NOW INTO COURT, comes plaintiff, Barbara Ann Jackson, who opposes the dismissal motion filed by United States of America, substituted for defendant A. J. McNamara for the following reasons:

Due to the prima facie fact that Federal Court Judge A.J.McNamara unlawfully presided over a State Court Conversion lawsuit, that was filed in Orleans Parish Civil District Court, case Number 2005-11458 by this plaintiff and her daughter on August 24, 2005, in clear absence of all jurisdiction, Judge McNamara is not immune from liability. Substitution of the United States of America as defendant in place of defendant McNamara cannot circumvent his liability for acts which deprived this plaintiff of Constitutional and Statutory Rights. Please see FDIC v. Meyer, 510 U.S. 471, 475-86 (1994). Jackson originally filed the above-entitled action against Judge McNamara on July 7, 2006; and she filed an amended complaint on August 9, 2006.

The United States has erroneously been granted its requests to be substituted as defendant in place of Judge McNamara based on the United States’ misconstruction as claims against defendant McNamara being solely state torts, and thereby FTCA claims. To the contrary, Jackson’s charges and claims against Judge McNamara, which are reverberate in her original and amended complaints overwhelmingly aver Jackson’s claims against Judge McNamara are paramountly Constitutional deprivations.

FTCA does not at all govern plaintiff Barbara Jackson’s claims against Judge A. J. McNamara. Plaintiff’s glaring Constitutional allegations prove there is no basis to dismiss the action. Further, in light of the fact of defendant McNamara’s lack of jurisdiction over the August 24, 2005 case, a scope of employment certification is of little significant, and Judge A. J. McNamara must be substituted back as a defendant.

Also, explained in FDIC v. Meyer, 510 U.S. 471, 475-86 (1994), FTCA does not preclude a plaintiff from bringing a federal constitutional tort claim against a federal agent in its own name. The Court held the FSLIC’s “sue-and-be-sued” clause waived its sovereign immunity for constitutional tort claims. In like manner as Meyer case whereby there was ability to “sue and be sued,” a Constitutional action was brought by judges of this New Orleans Eastern District Court against the United States. Specifically, see that lawsuit entitled: Duplantier, et al., v. United States of America, 606 F.2d 654 (5th Circuit. E.D. 1979). Thus, this district is aware of entitlements of bring Constitutional actions.

Jackson’s pleadings and exhibits that have filed with regard to defendant McNamara manifestly show that he Unconstitutionally used his judicial position unlawfully to deprive Jackson of rights secured by the United States Constitution; as well as conspired with co-defendants to defraud Jackson of those Rights. The improper substitution of the United States and its mischaracterization of Jackson’s claims against Judge McNamara as being solely tort claims under FTCA, unlawfully serve to deprive Jackson of her Fifth Amendment due process rights. However, not even FTCA claims can thwart constitutional and statutory claims against a federal employee especially when the employee judge acted without any jurisdiction. Further, a Bivens action against an agency would be barred, but there is no bar against a federal agent employee for constitutional deprivations.

In suits for damages, government officials are not entitled to immunity when they violate a clearly established statutory or constitutional right of which a reasonable public official would have known. Please see Harlow v. Fitzgerald, 457 U.S. 800 (1982).

Also, certification regarding a person’s action within or without the scope of his employment is not conclusively left up to the Attorney General except where it concerns removing the case against Judge McNamara to federal court –not the lawsuit Judge McNamara had no jurisdiction over. Specifically, pursuant to 28 U.S.C. § 2679(d)(3) in the event the Attorney General refuses to certify scope of office or employment, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Once the Attorney General has issued a scope of employment certification, the United States’s sometimes temporary appearance as the defendant suffices, even if the district court later rejects the Attorney General’s certification and resubstitutes as defendant the federal employee first sued in state court.

Therefore, as explained in Mine Workers v. Gibbs, 383 U.S. 715, (1966), a JUDICIAL DETERMINATION settles whether the United States was the proper defendant. But even more obvious is the reality that even if an employee is on the clock, it does not automatically guarantee that employee is doing what the job requires. Furthermore, acting in the scope of one’s federal employment does not automatically shield that employee from liability from constitutional wrongs.

Emphatically, substitution or not, defendant McNamara is liable for his acts of constitutional deprivations in absence of any jurisdiction whatsoever; and the facts and the exhibits provided in the plaintiffs pleadings overwhelmingly substantiates this.

Further, this plaintiff’s multiple proof in the record contradicts defendant McNamara was acting in the scope of his employment by virtue of his absence of jurisdiction over the August 24, 2005 case. Thus, this plaintiff herewith again contends that because Judge McNamara had no jurisdiction to preside over any facet whatsoever of the August 24, 2005 case, he was not acting within the scope of his employment. However, whether or not the court agrees as to the scope of employment, the law is clear that because defendant McNamara subjected plaintiff to Constitutional and statutory deprivations, defendant McNamara cannot avoid liability.

As elucidated in Stump v. Sparkman, 435 U.S. 349, 359, 98 S. Ct. 1099 [1106], 55 L. Ed. 2d 331 (1978), a judge’s immunity exists if acts exceeded the judge’s authority, but when a judge takes actions in which he never had LAWFULLY authority in the first place, excess of authority is not the problem but instead, actions in clear absence of all jurisdiction

Also, Jackson’s filing this lawsuit naming Judge McNamara in State Court has little to do with whether under the well-pled complaint doctrine, Jackson’s allegations states that her Constitutional rights had been violated. On the other hand, as Jackson repeated stated her pleadings, as well as in open court after McNamara unlawfully ordered Jackson to his federal court, Jackson had good cause to fear for her well-being; she would not have come near defendant McNamara’s territory.

State law, as well as federal law precluded federal judge McNamara from presiding over the purely state law Conversion lawsuit. The Conversion suit was dormant in State court for 7 months after Clerk of Court Dale Atkins selected state judge Lloyd Medley for the required delay while preparations were being made to fraudulently, unlawfully remove the Conversion case to federal Judge McNamara based on no federal subject matter grounds.