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As the tort turns (formerly “Raspberry tort”)

Raspberry Torte

Attorneys and other legal-savvy individuals may have cringed at my recent article titled: “Taitz tries tort tomorrow; Judge jabs Johnson” because what Orly Taitz filed was not a tort claim. I don’t know exactly what to call it, but Taitz was not suing for damages as a result of her getting sick, allegedly as a resulting of treating undocumented immigrant children. The ever-helpful Judge Andrew S. Hanen, as I heard the report from Tomtech, told Taitz that the only way she could gain standing was a a victim in a tort claim. The Federal Tort Claims Act gives an injured party the right to sue the government and includes a waiver of sovereign immunity. One of the problems Taitz will have is that there is an exception in the FTCA that immunizes the United States for acts or omissions of its employees that involve policy decisions (which would seem at the heart of the matter here).

Plus, Taitz is going to have to establish standing, and to do that she will have to show:

  1. an injury in fact (her getting sick should count)
  2. a link between defendant’s conduct and her injury
  3. that the Court can redress her complaint

The first point is fairly easy to show, but how is it possible for Taitz to show why she got sick. People get sick all the time, people who have had no contact with undocumented immigrant children. Doctors treat sick people all the time, and healthcare practitioners generally take reasonable precautions against infection, such as the use of masks, gloves and hand washing. The final point is that it would be purely speculative to assert that Orly would get sick again unless immigration policy changed, so I do not see how the Court could grant the extreme relief Orly Taitz demanded (non transportation of children and quarantine) to redress the damage of her getting sick. The Court cannot provide relief contrary to the law, and this writer thinks that what the government is doing in the way of releasing the children is what the law demands.

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82 Responses to As the tort turns (formerly “Raspberry tort”)

  1. avatar
    Bob August 28, 2014 at 3:36 pm #

    Just for starters, did she present any office records as evidence that she’s had any contact with even one of these children?

    Even a totally sympathetic judge with a shred of sanity is going to want to distance themselves from her.

    The whole thing is absurd.

  2. avatar
    Dr. Conspiracy August 28, 2014 at 6:13 pm #

    I’m not sure that would be possible under HIPAA without the patient’s consent, and a redacted record wouldn’t, I think, identify the patient as an undocumented alien.

    No documents were filed under seal that I can tell.

    Bob: Just for starters, did she present any office records as evidence that she’s had any contact with even one of these children?

  3. avatar
    Daniel August 28, 2014 at 7:57 pm #

    How is the risk of sickness from these children, seeing as how they are medically screened to some degree, any worse than the risk of sickness from Orly being in an airport with thousands of other passengers including those coming in from overseas from the very same countries as those children, but who have had no medical screening?

    IANAL but I would think sueing on minimal risk while thoughtlessly exposing yourself to a much greater risk should invalidate any claim on your part, shouldn’t it?

  4. avatar
    Dave August 28, 2014 at 9:34 pm #

    GR has finally put up a post about this lawsuit — I believe this is the first. And GR does not notice that there is no birther in this lawsuit. And none of the commenters notice either.

  5. avatar
    Rickey August 29, 2014 at 12:27 am #

    Dr. Conspiracy:
    I’m not sure that would be possible under HIPAA without the patient’s consent, and a redacted record wouldn’t, I think, identify the patient as an undocumented alien.

    That is the crux of Orly’s dilemma.

    She has to demonstrate that she got sick, that she got sick from one of her patients, that the patient she caught the sickness from is an undocumented alien, and that the undocumented alien was apprehended by the Border Patrol and then released into the general population. Any old undocumented alien won’t cut it, because she has to establish proximate cause between the government’s handling of undocumented aliens and her illness.

  6. avatar
    Notorial Dissent August 29, 2014 at 3:24 am #

    The problem is, that as usual, Orly is LYING!!!!!! Nothing new or original, she’s just flat out lying. About being sick, well sick with TB, about her “voluntarily testifying” witnesses, or having spoken to them, or just about almost everything.

    There is no way she can prove, or show, or anything else for that matter, that she got sick, or is sick for that matter, from ANY of her patients to begin with, and even further that any of them were illegal aliens. She probably doesn’t have many patients to start with, and since I can’t see her ever ever ever doing anything for free, and the likelihood of an undocumented having insurance is right up there with her telling the truth in any given situation, there you are.

    She will NEVER submit any actual proof that she has been injured, and even assuming she did there is still no way of proving causality since she could just as easily contract it from one of her regular patients, always assuming she actually has any. She would have to show an actual medical report and the underlying report on the genome of the TB strain she got in order to meet standing for this, and even then …..

  7. avatar
    The Magic M (not logged in) August 29, 2014 at 4:59 am #

    The ever-helpful Judge Andrew S. Hanen, as I heard the report from Tomtech, told Taitz that the only way she could gain standing was a a victim in a tort claim.

    I’m not sure how it is in the US, but in Germany a judge would be considered biased if he gave legal advice to one party in a lawsuit (as in “you can’t prevail on this claim, but if you make *that* claim, things might look different”).

    While he is obliged to ensure parties raise arguments and file motions in a productive manner (§139 Rules of Civil Procedure, Germany), he may not instruct them about their strategy or suggest arguments the parties did not make.

    Failure to adhere to this would lead to a motion for recusal from the other party.

  8. avatar
    The Magic M (not logged in) August 29, 2014 at 5:01 am #

    Dave: And GR does not notice that there is no birther in this lawsuit

    Selective reading. They read “ineligibility” and “illegal alien” and immediately assume the case is about Obama.

  9. avatar
    Notorial Dissent August 29, 2014 at 7:26 am #

    I’m not sure if it really counts as biased, but he very definitely has an agenda, and yes, I think his behavior is unprofessional and improper, but not much I can do about it except complain. He hasn’t quite stepped over the line yet, but he is very definitely treading on it. He is grandstanding, and that is not a proper function for a judge, he very decidedly picked the wrong horse to put his bets on. However, inviting the Moravian pestilence into his court room may come back to haunt him when she buries him in her filings to come.

    The Magic M (not logged in): I’m not sure how it is in the US, but in Germany a judge would be considered biased if he gave legal advice to one party in a lawsuit (as in “you can’t prevail on this claim, but if you make *that* claim, things might look different”).

  10. avatar
    Dr. Conspiracy August 29, 2014 at 8:23 am #

    Without the transcript, it is difficult to know the context.

    The Magic M (not logged in): I’m not sure how it is in the US, but in Germany a judge would be considered biased if he gave legal advice to one party in a lawsuit (as in “you can’t prevail on this claim, but if you make *that* claim, things might look different”).

  11. avatar
    alg August 29, 2014 at 9:10 am #

    Notorial Dissent: “.. .he very decidedly picked the wrong horse to put his bets on. However, inviting the Moravian pestilence into his court room may come back to haunt him when she buries him in her filings to come.”

    I have no doubt Judge Hanen will come to regret having become the target of Orly’s injudicious affections. He will inevitably become among those now regarded as “treasonous.” Oh, the humanity of it all! :-)

  12. avatar
    SvenMagnussen August 29, 2014 at 9:26 am #

    Orly’s Right of Review: 5 U.S.C. § 702, Right of Review

    A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein

    (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or

    (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

    “It is a well-settled principle of constitutional adjudication that courts will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon wich the case may be disposed of.” Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)(internal quotations omitted); See also Spector Motor Serv. , Inc. v. McLaughlin, 323 U.S. 101, 105 (1944); United States v. Waksberg, 112 F.3d 1225, 1227 (D.C. Cir. 1997).

    Orly should expand upon her claim of Constitutional and federal law violations by defendants and respectfully request the court review due to the defendants violations of the Wilbur Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.

  13. avatar
    The Magic M (not logged in) August 29, 2014 at 10:54 am #

    SvenMagnussen: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute

    If you care to elaborate how Orly was “adversely affected or aggrieved … within the meaning of the relevant statute”. It doesn’t mean “for my taste, there’s too many brown-skinned people who may or may not have diseases”, nor does “aggrieved” mean “being angry about” or “having a generalized grievance”.

    SvenMagnussen: Orly should expand upon her claim of Constitutional and federal law violations

    I don’t think you even understand the basic English of the Ashwander v. Tenn. Valley Auth. quote you gave.

    Constitutional *avoidance* does not mean “the court should make a declaratory statement about the Constitutional issues presented even if there is ample reason to dismiss the case”.
    Au contraire, it means that “the court should not touch Constitutional issues if there is another reason to dismiss the case”.

    How come this non-native speaker understands “pass upon” but you don’t?

  14. avatar
    SvenMagnussen August 29, 2014 at 11:52 am #

    The Magic M (not logged in):

    Opps I should have been more clear.

    The quote is a cut an paste from the Appeals court opinion in the recent NLRB v. Noel Canning case where the DCC used the Ashwander case to justify an examination and offering an opinion on Constitutional questions presented at the District Court after an objection was not raised at the administrative hearing. It was also used by the Appeals court to justify examining and offering an opinion of a Constitutional question not presented in the District Court that the Appeals court thought should have been presented and examined.

    I’m aware of cases where Ashwander is cited as a reason not address Constitutional questions presented if the case can be dismissed on other grounds. Consquently, SCOTUS issued to writ of certiorari in NRLB v. Noel Canning and affirmed the DCC opinion.

    You’ve got to keep your law books updated.

    And don’t forget Fox v. Clinton (2012). http://www.cadc.uscourts.gov/internet/opinions.nsf/0E0B84A6A298A92385257A1B004EF146/$file/11-5010-1378147.pdf

    “We affirm the District Court’s judgment only insofar as it upholds the Department’s decision that Appellant is not eligible for a CLN under Section 2 of the INA. We reverse and remand, however, the District Court’s judgment dismissing Appellant’s challenge to the Department decision denying his request for a CLN under Section 1. The agency’s statutory interpretation of Section 1 of the INA, as rendered in the Betancourt Letter, is not entitled to Chevron deference. And, because the Department failed to provide any coherent explanation for its decision regarding the applicability of Section 1, the agency’s action was arbitrary and capricious for want of reasoned decisionmaking. We reverse the judgment of the District Court on these points and remand with instructions to remand the case to the Department for reconsideration of Appellant’s request for a
    CLN pursuant to Section 1 of the INA.”

    The Betancourt Letter outlining the State Department’s policy with respect to CLNs is extremely important to Obama. I’m surprised Obama didn’t resign the day after this decision was announced. The court will not be happy.

  15. avatar
    jayHG August 29, 2014 at 12:17 pm #

    The Magic M (not logged in): I’m not sure how it is in the US, but in Germany a judge would be considered biased if he gave legal advice to one party in a lawsuit (as in “you can’t prevail on this claim, but if you make *that* claim, things might look different”).

    While he is obliged to ensure parties raise arguments and file motions in a productive manner (§139 Rules of Civil Procedure, Germany), he may not instruct them about their strategy or suggest arguments the parties did not make.

    Failure to adhere to this would lead to a motion for recusal from the other party.

    …that’s how it is in the U.S., too….

  16. avatar
    U R An Idiot August 29, 2014 at 1:45 pm #

    Only when the stink in the White House be deodorized will the American nation be safe again. The commie, and you too, won’t stop your crap until America is a TURD world nation. Let’s hope that you pay the FULL penalty for your contrived bullshit concerning the legitimacy of the stink in the White House.

  17. avatar
    nbc August 29, 2014 at 3:05 pm #

    SvenMagnussen: I’m surprised Obama didn’t resign the day after this decision was announced.

    You seem to be surprised about a lot of things that do not go the way you believe it should have gone.

    Its relevance is however quite meaningless as personal incredulity is never a good argument.

    Poor Sven still struggling with simple issues of law. In this case, the court has the obligation to reject Orly’s petition due to lack of standing. No need to address the constitutionality.

    In the NLRB case, the plaintiff did have clear standing.

  18. avatar
    Andrew Vrba, PmG August 29, 2014 at 3:26 pm #

    SvenMagnussen: I’m surprised Obama didn’t resign the day after this decision was announced.

    You’re probably surprised that women are allowed to vote, and that interracial couples are allowed to marry.

  19. avatar
    Tomtech August 29, 2014 at 3:48 pm #

    Bob:
    Just for starters, did she present any office records as evidence that she’s had any contact with even one of these children?

    Even a totally sympathetic judge with a shred of sanity is going to want to distance themselves from her.

    The whole thing is absurd.

    She only once mentioned that sha and a co-worker fell ill with no furter explanation or documentation.

  20. avatar
    Tomtech August 29, 2014 at 3:51 pm #

    Daniel:
    How is the risk of sickness from these children, seeing as how they are medically screened to some degree, any worse than the risk of sickness from Orly being in an airport with thousands of other passengers including those coming in from overseas from the very same countries as those children, but who have had no medical screening?

    IANAL but I would think sueing on minimal risk while thoughtlessly exposing yourself to a much greater risk should invalidate any claim on your part, shouldn’t it?

    Would someone please link my first written report from my Fogbow Boots on the ground thread.

    The witnesses from the three federal agencies involved went into detail about screening and isolation procedures and their effectiveness.

  21. avatar
    Dr. Conspiracy August 29, 2014 at 6:34 pm #

    All of the BOTG reports are listed at the end of this article:

    http://www.obamaconspiracy.org/2014/08/unfunded-mandate/

    Tomtech: Would someone please link my first written report from my Fogbow Boots on the ground thread.

  22. avatar
    Keith August 29, 2014 at 7:51 pm #

    SvenMagnussen: I’m surprised Obama didn’t resign the day after this decision was announced.

    I went to see Bob Dylan the other night. He asked me to pass on this message to you:

    Idiot wind blowing every time your move your mouth
    Blowing down the backroads heading south
    Idiot wind blowing every time you move your teeth
    You’re an idiot babe
    It’s a wonder that you still know how to breathe

  23. avatar
    Joey August 30, 2014 at 4:00 pm #

    U R An Idiot:
    Only when the stink in the White House be deodorized will the American nation be safe again. The commie, and you too, won’t stop your crap until America is a TURD world nation. Let’s hope that you pay the FULL penalty for your contrived bullshit concerning the legitimacy of the stink in the White House.

    You shouldn’t be so hard on Bo and Sunny, the White House Portuguese Water Dogs.
    After all, they’re not responsible for a few innocent doggie mistakes!
    Do you French Kiss your mommy with that mouth?

  24. avatar
    Andrew Vrba, PmG August 31, 2014 at 2:05 am #

    U R An Idiot:
    “BAAAAAAAW! ITS NOT FAIR!!! THAT SCARY BLACK MAN IS STILL PRESIDENT!!!”

    There, I paraphrased for you.
    Been light on the posting today, guys. Doctor Who and Skyrim really chewed up a big part of my Saturday! :)

  25. avatar
    J.D. Reed August 31, 2014 at 11:22 am #

    Don’t know if this is the right place but did you notice Larry Klayman has filed a RICO lawsuit against President Obama? I’m sure it will meet with the same degree of success all his previous courtroom attacks have achieved.

  26. avatar
    Joey August 31, 2014 at 2:11 pm #

    “RICO Suave?”

  27. avatar
    Andrew Vrba, PmG August 31, 2014 at 2:28 pm #

    I think we can safely add RICO to the ever expanding list of terms and words that birthers use frequently, despite not knowing the meaning to.
    Other such entries include, but are not limited to:
    American.
    “We the People”
    Patriot.
    Christian.
    Socialist.
    Communist.
    Evidence.
    Justice.
    Eligible.
    Treason.

    ..And many many more!

  28. avatar
    Bonsall Obot August 31, 2014 at 2:43 pm #

    Constitutional.
    Prima facie.
    Petition.
    Standing.
    Relief.
    Legitimate.
    Usurp.

  29. avatar
    Maybe Someone Smart August 31, 2014 at 10:08 pm #

    [This is the same commenter as “U R An Idiot” before. If that person continue to post under multiple names, they will be banned.
    Doc.]

    What is coming down the road that will make the RACIST on this board really look STUPID is the election of Dr. Ben Carson as POTUS. Dr is a person who is a true American in the eyes of the “crackers”.

    If Dr. Ben Carson runs and loses the campaign for POTUS then surely the RACIST BLACKS and their EXTREME PC WHITE WING madmen will be blamed for his POTUS campaign failure due to to the fact that Dr. Carson is too white to be POUTS..

    Many ;’crackers” are pushing for Dr. Ben Carson to be POTUS and surely YOU RACIST jerks will have to make up more stupid arguments to make yourselves appear as NON racist dirks who voted against a too white black person. :-(

  30. avatar
    Dr. Conspiracy August 31, 2014 at 11:33 pm #

    https://en.wikipedia.org/wiki/Ben_Carson” rel=”nofollow”>Ben Carson has never run for political office. I don’t think being Conservative enough automatically qualifies someone to be President. Beyond that, your comment is nonsense, except it was clear that you were trying to be insulting. Didn’t your mother teach you better?

    Maybe Someone Smart: What is coming down the road that will make the RACIST on this board really look STUPID is the election of Dr. Ben Carson as POTUS. Dr is a person who is a true American in the eyes of the “crackers”.

  31. avatar
    Dave September 1, 2014 at 12:18 am #

    And before Ben Carson can run in that election he’ll have to get the GOP nomination. No matter how much the wingnuts love him, remember that in 2008 and 2012 the GOP nominated mainstream candidates who the wingnuts loathed. (And besides, so far Cruz is a much bigger favorite of the wingnuts than Carson.)

    His life story is inspiring, but so far his rhetoric sounds like Michele Bachmann, except more politically inept. And she didn’t get the nomination either.

    So if you want him to be President, you need to get the GOP on board first. Good luck with that.

  32. avatar
    Lupin September 1, 2014 at 3:30 am #

    Andrew Vrba, PmG:
    I think we can safely add RICO to the ever expanding list of terms and words that birthers use frequently, despite not knowing the meaning to.
    Other such entries include, but are not limited to:
    American.
    “We the People”
    Patriot.
    Christian.
    Socialist.
    Communist.
    Evidence.
    Justice.
    Eligible.
    Treason.

    ..And many many more!

    Marxist

  33. avatar
    The Magic M (not logged in) September 1, 2014 at 5:17 am #

    Andrew Vrba, PmG: You’re probably surprised that women are allowed to vote, and that interracial couples are allowed to marry.

    He’s probably surprised interracial couples are allowed to *exist*.

    Dave: remember that in 2008 and 2012 the GOP nominated mainstream candidates who the wingnuts loathed

    It’s possible he might be picked as running mate, though.
    However, I doubt Romney would pick him if he gets the nomination to run for Prez.

    Actually, I do wish Carson runs for President. It would probably kill the racist “blacks only vote based on skin colour” meme when he loses, at least in parts of the conservative mainstream.

  34. avatar
    Andrew Vrba, PmG September 1, 2014 at 10:13 am #

    Maybe Someone Smart:
    [This is the same commenter as “U R An Idiot” before. If that person continue to post under multiple names, they will be banned.
    Doc.]

    Oh, that’s just Larry Bland. He thinks if he screams “Racist Sympathizer” at me enough time at LDS’s board, that it’ll somehow make what he says true.

  35. avatar
    Northland10 September 1, 2014 at 12:37 pm #

    Andrew Vrba, PmG: Oh, that’s just Larry Bland. He thinks if he screams “Racist Sympathizer” at me enough time at LDS’s board, that it’ll somehow make what he says true.

    So, you bring your own fan club now? The Vrba Groupies?

  36. avatar
    Bonsall Obot September 1, 2014 at 12:55 pm #

    Northland10: So, you bring your own fan club now? The Vrba Groupies?

    One must admit, the quantity and the quality of our homegrown trolls is sadly lacking, of late.

    Andrew’s personal troll is, if nothing else, a good example of the Birfer id.

  37. avatar
    Andrew Vrba, PmG September 1, 2014 at 1:24 pm #

    Northland10: So, you bring your own fan club now? The Vrba Groupies?

    I’m just as surprised as you are, as I’m rather unremarkable. I mean, I understand why birthers get their knickers in a twist, when someone like Doc, RC, NBC, or any of the other prominent anti-birthers says something. Those guys time and again decimated birther talking points, with facts and empirical data. I’m just a garden variety smartass, who enjoys heckling LDS’s efforts.

    I mean some of his logical fallacies are really amusing!
    One minute he’ll go one about how anomalies and misspellings means Obama’s legit BC is a forgery. The next he’ll explain that typos and flubs happen in official documents sometimes, therefore his forged Kenyan BC is legit! Get me two puppet sidekicks, and I could riff his material all day!

  38. avatar
    Bonsall Obot September 1, 2014 at 1:37 pm #

    Andrew Vrba, PmG: I’m just as surprised as you are, as I’m rather unremarkable.

    Doesn’t matter! We live in a world where Jim Belushi has a career! Anything is possible!

    Now get out there and knock ‘em dead! Ziegfeld’s in the audience!

  39. avatar
    Andrew Vrba, PmG September 1, 2014 at 1:39 pm #

    Bonsall Obot: Doesn’t matter! We live in a world where Jim Belushi has a career! Anything is possible!

    Now get out there and knock ‘em dead! Ziegfeld’s in the audience!

    Well, I did just post another bit about how despite Zullo’s grift being dead in the water, it was more successful than Smith’s could ever hope to be.

  40. avatar
    Bonsall Obot September 1, 2014 at 1:50 pm #

    Andrew Vrba, PmG: Well, I did just post another bit about how despite Zullo’s grift being dead in the water, it was more successful than Smith’s could ever hope to be.

    Gotta agree with you there; Zullo’s clearly had some hush-hush, off-the-books, heavy-hitter money backing him for at least three years, as he has no visible means of support. He, Smiff, has just the one rube in Bruce, and wouldn’t be able to keep it quiet if he had more.

  41. avatar
    Andrew Vrba, PmG September 1, 2014 at 1:56 pm #

    And as I, and others, have pointed out, Bruce’s money won’t be around forever.

  42. avatar
    Rickey September 1, 2014 at 2:46 pm #

    Maybe Someone Smart:

    What is coming down the road that will make the RACIST on this board really look STUPID is the election of Dr. Ben Carson as POTUS. Dr is a person who is a true American in the eyes of the “crackers”.

    Ben Carson’s idiotic comments about ebola are reason enough to vote against him, not to mention that he has never run for public office and he has zero chance of winning the Republican nomination.

  43. avatar
    Dave September 1, 2014 at 3:12 pm #

    Taitz has a new post that points to some newspaper article. That article has a couple points that are news to me (ok, I haven’t read Tomtech’s extensive notes).

    One is this: “Hanen said he was stunned that Kisor would suggest that if a government program, theoretically, would lead to injuring people, that no one would have a remedy in a court.”

    IANAL and I don’t really understand sovereign immunity or exactly what constitutes a particularlized injury — so I could imagine him disagreeing with the govt, but I don’t get how he could be stunned.

    Another is that Judge Hanen suggested that perhaps the case should be transferred to California.

  44. avatar
    Keith September 1, 2014 at 10:55 pm #

    Bonsall Obot: We live in a world where Jim Belushi has a career!

    Never mind that!

    We live in a world where Britney Spears has a career.

  45. avatar
    Tomtech September 2, 2014 at 3:32 am #

    Dave:
    Taitz has a new post that points to some newspaper article. That article has a couple points that are news to me (ok, I haven’t read Tomtech’s extensive notes).

    One is this: “Hanen said he was stunned that Kisor would suggest that if a government program, theoretically, would lead to injuring people, that no one would have a remedy in a court.”

    IANAL and I don’t really understand sovereign immunity or exactly what constitutes a particularlized injury — so I could imagine him disagreeing with the govt, but I don’t get how he could be stunned.

    Another is that Judge Hanen suggested that perhaps the case should be transferred to California.

    The judge didn’t like the way the Federal Tort Claims Act was explained. An person who believes they are injured due to government action has to initially file a claim and they are precluded from beginning a legal action against the government until an unsatisfactory reply from the government is received or 180 days as went by without any reply.

  46. avatar
    Notorial Dissent September 2, 2014 at 4:04 am #

    If Judge Hanen doesn’t like the explanation of FTCA, then maybe he should have like looked it up himself, he’s supposed to be a lawyer and all after all and supposed to be up on the law. As I recall the FTCA is pretty specific and doesn’t leave much wiggle room, and if they are suing under that act don’t they have to go through the DC court, or am I confusing it with some other act?

    Just as a side has anyone looked up his reversal rate within his circuit? That will often tell you more about a judge than anything else.

  47. avatar
    RanTalbott September 2, 2014 at 6:10 am #

    Keith: We live in a world where Britney Spears has a career

    I believe that falls under the rule propounded by the young girl who had just compared genitals with a young boy: “With one of these, I can get one of those anytime I want”…

  48. avatar
    Keith September 2, 2014 at 9:11 am #

    Notorial Dissent: If Judge Hanen doesn’t like the explanation of FTCA, then maybe he should have like looked it up himself, he’s supposed to be a lawyer and all after all and supposed to be up on the law.

    Don’t be too hard on the man, after all he isn’t the only one who doesn’t have time to do his own job.

    Seeking Facts, Justices Settle for What Briefs Tell Them

  49. avatar
    SvenMagnussen September 2, 2014 at 10:35 am #

    Notorial Dissent:
    If Judge Hanen doesn’t like the explanation of FTCA, then maybe he should have like looked it up himself, he’s supposed to be a lawyer and all after all and supposed to be up on the law. As I recall the FTCA is pretty specific and doesn’t leave much wiggle room, and if they are suing under that act don’t they have to go through the DC court, or am I confusing it with some other act?

    Just as a side has anyone looked up his reversal rate within his circuit? That will often tell you more about a judge than anything else.

    The judge is a lawyer and knows how the federal government will defend themselves.

    Let’s say a child with a presumed foreign nationality is apprehended at the border. Custody is transferred to ORR. ORR contracts with a vendor to have the child medically examined. A physicians’ assistant or licensed practical nurse, nearly medical professionals with licenses and everything, check and medically clear the child for transfer.

    The child is transported to Anystate, USA with an agreement from another ORR contractor the child is to return for a deportation hearing in 1 year 6 – 7 years. The child is accused of inadmissibility, but not convicted. The child is presumed innocent until proven guilty beyond a reasonable doubt. The child is entitled to a free public education and enrolls in the public elementary school.

    A few weeks later. the child is too sick to attend school. Several children at the school begin to get sick and are too sick to attend school. The parents sue the federal government under the FTCA and the federal government says, “Judge, dismiss this case for failure to state a claim upon which relief can be granted. The child was not sick when custody was transferred. We have a medical clearance statement from a physicians’ assistant or a licensed practical nurse. The American children probably got sick from one of the American kids at the school. We complied with the law. The parents do not have a right of review according to the law because we have complied with it. US federal officers have qualified immunity, i.e. immunity from federal tort claims if they comply with the law.”

  50. avatar
    Notorial Dissent September 2, 2014 at 12:10 pm #

    Since we’re not dealing with fantasy, and particularly not your fantasy, let’s NOT.

    Whether Judge Hanen likes the law or not, he is bound by it, and if he feels otherwise, the appeals court will explain to him why he is.

  51. avatar
    SvenMagnussen September 2, 2014 at 12:59 pm #

    Notorial Dissent:
    Since we’re not dealing with fantasy, and particularly not your fantasy, let’s NOT.

    Whether Judge Hanen likes the law or not, he is bound by it, and if he feels otherwise, the appeals court will explain to him why he is.

    Doubt it.

    Orly has an appeal in the 4th Circuit claiming Judge Hollander should have recused because she was appointed by Obama. If her case is dismissed by Judge Hanen, she can appeal in the 5th Circuit claiming Judge Hanen should not have allowed Obama appointees to plead in his court.

    The 5th Circuit has three Obama appointees in the Circuit Court with two vacancies. There’s a good chance an Obama appointee would be on the panel to hear Orly’s appeal.

    The 5th Circuit has three Obama appointees in the Circuit Court with two vacancies.

    If the 4th Circuit and 5th Circuit appeals rulings conflict, then Orly is on her way to SCOTUS accusing POTUS of ineligibility. If the 4th Circuit remands back to Judge Hollander, then Orly can appeal to SCOTUS. If an Obama appointee hears her 5th Circuit appeal, then Orly can appeal to SCOTUS.

    She’s got ‘em, but she doesn’t realize it.

  52. avatar
    nbc September 2, 2014 at 1:31 pm #

    Orly’s case may make it to the Supreme Court who will not hear the case.

    The end.

    The issue is legally speaking, a dead end.

    Even Sven knows it, or he would not have returned to some of his foolish scenarios about adoption. The facts speak for themselves Sven.

  53. avatar
    J.D. Reed September 2, 2014 at 2:27 pm #

    Sven, just when I think you can’t become more nonsensical you prove me wrong. I won’t ask from what area of your anatomy you pulled the notion that a judge appointed by the president has to recuse himself/herself if the case involves the president on any way. If the memory part of your brain is in working order recall that Justice Scalia saw no need to recuse himself from a case involving his duck hunting buddy VOTE Dick Cheney. Won’t happen and this will not create any grounds for appeal.
    And of course remember Watergate.
    How many justices appointed by Nixon sat out the crucial litigation involving the president?

  54. avatar
    BillTheCat September 2, 2014 at 2:41 pm #

    Maybe Someone Smart:
    [This is the same commenter as “U R An Idiot” before. If that person continue to post under multiple names, they will be banned.
    Doc.]

    What is coming down the road that will make the RACIST on this board really look STUPID is the election of Dr. Ben Carson as POTUS. Dr is a person who is a true American in the eyes of the “crackers”.

    If Dr. Ben Carson runs and loses the campaign for POTUS then surely the RACIST BLACKS and their EXTREME PC WHITE WING madmen will be blamed forhis POTUS campaign failure due to to the fact that Dr. Carson is too white to be POUTS..

    Many ;’crackers” are pushing for Dr. Ben Carson tobe POTUS and surely YOU RACIST jerks will have to make up more stupid arguments to make yourselves appear as NON racist dirks who voted against a too white black person.

    I’d like to invite you to please cry some more. Also, Dr. Carson will never, ever be president. Chew on that for a bit kid.

  55. avatar
    John Reilly September 3, 2014 at 3:44 am #

    SvenMagnussen: She’s got ‘em, but she doesn’t realize it.

    Sven, the only thing Dr. Taitz has, at best, is an ill-defined disease of unknown origin.

    Her 4th Circuit appeal will go nowhere because the fact that Judge Hollander was appointed by Pres. Obama was not a secret, and needed to be raised at the earliest time. Instead, Dr. Taitz made up a story about when she learned about it, which Dr. C was able to point out was, well, for lack of a better term, a lie. The 4th Circuit will not be amused. They are probably still trying to figure out what she said in her hand-written brief.

    There is no 5th Circuit appeal, yet. Perhaps never. The case may yet be transferred to California, where Judge Carter can put it into a paper bag and dispose of it. However, even I, a non-lawyer, knows that what the appellate court reviews is the correctness of the judgment or order appealed, and not whether the government’s attorney was ultimately appointed by a Black President, something we all know you think is forbidden by the Constitution. Dr. Taitz has not objected on the grounds you have urged (hard to believe that in the race to the bottom you seem to have beaten her), and for the same reasons as in Hollander, that objection, if actually made now, was probably waived. And Dr. Taitz seems intent on not mentioning any Birther meme at all in Texas.

    So while Dr. Taitz has, at best, a disease of unknown origin, your disease is quite well-known.

    You were, are, and always will be a racist. I regret to say that as someone who believes every sinner can repent and be saved. The test the Jesuits used to proffer was whether Hitler could repent, and the theoretical conclusion of the debate was that everyone can repent, even on their deathbed. In your case, the Jesuits may still hold out hope for you, but I think it is a lost cause.

    Of course, I could be wrong. Perhaps in your very next post you will show us Pres. Obama’s naturalization papers you insist exist against all odds.

    By the way, I heard a rumor today from a friend who has a cousin who knows someone at the CIA, and he said that Pres. Obama was born in Hawaii, and never became a citizen elsewhere, or naturalized here. I guess that solves it, right?

  56. avatar
    The Magic M (not logged in) September 3, 2014 at 6:38 am #

    SvenMagnussen: then Orly is on her way to SCOTUS accusing POTUS of ineligibility

    Because, you know, SCOTUS is just dying for a birther case to make it to their sacred doorstep. As opposed to the, like, 20 birther cases that made it before SCOTUS and had “cert DENIED” each and every time. You are delusional.

  57. avatar
    Dave September 3, 2014 at 10:01 pm #

    Well, lets give Sven points for knowing that conflicts between different circuits are the best way to get the Supreme Court to hear your case.

    Unfortunately, the two cases he mentions have nothing to do with each other, so it’s not clear how a conflict can arise.

  58. avatar
    SvenMagnussen September 4, 2014 at 7:00 am #

    Dave:
    Well, lets give Sven points for knowing that conflicts between different circuits are the best way to get the Supreme Court to hear your case.

    Unfortunately, the two cases he mentions have nothing to do with each other, so it’s not clear how a conflict can arise.

    An appointments Clause challenge will get to the Supreme Court especially if Orly makes one in the 5th Circuit after objecting to Judge Hollander’s appointment in the 4th Circuit. Judge Hollander poured gasoline on the issue when she posited she would be reinstated if Obama were found ineligible after refusing to investigate Obama’s ineligibility when it was presented by Orly.

    SCOTUS takes the Appointments Clause very seriously as exhibited by the 9-0 ruling in the Noel Canning SCOTUS opinion. Instead of objecting to the appointment of Judge Hanen, she should object to the appointment of Dep. Dir. Kisor and filing a pleading adversely impacting her in Judge Hanen’s court.

  59. avatar
    SvenMagnussen September 4, 2014 at 7:21 am #

    More free Orly advice …. Orly should file a motion to recuse Judge Hanen because he allowed Dep. Dir. Kisor to plead adversely against her. If Dep. Dir Kisor is found to hold his office in violation of the Appointments Clause and have violated Article VI of the US Constitution, then Judge Hanen could be held professionally and personally liable for issuing orders and sentencing criminal defendants and issuing adverse opinions upon civil litigants after hearing a pleading by a US federal officer in violation of Article VI.

    Appointees serve at the pleasure of the President after swearing to support the Constitution. If the President is ineligible, then appointee cannot simultaneously support an ineligible President and the US Constitution.

  60. avatar
    Lupin September 4, 2014 at 8:29 am #

    SvenMagnussen: If the President is ineligible, gobble gobble

    Since he isn’t, imagine our relief.

  61. avatar
    John Reilly September 4, 2014 at 9:13 am #

    SvenMagnussen:
    More free Orly advice …. Orly should file a motion to recuse Judge Hanen because he allowed Dep. Dir. Kisor to plead adversely against her. If Dep. Dir Kisor is found to hold his office in violation of the Appointments Clause and have violated Article VI of the US Constitution, then Judge Hanen could be held professionally and personally liable for issuing orders and sentencing criminal defendants and issuing adverse opinions upon civil litigants after hearing a pleading by a US federal officer in violation of Article VI.

    Appointees serve at the pleasure of the President after swearing to support the Constitution. If the President is ineligible, then appointee cannot simultaneously support an ineligible President and the US Constitution.

    Judges in this country, unlike under the rock where Sven lives, cannot be held personally or professionally liable for what they do during the course of a court proceeding. This is a delusion Dr. Taitz frequently advances. Never happens. If you are unhappy with a federal judge, your remedy is impeachment and conviction.

  62. avatar
    The Magic M (not logged in) September 4, 2014 at 10:01 am #

    SvenMagnussen: Orly should file a motion to recuse Judge Hanen because he allowed Dep. Dir. Kisor to plead adversely against her.

    Constantly filing motions based on “this court should presume I’m correct and therefore award me victory” is typical crank MO. YANAL (“you are not a lawyer”).

  63. avatar
    The Magic M (not logged in) September 4, 2014 at 10:03 am #

    SvenMagnussen: SCOTUS takes the Appointments Clause very seriously as exhibited by the 9-0 ruling in the Noel Canning SCOTUS opinion.

    But it still doesn’t take birthers seriously, y’know?

    The Canning case is just another examples of how cranks take one ruling and assume

    (a) this applies to their case as well because it “looks similar”

    (b) this somehow signifies a “turnaround” in the court’s opinion, as in “previously they rejected my cases but now the tables are turning and the exact same cases will now succeed”.

    Where the latter is just a legal version of the crank meme “they are turning against Obama now”. *smh*

  64. avatar
    y_p_w September 4, 2014 at 10:17 am #

    John Reilly: Judges in this country, unlike under the rock where Sven lives, cannot be held personally or professionally liable for what they do during the course of a court proceeding.This is a delusion Dr. Taitz frequently advances.Never happens.If you are unhappy with a federal judge, your remedy is impeachment and conviction.

    Soliciting or accepting a bribe may be the exception.

    Also – didn’t Arpaio have one of his deputies arrest a sitting judge?

  65. avatar
    SvenMagnussen September 4, 2014 at 10:27 am #

    John Reilly: Judges in this country, unlike under the rock where Sven lives, cannot be held personally or professionally liable for what they do during the course of a court proceeding.This is a delusion Dr. Taitz frequently advances.Never happens.If you are unhappy with a federal judge, your remedy is impeachment and conviction.

    If Orly wanted to put the DoJ defense counselors into fits of hop skippin’ rage, then she should file a pleading accusing the DoJ of waiving Sovereign immunity, Absolute immunity, Qualified immunity, derivative Qualified immunity and all other forms of immunity, real or imagined, by supporting an ineligible President contrary to Article VI of the US Constitution.

    Orly notified the Supreme Court Obama was ineligible in 2009 and she was ignored. Orly should plead the same with Judge Hanen and request a response from Judge Hanen to determine if he was aware Chief Justice Roberts was notified in 2009 of Obama’s ineligibility. If Judge Hanen says he wasn’t aware, then the controversy should be heard and resolved with a USDC Judge who was in inactive from 2009 to present.

    Pursuant to Ryder v. United States, SCOTUS has not answered the question as to whether a Judge is professionally or personally liable to a litigant denied their Constitutional rights by a Judge who holds their office in violation of the US Constitution or violates the Constitution by offering opinions or judgment after a pleading from a US federal officer in violation of the Appointments Clause or Article VI. In Ryder, SCOTUS ruled a judgment is void when litigant timely asserted a violation of their Constitutional rights pursuant to the de facto officer and the litigant was entitled to a new trial. Ryder did not answer the question as to judicial liability because Ryder did not ask for compensatory damages.

    If Obama is found to be ineligible, then the County DA and the Texas Judge sentenced to prison by Judge Hanen may seek compensatory damages for violations of their Constitutional rights from Judge Hanen. The possibility Judge Hanen could be held personally and professionally liable for ordering prison terms for these two guys is grounds for recusal.

    A motion to strike defendants’ answer, motion to disqualify defendants’ counsel and motion to disqualify judge for violations of the Constitution is better than trying to find standing to enjoin the government with respect to border crossers.

  66. avatar
    gorefan September 4, 2014 at 10:35 am #

    SvenMagnussen: What photo with a red arrow pointing to a “Y”?

    Blahahahahaha

  67. avatar
    Lupin September 4, 2014 at 10:38 am #

    SvenMagnussen: If Obama is found to be ineligible, gargle glop glub sniarf

    Which he won’t be, so there.

  68. avatar
    John Reilly September 4, 2014 at 10:51 am #

    SvenMagnussen: “I should be able to locate and publish Obama’s Certificate of Naturalization,”

    We are still waiting, Sven.

  69. avatar
    Dr. Conspiracy September 4, 2014 at 11:10 am #

    Yeah, but it didn’t work out too well for him. or the County who paid out $1.27 million to the judge.

    y_p_w: Also – didn’t Arpaio have one of his deputies arrest a sitting judge?

  70. avatar
    Dave B. September 4, 2014 at 11:13 am #

    Looking on the bright side, I always think it’s a good thing outhouse lawyers like our current plague don’t keep medical books out there. Somebody could get hurt.

  71. avatar
    y_p_w September 4, 2014 at 12:53 pm #

    Dr. Conspiracy:
    Yeah, but it didn’t work out too well for him. or the County who paid out $1.27 million to the judge.

    I think he was the only one arrested, although there were other judges who settled with the county for being investigated as a harassment tactic.

  72. avatar
    nbc September 4, 2014 at 2:21 pm #

    gorefan: Blahahahahaha

    OMG this is just so embarrassing that it has become hilarious.

  73. avatar
    nbc September 4, 2014 at 2:25 pm #

    SvenMagnussen: Orly notified the Supreme Court Obama was ineligible in 2009 and she was ignored.

    The Supreme Court receives many petitions, many of limited relevance so it is not remarkable that they ignored her follies.

    If Sven insists on pursuing a direction which will continue Orly’s failures, then by all means, let her proceed.

  74. avatar
    nbc September 4, 2014 at 2:28 pm #

    The Magic M (not logged in): Constantly filing motions based on “this court should presume I’m correct and therefore award me victory” is typical crank MO.

    The average Sovcit loves to file meaningless motions, failing to understand why they are doomed to be stricken or denied. Check out Rodney Class in the District Court of DC for a lovely example.

    Sven lives in a world of fantasy where he, convinced that he is right, believes that others somehow have a duty to take his musings seriously.

  75. avatar
    nbc September 4, 2014 at 2:38 pm #

    The Ryder decision is also of little help since the court denied the ‘de facto’ nature of the appointment because the doctrine did not apply as the judges had not been correctly appointed.

    Remember that our President was correctly elected by the electoral college, and that the election was duly certified by Congress and the President was sworn in correctly. In other words, In other words, they were not acting under color of the title of the office. Ryder is based on a trespass not a misapplication of constitutional law.

    If Sven had understood the case, he would have realized that :

    Those cases in which this Court relied upon the doctrine in deciding criminal defendants’ challenges to the authority of a judge who participated in the proceedings leading to their conviction and sentence, see, e.g., Ball v. United States, 140 U.S. 118, are distinguishable here because, inter alia, petitioner’s claim is that there has been a trespass upon the constitutional power of appointment, not merely a misapplication of a statute providing for the assignment of already appointed judges. One who makes a timely challenge to the constitutionality of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred. Cf. Glidden Co. v. Zdanok, 370 U.S. 530, 536.

    In other words, if Orly decides to challenge the constitutionality of the appointment of the President, she will fail, however she may challenge the constitutionality of the appointment of the Judge, which will also fail under the de facto officer doctrine which holds that even if President Obama were ineligible, the appointment of the Judge would still be a valid official act.

    Dr Conspiracy explained all this in 2011.

  76. avatar
    nbc September 4, 2014 at 2:47 pm #

    SvenMagnussen: If Obama is found to be ineligible, then the County DA and the Texas Judge sentenced to prison by Judge Hanen may seek compensatory damages for violations of their Constitutional rights from Judge Hanen.

    Nope, certainly not under Ryker.

  77. avatar
    Daniel September 4, 2014 at 3:18 pm #

    SvenMagnussen: If Orly wanted to put the DoJ defense counselors into fits of hop skippin’ rage, then she should file a pleading accusing the DoJ of waiving Sovereign immunity, Absolute immunity, Qualified immunity, derivative Qualified immunity and all other forms of immunity, real or imagined, by supporting an ineligible President contrary to Article VI of the US Constitution.

    You mean if Orly wanted to put them all in fits of apoplectic laughter…

    DOJ defense counselors deal with loons in court all the time. It’s practically their sole occupation. If dealing with the crazy made them angry, they’d all have died of hypertension long ago.

    I know it’s hard to believe, but you and Orly really aren’t the only crazy people out there wanting to sue the President for their delusions.

  78. avatar
    nbc September 4, 2014 at 4:39 pm #

    SvenMagnussen: If Orly wanted to put the DoJ defense counselors into fits of hop skippin’ rage, then she should file a pleading accusing the DoJ of waiving Sovereign immunity, Absolute immunity, Qualified immunity, derivative Qualified immunity and all other forms of immunity, real or imagined, by supporting an ineligible President contrary to Article VI of the US Constitution

    Why does Sven want to get Orly sanctioned? Whose side is he really on? He has been exposed as quite a little troll with no factual data and much wishful thinking.

    If he really believed in what he is saying, why does he not file a lawsuit?

  79. avatar
    Benji Franklin September 4, 2014 at 9:04 pm #

    nbc: If he really believed in what he is saying, why does he not file a lawsuit?

    He doesn’t believe in what he is saying. He knows none of his suggestions will fly. He concocts them to serve as vaguely-specific threats where no real ones to the President’s eligibility exist.

    Sven is condemned to failure in this matter by the operation of the reality guillotine. He’s placed himself in the frame and exposed his neck. We take turns stepping up to pull the fact-releasing lever, and as the knife drops, Sven spits on our shoes.

    That’s the best he can do.

  80. avatar
    Thomas Brown September 4, 2014 at 9:37 pm #

    Just as long as it’s only spit, I’m good. Let me at that lever.

  81. avatar
    Lupin September 5, 2014 at 5:03 am #

    This site mimics rather well what Sven writes:

    http://www.oddmanin.net/wordsalad/

    Just add “If Obama is ineligible” at the start of any paragraph.

  82. avatar
    Keith September 5, 2014 at 9:22 pm #

    Lupin:
    This site mimics rather well what Sven writes:

    http://www.oddmanin.net/wordsalad/

    Just add “If Obama is ineligible” at the start of any paragraph.

    Oh, great, you just led me down a 1 hour rabbit warren of fun reading when I was only gonna be at the keyboard for 30 minutes. You aren’t helping me wean myself off my addiction you know.

    Seriously though, that was a fun excursion.