Daniel A.
Bernathussyorktown@comcast.net
10335 SW Hoodview Drive
Tigard Oregon 97224
(503) 367 4204
Daniel A.
Bernath
ussyorktown@comcast.net
10335 SW
Hoodview Drive
Tigard Oregon 97224
(503) 367 4204
Plaintiff in propria persona
UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF OREGON
DANIEL A. BERNATH, an
individual, )
)
) CASE NO. CV 11 599 HA
Plaintiff, )
) COMPLAINT FOR VIOLATION
-vs.-
) OF CIVIL RIGHTS
) COMPLAINT FOR NEGLIGENCE
DAN R. HYATT, an individual, SIX UNIDEN- ) DEMAND FOR TRIAL BY JURY
FIED FEDERAL AGENTS, individuals, )
UNIDENTIFIED POLICE FORCE HIRED ) and REQUEST FOR ADVISORY
BY UNITED STATES an entity of unknown type, ) JURY
and JOHN DOES 1-X individuals, The UNITED )
STATES, the SOCIAL SECURITY ADMINIS- )
TION, an agency of the United States, )
and ROES 1 through 10, )
)
Defendants. )
__________________________________________)
Plaintiff alleges:
INTRODUCTION
1. This complaint describes how Daniel A. Bernath, a journalist and attorney at law representing claimants before the United States Social Security Administration in an effective and zealous fashion as per his ethical responsibilities as a member of the bar and ethical responsibilities as a journalist was extorted by Dan R. Hyatt, a hearing examiner/administrative law judge for the Social Security Administration.
2. Bernath was attacked physically by Hyatt causing him personal injury, was arrested and held in handcuffs, paraded and displayed to his fellow attorneys and former co-workers in the lobby of the Social Security Court (ODAR) based upon the false allegations of Hyatt. (Bernath was called to the California Bar in 1984 and thereafter to the 9th Circuit Court Bar and US District Court Bar. He has been a journalist since 1965 and at all times relevant was the publisher of Oregon State Bar Reporter which vigorously published reports of alleged misdeeds and complaints regarding Oregon attorneys, including hearing examiners at ODAR of the Social Security Administration.)
3. Bernath also has filed complaints of criminal activity by Dan R. Hyatt including theft of US Government property and Privacy Law violations, said complaint setting in motion a 5 to 30 day suspension against Dan R. Hyatt as a hearing officer.
4. Thereafter, the Washington County Court issued a restraining Order to forbid Hyatt from having any contact with Bernath and Hyatt was advised in the Order that he could contest the facts as presented of his brutal attack on Bernath. Hyatt did not contest the facts thereby triggering the doctrine of res judicata and/or collateral estoppel. Hyatt instead unlawfully removed the State Court Elder Protective Order to US District Court in an act of abuse of process.
5. To deny the disabled citizen clients of Bernath of legal counsel, and Bernath of his livelihood and professional calling, the Social Security Administration then sent a letter to each of plaintiff’s approximately 3,000 clients telling them that Plaintiff was disqualified from protecting them and prosecuting their case before that agency and said that they would contact the claimants directly thus bypassing any legal counsel.
PARTIES
6. Daniel A. Bernath is a United States citizen living in Oregon. He is a United States Navy Veteran serving in Vietnam and around the world during the Cold War and has been found to be 100% disabled because of his service connected injuries. Because of the medicine he must take for severe pain and other impairments he must often use two crutches to safely ambulate.
7. Dan R. Hyatt is a United States citizen living in the State of Washington and employed by the Social Security Administration as a hearing examiner/administrative law judge. Dan R. Hyatt has filed for bankruptcy in 2010 but intentional acts are not dischargeable and Bernath was not named as a creditor. Hyatt put all cars and trucks and his motorcycle, save one, into his wife’s name prior to the listing of assets for the Bankruptcy Court.
8. Six Unidentified Agents are either employees of the United States Department of Homeland Security or are employees of the subcontractor hired by US Department of Homeland Security to function as police protection for the workers and visitors of ODAR.
9. Unidentified Police Force is a private entity, hired by the US Department of Homeland Security to function as police protection for the workers and visitors of ODAR.
10. At all times herein pertinent, John Does 1 through X were employees of the US Department of Homeland Security and/or the Unidentified Police Force acting in the Department of Homeland Security’s place and stead and/or employees of the Social Security Administration.
JURISDICTION
11. This Court has jurisdiction of these claims pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(a)(3), 28 U.S.C. § 1983, 5 U.S.C. § 552a(g), and 28 U.S.C. § 2201, among others.
FACTUAL ALLEGATIONS
12. Daniel A. Bernath at all times pertinent was a publisher, editor and a writer of the news entity Oregon State Bar Reporter. The award winning electronic magazine has published each and every complaint regarding the alleged misdeeds of members of the Oregon Bar since 1994. Bernath has been a member of the California Supreme Court Bar since December 1984. In 2002, after the attack on the United States on 9/11/2001, Bernath volunteered to become a US Homeland Security Officer for the Transportation Security Administration and served as a explosives detection officer in Oregon. Thereafter Bernath transferred from the US Department of Homeland Security to the United States Social Security Administration, employed at the Office of Disability Adjudications and Review (at that time called OHA-Office of Hearings and Review) as a judicial assistant.
13. Bernath was an assistant to alj Hyatt and others but under the supervision of a Lead, Supervisor and Hearing Office Director.
14. During this period of employment, Hyatt took Bernath under his wing and schooled him on how he could himself become a hearing officer. Bernath and Hyatt are both United States Navy veterans and shared an interest in World War Two and US Navy history and had discussions on those matters.
15. Thereafter, Bernath left the employ of the United States Social Security Administration and began to represent disability claimants before his former employer and before his friend Dan R. Hyatt.
16. Hyatt reacted angrily with Bernath appearing as an advocate. He would cut hearings off for the slightest reason, would insult Bernath in front of his client, calling attorney Bernath “moron” and “liar”, “the worst lawyer” telling Bernath’s clients “you should hire another lawyer”, saying in front of Bernath’s clients, “don’t ask any questions, you’ll just screw things up.” (or words to that effect) would deny Bernath attorney fees contrary an forbidden by Social Security Regulations and not as part of any judicial discretion, would not send Notice to Bernath that attorney fees had been denied so as to make it appear that Bernath had missed a deadline and thus had no standing to contest the illegal actions of Hyatt which were not part of any judicial discretion. Hyatt thus acted in the clear absence of all jurisdiction.
17. Hyatt is receiving $3,252 a month from the US Department of Veterans Affairs Disability for himself, one spouse and one child. Claimant is informed and believes that Hyatt is a danger to himself and to others for mental impairments, which Social Security and all defendants herein knew or should have known of Hyatt’s dangerousness and propensity to lie about all things, large and small and his past bad acts of attacking helpless people. Plaintiff is informed and believes that Hyatt has previously been sanctioned by Social Security for violation of regulations and making false statements and conduct unbecoming an adjudicator.
18. Bernath sought to meet with Hyatt to learn what it would take to please him so that his clients could have a hearing. Bernath was humble and conciliatory but Hyatt was angry and confrontation at a meeting at ODAR. Hyatt said, among other things “I’ll continue your hearings five times if I want to. What are you going to do about it? Nothing. I’m going to put you out of business.” Or words to that effect.
19. Bernath continued in his news gathering and news publishing enterprises at all times relevant. Bernath published the nearly 1,000 pages of complaints regarding Dan Hyatt’s abuse of Social Security claimants in his approximately 11 years as a Social Security hearing examiner including Hyatt’s abuse which led to suicide attempt of a claimant. Journalist Bernath took public records and published them whereby Hyatt called a white woman married to a black man, “White Trash”. Bernath published a complaint whereby Hyatt said “I have trouble with interracial couples.” Bernath published a complaint whereby Hyatt went off the record and said “I don’t care what the medical evidence says, I’m never going to let you on disability” thus triggering a subsequent suicide attempt by that disabled person (whom Bernath eventually obtained Disability benefits)
20. At a hearing Hyatt questioned Bernath, a member of the bar for nearly a quarter century at the time, as to his credentials to represent claimants. Hyatt then ordered a contract hearing reporter to make a copy of the hearing, complete with Social Security Number and personal identifying information of the claimant and provided it to an agency outside of Social Security and its penumbra components. Hyatt thus used Social Security resources in abusing the contract reporter, stole US Government property and misused government property to make the copy of the hearing, stole US Government postage and mailing materials and stole the disk from the US Government plus violated laws regarding privacy.
21. Upon instruction from his client, Bernath then demanded that the outsiders return the personal confidential information to the client and after the Oregon State Bar refused to do so, Bernath then informed the Chief Administrative Law Judge in Washington DC (Falls Church Virginia) of the breach of security.
22.Thereafter Hyatt was questioned about what he had done and lied to the investigator. He had previously been warning to not reveal secret Social Security information but had violated that earlier order and agreement.
23.Hyatt is a very dangerous man. Bernath warned officers of the Social Security Administration that it appeared to him that Hyatt would go from being very angry with Bernath to actually attacking Bernath. Bernath wrote at least two letters to the Social Security Administration that Hyatt was dangerous, out of control and would perhaps attack Bernath one day. March 23, 2008 “I live in fear that Dan R. Hyatt will use some other force to have me thrown out of a hearing in the future (my law practice is obtaining benefits for disabled people) if I don’t move to quickly to leave when he abruptly ends a hearing after a few minutes or at the end of a hearing.”
****
April 4, 2008 I request additional security at ODAR because I fear that your
employee Dan R. Hyatt may again lose control and physically harm me. I am a 90%
disabled Vietnam War and Cold War veteran who must use a crutch to get around.
Please contact the federal protective service to have one of their officers sit
in the hearing room with me and Dan R. Hyatt on April 28.
He has stated that he will retaliate against me for some imagined slight and so far, (the Oregon State Bar has revealed) that he stole US Government property in his apparent attempt to hurt me, he has threatened to have me thrown out of a hearing room because I was too slow in his opinion in egression.
I am entitled to a safe environment as is my client when appearing before your agency and your office.
I fear, from his out of control and angry behavior in the past that he might harm me or my client at the April 28, 2008 hearing.
24. Hyatt was then charged by the General Counsel of the Social Security Administration and administrative law judge Dan R. Hyatt was suspended without pay for 5 to 30 days, for Hyatt’s theft, lying, violating privacy laws, etc., said punishment triggered after Hyatt violated the law and Bernath demanded that his client be protected.
25. Hyatt and Bernath were set for a hearing in Vancouver Washington. Hyatt called Bernath into the federal judge’s chambers and extorted him stating that he would recuse himself from all of Bernath’s cases, where Bernath was the attorney for a Social Security claimant IF Bernath removed the achieves of official complaint records regarding the alleged misdeeds of Dan R. Hyatt on file before the Social Security Administration, the Oregon State Bar and elsewhere. Otherwise, Hyatt would continue to continue/postpone hearings after a few minutes causing the case to be postponed repeatedly, would continue to urge claimants to fire Bernath, would continue to unlawfully deny Bernath attorney fees and not send Notice to Bernath so as to make it appear that Bernath missed a deadline for contesting the illegal “order” which is not part of judicial discretion, among other things. Hyatt thus acted in the clear absence of all jurisdiction.
26. Dan R. Hyatt has a long history of verbal abuse preceding physical violence and physical violence against helpless people. A restraining Order was issued by an Oregon judge after Hyatt kicked his wife in her hand and broke a bone. The marriage counselor stated that Hyatt may require “hospitalization”. Another ex wife stated that Hyatt slammed a car door on her leg. Hyatt also broke into her home and set off the burglar alarm in an application for a second restraining Order.
27. David Lowry, an Oregon Lawyer has filed complaints against Dan R. Hyatt as have other attorneys with the Social Security Administration stating according to the appellant brief in Lowry v. Social Security Administration, Dan R. Hyatt, et al., 329 F.3d 1019 (9th Cir. 2003), Hyatt uses “intimidation, anger, and verbal abuse”.
28. In the period after Hyatt had his suspension sentence but before Hyatt was to serve that sentence of suspension, Bernath walked to an elevator and was blocked from behind and to his side by people and was holding onto his crutch in one hand and his makeshift crutch in the other hand. Social Security Administrative Law Judge Dan R. Hyatt attacked the helpless US Navy service connected disabled plaintiff, striking him repeatedly and causing him personal injury.
29. Hyatt thereafter falsely stated to officers of Homeland Security and/or their subcontractors that Bernath, holding a crutch and a makeshift crutch had actually attacked Hyatt and demand that Bernath be arrested. Bernath was asked “so what happened here” and Bernath stated, “upon advise of counsel I have nothing to say.” The officer then arrested Bernath for his exercise of his Constitutional Right and because of the false statement of Dan R. Hyatt. Therefore the officer did not have probable cause to make the arrest. Because of the false statements of Dan R. Hyatt, plaintiff was arrested and detained by Unidentified Officers.
30. The Social Security Administration had long been on notice that Hyatt is a pathological liar or compulsive liar or in the words of attorney David Lowry, a “bald faced liar”. Lowry v. Hyatt et al 329 F.3d 1019 (2002). When Bernath invoked his right to silence on advice of legal counsel, an unidentified US Department of Homeland Security roughly put the helpless and aged Bernath’s hands behind his back and tightly and angrily put handcuffs on him. He then marched Bernath into the lobby of the Social Security ODAR past his former co-workers and fellow attorneys and placed Bernath in a room that had a curtain. Bernath was placed so that people at ODAR could go to the receptionist window and see Bernath sitting on a chair handcuffed. An unidentified officer then opened up the venetian blinds so as to expose Bernath to anyone in the lobby including the former co-workers of Bernath inside of ODAR. Bernath was so flummoxed by the assault by Hyatt, the lies by Hyatt, the arrest by the officers, the frog walk past his friends and fellow attorneys and his display as if on stocks in the town square that he became parched but with his hands firmly restrained behind his back could not get water. One employee saw the helpless plaintiff begging for water and held Bernath’s head as Bernath opened his mouth and the employee poured a few drops of water into the emotionally and physically damaged plaintiff. In this period of time, Dan R. Hyatt was ranting “he bumped me, he bumped me! He assaulted me! Arrest him! Arrest him! I’m a judge! I’m a FEDERAL judge!” (or words to that effect)
31. Bernath, because of his war time service has a neurogenic bladder and must catheterize his bladder every 3 hours or he will suffer kidney failure. Bernath intended to return to his medical equipment at his home to catheterize but instead of arrested and detained because of the false statements of Dan R. Hyatt. Thereafter Bernath suffered kidney failure.
32. Because the cuffs were so tight and Bernath was so roughly handled he suffered an injury to his left wrist because of the arrest and detention brought about by the false statements of Dan R. Hyatt. Bernath had undergone a surgery to his left wrist because of the pain to his left wrist. Hyatt thus acted in the clear absence of all jurisdiction in the repeated striking of the helpless disabled veteran the lies to the police officers and the perjury he committed at trial regarding Daniel A. Bernath.
33. The US Attorney then charged Bernath with interfering with the operations of a federal employee and blocking an elevator charging Bernath with two counts of disorderly conduct based on the lies of Dan R. Hyatt.
34. Hyatt continued to lie on the stand at the trial and committed documented perjury approximately 50 times. The Oregon State Bar, the Social Security Administration, the US Attorney and the US Magistrate Judge all refuse to take any action by these documented perjuries as he reminds them “I’m a federal judge!” and routinely claims immunity from the Oregon State Bar’s inquiries in the nearly 1,000 pages of complaints in the Oregon State Bar’s public files regarding Hyatt’s misconduct.
35. Bernath was then convicted of what amounts to “blocking a blocked elevator” while holding two crutches and people standing behind him so Bernath could not move in any direction. Bernath paid a $10 fee and was ordered to and did attend Anger Management Classes (even though Bernath never said a word to Hyatt that day or for approximately two years to a year before he was attacked by Hyatt).
36. Regarding the charge of interfering with a federal employee, Bernath was found to be not guilty.
37. The Social Security Administration began a sanctions action against Bernath stating falsely that he had violated Social Security regulation. The true motive of the agency was to rid itself of a zealous, effective advocate who was also a newspaper reporter and publisher who regularly published righteously critical articles about agency and agency employee misdeeds. The Agency proposed that if Bernath would drop all claims against the agency that it would permit Bernath to slowly withdraw from representing clients before Social Security with said target date to be the beginning of October 2011 (Bernath’s 62nd birthday) or thereafter if necessary to continue a smooth transition to not harm any claimant. Because of the agencies misrepresentations Bernath did agree to retire on or after October 2011 or thereafter.
38. The Agency never intended to honor its agreement that it negotiated in exchange for Bernath to “drop” the claims against tortfeasors listed herein. The agency made misrepresentations to Bernath in that hearing examiner Marilyn Mauer would not permit Bernath or any associate of Bernath to prosecute a Social Security case from the date of the summit and thereafter. The agency further falsely stated that Bernath was in violation of the agreement. Bernath was not afforded a hearing on that issue. Bernath was not permitted a neutral adjudicator as the hearing officer was a Social Security lawyer who represented the interests of the agency. Bernath was not afforded due process of law in that he is 100% disabled, was unable to defend himself and Rosemary Foster, Esq. requested a continuance so that she could study the matter as Bernath was “unable to defend himself” and no lawyer would defend Bernath because of the perception of all lawyers approached that Social Security runs a “Kangaroo Court”, run by a Social Security lawyer who has already decided to rule in favor of the agency and was merely going through the motions but not honoring US Constitutional Rights of Bernath. As such, the so called agreement is void ab initio.
FIRST CLAIM FOR RELIEF
39. Plaintiff Daniel A. Bernath realleges and incorporates herein paragraphs 1-38, above.
40. Defendants and each of them, acting individually and in concert, knowingly and/or recklessly caused extorted Daniel A. Bernath, falsely arrested Bernath, testified falsely against Bernath, punished Bernath by the full and total taking of his ability to practice law for Social Security claimants, among other actions as stated herein and to be uncovered during discovery and trial.
41. Defendants and each of them, acting individually and in concert, knowingly and/or recklessly violated Bernath’s natural Rights as outlined under the United States Constitution in violating Bernath’s Rights under the First Amendment, Fourth Amendment, Fifth Amendment and Eighth Amendment.
42. Defendants’ extortion, unlawful arrest and imprisonment, malicious prosecution, abuse of process, slander, and other acts or omissions as outlined herein has caused Bernath to endure and continue to endure extreme mental anguish and humiliation, embarrassment, damage to his general reputation as a lawyer, physical damage, medical damages, impairment to his earning capacity all to his special and general damage in an amount to be determined at trial.
43. Defendants’ intentional and/or reckless misconduct, as set forth herein, entitled Daniel A. Bernath to punitive damages from said defendants in an amount to be determined at trial.
SECOND
CLAIM FOR RELIEF
NEGLIGENCE BY THE UNITED STATES
44. Plaintiff Daniel A. Bernath realleges and incorporates paragraphs 1-38 as if fully set out herein.
45. The United States is the federal government of the United States.
46. The Social Security Administration is an agency of the United States government tasked with hiring Social Security employees, training said employees, supervising said employees, disciplining said employees, safeguarding visitors to agency premises, and also are under a duty to warn when an employee such as Hyatt is dangerous and will attack invintees and visitors to Social Security premises.
47. The Social Security Administration as stated herein was (1) negligent in hiring Dan R. Hyatt, (2) negligent in supervising Dan R. Hyatt, (3) negligent in retaining Dan R. Hyatt and also negligent in failing to warn invitees of Dan R. Hyatt’s dangerous history although Social Security knew or should have known the facts of his dangerousness because of Hyatt’s history of violently attacking helpless people and because Bernath had repeatedly warned Social Security and the United States that Hyatt was likely to attack Bernath. Defendants are not being held liable under the legal theory of respondeat superior.
48. Defendants knew when Bernath would appear on their premises and knew when Hyatt would also appear on the same premises. Bernath had warned defendants that Hyatt would likely attack him. Therefore it was foreseeable that Hyatt would indeed attack Bernath as he did but defendants took no action to protect Bernath from Hyatt’s battery and false statements which led to Bernath’s false arrest. Defendants knew or had reason to know that the acts of third person Dan R. Hyatt were occurring or about to occur.
49. Defendants had a duty to warn by virtue of defendants’ special relationship to Bernath as Bernath was a business invitee and also because the conduct of Hyatt in the past created the unreasonable risk to plaintiff. Defendant had knowledge of Hyatt’s violent behavior as many complaints by citizens and lawyers had been filed against Hyatt as well as the warnings coming directly from plaintiff predicting that Hyatt would likely attack him. It was also foreseeable that Hyatt would batter Bernath as the agency knew (but Bernath did not) that Hyatt had been sentenced by the Pension and Merit Board to five to thirty days suspension without pay because of a complaint that Bernath had filed. The attack took place between the time Hyatt was sentenced and the time Hyatt served his sentence. Defendants did not warn Bernath that Hyatt had been sentenced so Bernath was oblivious to Hyatt’s foreseeable attack while the defendants knew or should have known that Hyatt would ambush and then attack Bernath. The government defendants should have reasonably anticipated that one of its employees would commit intentional torts against plaintiff. The defendants were not powerless to prevent the attack on Bernath as they had notice that Hyatt had been sentenced, had Notice from Bernath that Hyatt would likely attack him but provided Bernath with no warning that Hyatt had been sentenced for his theft and lying to investigators and did not provide any protection for Bernath.
WHEREFORE, plaintiff prays for relief as follows:
For all claims for damages, for special and general damages, together with punitive damages in amounts to be determined at trial from defendants Dan R. Hyatt, Six Unidentified Federal Agents, Unidentified Police Force hired by United States, and John Does 1-X arising from the extortion, false arrest, false imprisonment, abuse of process, malicious prosecution, slander and all other acts as alleged and to be proved at trial all of which has caused him personal injury, extreme mental anguish and humiliation, embarrassment, damage to his general reputation, damage to his reputation as a lawyer, impairment of his earning capacity and barring Bernath from practicing his profession and/or a complete prohibition of the right to engage in a calling.
Plaintiff also seeks his costs and disbursements necessarily incurred herein, including attorney fees if the Court determines attorney fees are appropriate.
Date: May 15, 2011
_________________________________________
Daniel A. Bernath
Plaintiff
in propria persona