Free Memorandum in Opposition - District Court of California - California

Case 3:07-cv-05100-WHA

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Filed 12/21/2007

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OLIVER HILSENRATH 822 Eastbrook Ct. Danville, CA 94506 Telephone: 925.212.6299 Facsimile: 925.736.7571 Email: [email protected] PLAINTIFF PRO SE

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

OLIVER HILSENRATH, Plaintiff,

Case No. C07-05100 WHA Related to CR 03-00213 WHA

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v. UNITED STATES OF AMERICA, Defendant.

SURREPLY IN OPPOSITION OF DEFENDANT'S MOTION TO DISMISS ______________________________ Date: January 3, 2008 Time: 8:00 a.m. Room: 9, 19th Floor Judge: Hon. William H. Alsup

Ms. Swanson, attorney for the USA, either does not understand the subject of this action or else she purposely misleads this Court. This action is about an error of the USA who served a criminal foreign judgment on plaintiff Oliver Hilsenrath in breach of the law and the rules of procedure. That foreign judgment has dire and indefinite repercussions on plaintiff such as the taking of plaintiff's personal freedom and his criminal incrimination in several foreign countries for an unlimited term. How can such taking of personal freedom be moot?

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And: 69(a) with.

Ms. Swanson is masquerading the confiscation of funds as the only matter to be dealt

In fact it is the least significant of matters. Ms. Swanson cites case law that is irrelevant and does not even connect to the matters of this case. All case law cited refers to use and retrieval of evidence through foreign treaties in proceedings in US District Court. The OIA made a mistake by serving a foreign criminal judgment on plaintiff Oliver Hilsenrath. The right procedure was to submit such judgment to the Court and have the Court serve (or not) the judgment on plaintiff, while allowing for due process pursuant to Fed. R. Civ. P.

Tacul, S.A. v. Hartford Nat'l Bank & Trust Co., 693 F. Supp. 1399 In the absence of an applicable federal statute, the procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practices and procedure of the state in which the district court is held, existing at the time the remedy is sought. Fed. R. Civ. P. 69(a).

Ms. Swanson, attorney for the USA also complains that plaintiff, pro se litigant did not cite enough case law referring to the Court's authority in relation to the APA. While the Ms. Swanson's argument is mostly embarrassing, here is in summary how courts have viewed plaintiff's right to review under the APA:

Troy Corp. v. Browner, 1997 U.S. App. LEXIS 30315 The "unambiguous language" of the Administrative Procedure Act provides that a reviewing court shall hold unlawful and set aside agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.S. § 706(2)(A). In all cases agency action must be set aside if the action was invalid for those reasons

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Under 5 USCS § 706(2)(A) even discretionary agency decisions are reviewable for abuse of discretion. Wolchuck v Bowen (1989, CA9 Cal) 871 F2d 869,

The Court should deny Ms. Swanson's motion to dismiss. The USA should serve the Swiss criminal judgment the proper way, through the Courts, and allow for the adequate due process.

Dated: December 21, 2007

Respectfully submitted, OLIVER HILSENRATH
PLAINTIFF PRO SE

/s/ Oliver Hilsenrath

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