MARY HUDDLE, et al.,

v.                               Civil Action No. 88-3130 JHG



On February 10, 1989 Assistant United States Attorney John D. Bates filed a Notice of Filing and a Certification in this case. By virtue of certain authority redelegated to him on February 3, 1989 Mr. Bates certified that all the individual defendants in this case were "acting within the scope of his or her employment...."

It appears that the authority by virtue of which Mr. Bates has made his certification derives from an aspect of the Federal Tort Claims Act, and should not be credited by this Court.

"(T)he District Court must look to the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and laws of the United States.... `(T)he party who brings a suit is master to decide what law he will rely upon and .. does determine whether he will bring a suit arising under the ... [Constitution or laws] of the United States by his declaration or bill.'" Bell v. Hood 327 U.S. 681, citing The Fair v. Kohler Die Co. 228 U.S. 22, 25, [brackets in original].

An exceptionally liberal construal of the complaint is not necessary to see that plaintiffs' complaint seeks to vindicate rights guaranteed under the Constitution of the United States. SEE, Haines v. Kerner, 404 U.S. 519 (1972). However, defendants seize on the word "tort" to impose themselves as master of plain- tiffs' bill by virtue of the Federal Tort Claims Act.

Defendants would like to insist the Court must rigidly construe as "torts" indicdents which, "look(ing) to the way the complaint is drawn," may and should be construed as acts assertedly committed to further the object of the alleged 42 USC 1985(3) conspiracy.

While these individual acts may not be actionable under 42 USC 1983,

"(t)his is not to say,of course,that a claim ... of alleged deprivation of constitutional rights is not litigable in the Federal Courts of the District. See Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); Bell v. Hood, 327 U.S. 678 (1946)." District of Columbia v. Carter, 409 U.S. 433.

With defendants' "torts" properly construed as acts in fur- therance of a conspiracy which singly and in concert, caused plaintiffs deprivation of Constitutionally guaranteed rights.

"Nor is (the Court) asked ... to impose liability ... for actions contrary to no constitutional prohibition, but merely said to be in excess of (delegated) authority.... Wheeldin v. Wheeler, 737 U.S. 647." quoting, Bivens v. Six Unknown Agents, 403 U.S. 397.

Plaintiffs have specifically claimed alternate jurisdiction.

"It is ... well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Bell v. Hood, at 684. SEE ALSO, Nixon v. Condon, 286 U.S. 73 (1932); Nixon v. Herndon, 273 U.S. 536, 540 (1927); Swafford v. Templeton, 185 U.S. 487 (1902); Wiley v. Sinkler, 179 U.S. 58 (1900); J. Landynske, Search and Seizure and the Supreme Court 23 et seq. (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. Pa. L. Rev. 1, 8 -33 (1968); cf. West v. Cabell, 153 U.S. 78 (1894); Lammon v. Feusier, 111 U.S. 17 (1884).

Respectfully submitted,

William Thomas
1440 N Street,N.W.Apt. 410
Washington, D.C. 20005


I, William Thomas, certify that on this 23rd day of February, 1989 I hand delivered a copy of Plaintiffs' Response to the Certification of John D. Bates to Michael Martinez 555 4th Street N.W.. Washington, D.C., and Arthur Burger, 1300 Pensylvania Avenue, Washington, D.C..

William Thomas

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