The litigation proper finally got underway with the government filing a motion, accompanied by attachments, to the dismiss the Complaint. 

The motion was countered with an opposing brief (also copied and pasted below) and its set of attachments. 

After that, the defense counsel sent the Court this letter, which in turn elicited this reply. 

Next, the defense filed a reply brief to my opposition brief, which in turn resulted in a sur-reply brief from me in further opposition to the defense's latest filing (soon to be also copied and pasted, further below the opposition brief).

And that's where things stand at present, waiting for the Court's decision before moving on to the next step.

_______________________


KHALID ELHASSAN, Esq.
Plaintiff Pro Se
40 Ethel Road Edison, NJ 08817


IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

KHALID ELHASSAN, Plaintiff, vs. PORTER GOSS, DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY, et al. Defendants.

Docket No. 2:06-cv-01000-JAG-MCA Civil Action BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO DIMISSM PORTER GOSS IN OFFICIAL CAPACITY AND THE CENTRAL INTELLIGENCE AGENCY

____________________________________ ) Docket No. 2:06-cv-01000-JAG



TO:
Susan Handler-Menahem
Office of the United States Attorney
Peter Rodino Federal Building
970 Broad Street
Suite 700 Newark, NJ 07102

PRELIMINARY STATEMENT AND RELEVANT FACTS

I. INTRODUCTION

Shortly after the terror attacks of 9/11/2001, Plaintiff, 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. Complaint, para. 19 and Exhibit A thereto. Soon thereafter, Plaintiff 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. Complaint, para. 20 and Exhibit B thereto.


II. INTERVIEWS, NONCONSENSUAL BEHAVIORAL MODIFICATION, AND “CONDITIONINING”

In the months following the employment seminar, Plaintiff 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. Complaint, para. 20 and Exhibit C thereto.

Soon thereafter, Plaintiff underwent an additional examination with a CIA polygrapher-psychiatrist, during which he was hypnotized without his consent. Plaintiff was informed later by the Defendants that hypnosis and other troubling psychological methods were part of a conditioning and behavioral modification process intended to “forge” suitable Directorate of Operations instruments. Plaintiff had not been informed of such “conditioning” beforehand and had never consented to being so conditioned FN1. Complaint, para. 22-24, 50-51, 56, and 99-100.

FN1:During a series of congressional hearings on intelligence reform in the 1970’s, it emerged that CIA personnel had operated programs which involved similar abuses, including hypnosis as a means for conditioning, behavioral control, and brainwashing. Agency officials testified that the CIA was out of that business for good, and essentially offered a “mea culpa – we won’t do it again.” Senate Hearing on MKULTRA, 1977: Joint Hearing Before the Select Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Committee on Human Resources, 95th Cong. August 3, 1977 (1977) (testimony of CIA Director Stansfield Turner, and Mr. Gittinger). Affidavit, para. 9, and Exhibit 12 thereto.


III. ABUSES IN THE INDUCTION PROCESS: QUID PRO QUO SEXUAL HARASSMENT, HAZING, “PRAGGING,” AND PLAINTIFF’S WITHDRAWAL OF HIS JOB APPLICATION

Plaintiff 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 FN2 or criminal enterprise than into a federal agency.

FN2:E.g.; esoteric and degrading induction processes intended to destroy a recruit’s self respect, and life as he knew it, as a prelude to an epiphany or rebirth as a dependent and unquestioning CIA asset. Complaint, 32, 35, 56, 64-66, 69-70, 75, 78, and 99-100.

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. Complaint, para. 29-79.

Defendants intercepted, tapped into, and manipulated Plaintiff’s communications and means of correspondence so as to arrange for him to meet and date a series of female agents, including Defendant Mitchell. Complaint, para. 29-31. After commencement of a physical relationship, Defendant Mitchell revealed to Plaintiff that she was part of the induction process into the Directorate of Operations, and that she was to be his “mentor.” Mitchell informed Plaintiff that the process would be convoluted, difficult to understand, entailed significant hazing which Plaintiff 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,” FN3 and informed Plaintiff that his progress within the recruitment process was contingent upon his continuing to date her. Complaint, para. 32-33.

FN3:Slang terms popularized at the time by an HBO series, which refer to a perverted and sadomasochistic relationship between dominant and submissive prisoners.

Defendant Mitchell grew angry when Plaintiff 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 Plaintiff with dire consequences unless he changed his mind. Complaint, para. 34-36. Plaintiff withdrew his application for employment with the CIA on July 12, 2002. Complaint, para. 39-42, and Exhibit D thereto.


IV. ABUSES FOLLOWING PLAINTIFF’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 Plaintiff to be evicted from his residence. Complaint, para. 37-38, 43-44, and Exhibit E thereto. Defendant Mitchell visited Plaintiff that same day, taunted him about the eviction, and asked about his future residential plans. Complaint, para. 45.

Soon thereafter, Plaintiff inquired via email about rooms-for-rent. Defendants intercepted Plaintiff’s emails, and impersonating an advertiser for a room to rent, Defendant Close responded to Plaintiff and rented him a room. Defendant Close did not disclose at the time that he was involved with the CIA or Plaintiff’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. Complaint, para. 46-47, and Exhibit F thereto. 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 FN4. Complaint, para. 58.

FN4: It was months after Plaintiff had moved in before Defendants Eager and Close informed Plaintiff that they were part of the CIA’s security clearance process. Complaint, para. 61, 64, 70, and 72-78.
It should also be noted that the statement contained in footnote1 of the Defendants’ brief, that “the CIA has found no record that either alleged Agent Close or Eager ever worked for the CIA,” seems to say something at first, but on closer examination says little of relevance. Even if literally true, and that is a disputed question of fact in light of Defendants Eager’s, Close’s, and Eric’s statements to Plaintiff that they were working for the CIA, Defendants’ brief does not clarify whether the records searched, if an adequate search had been conducted at all, were limited to federal government employees working for the CIA, or also encompassed those who worked under the direction of CIA government employees involved with Plaintiff’s recruitment and security clearance processes, such as employees of other government agencies, employees of government contractors, or independent contractors.

Defendant Mitchell, who still sought to continue dating Plaintiff, 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 Plaintiff that the CIA had determined he was “ready to move on to” an unidentified “next level,” that Plaintiff’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 FN5 might cause problems in the future. Complaint, para. 48-51.

FN5:Preliminary Statement, Point II, supra.

Defendant Mitchell then sought to rekindle her relationship with Plaintiff, 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. Complaint, para. 55. She grew angry when Plaintiff 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 Plaintiff whether he thought he was being “sought after,” and threatened Plaintiff 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 Plaintiff made it clear soon thereafter that he was breaking up with her completely. Complaint, para. 53-55.

In the following months, Defendants Close and Eager methodically quizzed Plaintiff 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. Complaint, para. 57-60. They informed Plaintiff 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. Complaint, para. 61-62, 65, 73 and 76.

Defendants also interfered with Plaintiff’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 Plaintiff a highly lucrative job. Plaintiff declined. Complaint, para. 69-70.

Defendants Close and Eager grew angry when Plaintiff 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 Plaintiff in the form of rental payments – which Plaintiff 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.” FN6 Complaint, para. 64 and 67. Eager and Close then brought in Defendant Eric, whom they identified as their CIA boss and supervisor. Defendant Eric told Plaintiff 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.” FN7 Complaint, para. 74-75.

FN6:Another CIA operative, David Thompson, informed Plaintiff that his recruiter’s house needed repairs, which is why new CIA recruits were being charged excessive “rent.” Complaint, para. 68.

FN7:This occurred five months after Plaintiff had withdrawn his application, so it was unclear why the CIA assumed Plaintiff cared whether they sought automatons or radical thinkers.


V. RETALIATION

When Plaintiff iterated his view that Defendants 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 Plaintiff that “they’re God” should he refuse to “just go along” and be “cool.” Complaint, para. 77-79.

Defendants then changed Plaintiff’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 Plaintiff, began sprinkling conversations with gratuitous references to “niggers,” and otherwise acted so as intentionally distress Plaintiff that they caused him to suffer a nervous breakdown and become suicidal. Complaint, para. 80-83, and Exhibit G thereto.


VI. C.I.A. CHAIN OF COMMAND: COVERUP, INTIMIDATION, DEPRAVED “HUMOR” AND FURTHER RETALIATION RATHER THAN CORRECTIVE ACTION

Defendants also arranged for Eager to cause Plaintiff’s false arrest on a weapons brandishing charge FN8. 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. Complaint, para. 84-87, and Exhibit H thereto.

FN8:Among other things, in an attempt to play on racial and ethnic prejudices aroused by 9/11, Defendant Eager falsely asserted in charging documents that Plaintiff was from Afghanistan, notwithstanding that Plaintiff had never seen Afghanistan or even the continent of Asia except on TV or at he movies. Affidavit of Khalid Elhassan, para. 3, and Exhibit 1 thereto.

Plaintiff 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.” Complaint, para. 90-94, and Exhibit I thereto. Even then, Defendants sought to further intimidate Plaintiff 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.” FN9 Complaint, para. 95-96, and Exhibit J thereto.

FN9:And that was but one of three fixed cases in which the Defendants conspired to deprive Plaintiff of the equal protection of the law, equal privileges and immunities under the law, and otherwise obstruct the course of justice. Complaint, para. 97-98, and Exhibit K thereto.

Simultaneously, Defendants intercepted Plaintiff’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 Plaintiff had sought, including legal counsel, in an attempt to dissuade Plaintiff from seeking legal redress. Complaint, para. 88-89, and Affidavit, para. 4(d).

When Plaintiff persisted, Defendants intensified their attempts to intimidate Plaintiff and dissuade him from seeking redress by prank calling, stalking, harassing, and directing life threats at Plaintiff. Complaint, para. 91.

When that failed, Defendants attempted to convince Plaintiff 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 FN10. Complaint, para. 99-100, and 103.

FN10:They also added that an underlying assumption in conducting that process or test was Defendants’ belief that Plaintiff had less legal and civil rights because of his ethnicity and alienage. Complaint, para. 102.

That depraved “test” presumably included a CIA official coaching Plaintiff 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.” Complaint, para. 104-107.

Soon thereafter, in July of 2004, Defendants, acting without a warrant, seized a computer belonging to Plaintiff and containing documents relating to the Defendants’ wrongdoing. They then asked Plaintiff’s permission to read the computer’s contents. When Plaintiff 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 Plaintiff’s computer. Complaint, para. 108.

In the spring of 2005, Defendants intercepted Plaintiff’s electronic correspondence, and again arranged for a CIA girlfriend to attempt to seduce him. When she finally informed Plaintiff that she was sent by the CIA, Plaintiff immediately broke up with her, at which point, and as with Defendant Mitchell, she grew extremely angry, threatened Plaintiff that people in the CIA “want to hurt” Plaintiff 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.” Complaint, para. 109-110.

Defendants have continued their brazen wrongdoing and disregard for Plaintiff’s legal rights even after Plaintiff filed the instant Complaint. On May 3, 2006, Plaintiff 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, Plaintiff 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 Plaintiff to see – just the latest example of the Defendants’ intimidation tactics and what they describe as “mind fucking.” Affidavit, para. 4(a) and Police Report attached thereto, and Complaint, para. 66.

In short, the Complaint seeks redress against government employees and agents who abused the powers with which they had been entrusted in order to gratify their egos with an extraordinary power trip, who engaged in egregious misconduct and thought that doing so was funny and amusing, and who acted and continue to act as if they were and are exempt from bedrock principles such as primacy of law or equality before the law.


STANDARD OF REVIEW

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b), 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 plaintif 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 v. Gibson, 355 US 41, 45-46 (1957). See, also, Brown v. Phillip Morris, Inc., 250 F.3d 789, 796 (3d Cir. 2001). As discussed below, Defendants’ instant motion falls far short of making it clear beyond a doubt that Plaintiff can prove no set of facts in support of his claims, thus precluding the possibility of relief.


SUMMARY OF ARGUMENT

Defendants have failed to demonstrate that, beyond a doubt, Plaintiff 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 be 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 Defendants affirmatively engaged in wrongful conduct to obstruct Plaintiff’s access to the courts, the statute of limitations is equitably tolled, and the Defendants should be barred from raising the limitations period as a defense. Additionally, Plaintiff’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 Plaintiff’s intentional torts claims, they fall within the sovereign immunity waiver of 28 USC § 1280(h). Plaintiff also meets the requirements for a writ of mandamus, and is accordingly entitled to same.


ARGUMENT

I. THIS COURT HAS JURISIDCTION OVER ALL COUNTS, INCLUDING COUNTS 1-7 ALLEGING CONSTITUTIONAL VIOLATIONS

The CIA is a Proper Party Defendant, and Porter Goss is a Proper Party Defendant in Both his Official and Individual Capacities Counts 1-7 of the Complaint seek redress for violations of 42 USC §§ 1981, 1983, 1985, 1986, and 1982, and for violations of constitutional rights under the Fourth and Fifth Amendments pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 US 388 (1971). Defendants erroneously assume that Defendants Goss and the CIA are identical for purposes of sovereign immunity, then compound the error by asserting that “it is clear from the allegations of the complaint that Director Goss has been sued only in his official capacity as there are no assertions of wrongdoing alleged specifically against him.” Defendants’ Brief, FN6. Plaintiff disagrees: to cite but one example, Count IV of the Complaint, asserting 42 USC § 1986 claims for knowing of the conspiracy to violate Plaintiff’s civil rights yet failing to act in order to halt same, entails assertions of wrongdoing that clearly encompass Defendant Goss.

Furthermore, 28 USC § 1346(b)(1) of the Federal Tort Claims Act specifically contains a waiver of sovereign immunity and confers jurisdiction upon this Court for civil actions seeking monetary damages arising from the negligent or wrongful acts or omissions of government employees acting within the scope of their office, under circumstances where the United States would have been liable had it been a private person. Counts 1-7 of the Complaint clearly assert claims seeking monetary damages for wrongful acts or omissions, and meet the requirements of 28 USC § 1346(b)(1).

Additionally, it is longstanding law that “a suit against a federal agency is a suit against the United States.” Forth Worth National Corp. v. Federal Savings & Loan Insurance Corp., 469 F.2d 47, 54 (5th Cir. 1972), citing Blackmar v. Guerre, 342 US 512 (1952). Additionally, suits against government employees in their official capacity:

“generally represent only another way of pleading an action against an entity of which an officer is an agent.” As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.

Kentucky v. Graham, 473 US 159, 165-166 (1985) (internal citations omitted). Plaintiff submits that in suing a federal agency, the CIA, as well as the named Defendants in their official capacity, he has filed suit against the United States, of which suit the government received notice and had an opportunity to respond. In the alternative, Plaintiff reserves the right to amend the Complaint and among other things specifically name the “United States” as a defendant.

It should also be noted that the same Young v. Quinlan, 960 F.2d 351 (3d Cir. 1992), cited in FN6 of the Defendants’ Brief, makes clear that when state of mind is an essential element of a party’s claim FN11, resolution of such a claim by motion (summary judgment in that case) is inappropriate because state of mind is inherently a question of fact. 960 F.2d at 360. Plaintiff submits that it is even less appropriate to resolve a question of fact in a 12(b) motion to dismiss than in a motion for summary judgment.

FN11:Such as Plaintiff’s 42 USC § 1986 claim against Defendant Goss for knowing of the conspiracy to violate Plaintiff’s civil rights yet failing to act in order to halt same despite ability to do so.

In addition to being mistaken as to law, Defendants are also mistaken as to facts: Defendant Goss has been sued in both his official and individual capacities. Service has been made in his official capacity, and has been and currently is being pursued against him in his individual capacity. Affidavit, para. 8.


II. AS DEFENDANTS WRONGFULLY OBSTRUCTED PLAINTIFF FROM ACCESSING THE COURTS, THE STATUTE OF LIMITATIONS IS EQUITABLY TOLLED AND THE DEFENDANTS ARE BARRED FROM RAISING TIME LIMITATIONS AS A DEFENSE

As a threshold matter, it should be noted that the Defendants erroneously limit Plaintiff’s claims to wrongs occurring in Virginia. However, Defendants’ wrongful acts, all being part of a concerted effort, occurred in New Jersey as well as in Virginia. Complaint, para. 109-110, and Affidavit, para. 4(a), (b), and (c).

As to the Defendants’ statute of limitations contention, 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 Defendants actively impeding Plaintiff’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. Preliminary Statement, Point VII, supra. As such, the Defendants’ 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).

In the instant matter, the Defendants took deliberate steps to both actively mislead Plaintiff 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 Defendants 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 Defendants in this case in order to obstruct Plaintiff’s access to the courts and legal relief. Such misleading acts and extraordinary circumstances include: (1) intercepting Plaintiff’s correspondence, including correspondence seeking legal assistance and counsel, and preventing it from reaching its intended recipients. Complaint, para. 88, and Affidavit, para. 4(d). (2) Impersonating those whose assistance Plaintiff sought, including legal counsel, so as to dissuade Plaintiff from pursuing his claims. Complaint, para. 89, and Affidavit, para. 4(d). (3) Stalking and shadowing Plaintiff so as to intimidate him. Complaint, para. 91(b). (4) Threatening Plaintiff with the wrath of the CIA if he spoke of the abuses to which he had been subjected. Complaint, para. 54, 78, and 110. (5) Falsely imprisoning and maliciously prosecuting Plaintiff 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. Complaint, [para. 84-87, 90, and 92-98. (6) Subjecting Plaintiff 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 FN12. Complaint, para. 51, 66, 99-100, and 104-107. (7) Seizing Plaintiff’s computer, which contained many documents relating to Defendants’ wrongful acts, without a warrant and refusing to return same. Complaint, para. 108. (8) Threatening Plaintiff that John and Jane Doe CIA employees intended to cause him harm. Complaint, para. 110. (9) Threatening Plaintiff’s livelihood. Complaint, para. 69-70, and Affidavit, para. 4(c). (10) Threatening Plaintiff’s life. Complaint, para. 54, 91(d), and 110.

FN12:And after Plaintiff made it clear that he intended to blow the whistle on and seek redress against the very people “conditioning” and “forging” him.

It should be noted that the Defendants’ wrongful acts creating extraordinary circumstances did not cease even after Plaintiff filed the instant Complaint. Exhibiting remarkable disdain for this Court’s oversight over a case to which it had been assigned, Defendants broke into Plaintiff’s home in May of 2006, ransacked a legal filing cabinet dedicated to this litigation, then left it ajar for Plaintiff to find upon his return home by way of intimidating a party opponent. Affidavit, para. 4(a).


III. PLAINTIFF’S CLAIMS ARE PRESERVED BY THE CONTINUOUS WRONG DOCTRINE, AS THEY ASSERT 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 Defendants’ ongoing course of wrongful conduct preserves Plaintiff’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 Defendants’ actions described in Point II, supra, clearly fall within the continuing wrong doctrine, and just as clearly meet the above-cited Cowell factors.


A. Defendants’ Actions Meet the Cowell Subject Matter Factor

From 2002, when Plaintiff first broke off a relationship with Defendant Mitchell, to the present which includes a recent “message” of intimidation sent Plaintiff via a break-in into his home and rifling through this litigation’s legal papers, Defendants’ actions have been sufficiently similar so as to be connected in a continuous violation. The subject matter of Defendants’ 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 Plaintiff 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 (Complaint, para. 34, 36, 50-51, 55, 101), bizarre and unprofessional induction hazing rituals (Complaint, para. 32, 34-35, 66, 73, 76), racial discrimination (Complaint, para. 82, 102), or a crude bribery and kickback scheme (Complaint, para. 47, 77-78), grew into something far more sinister when the relevant CIA chain of command, rather than take appropriate corrective action, opted for a coverup coupled with intimidation tactics and intense psychological pressures directed at Plaintiff. Complaint, para. 85-101, 104-105, 108, and 110-111, and Affidavit, para. 4(a).

By the time it became clear that Plaintiff 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 FN13, 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 FN14.

FN13: Not coincidentally, the threats and other intimidation tactics directed at Plaintiff also grew exponentially at the same time.

FN14:Such as through the prism of, e.g.; 18 USC § 241, which makes it a crime to threaten, oppress, or intimidate any person in order to prevent the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States; 18 USC § 242, which makes it a crime for any person acting under color of law to deprive any person of rights, privileges, or immunities secured by the Constitution of laws of the United States; or 18 USC § 245(b)(1)(B), which makes it a crime to intimidate or interfere or attempt to do so by force or threat thereof, so as to prevent a person from participation in any benefit, service, or privilege provided or administered by the United States.

Defendants’ 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. Defendants’ Conduct Meets 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 Preliminary Statement and Point III(A) of the Argument, supra, the Defendants committed wrongful acts against the Plaintiff, 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 Plaintiff did seek redress, committed further wrongs to intimidate Plaintiff into silence and to coverup the previous wrongs, and continue to subject Plaintiff to 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, Defendants threatened Plaintiff, including life threats, and sought to intimidate him in 2002. Complaint, para. 23, 35, 54, and 77-78. They threatened and sought to intimidate him in 2003. Complaint, para. 86-87, 90-92, and 95. They threatened and sought to intimidate him in 2004. Complaint, para. 91 and 108. They threatened and sought to intimidate him in 2005. Complaint, para. 109-110. The intimidation continued into 2006. Affidavit, para. 4(a). The preceding dovetails with Defendants’ conspiracy and acts in furtherance thereof to violate Plaintiff’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 Defendants’ frequent and repetitive invasion of Plaintiff’s privacy in 2002. Complaint, para. 29-30, 43-44, 46, 48-53. Additional invasions of privacy in 2003-2004. Complaint, para. 88-89, and 108. Invasions of privacy in 2005. Complaint, para. 109-110. Further invasions of privacy in 2006. Affidavit, para. 4(a). Defendants also interfered with Plaintiff’s economic advantage, frequently and repetitively, starting in 2002, and continuing through the present. Complaint, para. 69-70, and Affidavit, para. 4(c).


C. Defendants’ Conduct Meets 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 Plaintiff’s duty to assert his rights, he attempted to do so and was unlawfully impeded at every turn by the Defendants. Point II 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 FN15, that the Defendants will voluntarily cease their wrongful acts anytime in the near future. Plaintiff’s interest in vindicating his rights and seeking legal redress is unaltered, while the Defendants’ interest in silencing and intimidating Plaintiff grows with each additional wrong in furtherance of their coverup.

FN15:Affidavit, para. 4(a).


IV. PLAINTIFF’S INTENTIONAL TORTS CLAIMS FALL WITHIN THE EXCEPTION TO THE EXCEPTION OF 28 U.S.C. § 1280(h)

Defendants contend that, pursuant to 28 USC § 1280(h), the United States is not liable for the intentional torts committed by its officials. However, that section makes clear that acts or omissions by federal law enforcement officials fall outside the FTCA exception, and that the United States has waived sovereign immunity as to such acts or omissions. Compton v. Ide, 732 F.2d 1429, 1433 (9th Cir. 1984) (28 USC § 1280 specifically allows intentional claims arising from acts or omissions by federal investigative or law enforcement officials). The United States is liable under the FTCA if the complaint alleges facts sufficient to establish vicarious liability pursuant to the doctrine of respondeat superior and agency rules. Hoston v. Silbert, 681 F.2d 876, 879 (DC Cir. 1982).

As a threshold matter, it should be noted that the Complaint names as defendants John and Jane Does 1-10, who are employees or agents of the CIA. Complaint, para. 17. The Complaint does not define such employees or agents in a manner that excludes investigative or law enforcement officials from the ranks of John and Jane Does 1-10, whether from within the CIA’s counterintelligence department or other subdivision that conducts investigatory functions, or from any federal investigatory or law enforcement agency which assisted the CIA in any of the wrongful conduct described in the Complaint.

Furthermore, the Complaint does not exclude any of the named Defendants from being investigative or law enforcement officials, whether employed by the CIA itself, or another federal agency with investigatory or law enforcement powers, but answerable to the CIA under principles of agency. That is information within the exclusive control of the Defendants and over which no discovery has been had as of yet.

It should also be noted that the Complaint alleges both affirmative acts constituting wrongful conduct, as well as unlawful omissions. E.g.; Count IV, alleging that the Defendants violated 42 USC § 1986 by knowing of the unlawful conduct described in the Complaint, having the power to bring such conduct to a halt, and unlawfully failing to do so. See, also, Affidavit, para. 5, for examples of Plaintiff’s attempts to seek assistance from the Federal Bureau of Investigation, from the Criminal Division of the US Department of Justice, from the Civil Rights Division of the US Department of Justice, and the responses of those federal investigatory and law enforcement agencies.


V. PLAINTIFF MEETS THE REQUIREMENTS FOR A WRIT OF MANDAMUS AND IS ENTITLED TO SAME

The Complaint seeks redress from the Defendants for battery, based among other things on putting Plaintiff under hypnosis during a polygraph examination, and subjecting Plaintiff to behavioral modification, conditioning, and other hazardous psychological processes without his consent. Complaint, para. 22-24, 50-51, 56, and 99-100. Count 20 of the Complaint seeks via a writ of mandamus information regarding the efficacy and safety of such processes.

To properly understand the significance of the sought writ, a brief explanatory history of the CIA’s involvement with behavioral modification programs and experiments, based on the testimony of CIA officials before US Senate oversight committees, is necessary. Affidavit, para. 9, and transcripts of testimony attached thereto as Exhibit 12.


A. The CIA and Behavioral Modification – a Brief History

During the wave of intelligence reforms following Watergate, it came to light that the CIA had been engaged in troubling types of behavioral modification and other problematic psychological processes, often conducted on unwilling and unwitting subjects. Then-CIA Director Stansfield Turner and other CIA employees testified at the Senate Hearing on MKULTRA, 1977: Joint Hearing Before the Select Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Committee on Human Resources, 95th Cong. August 3, 1977 (1977).

Much of the misconduct involved behavioral modification and other testing conducted on unwilling subjects in CIA safehouses. Id, at 21-22, 38, and 45. The misconduct also involved hypnosis, polygraph research, and harassment techniques for offensive use. Id, at 6 (prepared statement of DCI Turner). In his direct testimony, DCI Turner also elaborated on CIA involvement with hypnosis and behavioral change, behavioral modification, and harassment techniques for offensive use. Id, at 10-12. Also, pg. 11, on harassment techniques for offensive use.

Brainwashing was also involved. Id, at 56 (testimony of Mr. Gittinger). According to Mr. Gittinger, “the general idea that we were able to come up with is that brainwashing was largely a process of isolating a human being, keeping him out of contact, putting him under long stress in relationship to interviewing and interrogation, and that they could produce any change that way without having to resort to any kind of esoteric means.” Id, at 62.

For self evident reasons, such Manchurian Candidate type of misconduct was viewed as particularly alarming by the attending Senators: a “grandiose and sinister project,” according to Senator Inouye,. Id, at 13. An abhorrent type of activity, according to Senator Kennedy, at 16., and Senator Wallop decried “the hideous nature of some of these projects.” Id, at 24. Senator Chafee described them as “tawdry activities.” Id, at 34. Even DCI Turner agreed, and stated that “it is totally abhorrent to me to think of using a human being as a guinea pig and in any way jeopardizing his life and his health.” Id, at 16.

In light of the harmful impact on the victims of such misconduct, the Senators wanted to know of the corrective action, if any, undertaken by the CIA. Senator Chafee wanted to know whether the CIA was “tracking down the identity of those who were in some way adversely affected, and see what can be done to fulfill the government’s responsibilities in that respect.” Id, at 34. Such concerns were also raised by Senators Inouye and Kennedy. Id, at 35-36.

The Senators also wanted to know whether such conduct was ongoing, or a thing of the past:

SEN. KENEDY: I want to get a complete answer about any experimentations that are being done on human beings, whether it is drugs or behavioral alterations or patterns or any support, either directly or indirectly, being provided by the Agency in terms of any experimentation on human beings.

ADMIRAL TURNER: There is no experimentation with drugs on human beings, witting or unwitting, being conducted in any way.

SEN. KENNEDY: All right, how bout the nondrug experimentation our Committee has seen – psychosurgery for example, or psychological research?

ADMIRAL TURNER: We are continually involved in what we call assessment of behavior. … but it is not an experimental thing. …

SEN. KENNEDY: Well, is it limited to those areas?

ADMIRAL TURNER: Yes; it does not involve attempting to modify behavior. It only involves studying behavior conditions, but not trying to actively modify it, as was one of the objects of MKULTRA.

Id, at 17 (underlining added). Elsewhere, the DCI testified that the CIA had abandoned such research and conduct 12-24 years prior to the 1977 hearing, and that the CIA was no longer engaged in such conduct. Id, at 13. He concluded “I cannot imagine that this kind of activity could take place today.” Id, at 35.

Twenty five years later, Plaintiff was subjected to the very misconduct that the CIA had purportedly abandoned 12-24 years prior to the 1977 hearing. Without his consent, Plaintiff was hypnotized, and subjected to various psychological pressures over a prolonged period of time, which psychological pressures the Defendants later described as necessary in order to forge and condition Plaintiff into a suitable CIA instrument. Complaint, para. 22-24, 50-51, 56, and 99-100. Indeed, much of the wrongful conduct for which relief is sought is remarkably similar to the modus operandi for brainwashing as described by Mr. Gittinger, supra – manipulating Plaintiff’s correspondence so as to isolate him from assistance, and putting him under prolonged stress so as to produce change and behavioral modification.


B. The Propriety of a Writ of Mandamus

Defendants contend that Plaintiff is not entitled to the writ of mandamus sought in Count 20 of Complaint, on grounds that the Freedom of Information Act (“FOIA”), 5 USC § 552, is his sole recourse.

As to the Defendants’ FOIA contention, it should be noted as a threshold matter that Plaintiff filed FOIA requests in 2003 and 2006. Defendants responded to the 2003 request with a partial disclosure that specifically noted certain documents were being withheld, responded to the 2006 request that, “due to unavoidable processing delays,” the CIA would have to respond “as soon as we can.” To date, the Defendants have not released to Plaintiff any documents sought in the writ of mandamus. Affidavit, para. 6-7.

The All Writs Act, 28 USC § 1651(a), provides that the “Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” To secure a writ of mandamus, a plaintiff must establish lack of another adequate remedy, that the defendant owes a clear duty to act, and a clear and indisputable right to the relief sought. Mallard v. US District Court for the Southern District of Iowa, 490 US 296, 309 (1989); and In re Kensington Intern. Ltd., 353 F.3d 211 (3d Cir. 2003).

As to the first requirement, lack of an adequate remedy, Plaintiff’s FOIA requests have not produced the sought records. Additionally, and in light of Defendants’ conduct to date, Plaintiff has no reason to assume that the Defendants will ever produce the sought records unless ordered to do so by the Court.

Moreover, in light of the adverse ramifications attendant upon the disclosure that the CIA, far from having abandoned the Manchurian Candidate type of misconduct described in Point V.A of the Argument, supra, was still subjecting unwilling people to hypnosis, attempted behavioral modification and brainwashing, plus sundry other troubling psychological processes, Plaintiff submits that there are adequate grounds for discounting both FOIA and normal Fed. R. Civ. P. discovery as vehicles for securing the sought information regarding the efficacy, safety, and side effects of such processes and techniques.

As to the second and third requirements, that the Defendant owes a duty to act, to which Plaintiff is clearly entitled, Plaintiff turns to the longstanding principle of tort that a tortfeasor, having created the hazard, owes the victim a duty of remedial conduct so as to abate the harm. E.g.; Rest. 2d Torts § 321 (act creating unreasonable risk of harm imposes upon actor duty to exercise reasonable care to prevent risk from taking effect); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (a tortfeasor who places a victim in a position of hazard “will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.”); United States v. Furumizo, 381 F.2d 965, 968-969 (9th Cir. 1967) (air traffic controller should have known of dangerous conditions at take off, and thus had duty to take corrective action); McNeilab, Inc. v. North River Insurance Co., 645 F.Supp. 525, 551 (D. NJ 1986) (drug manufacturer which placed product on market had a duty to undertake a recall upon discovering a tampering incident, regardless of insurance coverage for recall expenses); Allen v. United States, 370 F.Supp. 992, 1001-1002 (ED Mo. 1973) (air traffic controller who knew or should have known erroneous instructions would cause midair collision had duty to prevent harm from coming about); Shockley v. Hoechst Celanese Corp., 793 F.Supp. 670, 675 (D. SC 1992) (chemical manufacturer and chemical reclamation contractor had duty to warn regarding contamination resulting from spills, particularly as contamination posed unreasonable risk of physical harm).

In the instant matter, Defendants created a hazard by subjecting Plaintiff, without his consent, to the problematic psychological processes described in the Complaint and for which information is sought via the writ of mandamus. Having created the hazard, Defendants owe Plaintiff to take remedial action, of which the first step would be the disclosure of information regarding the safety and efficacy of such processes, so as to enable Plaintiff to reverse the harm caused by the Defendants. As such, a writ of mandamus is appropriate, and Plaintiff is entitled to same.


CONCLUSION

Defendants have failed to demonstrate that, beyond a doubt, Plaintiff can prove no facts in support of his claims so as to entitle him to relief. As such, the instant motion for dismissal should be 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 Defendants affirmatively engaged in wrongful conduct to obstruct Plaintiff’s access to the courts, the statute of limitations is equitably tolled, and the Defendants should be barred from raising the limitations period as a defense. Additionally, Plaintiff’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 Plaintiff’s intentional torts claims, they fall within the sovereign immunity waiver of 28 USC § 1280(h). Plaintiff also meets the requirements for a writ of mandamus, and is accordingly entitled to same. In light of the preceding and all of the above, the Defendants’ motion for dismissal should be denied.
 
Plaintiff requests oral argument.


Respectfully submitted,
KHALID ELHASSAN,
Pro Se
Dated: ________________

By: ___________________________
Khalid Elhassan 

__________________________________________________________________