Thursday, February 19, 2009

  • Form 95: How Congress replaced "meaningful access to justice" with a form

As I continue to pursue my small-claims lawsuit against the Department of Defense, I am beginning to feel more and more like Nancy Drew. However, the deeper I probe into the mysteries of how our federal court system works, the more obvious it becomes that I am pretty much clueless regarding how to get this massive and intimidating court system to work for ME. The whole process seems to be rigged so that us little guys will lose.

Did you know that the federal court system doesn't have any kind of small-claims-court apparatus set up to allow minor lawsuits against the government to be heard? Of course you do -- because I keep telling you that. And now, after a little more detective work on my part, I have also discovered that the feds' whole process of dealing with smaller claims against it in a judicial setting has been replaced by the notorious Form 95. Yeah, you heard me right. Instead of being allowed meaningful access to justice in federal courts when we have a minor claim against the government, Americans are now expected to just docilely fill out a form and have some file clerk in some nondescript cubicle in some unknown location decide our cases instead of a judge.

Screw that.

Further, my only alternative to the dread Form 95 appears to be for me to take on the DoD head on in high court where, unless I can come up with tens of thousands of dollars for attorneys' fees, I will be almost guaranteed to lose. Bummer.

"The First Amendment guarantees our right to petition the government for a redress of grievance," a librarian friend just wrote me, "and that means that we must not only have access to our judicial system but 'meaningful access' as well. You are being held captive to a system that demands that you to pay a high financial cost in order to access federal courts -- such as the cost of having to try your case in a higher federal court instead of in an inexpensive and user-friendly small claims court setting -- and this high financial cost prohibits you from having that meaningful access."

But will Form 95 be offering me all this "meaningful access" to justice? How the freak would I know. But I bet you anything that Nancy Drew could find out. Let's send young Nancy down to New Orleans and have her ask all those Katrina victims -- who sued the Army Corps of Engineers and were then handed a Form 95 instead of being allowed a jury trial -- if they thought that they had received any "meaningful access" to justice after the levees broke. I bet their unanimous answer would be "No!"

Last June, I sued the Department of Defense for $1,780 in the Alameda County small claims court because they left me stuck in a Kuwait airport Starbucks instead of embedding me. That's promissory estoppel. They promised me an embed and then they broke their promise. I got a good case. I got evidence. I got witnesses!

And what happened next, if you will recall, is that a U.S. attorney representing the DoD then dragged me kicking and screaming out of state court and into federal court. And now, just as I am getting sadly resigned to the prospects of a battle to the death in federal court, the DoD's attorney has just switched his tactics against me again. NOW he is telling me that I can't sue in federal court either -- because I didn't exhaust all my non-judicial "remedies" first, before I sued. Apparently I shoulda filed a form with the local Military Claims Office in Monterrey before suing the DoD.

"But I DID exhaust the MCO remedy before filing my lawsuit," I wailed. "When I called them up last June, they told me that they 'only deal with Department of Defense employees and the military' and therefore were not allowed to deal with me. That's exactly what they told me. Am I supposed to be a mind-reader or something? I've freaking exhausted that remedy already." Stop picking on me. Go away.

So. First the feds drag me kicking and screaming into federal court and now they want to drag me OUT of federal court too? Make up your minds, guys. Holy crap.

Then I talked with an attorney for the Military Claims Office and SHE told me that I couldn't sue the Department of Defense because Congress's Federal Tort Claims Act doesn't allow it. What? Now Congress is kicking and screaming at me too? And why didn't the MCO tell me all this when I called it way back in June. I could have filled out the form then. Are they making all this stuff up as they go along, are they trying to get rid of my case ASAP before I cause any more trouble -- or are they just trying to jerk my chain?

"Basically," continued the MCO attorney, "what you must do is drop your current suit in federal court and then fill out a form that I will be mailing you. Once you have filled out the form, however, we cannot guarantee that we will be able to help you. However, after you have exhausted this remedy, you will then be able to re-open your suit against the Department of Defense -- and that will only cost you another $350 filing fee."

You gotta be kidding.

At this point in time, I am thinking that even Nancy Drew could be using some help here -- from Franz Kafka!

But then the MCO went ahead and sent me the form -- and guess what? It was the notorious Form 95, the one that gave half of New Orleans nightmares after Katrina.

But I still have hope that I will be able to beat this rap in federal court and get the whole mess sent back to state small claims court where it belongs and where I can get "meaningful access" to justice. My "Motion to Remand to State Court" comes up for hearing before Magistrate Judge James Larson on February 25, 2009 at 9:30 am in Courtroom F, 15th Floor, 450 Golden Gate Avenue, San Francisco, CA (Case Number 08-5778-JL). And will Nancy Drew be showing up to help me out? And will she bring her lawyer-father with her to help me argue my case? Please stop by Courtroom F and find out.

PS: If Carson Drew doesn't show up, I still have my librarian friend to fall back on. "I don't know what research tools you have at your disposal," he wrote, "but if you can spend some time online or at the Boalt law library, you should be able to create a powerful argument. Cite as much precedent (cases, statutes) as possible. No judge likes the possibility of being overturned on appeal. It is one of their worst judicial fears; it haunts their dreams. Therefore, if you are able to bring into play some already-established law, it does not allow the judge much wiggle room."

And for all you legal junkies out there, here is one of the case citations that my librarian friend has sent me so far (don't you just love librarians!):

"In Brtown v. Pitchess (1975) 13 Cal.3d 518, 522, 119 Cal.Rptr. 204, 206, 531 P.2d 772, 774, the court, on this point, stated: 'The amicus brief of the Attorney General points out that section 1983 as originally enacted provided that proceedings under it were to be prosecuted 'in the several district or circuit courts of the United States.' (Civil Rights Act of 1871, Act of 20 April 1871, s 1, 17 Stat. 13.) However, the language expresses an intent to confer original, NOT EXCLUSIVE! (my emphasis), jurisdiction on the federal courts, there being no general federal-question jurisdiction in the lower federal courts at that time. "Further, in that same case at page 523: 'The majority of courts considering the question concur in our conclusion that state courts do have concurrent jurisdiction over actions arising under section 1983.' (Citations). You should read Pitchess in its entirety if you have not already done so."

Yes sir!