# Petition for Writ of Certiorari — Kelso v. United States Defense Intelligence Agency

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0971%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1220

## Text

tupreme Court,
/] FILED =

081035 NO 122903

No. 04-

IN THE
Supreme Court of the United States

ALICIA KELSO,
Petitioner,
Vv.

UNITED STATES DEPARTMENT OF DEFENSE
INTELLIGENCE AGENCY +50 INCLUSIVE

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ALICIA KELSO

Counsel of Record, Pro hac vice
9325 Lavell St.

La Mesa, California 91941
(619) 463-1801

Cellular: (760) 470-3841

i.

QUESTIONS PRESENTED FOR REVIEW

DOES A FEDERAL. EMPLOYER HAVE THE RIGHT
TO POSE AN ULTIMATUM TO AN EMPLOYEE IN
GOOD STANDING, WHO REPORTS A TERRORIST-
THREAT-TO-LIFE INCIDENT, TO EITHER RETURN
TO ONE’S SURVEILLED PRIVATE RESIDENCE
WITHOUT FURTHER INVESTIGATION, OR COERCE
THE CIVILIAN EMPLOYEE INTO RESIDENT
MILITARY PSYCHIATRIC EVALUATION REQUIRING
VAGINAL AND BREAST EXAMS?

IS THE EMPLOYER GUILTY OF CRIME
TANTAMOUNT TO FALSE ARREST, DEFAMATION
AND UNLAWFUL SEARCH, IF THERE WAS NO
PROBABLE CAUSE, OR MEDICAL HISTORY TO
JUSTIFY ACTIONS THAT DETAINED PETITIONER
FOR 3 WEEKS, REMOVED CUSTODY OF A 6-YEAR-
OLD SON, IN A FOREIGN COUNTRY, ACCEPT THAT
HER HOME WAS OFFICIALLY SEARCHED BY THE
RANKING OFFICER AND REMOVE ACCESS TO
PERSONAL PROPERTY FOR 6 MONTHS?

BY WHAT AUTHORITY CAN THE EMPLOYER
DEMAND MEDICATION AS A PRE-CONDITION FOR
CONTINUED EMPLOYMENT, WHEN EMPLOYER’S
OWN DOCTORS DID NOT PRESCRIBE ANY
MEDICATIONS FOR “POST TRAUMATIC STRESS”?

MAY THE EMPLOYER DEMAND CONTROL OF
EMPLOYEE’S BANK ACCOUNT TO PAY BILLS
THAT PETITIONER DID NOT INCUR (LE. A SWISS
AMBULANCE INCIDENT 1.5 MONTHS AFTER
EMPLOYER FORCED PETITIONER TO RETURN TO
THE U.S.)?

2.

~!

DOES THE FACT THAT EMPLOYER INFLICTED
THE ALLEGED DISABILITY ON APRIL 1, 1997
AFFECT AMERICANS WITH DISABILITIES ACT (ADA)
RIGHTS OF EQUITABLE TOLLING, AS TITLE VII
U.S.C. RECOGNIZES ADVERSARIAL MISCONDUCT IN
ALLOWING THE DEADLINE TO PASS BEFORE BEING
ADVISED OF RIGHT TO LEGAL COUNSEL, FORCED
SEVERENCE FROM FAMILY AND PROPERTY, PLUS
MADE TO BELIEVE THAT EMPLOYER HAD THE
RIGHT TO DENY INVESTIGATION OF
SURVEILLANCE?

DOES THE FACT THAT DIA INDUCED BELATED
FILING AND THAT PETITIONER REQUESTED PROPER
DIA FORMS FROM MS. JOYCE HARRISON (DIA-SVI-4)
IN AUGUST 1997, DURING THE STATUTORY PERIOD,
BUL RECEIVED THEM IN APRIL 1998 (9 MONTHS
TOO LATE) IMPACT JUSTIFICATION FOR
EQUITABLE TOLLING?

DOES THE RULE THAT “THE UNITED STATES IS
SPECIFICALLY EXEMPT FROM THE DEFINITION OF
‘EMPLOYER’”UNDER THE ADA. 42 U.S.C. § 12111
(5)(B)(i), CONSIDER THAT PETITIONER EXHAUSTED
INTERNAL REMEDIES WITH EMPLOYER’S CIVILIAN
PERSONNEL MEDIATION, THAT PETITIONER HAD
NO OTHER EMPLOYER, WAS INCAPACITATED BY
THE EMPLOYER?

IF EMPLOYER INFLICTED A TORT ON
PETITIONER, WHO HAD NO DISABILITY PRIOR TO
APRIL 1, 1997, BUT ATTAINED A DISABLEMENT DUE
TO EMPLOYER’S LACK OF APPROPRIATE ACTIONS,
DOES PETITIONER HAVE A VENUE IN WHICH TO
SEEK OVERSIGHT OF HER EMPLOYER’S ABRUPT,

il

PREMEDITATED DISRUPTION OF PETITIONER’S
PERSONAL, FAMILIAL AND EMPLOYMENT LIFE?

9. SINCE PETITIONER’S SUPERVISOR HAD A
VESTED INTEREST IN DEFAMATION’ OF
PETITIONER, DUE TO “FACTS” THAT (1)
UNAPPROVED RELEASES OF SECRET DOCUMENTS
WERE GIVEN TO THE FINNISH ATTACHE, The
Defense Attaché of Finland,, (2) THE SUPERVISOR
AND SENIOR DAO OFFICER MADE PETITIONER
DELETE ALL WEEKLY CALENDAR FILES PRIOR
TO THE INSPECTOR GENERAL INSPECTION IN
MAY, 1996, (AFTER PETITIONER REPORTED
OFFICE HOSTILITIES) AND (3) THAT COL
MITCHELL AND SMSGT CIESLEWICZ MADE
FALLACIOUS STATEMENTS THAT ALLEGED

PETITIONER HAD A MENTAL ILLNESS PRIOR TO

- COL MITCHELL’S ABRUPT DEPARTURE THAT

PREJUDICED DIA AND THE COURT TO

DISREGARD PETITIOENR’S REPORTS OF

SECURITY AWARENESS, CAN FINAL AGENCY

DECISION BE ACCEPTED AS VALID?

10. HOW IS IT THAT THE SUPERIOR COURT OF
CALIFORNIA, THE NINTH CIRCUIT COURT OF
APPEALS AND SENATOR DIANE FEINSTEIN CAN
LEGITIMATELY DISPELL THEIR RESPONSIBILITIES
AS PROTECTORS OF CITIZEN RIGHTS DUE TO
EVIDENTLY MOTIVATED HOSTILITY AGAINST
PETITIONER. PETITIONER HAS LIVED IN
DEDICATION TO AND AWARDED BY MAJOR
GENERAL PFISTER FOR SECURITY AWARENESS
AND USED EXTREEM CAUTION IN KEEPING THIS
CASE UNDER “LOCK-AND-KEY” FROM THE PRESS
FOR 7 YEARS? HOW CAN IT BE THAT PETITIONER

iil

CANNOT BE MADE WHOLE AGAIN? WHEN A
GOVERNMENT CAUSES SUFFERING, HOSTILE
WORK ENVIRONMENTS IN INTELLIGENCE AND
“INTERNAL REMEDIES” FAIL WHILE FEDERAL
AGENTS GET AWAY WITH CAUSING HARM TO
THEIR OWN, BY. ALLEGING UNREAL SEXUAL,
FAMILIAL, ECONOMIC VULNERABILITIES, WHICH
DIDN’T EXIST PRIOR TO EMPLOYER’S TREATMENT
COMMENCING APRIL 1, 1997, HOW CAN IT BE THAT
THE AUTHORITIES WILL NOT CALL THE NAMED
AND YET UNDISCOVERED PARTIES TO THIS CRIME
OF DIF FAMATION TO JUDGMENT?

11. CAN THE JUSTICE DEPARTMENT DENY
PETITIONER EQUAL REPRESENTATION DUE TO
RESIGNATION FOR CAUSE FROM _ DEFENSE
INTELLIGENCE AGENCY? |

1V

PARTIES TO THE PROCEEDING MED-EVAC-ED PETITIONER,
INSTEAD OF PROCESSING A TERRORIST ALERT: They are all
within the chain of command for Petitioner due to duty with DIA
at a U.S. Embassy, as HUMINT unified ALL DoD Components,
Secret Service, National Security Agency, Department of Justice,
Central Intelligence Agency and any federal Human Intelligence
entity since 1996 (this is public knowledge via News Papers),
including the leadership of the Ambassador, Thus, the State
Department and the Commander-in-Chief are in the chain of
command with regard to HUMINT incidents and Terrorism
reporting. DEPARTMENT OF DEFENSE AND OTHER HUMINT
PERSONNEL AT THE U.S. EMBASSY, BERNE, SWITZERLAND—
SMSgt (USAF) Joseph R. Cieslewicz (1993-1997), Operations
Coordinator; COL (USA) Robert H. McBride, Defense and
Army Attache (1997-); COL (USA) William H. Mitchell, Jr.,
former Defense and Army Attache (1993-1996); Col. (USAF)
George W., Walton, Air Attache and Acting Defense Attache
(1996-1997); Stephen R._ Relitz, Bi-Lingual Research
Technician; Mr. John Forte, Chief of SSO; SSgt (USMC) David
Dukes, Marine Security Guard Commander. HEADQUARTERS,
DIA PERSONNEL DIRECTLY INVOLVED — Ms. Sara Bell, Civilian
Personnel Specialist; Ms. Terry Vandell, Personnel; Ms. Susan
Fulton, Civilian Benefits and Personnel; Ms. Barbara Stein,
Civilian Benefits (Fort Meade, MD); Ms. Lynn Roland, Civilian
Personnel Assignment Contracts/Travel; Mrs. Susan Gerhardt,
Defense Attaché Service (DAS) Personnel Officer; Ms.
Katherine Curridan, Chief of Civilians in the DAS; COL (USA)
Norton, European DAO Chief; Mr. Dimitri “Jim” Saretsky, Desk
Officer for Switzerland (1993-1997); LTG Hughes, Director of
DIA. DEPARTMENT OF STATE -- Ambassador Madeleine May
Kunin; Deputy Chief of Mission Michael Polt; Mr. Peter Ford,
Regional Security Officer; Mr. “Buck” Jardine, Embassy Admin
Officer; PRESIDENTIAL APPOINTEES: Secretary of Defense
William Cohen; Senator Alfonse D’Amato; THE PRESIDENT
OF THE UNITED STATES -- William J. Clinton; +50 INCLUSIVE.

TABLE OF CONTENTS

Questions Presented for Review........+.+ssseeseeereeee i-iv
Parties.r.cccccccscccccccccccccccccccsvccccsevccscsccsosscossace iv-V
Table of Contents.........cssscsccccccccccccccscccccsscecees v-vi

Authorities: PETITIONER IS NOT AN ATTORNEY
and has NO LEGAL COUNSEL. Petitioner/Counsel of
Record knows of no previous survivors or documented -
cases and perceives threat of incapacitation of peer cases
prevented them from bringing such abuses to light:

This would be a Precedent Case if Accepted.

Table of Appendices and Opinions Below............... vi

TABLE OF OPINIONS BELOW AND
APPENDICES:

A. APPENDIX A: INDIVIDUAL COMPLAINT FOR
MONETARY RELIEF FOR WRONGFUL TERMINATION AND
EMPLOYMENT DISCRIMINATION, DATED: May 25, 2001....1a

B. APPENDIX B: ORDER GRANTING DEFENDANT’S
MOTION TO DISMIss, (SAN DIEGO), DATED: February 13,
ND. .ccccesvsasosssavcncevencessessousasseieesnesaadaneneaneetaen lla

C. APPENDIX C: JUDGMENT IN A CIVIL CASE,
(SAN DIEGO), DATED: February 13, 2002.. ini, ae
D. APPENDIX D — ORDER DENYING PLAINTIFF? S
EX PARTE APPLICATION SEEKING RECONSIDERATION,
(SAN DIEGO), DATED: April 9, 2002 ....eecereererseeeereeres 17a

v1

E. APPENDIX E —JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, (SAN

DIEGO), DATED: March 20, 2003......+sseeseesseeseereeveeeers 25a
F. APPENDIX F — NOTICE OF APPEAL (CIVIL) (SAN
DIEGO), DATED: June 7, 2002.....sseeeeeeererererevereeeereres 26a

G. APPENDIX G — MEMORANDUM OF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, (SAN

FRANCISCO), DATED: March 20, 2002.....esesessseeeeeeereees 27a
H. APPENDIX H — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT, (SAN
FRANCISCO), DATED: August 20, 2003....ssseeecsseerseeeeees 28a
I. APPENDIX I — JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, (SAN

FRANCISCO), DATED: September 3, 2003.....secereeseeseerees 29a
Statement Of JULISGICTION.........secccccecccecccecceeseeenes 2
The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).
Statutory Provisions Involved.......-.-.sssssesereereereees 2

Title 41 United States Code et seq.

Title 42 United States Code et seq.

Federal Tort Claims Act

7 U.S.C. 2000 et seq.

1 U.S.C. 12111 et seq.

UCM] (applicable to all active duty)

Human Rights

U.S. Constitutional Rights

Title VII U.S. Civil Rights Act, 1964, as amended

Rules: United States Supreme Court
United States Sentencing Guidelines: U.S.S.G.

A.

Statement Of Case........sccsceccccecseccseccceecseesscssecse 5
A. Proceedings and Disposition in the Courts

NI icv vincunensnasesncsbsrcsccnsnnsentaacesenonces 6
B. Statement of the Facts...........:sceeteseeeeeetereeees 6
Reasons for Granting the Writ (Background) ........ 16

Petitioner cannot afford to pay an attorney, so must

work a low-wage job and spend her free time attempting to
satisfy the court with what only professionals could know, in
order to defend her right not to be attacked by professionals
in Law and Intelligence of the U.S. government. |

B.
C.
D.

The court below— denied trial by jury (Civil)

The courts --denied equal representation

The Case Should be Remanded as Decisions
conflicted with the 11th circuit regarding retaliatory
treatment of a would-be witness involved official actions
to Petitioner and on a federal-level and loss of
employment without truthful justification and with an
admittedly prejudiced court.
The scope of Federal Intelligence Employees begs a
national rule that prohibits collection on and exploitation
of U.S. Persons, unmarried or not, with Security
Clearances. Petitioner suspects Respondent exploited her
as a psychological and psychiatric test-case, using a
“loop-hole”, alleging sexual needs(?) might place one ina
category of exploitation by possible enemies of the state,
which allows experimental psychology (initiated by the
employer to get the employee both sexually active for
economic purposes and married to lessen any “Risk-
Management” worries), which objective abridges privacy
beyond need-to-know for national security purposes.
Petitioner alleges invasion of privacy to make her
sexually active, when she was chaste since her divorce
and that single motherhood became the impetus for

Vill

intervention, due to low-income and could have been
fixed by Respondent without “match-making” or forcing
Petitioner in Sex-Therapy and pre-disposing
psychiatrists’ to diagnose Bi-Polar/Manic with sexual-
sterilization.

F. Violated an Executive Order12333, which explicitly
states that only in the case of national security would a
citizen of the United States be tapped, surveilled, et
cetera; yet, Petitioner’s Supervisor launched an
investigation the first month of assignment (1993) that
lasted 3.5 years (1997)! Petitioner became cognizant only
after she resigned-for-cause, due to DIA’s insistence that
Petitioner be drugged for Depression that Petitioner did
not have. Petitioner became cognizant in Fall of 1998 via
DIA files demanded by Petitioner’s, then, counsel!
Petitioner is now, herself, Counsel of Record.

G. Petitioner never had competent counsel, as she had
no income, assumed international scope, and therefore sought
with difficulty an International Law attorney willing to take
her case on contingency. August 1997, an International-
Fishing-Rights attorney accepted the challenge, but did. not
have expertise in Civil/Human Rights and was lead-on by
DIA to file EEO and Disability claims, plus an intimidating
track record of Respondent in that there are no successful
cases with federal intelligence operations against their own
personnel: All Petitioners have been denied.

Authorities and Statutes........cccccecseccccceceeeeececers
COnCIUSION.........cccccccccccccsccccccceccsccccnsccseessessees

Satta tes..ccccoccccccccecccocccccccccsccccccesescosccccccccssoscscceccoossecs

ix

OPINIONS BELOW AND APPENDICES:

A. APPENDIX A: INDIVIDUAL COMPLAINT FOR
MONETARY RELIEF FOR WRONGFUL TERMINATION AND
EMPLOYMENT DISCRIMINATION, DATED: May 25, 2001....la

B. APPENDIX B: ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS, (SAN DIEGO), DATED: February 13,
D2 ..ccccrcccccccesescccccccesconccoscccesosnccossssoosescssoocsess lla

C. APPENDIX C: JUDGMENT IN A CIVIL CASE,
(SAN DIEGO), DATED: February 13, | | Te

D. APPENDIX D — ORDER DENYING PLAINTIFF’S
EX PARTE APPLICATION SEEKING RECONSIDERATION,
(SAN DIEGO), DATED: April 9, FE sccscatcvevensacuaconsoues 17a

E. APPENDIX E —JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, (SAN
DIEGO), DATED: March 20, 2003.....seecressereeerereeeeeesees 25a

F. APPENDIX F — NOTICE OF APPEAL (CIVIL) (SAN
DIEGO), DATED: June 7, 2002......seeereereeeseeeeerereeeeeres 26a

G. APPENDIX G —- MEMORANDUM OF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, (SAN
FRANCISCO), DATED: March 20, TOE. viccatencntacncssevesens 27a

H. APPENDIX H — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT, (SAN
FRANCISCO), DATED: August 20, 2003.....sceessseeeeereerees 28a

I. APPENDIX I — JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, (SAN
FRANCISCO), DATED: September 3, TOS ccinvessincoumniaions 29a

STATEMENT OF JURISDICTION

The jurisdiction of this Court is invoked pursuant to
28 U.S.C. § 1254(1).

This case began in the U. S. District Court for the
Southern District of California; Mr. Peter H. Flournoy,
Esq., took Petitioner’s case on contingency and had
verbal and written contact with DIA on their terms for 1
year (EEO discrimination) (08/1997-08/1998), but Mr.
Flournoy did not file for Ms. Kelso until May 25, 2001
(he is often out of the country: Japan, New Guinea, etc.).

STATUTORY PROVISIONS INVOLVED:

Uniform Code of Military Justice: Loss of Rank and
Retirement benefits to those active-duty found culpable,
which may incur incarceration in a military penitentiary.
7 U.S.C. 2000(e)(2): Respondent inflicted impairment.
1 U.S.C. 12111(5)(A): Respondent is an agency of the
United States Government. ;
Title 42 United States Code Section 12111(5)(A), (8):
Respondent is an agency of the U.S.Government.
“Petitioner is a qualified individual with a ‘deemed
disability’, as a single parent, who can, with reasonable
accommodation, perform the essential functions of the
job that she held in the employ of the Respondent.”
(Please, SEE Appendix 1a, Original Complaint)
Federal Tort Claims Act: Respondent inflicted
impairment and sought to elicit suicidal depression.
Americans with Disabilities Act of 1990 (ADA):
Respondent inflicted impairment and sought suicidal
depression, caused disillusionment.
Title 41 United States-Code Section 12102(2).: In that
Petitioner did not have a record of any illness, but was

inflicted with mental impairment by Respondent that
substantially limited Petitioner from major life activities
and as a result of Respondents actions was unable to cope
with the stress of losing documented, successful and
impact-awarded employment due to lies on the part of
SMSgt Cieslewicz, Colonel McBride and Colonel
Mitchell, which were perfunctorily exacerbated via Ms.
Terry Vandell and Catherine Curridan of DIA; The above
5 DIA personnel prejudiced their own Military and
Civilian Psychiatrists from objective observation, seeking
validation of alleged maladies to remove Petitioner.

Title 42 United States Code Section 12112(a):
Petitioner alleges that Respondent forced her to resign
employment due to DIA’s down-sizing and intent to
remove the Secretary position, plus Petitioner had the
ability to work 30 hours per week during the time her son
needed hospital care, but had to get an au pair to facilitate
working 40 hours while her son was ill; Petitioner was a
DIA-Impact-Awarded employee, but her field office
superiors didn’t want to accommodate her need for mercy
(even though her civilian peer, SMSegt Cieslewicz and
COL Mitchell received months of gratuitous time off
with pay, paid German Language vacations and a
minimum of $10,000 per year more in regular wages).

By this action, Petitioner seeks the following relief,
pursuant to Title 42 of the United States Code Section
12112(a), which incorporates the remedies set forth in
Title VII of the Civil Rights Act of 1964, Title 42 United
States Code Section 200e-5(g) and (k), for discriminatory
treatment of Petitioner in violation of the ADA: monetary
relief and back pay (derived from the specific persons
who were Respondent’s agents at the time, not DIA or
the DoD budgets) to equal at a minimum Petitioner’s
back pay to May 31, 1997, compensatory and punitive

damages, attorney’s fees and costs of suit, as the U.S.
Department of Defense was not the proponent of the
crimes, rather individuals using “color of office” to shield
themselves from personal incrimination.
Title 42 United States Code Section 12111(8).
Petitioner could, with reasonable accommodation,
perform the essential functions of the job that she held in
the employ of the Respondent: Petitioner was expected to
be in two places at one time and Respondent did not
officially claim Petitioner’s single motherhood status as a
disability, but the pressure of covering the office for those
absent and being expected to be at work full-time despite
familial responsibility involving deathly illness of her
young son required employer sympathy. Both her civilian
peer, Mr. Relitz and the Defense and Army Attache,
Colonel (USA) William H. Mitchell, Jr., enjoyed
accommodations; However, Petitioner did not and was
tasked with covering-for the skeleton-crew office.
Title 42 United States Code Section 12102(2).
Petitioner had no record of mental illness, but
Respondent inflicted mental impairment by defaming and
mishandling Petitioner in a manner that substantially
limited major life activities due to the need to cope with
the fallacious circumstances since April 1, 1997.
Title 42 U.S.C. § 1985(2). (Exhibit E, Petitioner’s Reply
to Appellees’ Cross-Appeal): Respondents attempted to
disable Petitioner to pre-empt Petitioner from
becoming a cogent witness in federal court proceedings.

Petitioner’s employment and _ single-parent-employee-
challenges pale in the shadow of what the 2 Ambassadors
and their Deputy Chief of Mission, Michael Polt, plus
American Media inflicted on the European Continent and
Switzerland, specifically, during the Nazi Gold Agenda;
This is why Petitioner initially requested a Congressional
Investigation of Defense Intelligence Agency as well as

the Department of State, as Petitioner had concerns
regarding J.P. Getty’s visit to Ambassador Madelene May
Kunin, in Nov. 1996, and Steven Spielberg’s release of
“Schindler’s List” at the same time. Strategy appeared to
be American-sponsored and Petitioner and her son were
hurt by the reaction, blind-sighted along with the
outraged Swiss population and Dr. Jagmetti, then Swiss
Ambassador to the U.S. No wonder anti-Semitism grew.

The U.S. Supreme Court held (14 Dec 1998) in a
unanimous decision that reverses the Eleventh Circuit:
Section 1985 authorizes suits over certain conspiracies
to violate civil rights, such as tampering with a
witness. The Eleventh Circuit said that an at-will
employee couldn’t sue because he had no constitutionally
protected interest in continued employment. But the
Supreme Court said that nothing in the statute requires an
injury to a constitutionally protected interest “The gist of
the wrong at which § 1985(2) is directed is not the
deprivation of property, but intimidation or retaliation
against witnesses in federal-court proceedings. The
terms ‘injured in (this) person or property’ define the
harm that the victim may suffer as a result of the
conspiracy to intimidate or retaliate...”. “Thus, the fact
that employment at will is not ‘property’; for the purposes
of the Due Process Clause... does not mean that the loss
of at-will employment may not ‘injure’ Petitioner in
his person or property; for purposes of § 1985(2).”

STATEMENT OF CASE:

A. PROCEEDINGS AND DISPOSITION IN
THE COURTS BELOW: All Denied

DIA evoked Discrimination response (see sole
remedies in Appendix 1a and court orders in the

Appendix). Petitioner filed for Wrongful Termination,
Employment Discrimination & Jury Trial May 25, 2001.

June 7, 2002, Petitioner requested that she become the
Counsel of Record in federal Appeals Court for the Ninth
District. Petitioner filed a Brief, cross-brief and a request
for rehearing en banc and publication of a Memorandum.
The courts affirmed a time-barred condition. Petitioner
was inhibited by Respondent’s fraudulent conditions, not
informed of her rights, which prejudiced the courts.

The incidents happened while Petitioner was in
successful federal employment with DIA at the U.S.
Embassy in Switzerland. Respondent refused a terrorist
threat report from Petitioner and Respondent chose to
Medically Evacuate Petitioner. The following 7 years
were riddled with bombings at low-threat places. DIA
could have reassigned Petitioner. DIA defamed Petitioner
alleging mental illness, artificially disabling Petitioner.

B. STATEMENT OF THE FACTS

December 24, 1992, Petitioner became an employee of
Defense Intelligence Agency and maintained good standing
up to and including May 31, 1997 (8 years of Top Secret).

October 3, 1993, Petitioner arrived at her new DIA
assignment at the United States Defense Attaches’ Office
located at the United States Embassy in Berne, Switzerland.

October 5, 1993, a Monday, SMSgt Cieslewicz was angered
that Petitioner could not be at work the first workday in
country and was further angered when he was informed it
would take 2 weeks due to childcare requirements just to be
able to work part-time. In late November Petitioner could
work full-time and her 2.5 year-old-son went to the Swiss
childcare center. Unbeknownst to Petitioner, SMSgt

Cieslewicz began a series of financial and security
investigations with Headquarters DIA, as if Petitioner were a
security risk for low-income, and suspected Petitioner of
being disloyal to America for being the only one to have her
child in Swiss childcare.

November 25, 1993, ZIEBELEMARIT (Tsee-bella-merit),
or “Onion Day”: the most popular festival in Switzerland
celebrates and sells onion pies without pork (“pork” is
mentioned due to the following years of Anti-Semitism).
November 25, 1994, ZIEBELEMARIT, sells onion pies with
Quiche Loraine ( made with cured pork).

July, 1994, Petitioner pays the equivalent of 1 year’s
childcare (over $3,000) for only one month of care, as the
childcare center closed, but at least he became potty-trained.
August-Sept, 1994, Petitioner’s son is forced back into
diapers and insecurity, with increasing animosity and distrust
of Petitioner and her employer as intrusive to their country.
Summer 1995, Swiss Ambassador Carlo S.F. Jagmetti
publishes his book “From shadows to shadows” regarding
the U.S. sponsored Nazi-Holocaust-Assets issue and Senator
Alfonse D’Amato’s haranguing infamously.

Fall 1995, Petitioner’s Child care provider informs Petitioner
that she needs to enlist Swiss psychologists for her son to
keep child care services. Petitioner did so and learned the
word “Schnappikopf” (colloquial Swiss German for Dick
Head), and was informed that her son was paraded in the
childcare center group naked as the only circumcised boy.
November 25, 1995, ZIEBELEMARIT, offers few onion
pies, but many with pork.

January 18, 1996, Ambassador M. Larry Lawrence dies.
Ambassador Kunin arrives August, 1996 and SES Leo
Michel at the Geneva Center is already in place.

November, 1996, J.P. Getty visits Ambassador Kunin and
media events. Steven Spielberg’s “Schindler’s List” is
released.

November 25, 1996 ZIEBELEMARIT: Petitioner could not
find one onion pie without pork and went home to bake
her own proper Swiss Onion Pie.

December, 1997, Petitioner was forced to deplete retirement
benefits in order to avoid personal bankruptcy, ability to raise
her child due to loss of career_income, employment
references by use of punitive administrative maneuvering and
drive Petitioner to spend her money on residential
psychiatric care she never needed and against her will.
(NOTE: COL Mitchell took personal offense (August
1996) to the fact that Petitioner deemed Psychology a
“BELIEF SYSTEM” en-par with other theory-based
cognitions of reality and he was offended at Petitioner’s
removal of her son from Swiss psychologists due to his own
graduate degree in Psychology (even though the
appointments limited Petitioner’s work-availability and COL
Mitchell’s need for Psychological help was on the “Official
Calendar’), which discussion took place during work hours.
September, 1996: Colonel (USAF) Walton informs
Petitioner that he is not the “Acting” Defense Attaché, rather
the Defense and Army and Air Force Attaché, regardless of
what DIA Headquarters says and to produce memoranda with
his signature as the “Defense Attache”.

November, 1996: The Celebrated J.P. Getty is a “personal”
visitor to Ambassador Kunin, (She even made a point to
diminish his visit, even though it was publicized and she
announced it to the entire Embassy Staff), which Multi-
Billionaire visit was simultaneous with Steven Spielberg’s
world-wide launch of “Schindler’s List”, also simultaneous
with Senator Alfonse D’Amato’s “tirade” in multiple, global
news papers (“Petitioner’s Impression” of Timeliness of
impact and coordination is important and both artists and
terrorists, politicians and pastors use “gossip/newest news’ to
affect those they deem vulnerable). Swiss Ambassador
Jagmetti resigns for cause and Brigadier General Schlupp

|
|

dies of a heart attack on the Tennis court, when he was the
Swiss Defense Attaché incumbent, in Washington, D.C.
November 25, 1996 ZIEBELEMARIT: Petitioner could not
find one onion pie without pork and went home to bake
her own proper Swiss Onion Pie.

March 25, 1997, Petitioner received Ms. Pat Johnson (an
American English speaker), at Petitioner’s private residence,
where Ms. Johnson stated that she was a screenwriter and
wanted to rent a quiet place away from distractions and was
recommended by Ms. Doris Lanz, the U.S. Embassy housing
coordinator. Ms. Johnson asked Petitioner, “What will you do
with your son when you become hospitalized?” Petitioner
was the epitome of health at the time and wondered why Ms.
Johnson would ask such a strange question (this was 6 days
prior to Petitioner’s forced incarceration in a military
psychiatric facility). She commented on Petitioner’s Persian
carpets, stated that she had been assigned in Iran, and spoke
with a man in French, who wished Petitioner a Happy New
Year, then left the apartment.

March 26, 1997, Petitioner called Ms. Pat Johnson at the
Bellevue Hotel asking if Ms. Johnson was in any way allied
with Mr. Christophe Lambert, whose “unofficial website”
chat-room messages matched with Ms. Johnson’s trip to
Switzerland. Ms. Johnson denied any relationship.

March 28, 1997, Good Friday, Petitioner and Son went for a
walk at the Marzili Bad park behind the Swiss Capitol
Building, played a ball-game with some Swiss strangers, then
walked home past the front of the Capitol building, where a
“Solidarity” demonstration with most people in black leather
were getting loud and there was a stage with a person yelling
in a megaphone.

March 30, 1997, Easter Sunday, Petitioner took her son to
Egelsee, a local lake near a friend’s apartment. As they
approached, a man whom Petitioner had seen near the
Embassy ran away as she waved to him. Petitioner and son

also found some strange trails made of white baking flour
that led into the street or dead-ended into walls. This was
Easter Sunday, a day when people go for walks, and have
fun, but it seemed twisted that day. After going home,
Petitioner didn’t feel safe anymore, so she took her son to her
friend’s apartment and then called Mr. John Forte, the
Political Attaché, as he was my friend and the closest person
with a security clearance. Later, Colonel McBride
admonished Petitioner for contacting Mr. Forte instead of
himself, as I was allegedly required to contact the Defense
Attaché in times of security threats.

March 31, 1997, Petitioner sought the protection of the
Embassy due to repeated, reported violations of her private
residence, loitering of apparently Albanian men outside her
residence, the fact that the Bosnian Embassy was directly
across the street from Petitioners residence during heightened
animosities, the scary coincidence of Ms. Johnson’s allusion
to being hospitalized, the inappropriate medical
recommendations of several Swiss pediatricians with regard
to Petitioner’s son’s deathly illness for 6 months, the hatred
perceived from Petitioner’s son’s childcare authorities
(Kinderkrippe Murifeld, Insel Spital, Tageseltern Verein, all
of which are governed by the Canton of Berne and all of
which mentioned Jewish politics on the part of the U.S.
Embassy and Petitioner’s son’s circumcision from age 2.5-6.
It was no wonder that I perceived surveillance in Berne,
Switzerland as a U.S. Intelligence employee at our Embassy.
What our government does affects us in our personal lives.
April 1, 1997, SMSgt Cieslewicz, Petitioner’s immediate
supervisor, composed a memorandum for COL McBride’s
(the U.S. Defense and Army Attaché) signature and
Petitioner was required to sign this same memorandum.
Petitioner’s coerced signature effected Petitioner’s Medical
Evacuation to a U.S. military psychiatric facility in Germany
(Landstuhl Regional Medical Center); COL McBride stated

that there would be no follow-up security investigation at
Petitioner’s residence and that Petitioner would have to
return to her surveilled residence or sign the document.
Petitioner had a 6-year-old son, who safety was a concern to
Petitioner and chose the only alleged route to safety for her
and her son. COL McBride stated that Petitioner’s son would
be able to stay together during the week-long, coerced
psychological testing.

Later that day Petitioner’s supervisor and the only
other civilian peer at the Defense Attaches’ Office (DAO)
escorted Petitioner and her son in the DAO van to the
military psychiatric facility 400 miles away. At 1lp.m.
Petitioner’s supervisor informed Petitioner that her son would
have to stay with him. SMSgt Cieslewicz informed Petitioner
that she would either have to return to Berne and live in the
same unsecured and uninvestigated situation if she refused to
let him- separate her son from her, thereby removing volition
a second time from Petitioner. This was a shock to both
Petitioner and her son, late at night, after a 400 mile drive
and one day after a perceived terrorist surveillance incident.

The three military psychiatrists would not listen to
any details regarding Petitioner's perceived surveillance,
rather prescribed medication that is given to all newcomers at
their facility, regardless of malady, and without objective
testing or interview. Petitioner refused medication as she
perceived the attempted drugging was part of being ignored.
April 2, 1997, Petitioner’s son was separated for a duration
of 1 week and for the first time, was under the impression
that his mother was forced to be separated from him as if she
were ill, knowing that she was unwilling to stay. He returned
without his mother to Switzerland, escorted by SMSgt
Cieslewicz and Mr. Relitz, while Petitioner was forced to
take perfunctory tests and take part in group sessions that did
not pertain to the terrorist report Petitioner made.

11

April 3, 1997, unbeknownst to Petitioner, SMSgt and COL
McBride had already processed Orders to send Petitioner
back to the United States for further resident observation, as
they disagreed with their own 3 military doctors. The doctors
found no evidence of SMSgt Cieslewicz’ and COL
McBride’s insistence that Petitioner had the need to undergo
medication and therapy for Bipolar Manic disorder or
Psychosis, as the document that SMSgt Cieslewicz and COL
McBride composed, included “Ruling-Out” these diagnoses,
rather than the diagnosis originating from their doctors. They
found no evidence of DIA’s assumptions. The diagnosis was
Post Traumatic Stress Disorder, which DIA refused to
accept.' (SEE footnote for simultaneous unlawful search.)

April 5, 1997, Petitioner and her son were reunited under
escort of SMSgt Cieslewicz, Mr. Relitz and COL McBride,
then escorted by SMSgt Cieslewicz via commercial Air Plane
to San Diego and there he separated Petitioner and son by
having Petitioner’s Parents take custody of the 6-year-old
boy, this was now April 6", again, late at night in a strange
place. Petitioner’s son lost control of his bowels for two
months, due to insecurity driven into him by the repeated
late-night separations in strange places, worry about his
mother and living with Petitioner’s parents (strangers to him).
April 6" through 13" 1997, Petitioner was not allowed to
leave Mesa Vista Hospital, an expensive private facility, even
though Petitioner is a U.S. Army Veteran and could have
gone to the V.A. Hospital for free. Petitioner was then
plagued with hefty resident hospital fees for months.

April 15" through May 31%, 1997, Petitioner contacted DIA
Headquarters Personnel Management to find out when she
could return to work; DIA personnel would not accept the

' Exhibit E of Appellant’s Reply to Appellees’ Cross-Appeal Brief
provided a copy of COL McBride’s hand-written notes predilecting
diagnosis and admission that he “Emptied (Petitioner’s) files at home —
no indication of security problems only personal info”: 2 COUNTS.

12

doctors’ diagnosis, and insisted Petitioner take medication for
the illness they presumed without proper medical authority.
May 31%, 1997, Petitioner resigned for cause via fax.
August, 1997, Mr. Peter H. Flournoy, became counsel on
Contingency. This relationship continued for 4.5 years.
October, 1997, Petitioner and Counsel were informed that
DIA would only accept an EEO complaint based on race,
religion, gender, age, disability and provided the form to
apply in May 1998.

May, 1998, Petitioner filed a suit via Counsel; albeit,
Counsel insisted that Petitioner plea under Americans with
Disabilities Act causes, due to the encumbrance of DIA
personnel, regardless of Petitioner's cognitive competency,
Counsel insisted that the circumstances warranted
acknowledgment of insurmountable odds due to “incredible”
bureaucracy, in that federal employees demurred personal
responsibility for their actions while in the employ of DIA,
plus Petitioner was never acknowledged for the trauma of
being surveilled in Switzerland and treated as if incompetent.

Background Before the Disputed Incident

October 3, 1993, Petitioner was assigned to the Defense
Attachés’ Office, Berne, Switzerland for a two-year tour.
Unbeknownst to Petitioner, SMSgt Cieslewicz, Petitioner’s
new immediate Supervisor, submitted Petitioner to DIA
Security investigation for low-income (Petitioner discover
this fact in April 1998, when DIA divulged all “releasable”
documents regarding Petitioner.

November, 1993, Defendant SMSgt Cieslewicz conducted a
survey of Per-Diem rates for Berne, Switzerland, but
excluded childcare costs for those on official duty. Petitioner
had to pay full-non-Swiss-resident fees for childcare during a
1.5 month period, while living in a hotel situation where food
costs were higher until securing a home in December 1993.

December, 1993, Petitioner and son moved into their
residence by Embassy/DIA/NSA contract with Price
Waterhouse in Berne, Switzerland.

October, 1995, Petitioner’s supervisor was promoted to E-8
in the Air Force. At the “Wet-Down” ceremony, COL
Mitchell grabbed the champagne bottle from Petitioner in
front of many Embassy colleagu.s, and embarrassed
Petitioner as if incapable of opening the bottle. Petitioner
goes upstairs to where SMSgt is and he consoles her with his
wife present, hugging and kissing her while Petitioner cries.
There is no sexual harassment here, only humiliation from
COL Mitchell and SMSgt was too drunk and happy at his
own promotion party to see tears. His wife, right next to
Petitioner fully understood, as did Petitioner. Sexual
harassment in this case pertains to the unwritten law of
sexual activity questions and the problem of low-income.
June, 1996, Petitioner was allowed fo take a long-overdue
leave, due to a “skeleton-crew” at the DAO for 8 months,
plus a delay in issuing a new contract with DIA Personnel
managers, namely Lynn Roland, but she was not the only
responsible party for producing a written agreement.

July, 1996, Petitioner and her son performed their over-due-
leave in San Diego, Celifornia, due to the DIA contract that
supplies a round-trip-flight to any destination as a benefit to
those contracting for a consecutive assignment overseas.
During Petitioner’s visit, Petitioner’s old school friend
informed her that he had AIDS.

August 3, 1996, Petitioner returned to the DAO in
Switzerland, spent a week helping her 6-year-old son
overcome jet-lag. SMSgt Cieslewicz and Mr. Relitz
communicated their displeasure at Petitioner being back in
Berne and still taking leave, as their own ability to be “back-
on-the-job” once “back-in-country” did not include a single
parent family’s concerns. Petitioner had requested approval
of the Leave Dates, without regard to being back in Berne.

August 9, 1996, Petitioner returned to full-time work and
informed SMSsgt that her childhood friend had AIDS.

August 22, 1996, Petitioner was informed by her San Diego
friend’s family that her friend died on August 28", 1996.
August-Early September, 1996, Petitioner and the entire
office was occupied with the incumbent Defense Attaché’s
abrupt retirement. The Air Attache, Colonel George Walton,
became the “Acting” Defense Attaché, until January 31,
1997, when Colonel Robert H. McBride arrived in-country.
Late September, 1996, (Two weeks later) Petitioner’s son
became deathly ill with pneumonia symptoms of fluid in his
lungs, projectile vomiting, body temperature at 102 degrees.
September, 1996, Petitioner had become acutely aware of
her responsibilities as a parent and a full-time employee of
DIA, especially due to the passing of her 35-year-old best
friend and the incarceration of her son’s father. Petitioner
was the sole care-giver of her son after school. She harnessed
the energy into revamping her personal health condition with
free-weights, stretching exercises, vitamins, legally-acquired
herbs, a whole-foods diet and personal diligence. In 3
months, Embassy personnel made comments that alluded to
her “being in love with (somebody)”. Petitioner had no
intimate partner and then that appears to be the issue with
which DIA took issue. In 6 months Petitioner had only
reduced her weight 25 pounds, but lost 6 dress sizes due to
the effects of weight lifting adding muscle and burning fat.
Petitioner was at the height of fitness.

February, 1997, SMSgt questioned Petitioner regarding
amorous relationships and intent to bear any more children.

15

REASONS FOR GRANTING THE WRIT:

l. Lack of advisement within the statutory period that
Petitioner had the right to legal counsel.”

FA Abuse of “color of office” by SMSgt Cieslewicz and
COL McBride prejudiced DIA Headquarters, military and
civilian doctors and courts to perpetuate a fraud that removed
Petitioner’s Constitutional Rights, unsubstantiated.

> Supervisors SMSgt Cieslewicz and COL Mitchell
committed “Espionage” at the onset of Petitioner’s
assignment, plus demanded that Petitioner erase all calendar
records prior to the IG inspection in May 1996 to “lessen the
burden of inspection”.

4. Petitioner committed no crime, adhered to rules of
conduct and was treated poorly by her military/civilian chain-
of-command to prevent news of this treatment becoming
known.

5. Petitioner’s lack of intimate relationships, Chastity,
and low-income were the only reasons SMSgt Cieslewicz
could justify an investigation of Petitioner for 3.5 years.

2 DIA didn’t inform the courts that they prevented and
tricked Petitioner to untimely file in lower courts and didn’t
give recognition to either Petitioner’s or former counsel’s
communications prior to May 1998, constituting a Fraud on
the court and an Obstruction of Justice, as Petitioner had
no legal counsel prior to late August 1997 and DIA claims
that Petitioner’s first response commenced in May of 1998,
(a Falsehood, as Petitioner maintained telephonic and written
contact with DIA Personnel Headquarters from April-August
1997, when Petitioner perceived that ONLY documented
communication via an attorney would be acknowledged).

6. Petitioner’s NON-ATTENDANCE at unofficial
social events, such as the “Thank-God-It’s-Friday” alcoholic
events sponsored by the U.S. Marine Security Guard every
Friday, at the U.S. Embassy, Berne, Switzerland were cited
as suspect: It seemed as if an unwritten law of “Put-Out, or
Get-Out” became a reality for Petitioner. When Petitioner
had social events with Swiss nationals, SMSgt Cieslewicz
used no words, but body language that indicated distrust in
Petitioner.

CONCLUSION:

This case presents several questions of national
importance that involve fair and just treatment of civilian
employees whose superiors are active duty military in the
U.S. Army, Air Force and Marine Corps as well as DoD
civilians in Human Intelligence and in conjunction with the
State Department. This Court has the opportunity to define
boundaries as to what constitutes abuse of security clearance
requirements and what is invasion of privacy and harassment.
This court should take this opportunity to rectify the ability
of intelligence organizations to violate personnel through
their closed-system by creating an independent Intelligence
Over-sight specifically for the purpose of preventing and
admonishing illegal collection on U.S. citizens, as private
information was used to fabricate a false caricature.

Respectfully submitted,

ALICIA KELSO, Counsel of Record, Pro hac vice
9325 Lavell St., La Mesa, California 91941
(619) 463-1801 & Cellular: (760) 470-3841

17

APPENDIX A: INDIVIDUAL COMPLAINT FOR
MONETARY RELIEF FOR WRONGFUL
TERMINATION AND EMPLOYMENT
DISCRIMINATION, DATED: MAY 25, 2001

UNITED STATES DISTRICT COURT FOR THE |
SOUTHERN DISTRICT OF CALIFORNIA

CV-01-00928-W (CGA)

ALICIA KELSO, Plaintiff

V.
UNITED STATES DEFENSE INTELLIGENCE AGENCY

Defendant

Plaintiff ALICIA KELSO respectfully alleges as follows:
GENERAL ALLEGATIONS

l. This action arises under 7 U.S.C. 2000(e)(2), 1 U.S.C.

12111(5), and the Federal Tort Claims Act. This action is

brought pursuant to the Americans with Disabilities Act of

1990 (ADA), Title 42 United States Code Section 12101 et

seq., and Title VII of the United States Civil Rights Act of

1964, as amended, Title 42 United States Code Section 2000e

et seq.

> Plaintiff is and at all times mentioned herein was a

United States Citizen.

3. Plaintiff currently resides in the Southern District of

California.

4. Plaintiff is, and was during the times mentioned

herein, a single mother with one son by the name of Ian

Robert Kelso.

5. Plaintiff is informed and believes, and thereon

alleges, that the defendants named herein as Does 1 through

50, inclusive, are and at all times herein mentioned, were

either individuals, corporations, or other legal entities

residing in, or transacting business in the United States.
Plaintiff is presently unaware of the true names and
capacities of the defendants named herein as Does 1 through
50, inclusive, and Plaintiffs will seek leave of court to amend
this Complaint to allege the true names and capacities of
these defendants when the same has been ascertained.
6. Plaintiff is informed and believes, and thereon
alleges, that at all times relevant herein, the defendants
named herein as Does 1 through 50, inclusive, were each
proximately responsible either through their actions, errors or
omissions, for Plaintiff's injuries and damages herein, and
each such fictitious defendant acted as the agent of each other
defendants in this action.

FACTUAL BACKGROUND
7. Plaintiff began working for the Defendant Defense
Intelligence Agency, United States Department of (Defense)
‘jn December of 1992, in the Agency’s Office in New York,
New York as a civilian employee.
8. In the following year, in October 1993, Plaintiff
became qualified for and accepted an assignment as
Secretary (at the level of a GS 7) in the Office of the Military
Attaché, at the United States Embassy, in Bern, Switzerland.
Thereafter on or about November 1995 through July 1996,
Plaintiff achieved the position of Security Assistance
Manager (without an increase in grade). This was Plaintiff's
first overseas (civilian) assignment. Plaintiff aspired to
become an Intelligence Technician. One of the reasons
Plaintiff accepted this position was to acquire overseas
experience which was required to advance to the position of
Intelligence Technician (GS 8). Plaintiff was informed that
she could be qualified to apply for the position of Intelligence
Technician overseas. .
9. In her position in Bern at the U.S. Military Attachée’s
Office, her immediate supervisor was Senior Master Sergeant
(SMSgt)(USAF) Joseph R. Cieslewicz. SMSgt Cieslewicz

was at all times an agent for the Defense Intelligence
Agency, action within the scope of his employment.

10. Upon Plaintiff's arrival interview in Bern, on or about
October 1993, Cieslewicz inquired improperly about details
concerning Plaintiffs personal finances. When Plaintiff
refused to disclose such details, Cieslewicz informed Plaintiff
that she was being uncooperative. Subsequently, Plaintiff
contacted Defense Intelligence Agency Headquarters in
Washington, D.C. and was informed that no civilian
employee was required to give personal financial information
to their supervisor.

11. Cieslewicz required office personnel, who performed
the Embassy mail run and pickup by traveling to Heidelberg,
Germany, to provide their overnight lodging address and
telephone number. Plaintiff's address was at the home of one
Ali Shahmirzadi. When informed of this, Cieslewicz made a
demeaning statement with reference to a terrorist by the name
of “Ali”.

12. Plaintiff did not participate in Embassy social events
to which she could not take her son, Ian. In particular,
Plaintiff did not attend “TGIF” parties which were held on a
regular basis by the Marine Corps Guard Detachment
stationed at the U.S. Embassy. Plaintiff did not attend
because she chose to be with her son Ian at home on Friday
evenings.

13. Plaintiff's social life was primarily involved with
members of the Swiss national population. Plaintiff often
took her son to the children’s playground with a Swiss friend
who was also a single mother. Plaintiff was also acquainted
with and helped a retired Swiss Army Colonel and his wife.
One Thanksgiving Plaintiff had dinner and coffee with the
former Secretary to the Republic of Korea’s Defense
Attaché’s secretary, who was also Swiss.

14. On or about July 1996, Plaintiff took a long delayed
(due in part to the crisis in Bosnia and personnel shortages)

home leave to San Diego, California. During this trip
Plaintiff visited a close friend, Christopher McColl Wallace,
who was battling the AIDS virus, and who eventually died on
August 28, 1996. Plaintiff returned to Bern on or about July
30, 1996.

15. From October 1996 through December 1996
Plaintiff's son was continuously ill and in need of constant
attention by Plaintiff. Beginning with a persistent cough, her
son’s condition worsened over time to choking and projectile
vomiting of large volumes of clear mucus. Despite the
administrations of two different Swiss medical doctors Ian’s
health did not improve. In December of 1996 Plaintiff was
told that because of his continued illness, and Plaintiff s
decision to discontinue counseling sessions for her child with
a Swiss child psychiatrist, Ian could no longer attend the
child care facility where he had been going. Plaintiff and
Plaintiff's child’s attendance at these sessions had ‘een
strongly recommended by the operator of the child care
center. Plaintiff used up all her vacation leave time and
accumulated sick time in order to be with her son.

16. In September of 1996 Plaintiff's son lan had been
enrolled in kindergarten as Swiss Montessori method school,
however, also about this time the school informed Plaintiff
that he could no longer attend due to the same reasons
advanced by the child care center. Desperate to seek care for
her son, Plaintiff hired an au pair.

17. Plaintiff attended a “town hall meeting” in the Fall of
1996, hosted by Ambassador Kunin. At that meeting, which
included U.S.S citizens and foreign national staff at the
Embassy, Plaintiff made a number of comments which were
intended to elicit appreciation for the cultural diversity
present. This led to two days of subsequent ridicule of

4a

Plaintiff by one Gunny Sergeant Dukes accompanied by his
handing out derogatory flyers at the Embassy’.

18. | Beginning sometime in February or March of 1997,
Plaintiff became convinced that she was under surveillance
by people unknown, coming and going from work and while
at her apartment in her most private moments. Plaintiff
reported this suspected surveillance to her immediate
supervisor SMSgt Cieslewicz, as she was under a duty to so
report. Plaintiff believes that no appropriate investigation of
this suspected surveillance as ever conducted.

19. Plaintiff continued to work in her position in Bern
until March 1997, when she sought the protection of the
Embassy for the safety of herself and her son from the
ongoing surveillance. Instead of receiving help, she was
summarily and hurriedly medically evacuated to Landstuhl
Army Regional Medical Center, Germany.

20. | Upon Plaintiff's arrival in Landstuhl, Plaintiff's son
was forcibly removed from her, despite repeated earlier
assurances Ian by Col. McBride that if Plaintiff agreed to go
to Landstuhl her son could remain with her during her
“evaluation”. Plaintiff was then placed in a week long
residential evaluation. Subsequent to the evaluation,
residential therapy was suggested and Plaintiff and her son
were removed to San Diego, California, under escort by
SMSegt Cieslewicz.

rie In San Diego, California, Plaintiff as examined by
and under the care of Dr. Harry A. Greer, M.D. who at that
time was associated with Mesa Vista Hospital. On April 21,
1997, at the request of the Defendant Defense Intelligence
Agency, Dr. Greer wrote an evaluation of Plaintiff which
recommended that she be placed in a less stressful position.
22. Despite this recommendation and positive evaluation,
of which Plaintiff was not privy to at the time, the personnel

' SSgt Dukes publicly ridiculed Petitioner’s town hall contribution.

office of the Defense Intelligence Agency pressured Plaintiff
and actively encouraged plaintiff to resign her position.
Defendant and its agents continually refused to focus the
discussion on or investigate the surveillance of which
Plaintiff had complained. Plaintiff was given, without
justification, the ultimatum of “take the medicine prescribed
by Dr. Greer, and only then may you have your job back”.

£2: On or about May 31, 1997, Plaintiff wrote a facsimile
to the Defense Intelligence Agency attempting to resign from
government service.

24. On or about August 14, 1998 Plaintiff filed a
complaint with the Defense Intelligence Agency based on an
Equal Employment Opportunity claim. This claim was
rejected on or about October 8, 1998. It was not until that
time that it was revealed that an official in the Defense
Intelligence Agency had encouraged Plaintiff to resign.

FIRST CLAIM
EMPLOYMENT DISCRIMINATION UNDER THE ADA)
25. Plaintiff refers to and incorporates by reference

paragraphs 1 through 24 of the General Allegations above as
though fully set forth herein.

26. Plaintiff alleges employment discrimination based on
Plaintiffs disability.

27. Plaintiff alleges that Defendant forced Plaintiff to
resign Plaintiff's employment with Defendant because of
Plaintiff's disability, in violation of Title 42 United States
Code Section 12112(a). By this action, Plaintiff seeks the
following relief, pursuant to Title 42 of the United States
Code Section 12112(a), which incorporates the remedies set
forth in Title VII of the Civil Rights Act of 1964, Title 42
United States Code Section 2000e-5(g) and (k), for the
discriminatory treatment of Plaintiff in violation of the ADA:
monetary relief, back pay, compensatory and punitive
damages, attorney’s fees and costs of suit.

28. Plaintiff is disabled as defined by the ADA, Title 42
United States Code Section 12102(2), in that she has a record
of a mental impairment that substantially limits one or more
of her major life activities in that she is unable to cope with
stressful situations and is severely depressed.
29. At all times relevant herein, Defendant has been an
employer as defined by the ADA, Title 42 United States
Code Section 12111(5)(A), in that Defendant is an agency of
the United States Government.
30. Jurisdiction of the subject matter of the action is
established in this court by the ADA, Title 42 United States
Code Section 12117(a), which incorporates the jurisdiction
provisions in Title VII of the Civil Rights Act of 1964, Title
42 United States Code Section 2000e-5(f)(3).
31. Onor about May of 1997, Defendant intentionally
discriminated against Plaintiff because of Plaintiff's
_ disability, in that Defendant did not place Plaintiff in a less
stressful position as was recommended by Plaintiff's (SIC:
Defendant’s) doctor (SIC: doctors), but rather encouraged
Plaintiff to resign her employment.
32. Plaintiff is a qualified individual with a disability
within the meaning of Title 42 United States Code Section
12111(8) because she can, with reasonable accommodation,
perform the essential functions of the job that she held in the
employ of the Defendant.
33. The discriminatory action of Defendant as set forth in
paragraphs 31 and 32, above, has caused and will continue to
cause Plaintiff to suffer losses of earnings, from May 1997
until the filing of this lawsuit and beyond.
34, Asa further proximate result of Defendant’s unlawful
and intentional discriminatory actions against Plaintiff, as
alleged above, Plaintiff has been harmed in that Plaintiff has
suffered emotional pain, humiliation, mental anguish, loss of
enjoyment of life, and emotional distress. As a result of such

discrimination and consequent harm, Plaintiff has suffered
such damages in an amount according to proof.
35. The above-recited actions of Defendant were done
with reckless indifference to Plaintiffs rights under the ADA
in that Defendant disregarded the recommendation of
Plaintiff's (SIC: Defendant’s) doctor (SIC: doctors) and
refused to accommodate her disability, even after is was
made apparent by the Plaintiff's (SIC: Defendant’s) doctor
(SIC: doctors).
36. On or about August 14, 1998, Plaintiff filed a
discrimination charge against Defendants with the Equal
Employment Opportunity Commission through the Defense
Intelligence Agency. The charge was rejected on or about
October 8, 1998. This action is subject to the doctrine of
equitable tolling, in the Plaintiff was not advised of her rights
by the Defendant’s, and many circumstances beyond
Plaintiff's control prevented Plaintiff from timely filing a
charge.”
SECOND CLAIM
(EMPLOYMENT DISCRIMINATION UNDER TITLE
VII OF THE CRA)

37. Plaintiff refers to and incorporates by reference
paragraphs 1 through 24 of the General Allegations above as
though fully set forth herein.
38. Plaintiff refers to and incorporates by reference
paragraphs 25 through 36 of the first cause of action.
39. Plaintiff is a Christian female.

40. Defendant is an employer subject to suit under Title
VII in that Defendant is a United States Government Agency.
41. Jurisdiction of the subject matter of this action is

established in this court under Title VII of the United States

2 Defendant did not provide the forms to file with EEO until May, 1998 (a
year after Petitioner needed ther and 6 months after Counsel for the
Petitioner requested them).

8 a

a

Civil Rights Act of 1964, as amended, Title 42 United States
Code Section 2000e-5(f)(3).

42. During Plaintiff's employment by Defendants,
Plaintiff was subjected to conversations concerning religion,
and hostility towards her choice of religion. Defendant did
nothing to stop these incidents from occurring, despite
Plaintiff's requests.

43. Defendant’s discriminatory actions caused Plaintiff
great distress and mental anguish.
44. Defendant’s discriminatory actions against Plaintiff,

which constitutes an unlawful employment practice in
violation of Title VII of the United States Civil Rights Act of
1964, as amended, Title 42 United States Code Section
2000e-2(a), has caused and will continue to cause Plaintiff
loss of employment and earnings, from the date of May 1997
until the filing of this lawsuit and beyond.

45. The above-recited actions,of Defendant were done
with reckless indifference to Plaintiffs rights under Title VI,
- in that Defendant did not take steps to minimize
conversations about religion in the workplace.

46. On or about August 14, 1998, Plaintiff filed a
discrimination charge against Defendants with the Equal
Employment Opportunity Commission through the Defense
Intelligence Agency. The charge was rejected on or about
October 8, 1998. This action is subject to the doctrine of
equitable tolling, in that Plaintiff was not advised of her
rights by the Defendant’s, and many circumstances beyond
Plaintiffs control prevented Plaintiff from timely filing a
charge on this basis.

WHEREFORE, Plaintiff prays for judgment against the
Defendants, and each of them, as follows:
AS TO THE FIRST CAUSE OF ACTION

ie For judgment against all Defendants in an amount to
be determined at trial according to proof.

y For back pay, with prejudgment interest, from June
1997 to the date of judgment herein.

LN For compensatory damages according to proof.

4, For costs of suit, including reasonable attorney’s fees

and expert fees, pursuant to Title 42 United States Code
Section 12117(a), which incorporates the remedies set fort in
Title VII or the Civil Rights Act of 1964, Title 42 United
States Code Section 2000e-5(k); and

x For such other relief as the court deems proper.

AS TO THE SECOND CAUSE OF ACTION

L. For judgment against all Defendants in an amount to
be determined at trial according to proof.

ys For back pay, with prejudgment interest, from June
1997 to the date of judgment herein.

3. For compensatory damages according to proof.

4. For costs of suit, including reasonable attorney’s fees

and expert fees, pursuant to Title 42 United States Code
Section 2000e-5(k) and other applicable laws; and

3. For such other and further relief as the court deems
proper

DATED: May 25, 2001, PETER H. FLOURNOY,
Attorney for Plaintiff

10a

APPENDIX B: ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS, (SAN DIEGO)
DATED FEBRUARY 13th, 2002

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA

CVv-01-00928-W (CGA)

ALICIA KELSO, Plaintiff
V.
UNITED STATES DEFENSE INTELLIGENCE AGENCY

Defendant

Defendant United States Defense Intelligence Agency
(“Defendant”) moves to dismiss this action pursuant to Rule
12(b)(6) or in the alternative Rule 56(c) of the Federal Rules
of Civil Procedure. Plaintiff Alicia Kelso (“Plaintiff”)
opposes. All parties are represented by counsel. The Court
decides the matter on the papers submitted and without oral
argument pursuant to Civil Local Rule 7.1(d.1).

I. BACKGROUND

In December 1992 Plaintiff began working for
Defendant’s New York City offices. In October 1993
Plaintiff relocated to the United States Embassy in Bern,
Switzerland, In early 1997 Plaintiff became convinced she
was under surveillance by unknown third parties. In March
1997 Plaintiff sought the Embassy’s surveillance protection
for both her son and herself.

Thereafter, Plaintiff was medically evacuated to the
Landstuhl Germany Regional Medical Center for a one week
evaluation. Based on her medizal providers’
recommendation, Plaintiff and her son were medically
evacuated to San Diego’s Mesa Vista Hospital in April 1997.
On May 31, 1997 Plaintiff resigned.

lla

ee

In April 1998 Plaintiff commenced administrative
proceedings on a potential discrimination claim. On October
8, 1998 Defendant formally rejected the claim based on
Plaintiff's failure to timely initiate counseling within 45 days
of the alleged discrimination. Defendant further informed
Plaintiff that she had 90 days to appeal to a federal district
court. Counsel for Plaintiff received the rejection notice no
later than October 21, 1998.
On May 25, 2001 Plaintiff commenced this action alleging
disability discrimination in violation of Title VII and the
Rehabilitation Act. Defendant now moves to dismiss all
claims as time-barred.

Il. LEGAL STANDARD

Rule 12(b)(6) allows a court to dismiss a complaint
upon a finding that the plaintiff has failed to state a claim
upon which relief may be granted. FED. R. CRV.P. 12(b)(6).
A 12(b)(6) motion tests a complaint’s legal sufficiency. See.
e.g. Navarro v. Block, 250 F.3d 729, 732 (9" Cir. 2001).
Thus, dismissal is proper only where the plaintiff's complaint
lacks a cognizable legal theory or sufficient facts to support a
cognizable legal theory. See id, “[I]f as a matter of law “it 1s
clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations,’ a claim
must be dismissed... whether it is based on an outlandish
legal theory or a close but ultimately unavailing one.”
Neitzke v. Williams, 490 U.S. 319, 326-27 (1989) (citations
omitted). A court should not dismiss a complaint “unless it
appears beyond doubt that plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Parks
School of Business, Inc. v. Symington, 51 F.3d 1480, 1484
(9" Cir. 1995). Finally, a court must accept the complaint’s
allegations as true and construe the complaint in the light
most favorable to the plaintiff. See Cahill v. Liberty Mutual
Ins. Co., 80 F.3d 336, 338 (9" Cir. 1996).

12a

III. | DISCUSSION
There are two narrow issues before this Court. First, the
Court must determine whether Plaintiffs Title VII claim and
Rehabilitation Act claim are time barred. Assuming the
claims are untimely, the Court must next determine whether
equitable tolling should preserve Plaintiffs claims. The
Court will separately address each issue in turn.

A. PLAINTIFF’S CLAIMS ARE TIME-BARRED BY STATUTE.
Plaintiff brings this action seeking to recover for Defendant’s
alleged discriminatory practices during Plaintiff's
employment. Defendant contends both claims are time-barred
as a matter of law. The Court agrees.

Federal employees seeking to recover for alleged
discriminatory practices must commence their action in
district court within 90 days of receiving a final agency
decision. 42 U.S.C. § 2000E-16(c). In this case, Plaintiff s
counsel received Defendant’s final agency decision denying
Plaintiff's claims on October 21, 1998. (Cipriani Decl., Ex. 1
at 3.) Accordingly, the deadline to commence a district court
action was no later than January 21, 1999. Plaintiff filed this
action on May 25, 2001 — more than two years after the
statutory filing deadline had passed. The Court therefore
concludes that Plaintiff's Title VII claim is time-barred
absent equitable tolling.

Rehabilitation Act’ remedies maintain the same
procedural requirements as civil right remedies. 29 U.S.C. §
794a(a)(1). As such, Plaintiff was further required to seek
recovery on her proposed Rehabilitation Act claim within 90
days of the final agency decision denying relief. For the same

3 Although Plaintiff devotes considerable argument ot the Americans
With Disabilities Act’s (ADA) applicability to the present case, Plaintiff's
statutory reliance is misplaced. The United States is specifically exempt
from the definition of “employer” under the ADA. 42 U.S.C. § 12111
(5)(B)(i). Federal employee grievances involving disabilities are properly
covered by the Rehabilitation Act, 29 U.S.C. § 791 et seq.

13a

Nee ————

reasons noted above, Plaintiff's May 2001 action, and the
Rehabilitation Act claim contained therein, is time-barred.
B. Equitable TOLLING Is INAPPROPRIATE IN THIS CASE.

Despite both claims being time-barred, Plaintiff
nonetheless argues that this Court should equitably toll the
statute of limitations. The Court is unpersuaded. As the
Supreme Court noted:*

Federal courts have typically extended equitable relief
only sparingly. We have allowed equitable tolling in
situations where the claimant has actively pursued his
judicial remedies by filing a defective pleading during the
statutory period, or where the complainant has been induced
or tricked by his adversary’s misconduct into allowing the
filing deadline to pass. We have generally been much less
forgiving in receiving late filings where the claimant failed
to exercise due diligence in preserving his legal nghts.
(Citations omitted).

Irwin v. Veterans Administration, 498 U.S. 89, 96 (1990).
The Ninth Circuit has held that equitable tolling “has been
consistently applied to excuse a claimant’s failure to comply
with the time limitations where she had neither actual nor
constructive notice of the filing period.” Leorna V. US.
Dep’t of State, 105 F.3d 548, 551 (9" Cir. 1997) (citing
Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 9"
Cir. 1987)); Cooper v. Bell, 628 F.2d 1208, 1212 (9" Cir.
1980)). However, the Ninth Circuit in Leorna also stated that
“once a claimant retains counsel, tolling ceases because she
has gained the ‘means of knowledge’ of her rights and can be
charged with constructive knowledge of the law’s

‘Complainant has been induced and tricked by Respondent’s misconduct
and denied legal advice during the statutory period. Petitioner had no
history of mental illness and alleges any menta! impairment was acquired
due to the actions of Respondent during the very time Respondent was
supposed to but did not inform Petitioner of deadlines and rights.

14a

A ef a ace PE TOT A Oe TA eT ET ET SOE Se

a
#
“

requirements.
Id, (citing Stallcop, 820 F.2d at 1050.

In this case, Plaintiffr has been represented by counsel
since at least May 1998. (Cipriani Decl., Ex. | at 16.) It is
further undisputed that the October 1998 Final Agency
Decision was addressed directly to Plaintiff's counsel.
(Cipriani Decl., Ex. 1 at 1.) The letter states that “[b]ecause
this constitutes the Final Agency Decision in Ms. Kelso’s
complaint, she may appeal this dismissal in accordance with
the instructions in Enclosure 2.” (Cipriani Decl., Ex.1 at 20.)
As such, Plaintiff not only had constructive, but actual
knowledge of the statue of limitations via her attorney.

Nothing before this Court compels it to equitably toll
claims that have been openly and notoriously known by all
parties for over two years. Plaintiff failed to abide by the
express terms of the relevant statutes. Accordingly, the Court
concludes that Plaintiff's claims are time-barred as a matter
of law.

IV. Conclusion and Order

In light of the foregoing, the Court GRANTS

Defendant’s motion to dismiss. (Doc. No. -1.) The

Court DISMISSES all claims with prejudice and

without leave to amend. The Coiurt further denies all

other pending motions as moot. (Doc. No. 5-2.) The

Clerk of Court shall close the district court case file.

IT IS SO ORDERED.
DATE: February 12, 2002 Original Signed
Hon. THOMAS J.

WHELAN

United States District
Court

Southern District of
California

CC: ALL PARTIES

15a

a

APPENDIX C: JUDGMENT IN A CIVIL CASE,
(SAN DIEGO), DATED FEBRUARY 13th, 2002

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA

Case Number: 3:01-cv-00928

ALICIA KELSO, Plaintiff
V.
U. S. DEFENSE, Defendant

se JURY VERDICT. . This action came before the
Court for a trial by jury. The issues have been tried and the
jury has rendered its verdict. .

x decision by court. This action came to trial or hearing
before the Court. The issues have been tried or heard and a
decision has been rendered.

IT IS ORDERED AND ADJUDGED THAT the motion to
dismiss plaintiff complaint is granted and denying the motion
for summary judgment as moot; the court deismisses all
claims with prejudice and without leave

2/13/02 W. Samuel Hamrick, Jr.

Date Clerk

Original Signed

Entered on 2/13/02
pre — Whelan
ref - Aaron

l6a

Denial 3: APPENDIX D - ORDER DENYING
PLAINTIFF’S EX PARTE APPLICATION SEEKING

RECONSIDERATION, (SAN DIEGO)
DATED APRIL 9th, 2002

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA

Case Number: 3:01-cv-00928

ALICIA KELSO, Plaintiff
V.
U. S. DEFENSE, Defendant

By order dated February 13, 2002, this Court granted
Defendant’s motion to dismiss with prejudice and without
leave to amend. Plaintiff Alicia Kelso now seeks leave of
court to pursue a motion for reconsideration. Defendant
United States Defense Intelligence Agency (“Defendant”)
opposes. For the resons stated below, the Court denies
Plaintiff's ex parte application.

I. BACKGROUND
In December 1992 Plaintiff began working for
Defendant’s new York City offices. In October 1993
Plaintiff relocated to the United States Embassy in Bern,
Switzerland. In early 1997 Plaintiff sought the Embassy’s
surveillance protection for both her son and herself.
Thereafter, Plaintiff was medically evacuated to the
Landstuhl Germany Regional Medical Center for a one
week evaluation. Based on her medical providers’
recommendation, Plaintiff and her son were medically
evacuated to San Diego’s Mesa Vista Hospital in April
1997. On May 31, 1997 Plaintiff resigned.

17a

;

In April 1998 Plaintiff commenced administrative
proceedings on a potential discrimination claim. On
October 8, 1998 Defendant formally rejected the claim
based on Plaintiff's failure to timely initiate counseling
within 45 days of the alleged discrimination. Defendant
further informed Plaintiff that she had 90 days to appeal
to a federal district court. Counsel for Plaintiff received
the rejection notice no later than October 21, 1998.

On May 25, 2001 Plaintiff commenced this action
alleging disability discrimination in violation of Title VI
and the Rehabilitation Act. By order dated February 13,
2002 this Court granted Defendan’ts motion to dismiss
after finding Plaintiff's claims time-barred. Plaintiff now
seeks reconsideration of that decision pursuant to Rule
60(b)(6) of the Federal Rules of Civil Procedure.

II. LEGAL STANDARD

A district court should generally leave a previous
decision undisturbed absent a showing that it either
represented clear error or would work a manifest
injustice.” Christianson v. Colt Indus. Operating Corp.,

5 Petitioner’s factual employment was with Defense Intelligence Agency,
a subordinate entity of the U.S. Department of Defense, therefore, a
public entity, not a private business. Lieutenant General Hughes took
special interest in Bern, Switzerland, assigning 3 Mormons to the post
while he remained Director of DIA.

Petitioner was an employee of a governmental intelligence activity, which
was under scrutiny by the commonly believed fiction that intelligence
employees are “all spys” in Embassies. A great deal of prejudice was
inflicted on her and her son by both Swiss nationals, the local childcare
center and Petitioner’s own family members during the Nazi Gold issue
and Senator D’Amato’s haranging of Swiss Ambassador J agmetti, which
qualifies as extraordinary.

Extraordinary circumstances were explicitly defined in the Appeals Brief
and request for rehearing, in that Petitioner's son acquired a deathly
illness, and two other office staff of the DAO acquired deathly illnesses,
as well as one significant family member was diagnosed with Cancer.

18a

486 U.S. 800, 817 (1988). Relief under Rule 60(b)(6) is
reserved for extraordinary circumstances and is used
“sparingly as an equitable remedy to prevent manifest
injustice.” Corex Corp. v. United States, 638 F.2d 119,

121 (9" Cir. 1981); FED. R. CIv. P. 60(b)(6).

III. Discussion

Plaintiffs reconsideration application is essentially a
belated effort to recast her unsuccessful and time-barred
employment discrimination claims as arising under
California contract law. The effort fails.

In order to qualify for relief under Rule 60(b)(6), a
party must demonstrate both injury and circumstances
beyond his control that prevented him from proceeding
with the prosecution or defense of the action in a proper
fashion. United States v. Alpine Land & Reservoir Co.,
984 F.2d 1047, 1049 (9 Cir. 1993). Information which a
party could have put forth prior to the underlying
judgment but chose not to raise does not warrant relief
under Rule 60(b)(6)°. See Schanen v. United States Dep’t
of Justice, 762 F.2d 805, 807-08 (9"" Cir. 1985), reaff’d
as modified, 798 F.2d 348 (9" Cir.1986) (new arguments
which a party could have raised prior to entry of the
underlying judgment do not warrant relief under Rule
60(b)(6). Likewise, failure to state a potential defense or

ae

Previous to our 3-year Cadre’s illnesses, there were serious accidents that
resulted in paraplegia (coincidences?).

© Respondents omit inducement to react to Disability Law demands put
forth by Respondent, also fraud on the Court regarding Petitioner’s lack
of advisement for legal rights. Respondents buried Petitioner in
psychiatric counseling with attempts to force strong medication on
Petitioner before she left the first 3 weeks of loss of freedom to make
decisions for herself and access to her personal files, clothing, money,
telephone, postal communication, blocking any way to communicate
outside Respondent’s created disablement of Petitioner.

19a

&
H
|
4

claim does not constitute gross negligence or exceptional
circumstances justifying the extraordinary relief available
pursuant to Rule 60(b), because the rule does not afford
relief for deliberate tactical decisions of a party. See
Nemaizer v. Baker, 793 F.2d 58, 59-60 (2" Cir. 1986).
As noted by the Court’s order dated February 13, 2002 —
federal employees seeking to recover for alleged
discriminatory practices must commence an action in
district court within 90 days of receiving a final agency
decision. 42 U.S.C. § 2000e-16(c). In this case, Plaintiff's
counsel received Defendant’s final agency decision
denying Plaintiff's claims on October 21, 1998. (Cipriani
Decl., Ex. 1 at 3.) Accordingly, the deadline to
commence a district court action was no later than
January 21, 1999. Plaintiff filed this action on May 25,
2001 — more than two years after the statutory filing
deadline had passed.’ The Court therefore maintains its
prior conclusion that Plaintiff's Title VII claim is time-
barred. The same holds true with respect to Plaintiff's
claims arising under the Rehabilitation Act. 29 U.S.C. §
794a(a)(1).

Moreover, the only “extraordinary” circumstance
alleged by Plaintiff is that she chose to raise employment
discrimination rather than contract claims in her original
complaint. Plaintiff has alleged no circumstances beyond
her control that prevented her from proceeding with a
contract claim at the outset of this action. Accordingly,

7 Petitioner’s attorney contacted DIA August 1997, was promised proper
paperwork by Ms. Joyce Harrison in October 1997, did not receive the
paperwork until April 1998, and the case was finally officially recognized
in May, 1998. Respondent attempts to delude the court, misrepresenting
the facts repetitiously and their very documents on the docket are
evidence of fraud on the Court..

20a

os

4 Sa NRE

Plaintiff's failure to do so is not the kind of extraordinary
circumstance that justifies Rule 60(b)(6) relief.®

Even assuming relief was warranted under Rule
60(b), such motion must nonetheless be denied if the
party lacks a meritorious claim. Lepkowski v. United
States Dept. of Treasury, 804 F.2d. 1310, 1314 (D.C. Cir.
1986). That is, when the proposed claim is not viable,
vacating the judgment is merely “an empty exercise or
futile gesture.” Cobos v. Adelphi University, 179 F.R.D.
381, 389 (E.D. NY 1998), citing Owens v. United States,
1997 WL 177863, at *2(E.D.N.Y. Apr. 3, 1997). That is
precisely the case presented by the facts of this case.

Congress has enacted an intricate scheme of specific
remedial mechanisms for federal employees aggrieved by
adverse personnel actions. See. e.g, Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 200e et seq.; the Age
Discrimination in Employment Act of 1967, as amended
in 1974, 29 U.S.C. § 633, et seq. (“ADEA”); the
Rehabilitation Act of 1973, 29 U.S.C. § 794a et seq.; and
the Civil Service Reform Act (“CSRA”), codified in

. Again, Respondent omits the lack of legal advice to Petitioner in a
timely manner. Respondent’s counsel is not knowledgeable regarding
American politics in Switzerland 1993-1997 and that ignorance is not
punishable, rather should be recognized as a weakness of ability to
answer to the issues at hand. Political actions at the U.S. federal level
enflamed the Swiss population (Op-Eds, diplomatic letters, televised
news shows, et cetera predilected viewers to adopt viewpoints that they
had no objective standpoint to pass judgment, only parrot what was
broadcasted in American-sponsored international media), strategically
setting that country up for prejudice against American Government
employees in their country, while at the same time encircling Switzerland
both politically and economically. I was not a “player”, yet I was treated
as “one of the government Americans by certain persons in the private-
Swiss locale, due to Media Hype. Both Petitioner and 6-year-old son
suffered daily harm as the only government employee and family member
accessible to the Swiss population on a daily basis for 9 hours per day, 5
days per week.

21a

various sections of Title 5 of the United States Code.
These statutory schemes constitute the exclusive avenues
by which a federal employee may challenge the adverse
personnel actions they are designed to address.” Bush v.
Lucas, 462 U.S. 367, 368, 388-390 (1983). When a claim
“arises out of” the federal “employment reiationship,” the
plaintiff is barred from pursuing relief outside these
statutory schemes.’° Id. At 388-390 (1983). See also
Brown v. GSA, 425 U.S. 820,825 (1976); Saul v. United
States, 928 F.2d 829, 835-840 (9" Cir. 1991).

Following the Supreme Court’s guidance in Bush and
Brown, courts have consistently rejected federal
employment claims based on statutory, common law or
constitutional predicates other than the statutes
enumerated above. The federal statutory scheme is
designed to pre-empt the field of federal employment and
to preclude the application of state law governing private
employers to federal employment disputes." Saul v.
United States, 928 F.2d 829, 842 (9" Cir. 1991).
Accordingly, the Ninth Circuit has emphasized that
where the factual predicate for a separate non-Title Vil
claim is the same as the basis of the Title VI claim, the
holding in Brown controls, and Title VII is the exclusive
remedy. See Nolan v. Cleland, 686 F.2d 806, 815 (9" Cir.
1982). See also Clemente v. United States, 766 F.2d

9 Petitioner suffered Human Rights violations, guised as personnel
actions.

!° Despite exhaustion of internal “mechanisms within the employment
relationship”? If those “mechanisms” are dysfunctional, is Petitioner
without recourse, especially if Petitioner “resigned for cause” and that
quality of “for-cause-resignation” is obliterated from the record?

'l Respondent attempts to exploit counsel’s lack of federal employee
jurisprudence regarding overseas assignments, as former counsel
mistakenly used California employment law. PETITIONER WAS A
FEDERAL EMPLOYEE WORKING IN SWITZERLAND, and WAS A
RESIDENT OF FLORIDA during the time reviewed by this court.

22a

1358, 1364 n.7 (Ch Cir. 1985) (separate claims founded in
actions proscribed by Title VII may not be maintained
because Title VII provides the exclusive remedy). Even
where the federal employment statutes provide no
remedy, any state claim is preempted. Saul, 928 F.2d at
843.

Clearly, federal civil service employment is governed
by federal law and not by California contract remedies.
See, Brown v. United States, 226 Ct. Cl. 669, 671
(1981)(noting that federal employment does not create
rights enforceable under a contract theory). Moreover, as
the Ninth Circuit noted in White v. General Services
Administration, 652F.2d 913 (9" Cir. 1981), “allowing
additional individual remedies would interfere with that
carefully devised scheme by permitting circumvention of
administrative remedies.” Id. At 916. That concern is
especially applicable here.

Permitting Plaintiff to assert a breach of contract
claim based on the same facts as her employment
discrimination claim would eviscerate the governing
administrative and statutory prerequisites. '

Indeed, the only reason Plaintiff is pursuing a contract
claim is that “[s]uch an action does not fall within the
confines of the statute of limitations for the Rehabilitation
Act.” (see Ex Parte Appl. At 2:15-16.) (Note: The

forgoing is a conclusion of Respondent’s counsel as it is
: an assumption, not a Fact — emphasis highlighted by
Alicia Kelso, Petitioner)

2 Petitioner contracted with Respondent for a 90-day-Probationary
period, then became a “Permanent Employee” while still in the New York
Offices of DIA. Petitioner was in “Permanent Employee” status under the
“Exempted” category when initially assigned and accepted to the Defense
Attaches’ Office at the U.S. Embassy in Berne, Switzerland in October,
1993. where the events in question took place on April 1, 1997.

4
t
f
8
i
,
&
.
:

24a

The Court rejects this argument. There is simply no
reasonable basis upon which Plaintiff can advance her
time-barred claims regardless of the label attached.
Plaintiff cannot secure any relief in this case.

IV. CONCLUSION AND ORDER
In light of the foregoing, the Court DENIES
Plaintiffs ex parte application for reconsideration.
This case shall remain closed.

IT ISSO ORDERED.
DATE: April 9, 2002 ORIGINAL SIGNED
Hon. THOMAS J.
WHELAN
United States District
Court
Southern District of
California

CC: ALL PARTIES

ete

APPENDIX E -JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
DATED MARCH 20, 2003

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NO. 02-56018 CT/AG#:
CV-01-00928-TJW(CGA)

ALICIA KELSO
Plaintiff — Appellant

V.

UNITED STATES DEFENSE INTELLIGENCE AGENCY
Defendant — Appellee

APPEAL FROM the United States District Court for
the Southern District of California (San Diego).

THIS CAUSE came on to be heard on the Transcript
of the Record from the United States District Court for the
Southern District of California (San Diego) and was duly
submitted.

ON CONSIDERATION WHEREOPF, It is now here
ordered and adjudged by this Court, that the judgment of said
District Court in this cause be, and hereby is AFFIRMED.

Filed and entered March 20, 2003

25a

APPENDIX F — NOTICE OF APPEAL (CIVIL)
(SAN DIEGO) DATED JUNE 7, 2002

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF CALIFORNIA

Case Number: 3:01-cv-00928 W (CGA)

ALICIA KELSO, (Appellant) Plaintiff
V.
U. S. DEFENSE, (Appellee) Defendant

Notice is hereby given that ALICIA KELSO, Plaintiff,
above named hereby appeals to the United States Court
of Appeals for the Ninth Circuit from the Final
Judgment, Order April 9, 2002, entered in this
proceeding on the 13'" day of February, 2002.

Date civil complaint filed: May 25, 2001.

Date: June 6, 2002 ORIGINAL SIGNED

Filed and accepted June 7, 2002

26a

APPENDIX F - MEMORANDUM OF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT

DATED MARCH 20, 2002

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NO. 02-56018
CT/AG#: CV-01-00928-TIW(CGA)

ALICIA KELSO
Plaintiff — Appellant

V.

UNITED STATES DEFENSE INTELLIGENCE AGENCY
Defendant — Appellee

NOT FOR PUBLICATION

27a

APPENDIX G — ORDER OF THE UNITED STATES
COURT OF APPFALS FOR THE NINTH CIRCUIT
DATED AUGUST 20, 2003

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NO. 02-56018 and CT/AG#: CV-01-00928-TJW(€GA)
Southern California
ALICIA KELSO
Plaintiff -- Appellant

v.
UNITED STATES DEFENSE INTELLIGENCE AGENCY
Defendant — Appellee

Before: CANBY, O’SCANNLAIN, and T.G. NELSON,
Circuit Judges

The panel votes to deny the petition for panel
rehearing. Judges O’Scannlain and T.G. Nelson vote to deny
the petition for rehearing en banc, and Judge Canby so
recommends.

The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. See Fed. R. App. P. 35.

The petitions for rehearing and for rehearing en banc
are denied.

The request to publish the memorandum disposition
filed on March 20, 2003 is denied.

No further filings shall be accepted in this closed appeal.
A true copy, Attest
CATHY CATTERSON
Clerk of Court
By: Ruben Talavera
Deputy Clerk

This certification does constitute the mandate of the court

28a

APPENDIX H —- JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT

DATED SEPTEMBER 3, 2003

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NO. 02-56018
CT/AG#: CV-01-00928-TJW(CGA)

ALICIA KELSO
Plaintiff — Appellant

v.

UNITED STATES DEFENSE INTELLIGENCE AGENCY
Defendant — Appellee

APPEAL FROM the United States District Court for
the Southern District of California (San Diego).

THIS CAUSE came on to be heard on the Transcript
of the Record from the United States District Court for the
Southern District of California (San Diego) and was duly
submitted.

ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court, that the judgment of the
said District Court in this cause be, and hereby is
AFFIRMED.

29a

STATUTES:

1. UCM (active military): unlawful search of a private
residence without probable cause or due process, invasion of
privacy, imposition of other personnel’s religious beliefs
during work hours, inappropriate use of questioning
regarding “close and intimate contact(s)”, as the lack of such
became the issue, rather than the existence.

2. Title 7 U.S.C. 2000(e)(2), 1 U.S.C. 12111-5(g) and (k):
Discriminatory treatment of Petitioner in violation of
Americans with Disabilities Act of 1990 (ADA), as it is
alleged that DIA inflicted Disabling of Petitioner that begs
the Court to consider ADA claims of exploitation of a
vulnerable person: Petitioner was a single mother of a young
child and employer abruptly destroyed their family by the
false Medevac and coercion to resign.

3. Federal Tort Claims Act: PETITIONER LOST
Continued Employment having done no wrong, Ability to be
reassigned, Retirement Benefits, Credibility with other
employers and family, Self-Determination (as both military
and civilian psychiatrists and psychologists were used to
validate assumptions of Respondent that defamed Petitioner,
removed Constitutional right to make decisions), Custody of
her only child, Ability to educate her sole child in Swiss
schools. Petitioner has and will continue to lose earnings and
joy in life from May 1997 to present, due to the burden of
bringing this case to the Court’s attention. Petitioner has been
harmed in suffering to this time emotional pain, humiliation,
mental anguish, loss of motherhood, and financial distress,
damage to her Central Nervous System, Gum Disease due to
stress and fear. As a result of such discrimination, reckless
indifference to Human Rights, disregard to even
Respondents’ own psychiatric agents’ recommendations and
consequent harm, Petitioner has suffered such damages in an

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amount according to proof. The past 7 years of Petitioner’s
motherhood and her son’s childhood cannot be replaced.

4. Title VII of the United States Civil Rights Act of 1964,
as amended: Respondent is a U.S. Government Agency

5. Doctrine of Equitable Tolling: Respondent didn’t
advise Petitioner of her rights. Respondent alleges Petitioner
hung a poster of DIA Headquarters EEO officers and that
made her fully informed, when Petitioner’s Embassy EEO
officer was a State Department Executive out of reach on
Easter Mondsy in 1997. Petitioner did not have her
household goods for 6 months (3months after the filing
deadline for EEO claims). DIA deliberately threw
Petitioner into confusion when she reported a danger in
Switzerland, then Respondent falsely Medevaced and
coerced Petitioner to pay expensive psychiatric bills and
resign. Petitioner believes she was set up, framed. Many
circumstances beyond her control prevented Petitioner from
timely filing a charge. This invokes Miranda rights of
access to competent counsel in a time of need.

6. Title 42 United States Code Section 2000e et seq.:
Strategic Impairment of an employee, then exploiting her.

7. Americans with Disabilities Act of 1990 (ADA), with
of deliberate DISABLING OF PETITIONER: Petitioner
has no history of disability, whether physical or cognitive,
ever, until Respondent alleged the lie and defamed Petitioner.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0971%3A1. Public record. Not legal advice.