TOLLED
It is a
longstanding and still valid principle of justice, equity, and fair play, that
a party may not profit from its wrongdoing and gain an unfair advantage
thereby:
In recognition of the
principle that lawlessness on the part of the Government must be stoutly
condemned, this Court has ruled that when such lawless conduct occurs, the
Government may not profit from its fruits.
Alderman
v. US, 394 US 165, 203
(1969). See, also, US
v. Kazynski, 416 F.3d 971, 975 (9th Cir. 2005), citing Mutual
Life Insurance Co. v. Armstrong, 117 US 591, 600 (1886), iterating that a
wrongdoer may not benefit from his wrong.
The Complaint seeks redress for unlawful conduct that includes the Respondents actively impeding
Appellant’s access to justice by conspiring to deprive him of the equal
protection of the law, equal privileges and immunities under the law, and
otherwise obstructing the course of justice and access to judicial relief. Statement of Facts, supra. As such, the reliance on the statute of
limitation is akin to the apocryphal story of the criminal defendant who
murdered his parents, then begged the court for mercy on grounds that he is an
orphan.
Statutes of
limitations for federal laws are tolled where a plaintiff “in some
extraordinary way has been prevented from asserting his or her rights.” Robinson v. Dalton, 107
F.3d 1018, 1022 (3d Cir.1997) (citing Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994). The
three general situations where equitable tolling is appropriate are “(1) where
a defendant actively misleads a plaintiff with respect to her cause of action;
(2) where the plaintiff has been prevented from asserting her claims as a
result of other extraordinary circumstances; or (3) where the plaintiff asserts
her claims in a timely manner but has done so in the wrong forum.” Lake v. Arnold, 232
F.3d 360, 370 n. 9 (3d Cir.2000) (citing Oshiver,
38 F.3d at 1387).
The Supreme
Court in Irwin v. Department of
Veterans Affairs, 498 US 89, 95-96 (1990), found that the principle of
equitable tolling should apply to cases against the government brought under
statutes that waive sovereign immunity.
Citing Irwin, this Court held that:
[S]tatutes of limitation
governing actions against the United States are subject to “the same
rebuttable presumption of equitable tolling applicable to suits against private
defendants.”
Hedges v.
US, 404 F.3d 744, 747 (3d Cir. 2005). Many federal courts have also found that the principle of
equitable tolling is applicable to the FTCA.
See, e.g.; Perez v. United States, 167 F.3d 913 (5th Cir.1999);
Alvarez-Machain v.
United States, 107 F.3d 696, 701 (9th Cir.1996); Glarner v. United States
Dep't of Veterans Admin., 30 F.3d 697, 701 (6th Cir.1994); Krueger v. Saiki, 19 F.3d 1285, 1286 (8th
Cir.1994), cert. denied,
513 U.S.
905, 115 S.Ct. 269, 130 L.Ed.2d 187 (1994); de Casenave v. United
States, 991 F.2d 11, 13 (1st Cir.1993); Hyatt v. United States, 968 F.Supp. 96, 101
(E.D.N.Y.1997); and Casey v. United
States, 161
F.Supp.2d 86 (D. Conn. 2001).
In the instant matter, the
Respondents took deliberate steps to both actively mislead Appellant with
respect to his cause of action, as well as to create extraordinary
circumstances to prevent him from asserting his claims. Such deliberate acts by the Respondents
satisfy both the first and second Lake requirements for equitable tolling. 232 F.3d at 370.
Few acts by a defendant can be more
misleading, and few circumstances can be more extraordinary, than the acts
committed and circumstances created by the Respondents in this case in order to
obstruct Appellant’s access to the courts and legal relief. Such misleading acts and extraordinary
circumstances include: (1) intercepting Appellant’s
correspondence, including correspondence seeking legal assistance and counsel,
and preventing it from reaching its intended recipients [A18, ¶ 88, and A392, ¶
4(d)]. (2) Impersonating those whose
assistance Appellant sought, including legal counsel, so as to dissuade Appellant
from pursuing his claims [A18, ¶ 89,
and A392, ¶ 4(d)]. (3) Stalking and shadowing Appellant so as to
intimidate him [A19, ¶ 91(b)]. (4) Threatening Appellant with the wrath of
the CIA if he spoke of the abuses to which he had been subjected [A12, A17, and A23, ¶¶ 54, 78,
and 110]. (5) Falsely imprisoning and
maliciously prosecuting Appellant so as to coerce him into keeping silent about
the abuses to which he had been subjected, and so as to further coerce him into
foregoing a legal remedy for same [A18
– A21, ¶¶ 84-87, 90, and 92-98]. (6) Subjecting Appellant to intensive
psychological pressures, under the pretense of “conditioning” or “forging” him
into a suitable instrument, and continuing to do so long after he had withdrawn
his application for employment with the CIA [A11, A15, and A21 – A22, ¶¶
51, 66, 99-100, and 104-107]. (7)
Seizing Appellant’s computer, which contained many documents relating to Respondents’
wrongful acts, without a warrant and refusing to return same [A22, ¶ 108]. (8) Threatening Appellant that John and Jane
Doe CIA employees intended to cause him harm [A23, ¶ 110]. (9) Threatening
Appellant’s livelihood [A15, ¶¶
69-70, A392, ¶ 4(c), and A633 – A635, ¶¶ 126-135]. (10) Threatening Appellant’s life [A12, A19, and A23, ¶¶ 54,
91(d), and 110].
It
should be noted that the Respondents’ wrongful acts creating extraordinary
circumstances did not cease even after Appellant filed suit. Part VII. of the Statement of Facts,
supra. It is submitted that the
preceding conduct suffices to equitably toll the limitations period.
B. APPELLANT’S CLAIMS ARE PRESERVED BY THE
CONTINUOUS WRONG DOCTRINE, AS THEY COMPRISE AN ONGOING PATTERN OF CIVIL RIGHTS
VIOLATIONS AND CONSPIRACY TO VIOLATE CIVIL RIGHTS, WITH THE LATEST VIOLATIONS
OCCURRING WITHIIN THE RELEVANT PERIOD OF LIMITATIONS
In addition
to equitable tolling, the Respondents’ ongoing course of wrongful conduct
preserves Appellant’s claims under the continuing wrong doctrine, whereby:
[A] federal cause of action
based upon the defendant's continuing conduct is timely provided that the last
act of that continuing conduct is within the period for the commencement of an
action specified by the statute of limitations. In applying the doctrine, this
court focuses on the affirmative acts of the defendant.
Sameric
Corp. of Delaware, Inc. v. City of Philadelphia,142 F.3d
582, 599 (3d Cir. 1998) (citations omitted).
The Third Circuit further explicated that:
The continuing violations
doctrine is an “equitable exception to the timely filing requirement.” West v. Philadelphia
Elec. Co., 45 F.3d 744, 754 (3d Cir.1995). Thus, “when a defendant's
conduct is part of a continuing practice, an action is timely so long as the
last act evidencing the continuing practice falls within the limitations
period; in such an instance, the court will grant relief for the earlier
related acts that would otherwise be time barred.” Brenner v. Local 514,
United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d
Cir.1991).
Cowell v.
Palmer Township, 263 F.3d
286, 292 (3d Cir. 2001). In short,
“[u]nder the notion of a continuing wrong, ‘only the last infringing act need
be within the statutory period’.” Hot
Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 821 (7th Cir.
1999).
When
examining a defendant’s behavior for purposes of the continuing wrong doctrine,
courts are instructed to consider at least three factors. (1) Subject matter: whether the instances of wrongful conduct are
sufficiently similar so as to tend to connect in a continuing violation. (2) Frequency: whether the acts are recurring or more in the
nature of isolated incidents. (3) Degree
of permanence: (a) whether the acts’ degree of permanence triggers a plaintiff’s
duty to assert his rights, and (b) whether the consequences would continue even
in the absence of continued intent to engage in wrongdoing. Cowell, 263 F.3d at 292.
In
the instant matter, the Respondents’ actions described in the Statement of
Facts, supra, clearly fall within the continuing wrong doctrine, and just as
clearly meet the above-cited Cowell factors.
1. Respondents’
Actions Met the Cowell Subject Matter Factor
From
2002, when Appellant first broke off a relationship with Defendant Mitchell, up
to a “message” of intimidation sent Appellant via a break-in into his home and
rifling through this litigation’s legal papers, and through retaliatory conduct
occurring after commencement of suit, Respondents’ actions have been
sufficiently similar so as to be connected in a continuous violation. The subject matter of Respondents’ actions
has revolved around twin axes of harassment and coverup, whereby both grew
within a symbiotic relationship of feeding upon and providing further impetus
to the other, and both steadily escalated as Appellant dug in his heels and
refused to simply go along, from the relatively petty to the quite serious and
seriously criminal.
What began as relatively minor
misconduct by low-level Directorate of Operations functionaries, such as the
mixing of business and pleasure resulting in quid-pro quo sexual harassment [A7, A11, and A21, ¶¶ 34, 36,
50-51, 55, 101], bizarre and unprofessional induction hazing rituals [A6 – A7, and A15 – A16, ¶¶ 32, 34-35, 66, 73, 76], racial discrimination [A18 and A21, ¶¶ 82, 102], or a crude bribery and kickback scheme [A10 and A17, ¶¶ 47, 77-78], grew into something far more sinister when the
relevant chain of command, rather than take appropriate corrective action,
opted for a coverup coupled with intimidation tactics and intense psychological
pressures directed at Appellant [A18 –
A23, ¶¶ 85-101, 104-105, 108, and 110-111, A391, ¶ 4(a), and A633 –
A635, ¶¶ 126-136].
By the time it became clear that Appellant
would not be dissuaded from attempting to vindicate his legal rights, it was
too late, as the stakes had grown exponentially for all involved. It was no longer a matter of petty abuses
limited to low-level agents and operatives, of which higher ups in the CIA
hierarchy could plausibly claim to have been ignorant. Instead, due to the coverup, intimidation
tactics, and the central coordination of both, the matter now involved
troubling questions regarding obstruction of justice and the integrity of the
judicial process, and a plausible claim of ignorance by the relevant chain of
command was no longer feasible.
Of a sudden, CIA higher ups were
faced with risks of embarrassment of a kind that could prove damaging to
careers,
or even to interests in liberty should a future Department of Justice examine
the conduct described in the Complaint, and prove less “understanding” when so
doing.
Respondents’ conduct has been largely
a continuous violation aimed at covering up not only the initial wrongdoing by
low-level agents and operatives, but the subsequent coverup, the coverup of
that coverup, and all that has followed to date. As explicated above, the result is a
symbiotic relationship in which each instance of wrongful conduct provides
further incentive to continue the coverup, while continuation of the coverup
provides further incentive to escalate and add to the wrongful conduct. Such a course of conduct is sufficiently
similar and tends to connect the instances of wrongful conduct in a continuing
violation, thus satisfying the Cowell subject matter factor. 263 F.3d at 292.
B. Respondents’ Conduct Met the Cowell
Frequency Factor
The
second Cowell factor is whether the acts are recurring or are more in
the nature of isolated incidents. 263
F.3d at 292. As described in the Statement
of Facts and Point I(A) of the Argument,
supra, the Respondents committed wrongful acts against the Appellant,
threatened him with further wrongful acts/ that the CIA would show him that
they are akin to the Almighty should he seek redress, carried through with
their threats and additional wrongs when he did seek redress, committed further
wrongs to intimidate him into silence and to coverup the previous wrongs, and
continue to subject Appellant to additional wrongful acts and sundry violations
in further efforts to intimidate Plaintiff and coverup the accumulating wrongs
to date.
To cite but a few examples amongst
many of frequent and repetitive wrongdoing, Respondents threatened Appellant,
including life threats, and sought to intimidate him in 2002 [A5, A7, A12, and A16 – A17, ¶¶
23, 35, 54, and 77-78]. They threatened
and sought to intimidate him in 2003 [A18 – A20, ¶¶ 86-87, 90-92, and 95]. They threatened and sought to intimidate him
in 2004 [A19 and A22, ¶¶ 91 and
108]. They threatened and sought to
intimidate him in 2005 [A22 – A23,
¶ 109-110].
The intimidation and unlawful retaliation continued into 2006, even
after commencement of suit [A391 – A392,
¶ 4(a), and A633
– A635, ¶¶ 126-137]. The preceding
dovetails with Respondents’ conspiracy and acts in furtherance thereof to
violate Appellant’s civil rights, deprive him of the equal protection of
the law, equal privileges and immunities under the law, and otherwise obstruct
the course of justice.
Another
example would be the Respondents’ frequent and repetitive invasion of Appellant’s
privacy in 2002 [A6, and A9 – A11, ¶¶ 29-30, 43-44, 46, 48-53]. Additional invasions of privacy in 2003-2004
[A18 – A19, and A22, ¶¶ 88-89, and 108].
Invasions of privacy in 2005 [A22
– A23, ¶¶ 109-110]. Further
invasions of privacy in 2006 [A391 –
A392, ¶ 4(a)].
Respondents also
interfered with Appellant’s economic advantage, frequently and repetitively,
starting in 2002, and continuing through the present [A15, ¶¶ 69-70, A392, ¶
4(c), and A633 – A635, ¶¶ 126-135].
C. Respondents’
Conduct Met the Cowell Degree of Permanency Factor
The third Cowell factor is
whether the acts’
degree of permanence triggers a plaintiff’s duty to assert his rights, and
whether the consequences would continue even in the absence of continued intent
to engage in wrongdoing. 263 F.3d at
292. As to the Appellant’s duty to
assert his rights, he attempted to do so and was unlawfully and deliberately impeded
by the Respondents. Point I(A) of the
Argument, supra.
There is no reason to assume, particularly in
light of the latest legal trespass that occurred after the instant Complaint had been filed, that the Respondents
will voluntarily cease their wrongful acts anytime in the near future. Appellant’s interest in vindicating his
rights and seeking legal redress for wrongs committed to date and preventing
future wrongs is unaltered, while the Respondents’ interest in silencing and
intimidating him grows with each additional wrong in furtherance of their
coverup.
II. THE LOWER COURT SHOULD NOT HAVE DECIDED
THE MERITS OF APPELLANT’S CLAIMS IN A 12(b) MOTION TO DISMISS
When considering a motion to dismiss
under Fed. R. Civ. P. 12(b), a court must accept as true all well-pleaded
allegations and view them in the light most favorable to the plaintiff. Scheuer, 416 US at 236. A court must also
accept as true any and all reasonable inferences derived from those facts. Unger, 928 F.2d at 1400. Moreover, it is not necessary for the
plaintiff to plead evidence, and it is not necessary to plead the facts that
serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561
F.2d 434, 446 (3d Cir. 1977). Additionally, a plaintiff's burden in a Fed. R. Civ. P.
12(b)(1) motion is light, and dismissal for lack of jurisdiction is only
appropriate where the right claimed “is so insubstantial, implausible,
foreclosed by prior decisions of this Court, or otherwise completely devoid of
merit as not to involve a federal controversy.”
Growth Horizons, Inc.,
v. Delaware Cty., Pa., 983 F.2d 1277, 1280-81 (3d Cir.1993) (citations
omitted). A court must be careful not to
allow its consideration of jurisdiction to spill over into a determination of
the merits of the case, and thus must tread lightly in its consideration of the
facts concerning jurisdiction. Id,
at 1281, n. 5.
In dismissing the complaint, the lower
court’s opinion stated that:
Plaintiff’s claims are bizarre. At oral argument, the Court asked Plaintiff
if he wished to clarify and/or expound upon the facts at issue in the
Complaint. Plaintiff declined, stating
the Complaint succinctly sets forth the facts.
[A667]. As a threshold matter, it should be noted that
the Complaint simply described the Respondents’ conduct. It should be further noted that Appellant had
no control over the Respondents’ choice of egregious or “bizarre” wrongful acts
and omissions. The very bizarrness of
egregiousness of a defendant’s wrongful conduct ought not be held against a
plaintiff and serve as grounds for denial of relief. Appellant should have been allowed an
opportunity to develop the evidence and prove his claims. Instead, his claims were dismissed because
the lower court in a 12(b) motion improperly usurped the jury’s fact finding
task, and before the taking of any discovery, deposition of witnesses,
responses to interrogatories or requests for admission, or even a denial by the
Respondents of the occurrence of the events described in the Complaint, chose
to disbelieve Appellant’s allegations and deem them as “bizarre.” Appellant thus suffered the double injury of
enduring the Respondents’ egregious and “bizarre” conduct in the first place,
and then being denied relief because of the very egregiousness and bizarreness
of that Respondent’s conduct.
Additionally, the preceding excerpt’s
assertion that Appellant declined to expound or clarify the facts at issue is
clearly contradicted by the transcript of oral argument. In response to the lower court’s request to discuss
the facts, the Appellant stated that “they’re
discussed in the complaint itself but I can go over the facts.” [A592,
at 7:6 – 7:11]. Plaintiff then began
narrating the facts [A592 – A593, 7:12 – 8:3]. When the lower court interrupted his
narration, Plaintiff referenced the briefs, while specifically noting “if there’s anything in that wasn’t explained
adequately, of course, I could elaborate on it.” [A593,
8:22 – 8:23]. Additionally, pages 9:1 through
12:1 of the transcript [A594 – A597],
12:13 – 13:18 [A597 – A598], are
comprised mainly of Plaintiff’s narration of the facts. Indeed, during the course of oral argument, it
was the lower court itself that routinely brought Plaintiff’s narration to a
halt:
THE COURT: Okay. Do
you have anything else?
MR. ELHASSAN: Sure.
THE COURT: You don’t have to. Only thing you wanted to make –
MR. ELHASSAN: No, your Honor, not at all.
[A597,
12:2 – 12:6] (underlining added). Nor
was that the only instance in oral argument where the lower court limited the
Plaintiff’s argument and compelled him to make it in 60 second bursts:
THE COURT: Thank you.
MR. ELHASSAN: One minute, that’s it.
[A601, 16:11 – 16:12]
THE COURT: One last point.
MR. ELHASSAN: Sure.
[A602, 17:8 – 17:9], or halted his
argument or narration:
THE COURT: I
read all the facts. I don’t need
information about what you characterize as sporadic or not.
[A602,
17:17 – 17:18]. In light of the transcript,
it is submitted that the lower court’s assertion that “Plaintiff declined” to
clarify or expound on the facts at issue as grounds supporting dismissal, is
unreasonable, clearly in error, and constitutes an abuse of discretion.
As to what the court below
characterized as a mere “attempted seduction” occurring within the limitations
period [A675], Appellant submits
that the lower court’s taking it upon itself to decide the merits in a Fed. R.
Civ. P. 12(b) motion is further evinced in its disposal of ¶¶ 109-110 of the
Complaint [A22 – A23] with such an
innocent-sounding characterization [A675]. Setting aside the propriety of deciding
merits in a 12(b) motion to dismiss, it is submitted that the lower court’s
subjective definition of what constitutes non-actionable seduction is patently
unreasonable – invasion of privacy, stalking, or threats to life and limb
directed at the target of such dubious affection, such as “I am the only person who can save you from the people in the CIA trying
to hurt you” [A22 – A23, ¶¶
109-110], does not pass for “seduction” in civil society, but is instead the
kind of behavior that offends and shocks sensibilities, and puts reasonable
people in fear of life and limb. That is
particularly so when those “people in the CIA trying to hurt” Plaintiff had,
among other things, threatened to kill him unless he desisted from attempting
to seek redress or drawing attention to misconduct giving rise to his attempts
to seek redress [A19, ¶ 91, and/or A628 – A629, ¶ 103].
III. THE LOWER
COURT’S DENIAL OF LEAVE TO AMEND THE
COMPLAINT WAS AN ABUSE OF DISCRETION
Rule 15(a) declares that leave to amend ‘shall be freely
given when justice so requires'; this mandate is to be heeded. See generally, 3
Moore, Federal Practice (2d ed. 1948), 15.08, 15.10. If the underlying facts or
circumstances relied upon by a plaintiff may be a proper subject of relief, he
ought to be afforded an opportunity to test his claim on the merits. In the
absence of any apparent or declared reason-such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.-the
leave sought should, as the rules require, be ‘freely given.’ Of course, the
grant or denial of an opportunity to amend is within the discretion of the
District Court, but outright refusal to grant the leave without any justifying
reason appearing for the denial is not an exercise of discretion; it is merely
abuse of that discretion and inconsistent with the spirit of the Federal Rules.
Foman v. Davis,
371 U.S. 178, 182 (1962).
Under Rule 15(a),
a complaint may be amended once as a matter of right and afterward by leave of
the court, which is to be freely granted. See Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9
L.Ed.2d 222 (1962); Dussouy v. Gulf Coast
Investment Corp., 660
F.2d 594, 597-98 (5th Cir.1981). This liberal amendment philosophy
limits the district court's discretion to deny leave to amend. The district
court may deny leave to amend only if a plaintiff's delay in seeking amendment
is undue, motivated by bad faith, or prejudicial to the opposing party. Foman v. Davis, 371 U.S. at 182, 83 S.Ct. at
230; Boileau v. Bethlehem
Steel Corp., 730 F.2d 929, 938 (3d
Cir.1984).
Adams
