complete the process of repatriating the corporate assets is through implementation of the subject

Agreement by means of the granting of equitable relief in the form of an order from a court of competent jurisdiction for specific performance. Specific performance is an equitable action and Plaintiffs

therefore this case does not comply with the statutory provisions of the Tucker Act. prayed for relief cannot be ruled upon and/or adjudicated in the Court of Federal Claims. Plaintiff bas made a claim for money damages in the Complaint. this time the claim against the sovereign for money damages.

Plaintiff would waive at

Plaintiff would rely on the terms and

conditions of the Tax Treaty Agreement that specifically address a business mechanism to facilitate the rights of the parties resulting from fluctuations in the value of the assets between the date of execution of the subject Agreement, the date of the audit and the date of settlement. 11. Plaintiff next addresses the issue of sovereign immunity and the interrelation of the "subject matter" question raised by the Defendants. Plaintiff ponders the reasoning behind a defense

of sovereign immunity in. a venue where the Plaintiff is not asking the Defendants to pay money to the Plaintiff but, to the contrary, the Plaintiff is trying to cause money that because of Agreement rightfully belongs to the sovereign and should be delivered andlor distributed to the sovereign.

Plaintiff reiterates Plaintiffs ongoing and continual assertion

that

Plaintiff is not asking for payment
Plaintiff is requesting judicial

of any sums of money from the domain or treasury of the sovereign.

assistance to require one or more agencies of the United States Government to implement their required duties, obligations and responsibilities, Plaintiff would assert that in regard to the duties and obligations of the Department of the United States Treasury that said defendant is abridging its duties and responsibilities to all citizens of the United States in failing to implement the terms and conditions of the subject Agreement. As of June 1995 implementation of the subject Agreement would have

caused approximately One Hundred Fifty-Five Billion Five Hundred Million United

States Dollar ($155,500,000,000) asset value to be available to the United States Treasury.

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Historically sovereign immunity is a legal doctrine that protects the federal, state, and tribal
governments from lawsuits that would cause the governments to payout money, real estate, or goods

from the governmental treasury. The basic idea behind sovereign immunity is that property held by the government (including assets in the public treasury) are in trust for all the citizens. The public treasury and public property are, therefore, to he used for the benefit of all the citizens equally not just a few individuals (such as the people who file lawsuits) The doctrine of sovereign immunity is critically important where it truly applies to suits against the sovereign. But how does one determine if a suit is against the sovereign? The simple answer is that a suit is against the sovereign if "the judgment sought would ex-pend itself on the public treasury or domain." See Land v. Dollar, 370 US 731 (1947). In many cases the rule can be difficult to apply because the sovereign acts through

human individuals, and these agents are often the named defendants. Sovereign immunity does not prevent suits challenging the acts of individuals who violate federal
01'

other applicable law.

The Plaintiff can invoke jurisdiction under 28 U.S.C. 1331 (1994). because "contracts with the government are governed by federal common law, and ... subject matter jurisdiction under

section 1331 thus exists over causes of action arising from contracts to which the government is a party." Falls Riverway Realty, Inc. v. City of Niagara Falls. 754 F.2d 49. 55 nA (2d err. 1985) (citations omitted); cf Boyle v. United Tech. Corp.• 487 U.S. 500, 504 (1988) (noting that "obligations to and rights of the United States under its contracts are governed exclusively by federal lawn). Plaintiff is cognizant that a showing of federal question jurisdiction, however, does not relieve a claimant from the burden to establish a waiver of sovereign immunity. Plaintiff filed the present

cause of action mindful of sovereign immunity but also believing that since the action was for the purpose of implementing remedies that resulted in delivery and/or distribution of monies to the soverehm rather than payment from the sovereip that the underlying doctrine of sovereign Plaintiff is not attempting to take

immunity was not applicable to the present cause of action.

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"from the king" what is property of the "king" and available for use by all servants of the "king". To
the contrary the Plaintiff is vying to give to the "king" what is the rightful property of the "Icing" and keep for the servant only that to which the servant is entitled under the terms and conditions of the subject Agreement. Appreciating that a request or claim for damages is not consistent with the argument of Plaintiff the Plaintiff would restate Plaintiffs representations set forth hereinabove that Plaintiff

would voluntarily dismiss without prejudice Plaintiffs claim for damages and Plaintiff would at this time only pursue Plaintiffs principal claim for specific performance. In light of the complexity of legal theory entailing a discussion of sovereign immunity the Plaintiff, without prejudice to the argwnents and representations simultaneous Complaint. set forth hereinabove, is filing

with this Response a Motion for Leave of the Court to File a First Amended The First Amended Complaint is attached to said Motion and the same is being served Plaintiff is

on the Defendant simultaneous with the delivery to the Defendants of this Response. amending the Complaint to include jurisdiction immunity in accordance with

and specific conditions fur waiver of sovereign

5 USC 702~ 28 USC 2201 and 2202. The Supreme Court has Procedure Act ("APA") as a

repeatedly explained that a litigant may invoke the Administrative

waiver of sovereign immunity. thereby invoking district court jurisdiction, if the litigant can satisfy both 5 U.S.C. § 702 (by requesting "relief other than money damages") and 5 U.S.C. § 704 (1994) (no "adequate remedy" is available elsewhere, such as the Court of Federal Claims). U.S. at 892-93.904-05. Bowen, 487

The APA eliminates the defense of sovereign immunity in cases covered

by 5 USC 702.

Bowen, 487 U.S. at 892.

Plaintiff reincorporates herein by this reference the

statements and argument presented hereinabove substantiating that this case can not be decided either in the Court of Federal Claims and/or adjudicated under the Tucker Act. Plaintiffs cause of

action before this Court sati~fies both applicable provisions

of 5 USC 702 and 5 USC 704.

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12. In addition to sovereign. immunity (and in conjunction therewith FRep 12(b )(1) Subject
Matter Jurisdiction) Defendants assert FRep 12(b)(6) as a basis for their Motion to Dismiss. FRep
12(b)(6) Motions must be read

in conjunction with FRep 8. The federal rules simply require that a

complaint include lI'a short and plain statement of the claims that will give the defendant:fu:ir notice
of what the plaintiffs claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41. 47 (1957). Even after a defendant files a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rilles of Civil Procedure. a plaintiff need not come forward with all of the facts supporting its claim for relief See Fayetteville Investors v. Commercial Builders, Inc. , 936 F.2d 1462, 1471 (4th Cir. 1991). Rather, "unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" a court should not dismiss a complaint for failure to state a claim. Conley, 355 U.S. at 46 . Rule 8 objective is to avoid

technicalities and to require that the pleading discharge the function of giving the opposing party fair
notice of the nature and basis or grounds of the claim. Under Rule 8(a)(2). a claim is acceptable if "a plaintiff colorably states facts which, if proven, would entitle him to relief." Adams v. Bain • 697 F.2d 1213. 1216 (4th Cir, 1982). But. a claimant need not set out in detail all of the facts upon which the claim fur relief is based; rather, he need only provide a statement sufficient to put the opposing party on fair notice of the claim. and the grounds supporting it. See Atchison. Topeka & Santa Fe Ry. v. Buell, 480 U.S . .557, 56& n.lS (1987); Karpelv. !nova Health Sys. SeNS. , 134 F.3d 1222, 1227 (4th CiT. 1998); Gilbane Bldg. Co. v. Federal Reserve Bank, 80 F.3d 895, 900 (4th Cir. 1996). 13. Plaintiff is not making claim against the individuals named as representatives of the

respective Government entities in their personal capacity.

Plaintiff is fully aware that the named

individuals are not the same individuals holding the positions with the respective organizations at the
time of the execution of the subject Agreement and/or potentially holding said positions at the time the terms and conditions of the subject Agreement were to be implemented in June of 1995. Plaintiff

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represents to this Court that the generally accepted prjnciple is that the government acts through individuals. responsible The named Defendant bureaus, agencies and/or departments are the operative entities for implementing the terms and conditions of the subject Agreement. Plaintiff

acknowledges that the particular individuals are named as the parties who can issue directives and take responsibility to assure that the responsibility respective Defendants are satisfied. 14. Plaintiff has made continual demand on the Defendants and at one time the only response ::from any Defendant organization was sending official visitors to see Plaintiff for the specific purpose of obtaining full and complete modification of the subject Agreement. Plaintiff at and obligations owed to the Plaintiff by the

all times pertinent to the within cause of action bas refused to accept the offers of one or more Defendant organizations. Plaintiff has made demand upon the Offices of the President and Vice

President, Secretary of the Treasury. the Attorney General of the United States, the Director of the Central Intelligence Agency under both the President William Jefferson Clinton administration and the current President George Bush administration. 15. Plaintiff at all times; pertinent to the history and background of the subject Agreement,

has been ready, willing and able to cooperate in implementing the terms and conditions of the subject Agreement. Plaintiff would respectfully submit to this Court that the dominant interest of the "sovereign" in this particular action should be to join "With rather than contest the action of the
Plaintiff against the named agencies. If the interest of the sovereign is to protect the interests of the

public domain and citizens in general then the real "public policy" issue is not and should not be "secrets and covert acts". The real public policy issue should be a determination of why the

Defendants have refused and neglected to implement the terms and conditions of a contract that
would cause a substantive amount of money/assets

to become the property of the United States

Treasury

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WHEREFORE,

Plaintiff respectfully requests this Honorable Court to issue appropriate

orders from the Court denying Defendants Motion to Dismiss, denying Defendants assertion and suggestion that the case be transferred by this Court to the Court of Federal claims, issuance of a directive from this Court that Defendants forthwith file required pleadings and for such other and further relief as the Court deems just and proper.

7 Respectfully submitted tlllif/__ day of November 2002

-ri

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CE~CA1fE
r

I hereby certify that on ~ -of'November 2002 I caused the above set forth Response to Defendants Motion to dismiss with attachments to be placed and sealed in an express mail envelope and sent via prepaid express mail services addressed as follows: RichardLParker Assistant United States Attorney 2100 Jamieson Avenue

l

OF MAJILIN"G

(1

Alexandria, Virginia 22.314 '703-299-3700

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