No.

14-50543

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Brad Kempo

Appellant

v.

United States of America, Government of the United States of America

Appellee

Appellants Brief

1. The Appellant delivered to the United States District Court for the District of

Columbia the within Complaint.

2. On February 11, 2014, Huvelle J. (hereinafter the Trial Court) ruled said

Complaint was dismissed with prejudice.

3. The Appellant submits the Trial Court made errors of both fact and law.

4. The Memorandum Opinion states The complaint ... is mostly incoherent.

By way of rebuttal it is not factually unclear, confusing, unintelligible,

incomprehensible, hard to follow, disjointed, disconnected or illogical. It

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 comprises a clear, concise, coherent and comprehensive itemization of the

facts that support the causes of action; the principal one being the tort of

deceit.

5. The Trial Court states The involvement of the United States ... is unclear

and [The] Plaintiff seeks [s]pecific performance of all terms of [an

unknown] agreement. Expressly pled is a contract between the Appellant

and the Appellee (para. 2.47) and one that was entered to in a manner that

involved deceit (para. 2.53 et seq.). The Appellant establishes direct and

protracted involvement by the proposed Defendant.

6. The Trial Court states [The claim is] attenuated and unsubstantial as to be

absolutely devoid of merit and patently insubstantial, presenting no federal

question suitable for decision. The claim is substantial, meritorious and the

causes of action are known in law, the facts pled fully support them and the

U.S. District Court for the District of Columbia has jurisdiction.

7. The Trial Court cites the Federal Tort Claims Act (hereinafter the FTCA)

stating:

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 In order to maintain a claim for monetary damages against the United
States for certain torts a plaintiff must exhaust administrative remedies
first present[ing] the claim to the appropriate Federal agency. []
Even if the instant complaint stated a potential claim, it still would be
dismissed for want of jurisdiction because there is no indication that
plaintiff had exhausted his administrative remedies under the [FTCA].

8. In the materials provided the Trial Court, comprising the proposed within

Complaint and a Brief of Fact and Law supporting the application for in

forma Pauperis status, the Appellant made no mention about complying with

said statute. Consequently, there were no facts in evidence that allowed the

Trial Court to dismiss his proposed claim with prejudice on the basis of not

having complied with the FTCA.

9. Further, it is the exclusive role and responsibility of the proposed Defendant

to either plead in its Answer a failure to comply with the statute or after filing

same bring a motion to strike the Complaint on the basis of having so failed.

Consequently, the Trial Courts bias in its favor is palpable.

10. The Trial Courts error of law lies in the fact the FTCA expressly exempts the

Appellant from having to comply with the procedural requirements of the

statute:

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 28 USC 2675 - Disposition by federal agency as prerequisite

(a) An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or
personal injury or death caused by the negligent or wrongful act
or omission of any employee of the Government while acting
within the scope of his office or employment, unless the claimant
shall have first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the
agency in writing and sent by certified or registered mail.

The provisions of this chapter and section 1346(b) of this title shall not
apply to

(h) Any claim arising out of assault, battery, false imprisonment,

false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract
rights.

11. How the Trial Court ruled was in serious error. The standard of review in this

circumstance was stated in Latham v. Prewitt, 74 F. 3d 1246 (USCA, 9th Cir.,

1996), at para. 4, as follows:

The court used a standard for plain error contained in Potts v. State, 712
P.2d 385, 390 (Alaska App. 1985), stating:

A plain error is one that is (1) so obvious that it must have

been apparent to a competent judge and a competent lawyer
even without an objection and (2) so substantially prejudicial
that failing to correct it on appeal would perpetuate a
miscarriage of justice.

12. What the Trial Court did was in effect grant by its own motion summary

judgment in favor of the proposed Defendant prior to an Answer having been

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 filed based on an alleged and unsubstantiated lack of jurisdiction. The

standard of review on appeals from this type of District Court ruling is well

established. In Public Citizen v. United States District Court for the District

of Columbia, 486 F. 3d 1342 (USCA, D.C. Cir., 2007) Edwards, S.C.J., at

para. 16, stated:

We review a denial of summary judgment de novo. The test to be

applied in reviewing the grant or denial of a summary judgment motion
is that summary judgment is proper only when there is no genuine issue
of any material fact or when viewing the evidence and the inferences
which may be drawn therefrom in the light most favorable to the adverse
party, the movant is clearly entitled to prevail as a matter of law.
Pomerantz v. County of Los Angeles, 674 F.2d 1288, 1290 (9th Cir.
1982) (internal quotation marks omitted).

13. And in Herbert v. National Academy of Sciences, 974 F. 2d 192 (USCA, D.C.

Cir., 1992), this statement of the law as it relates to the standard of review, at

para. 1 and 32:

The District Court found that it was indeed without jurisdiction. []

[W]e will review [the trial courts] findings as we would any other
district courts factual determinations: accepting them unless they are
clearly erroneous. See Auerbach v. Sverdrup Corp., 829 F.2d 175, 178
(D.C.Cir.1987); Williamson, 645 F.2d at 413.

14. This in McKinney v. Dole, 765 F. 2d 1129 (USCA, D.C. Cir., 1985), at para.
14:

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 Rule 56(c) states that a District Court may grant a motion for summary
judgment if the record shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law. It is now long established that summary judgment is
proper only when the moving party demonstrates the absence of any
genuine and material factual issue. See Adickes v. S.H. Kress & Co., 398
U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Catrett v.
Johns-Manville Corp., 756 F.2d 181, 184 (D.C. Cir. 1985); Kreuzer v.
American Academy of Periodonotology, 735 F.2d 1479, 1495 (D.C. Cir.
1984).

[]

In assessing whether a party moving for summary judgment has met his
or her burden, a court must view all inferences to be drawn from
underlying facts in the light most favorable to the party opposing the
motion. See United States v. Diebold, Inc. 369 U.S. 654, 82 S.Ct. 993, 8
L.Ed.2d 176 (1962) (per curiam ); Kreuzer, supra, 735 F.2d at 1495;
Williams v. WMATA, 721 F.2d 1412 (D.C. Cir.1983). In fact, the
record must show the movants right to [summary judgment] with such
clarity as to leave no room for controversy, and must demonstrate that
his opponent would not be entitled to [prevail] under any discernible
circumstances.

15. As for the Trial Courts finding there was factual insufficiency, in Marshall

County Health Care Authority v. E Shalala, 988 F. 2d 1221 (USCA, D.C.

Cir., 1993) the standard of review was stated thusly at para. 21:

It is well settled that a district court, when appraising the sufficiency of a

complaint under Rule 12(b)(6), should look only within the four corners
of the complaint, and should accept the plaintiffs allegations as true and
construe those allegations in the light most favorable to the pleader. See,
e.g., Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40
L.Ed.2d 90 (1974).

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16. In Bristol Petroleum Corporation v. D. Harris, 901 F. 2d 165 (USCA, D.C.

Cir., April 1990) the Court referred to a deferential standard of review (in

footnote 5).

17. In Allaire Corporation v. Okumus et al., 433 F.3d 248 (USCA, 2nd Cir., 2006),

it was stated in para. 6:

We review de novo the grant of a motion to dismiss under Rule

12(b)(6), accepting as true the factual allegations in the complaint and
drawing all inferences in the plaintiffs favor. Scutti Enters., LLC. v.
Park Place Entmt. Corp., 322 F.3d 211, 214 (2d Cir.2003). A complaint
may not be dismissed under the Rule unless it appears beyond doubt,
even when the complaint is liberally construed, that the plaintiff can
prove no set of facts which would entitle him to relief.

18. As pled in the within proposed Complaint (para. 2.06), the Appellant has been

a member of the Canadian Bar, a lawyer, since 1990; and ipso facto is

cognizant of how and why judges rule. He observed Huvelle J. having made

statements of fact and law that were blatantly and brazenly false, incendiary,

vitriolic and egregiously biased. Consequently, the only rational and logical

reason why she ruled as she did was because she took receipt of ex parte

communications from the proposed Defendant and conspired to and did in

fact obstruct justice when dismissing the within claim with prejudice. By the

time of the hearing of the within appeal an administrative complaint will have

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 been filed with the Judicial Council of the District of Columbia Circuit

alleging the following:

The motivation for the conspiracy was at all costs to prevent the filing of
the within Complaint and prevent national publicity and a political
scandal that would engulf the Obama administration. It pleads a
successful military R&D program originally commenced and managed
by the governments of China and Canada one that from the late 1980s
to the mid-2000s achieved benchmark successes that the Central
Intelligence Agency didnt when engaging in the same type of program
in the 1950s and 1960s. Rogue personnel in Canada and the United
States military, intelligence and security communities have at every turn
sought to prevent me from attaining justice and to procure reform and
other forms of accountability.

Theres been a long history of preventing me from attaining justice and

procuring reform whether by way of the courts or by publicity. In
September 2002, I commenced a lawsuit in the Federal Court of Canada
(Court No.s T-1114-02 and DES-1-03, DES-5-03)1 seeking damages (as
pled in para. 2.11). First, the then Associate Chief Justice, Allan Lutfy,
appointed himself by his own motion to be case manager. Second, he
appointed two others to fill that role Justice Franois Lemieux, and
Prothonotary John Hargrave (deceased); the intent being to prevent the
inference of judicial bias. Third, the sole Defendant, Government of

1
When matters that are litigated involve national security issues a separate court
file is created and ascribed a DES designation; in this case two were.
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Canada, claimed national security privilege upheld by Lemieux. And
the litigation was then dismissed on a nominal, warrantless technicality
before getting to the deposition stage.

Between August 2007 and April 2008 I delivered the results of my five
years of academic research (pled in para. 2.18, 2.21 2.22, 2.25 2.27)
to virtually every parliamentarian (House of Commons and Senate in
Ottawa). The Canadian security services proactively prevented reform
and accountability. In January 2011, I conducted an extensive
edification campaign in the United States (as pled in para. 2.68) in which
I contacted around 120 private sector organizations, associations, groups,
church executives, university professors and small, medium and large
newspapers (the complete list of recipients is posted at http://a7ai-
email.yolasite.com). Further, I also called every human rights
organization I could find through Internet searches, seeking their
assistance. I also reached out to a couple dozen attorneys seeking legal
representation to commence litigation in U.S. courts against the
Government of Canada. Nothing whatsoever resulted from these efforts.

From late February 2011 to mid-May 2011, I filed complaints and

requests for investigations as follows; each of which as pled never
produced results because of the same type of justice, reform and
accountability interference I experienced in the past:

February 24, 11: FBI Directorate of Intelligence

March 14, 11: Department of Defense and CIA Inspectors General

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March 31, 11: House Committee on Oversight and Government Reform

April 18, 11: Federal Communications Commission and House Sub-

Committee on Communications & Technology

April 20, 11: Senate Committee on Intelligence

May 9, 11: House Intelligence Sub-Committee on Oversight

May 11, 11: House Committee on Foreign Affairs Sub-Committee on

the Western Hemisphere

May 11, 11: House Committee on Foreign Affairs Sub-Committee on

Asia and the Pacific

May 17, 11: Senate Committee on Foreign Relations

In preparation of the within litigation, from August 2012 until November

2012 I authored an evidence record; and in October of that year sought
the services of a literary agent for the purpose of procuring a publishing
deal (pled at para. 2.79). I contacted over 300 agents, virtually all situate
in the United States. Not one of them offered to represent me; inferred to
be the result of civilly unlawful and improprietous steps taken to prevent
publicity and therefore to deny me justice and prevent reform.

More evidence of obstructionism was experienced in June, July and

August 2013. I contacted many dozens of Washington D.C. situate law
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 firms seeking representation. When I began to infer obstruction of
justice in preventing the retention of counsel I contacted an associate as
pled 2.87 2.89. He pursued that same objective and to his
astonishment was unsuccessful.

Consequently, what occurred involving Huvelle J. that prevented the

timely filing of the Complaint is a continuation of the foregoing pattern
of disruption, interference, sabotage and obstruction of justice and
conspiracy to commit same.

Having regard to the principles of judicial immunity, since she cannot be

criminally prosecuted for her serious and stupefying malfeasance she
ought to be administratively disciplined. I respectfully submit that given
the seriousness and brazenness of her conduct she be removed from the
Bench.

19. It would, therefore, be a miscarriage of justice in the extreme to let the Trial

Courts ruling stand. It is an affront to the principles of the democratic rule of

law that the proposed Defendant could successfully bring the administration

of justice into disrepute and without consequences.

20. The Appellant seeks the relief of (1) reversing the ruling in the Memorandum

Opinion dismissing the proposed Complaint with prejudice and (2) this

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 Honorable Court order same be filed forthwith in the United States District

Court for the District of Columbia.

Dated this 25th day of March, 2014.

_______________________________
Brad Kempo, Appellant

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 CERTIFICATE OF COMPLIANCE

Word count: 2,544

Font: Times Roman

JURISDICTIONAL STATEMENT

The Appellant submitted his proposed within Complaint to the United States
District Court for the District of Columbia. Huvelle J. ruled on 11 February 2014
the action was dismissed with prejudice. Therefore he has a right to appeal to the
United States Court of Appeals for the District of Columbia Circuit.

GLOSSARY OF ABREVIATIONS

para.: Paragraph in the proposed Complaint

et seq.: The phrase indicates that more information is continued in subsequent

paragraphs of the pleading

FTCA: Federal Tort Claims Act

USCA, D.C. Cir.: United States Court of Appeal, District of Columbia Circuit

USCA, 2nd Cir.: United States Court of Appeal, Second Circuit

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