By Activist Post

They’re at it again. A federal court judge is trying to avoid the fundamental constitutional questions about the penchant of the government to murder US citizens.

On June 27th, Federal Judge John W. Holcomb dismissed case 2: 24-05286-JWH-RAO with prejudice. He cited “sovereign immunity” (meaning that the US government cannot be sued) as well as lack of subject matter jurisdiction. He also attacked the substance of the Petition for Injunctive Relief, calling the well-substantiated pleading “frivolous and malicious.” In a further exercise of judicial power and prerogative, he attempted to deny a subsequent Notice of Appeal, filed in a timely manner by the Petitioner.

The Ninth Circuit Court of Appeals gave more latitude to the Petitioner. In a notice filed on July 12th, this court cited Holcomb’s decision and asked Petitioner Janet Phelan, who is a Contributing Reporter with Activist Post, to state why she should be allowed to proceed. As Judge Holcomb misstated both law and fact in his effort to garbage- can this Petition, a reply was fairly easy.

Please note that Janet Phelan is not a lawyer and has entered this petition as a pro-se litigant. The below did not constitute a formal pleading but was filed with the 9th Circuit as a response to its query as to why she should be allowed to proceed.

INTRODUCTION

This appeal challenges the District Court’s dismissal of the appellant’s case with prejudice, as ordered by Judge Holcomb. The appellant contends that the District Court’s decision was flawed, both factually and legally, and warrants reversal.

ARGUMENT

I. Constitutional Protections for U.S. Citizens Abroad

The District Court erroneously concluded that U.S. constitutional protections do not extend beyond national borders. In support of this, the court cited Smith v. U.S., 953 F.2d 1116 (9th Cir. 1991), which primarily dealt with the jurisdictional status of Antarctica and is not relevant to this case. In addition, Smith v. U.S. is a law case, not a Chancery case. The correct legal standard was established in Reid v. Covert, 354 U.S. 1, 5-9 (1957), which held that “United States citizens are entitled to constitutional protections even when abroad.” This principle remains a cornerstone of constitutional law and has not been overruled.

II. The Central Intelligence Agency’s Conduct and Chevron Doctrine

The appellant asserts that the Central Intelligence Agency (CIA) operates under “rules” that violate the constitutional oaths taken by its officials, including defendants Director Bill Burns and Director of Operations David Marlowe. The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, [Citation], undermines any claim that such rules could supersede constitutional protections. The Court clarified that while Executive Branch interpretations of statutes may deserve “respectful consideration,” they do not override judicial authority. The ruling further states that agencies lack “special competence in resolving statutory ambiguities,” and that it is the courts’ role to resolve such ambiguities through independent legal judgment.

III. Constitutional Violations and Lack of Subject Matter Jurisdiction

The appellant alleges multiple constitutional violations, including breaches of the Fourteenth, Fourth and Fifth Amendments. The Fourteenth Amendment guarantees that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Fourth Amendment protects against “unreasonable searches and seizures,” and the Fifth Amendment ensures due process and protection against self-incrimination and double jeopardy. The appellant asserts not only Constitutional protections but further asserts that the 9th Circuit has already affirmed subject matter jurisdiction.

In South Delta Water Agency v. U.S. Dept. of Interior, the Ninth Circuit held that while federal agencies generally enjoy sovereign immunity, this immunity does not apply in situations where the agency’s actions can be reviewed under general federal-question jurisdiction statutes like 28 U.S.C. § 1331. This statute grants federal courts jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States. The court emphasized that unless a specific statute explicitly precludes judicial review, federal courts retain jurisdiction to hear such cases. Therefore, the district court has the authority to adjudicate claims against federal agencies when constitutional rights are allegedly violated (Casetext – CoCounsel) (Justia Law) (Leagle).

Furthermore, the Supreme Court has consistently held that constitutional claims, such as those concerning violations of civil rights, merit judicial review even against the backdrop of sovereign immunity. In FDIC v. Meyer, while monetary damages were not allowed, the Court did not preclude injunctive relief, aligning with the Plaintiff’s request in this matter. The case clarified that sovereign immunity can be waived when an agency is given the power to “sue and be sued,” allowing constitutional claims to be brought against federal agencies like the FSLIC (Federal Savings and Loan Insurance Corporation) (Justia Law) (LII / Legal Information Institute).

The District Court dismissed the appellant’s claim under 42 U.S.C. § 1983, asserting that it does not apply to federal actors. While § 1983 typically addresses state actors, the appellant, proceeding pro se, was unaware of this and could amend the complaint to include a Bivens action (see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)). The dismissal without granting leave to amend was improper.

IV. Evidentiary Support and Judicial Oversight

Judge Holcomb dismissed the appellant’s claims as “baseless” and “fanciful,” particularly regarding allegations of CIA-perpetrated chemical weapon attacks. In reality, the appellant is not engaged in frivolous acts here but is engaged in an effort to save her life.The fact that the US is one of only three countries which has failed to abide by the mandates of the Chemical Weapons Convention and has thus NOT destroyed its cache of these weapons is publicly known. Also, medical records provided as evidence demonstrated serious health effects consistent with such attacks. Additionally, an affidavit attached, corroborates these findings. The lower court failed to adequately consider this evidence, violating the appellant’s rights.

V. Denial of Access to Legal Remedies

The appellant presented extensive evidence of systemic denial of legal recourse, at multiple jurisdictional levels. This history of obstruction underscores the need for judicial intervention to ensure the appellant’s rights are protected.

CONCLUSION

The appellant respectfully requests that this Court reverse the District Court’s dismissal of the case and remand for further proceedings. The core issue is whether U.S. agencies, including the CIA, are permitted to violate constitutional rights, whether domestically or abroad. This question is not “political” but deeply constitutional, and it is the duty of this Court to address it.

August 12, 2024

In the spirit of full disclosure, here is a link to Holcomb’s dismissal document (PDF).

Phelan asserts that her case has more to do with the case of Muslim cleric and US citizen al-Awlaki, who was killed by a drone strike ordered by President Obama in 2011 and with the federal case filed in 2017 by US citizen and CNN correspondent Bilal Abdul Kareem. In all three cases, drones have been alleged to be used as a kill vehicle. While Phelan is not a Muslim, she nevertheless has apparently stepped into an arena where Muslims first were targeted. The fact that al-Awlaki and Kareem are of a different religion and political persuasion, wear funny clothes and have unusual religious practices does not deny them their rights under the Constitution. And that the same operations are now being deployed against a non-Muslim who has a reputation for fearless investigative journalism should be of grave concern.

Phelan is best known for her investigative journalism and reports on the reconfigurations of water systems to provide a covert bio-chem delivery system and her work on judicial corruption.

Both the al-Awlaki case and the Kareem case were dismissed by federal judge Rosemary Collyer. It looks like federal judge John W. Holcomb has now thrown his hat, however widely, into the ring. We wait to see how the 9th Circuit will deal with his unfortunate and unsubstantiated dismissal.

Top image: Medium/Getty

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