Nature of Action
1. This action is brought
pursuant to (a) Bivens v. Six Unknown Agents, 403 U.S. 388, 390-97 (1971) (Bivens), for (i) violations and threatened
violations of the plaintiff’s rights to Due Process under the Fifth Amendment to the United States Constitution; and
(ii) violations and threatened violations of the plaintiff’s rights pursuant to the Administrative Procedure Act, 5
U.S.C. § 551 et seq. (“APA”); and (iii) in furtherance of plaintiff’s rights to seek administrative review,
including that of injunctive relief and/or a delay in conducting further challenged administrative agency action as per 5
U.S.C. § 701 et seq.
2. Plaintiff has submitted
a Request for Correction (RFC) under and pursuant to the Data Quality Act (DQA), per Section 515 of Public Law 106-554, which said RFC has been pending within
that certain department of the United States Department of Commerce known as the National Institute for Standards and Technology
(NIST), from on or about February 28, 2007 through and including the present a period of time that exceeds sixty (60) days.
3. Per the published Rules and Regulations
found at http://www.nist.gov/director/quality_standards.htm, plaintiff should
have been informed as follows:
“3. The division Chief will communicate his/her
initial decision or the status of the request through the NIST OU Deputy Director to the Chief, NIST Management and Organization
Division, who will communicate the initial decision to the requester, usually with 60 calendar days of NIST’s receipt
of the request.
4. The initial decision or status update will contain the name and title of the Division Chief and a notice that the
requester may appeal an initial denial to the NIST Deputy Director (with the name, title, and address of that official), pursuant
to paragraph III.D.1. below, within 30 calendar days of the date of the initial denial." (Excerpted from National Institute
of Standards and Technology Guidelines, Information Quality Standards, and Administrative Mechanism)
As of the date hereof NIST is in breach of the quoted regulation in that plaintiff has not been informed
of the status of his said pending RFC.
In the interim, however, NIST has published information indicating it is working on finalizing a report on what caused
the 6.6 second collapse of World Trade Center building number 7 (WTC7), which building was seen in video to have been destroyed,
from tippity top to utter bottom, via live video taped television programming, in the said 6.6 second time interval occurring
at approximately 5:20 PM on September 11, 2001. As of that date and time, WTC7
joined the 110-story World Trade Center Twin Towers, that had been known as World Trade Center building 1 (WTC1) and World
Trade Center building 2 (WTC2), respectively, for address purposes, as the only three steel-reinforced skyscrapers ever to
have self-destructed, from top to bottom, in a matter of mere seconds; except, that is, such structures as had been
intentionally demolished by way of controlled demolition procedures and/or destruction resulting from warfare or military
means. Moreover, even as to such structures, the previous world’s record
height for even the controlled demolition of a building was only 439 feet, the height of the 25-story J. L. Hudson
department store building in Detroit, MI. See:
“According to the Guinness Book of World Records, the tallest building
demolished by explosives was the former J. L. Hudson Department Store in Detroit, MI.
It stood at 439 feet when it was imploded on October 24, 1998.”
Note, too, that controlled demolitions are not foregone conclusions
and they are not easy to accomplish. The higher the building is, the more likely
it is that something will go awry. With respect to the J. L. Hudson building,
we are told:
“Complicating the implosion, engineered by Controlled Demolition Inc. (CDI) of
Phoenix, MD, was the fact that construction of the building occurred in 12 stages between 1911-46 and no structural drawings
of the building existed.
But the record-setting implosion went off without a hitch. The roughly 2,728 lbs. of explosives placed inside the building reduced it to piles of debris in a matter
Thus the implications here are clear: On 9/11/01 not one, not two, but three, modern, steel-reinforced skyscrapers fell into their own foot-prints
in nearly perfect, controlled demolition-like fashion. Each one far exceeded
the previous world-record heights for a controlled demolition…
The focus herein is WTC7.
The observed demolition of that building demonstrated a near text-book quality demolition as per what the naked eye
could see. Yet, after all this time, NIST has neither issued a report nor even
responded to plaintiff’s RFC. The elements of deprivation of right are
clear and apparent, justifying the injunctive relief here sought.
For the record, WTC7 stood 570 feet in height and was 47 stories. It was, then, significantly taller, with nearly double the number of floors in comparison
It was not until in or about the month of September, 2005, that NIST issued a final report on what it alleged caused
the “initiation” of what it called the “collapse” of WTC1,2.
NIST’s said report is commonly known as and referred to as NCSTAR 1 and can be accessed at: http://wtc.nist.gov/reports_october05.htm.
To this day, NIST has not yet issued any report on what caused the 6.6 second destruction of WTC7, but has issued certain
interim public statements confirming that it is in the process of working on issuing a report on what caused the destruction
In or about the month of October, 2006, approximately (6) months ago, NIST, for the first time, issued a publicized
report that it is to consider “hypothetical blast events” as a possible causal factor in the destruction of WTC7. Said publicly disseminated information can be found at http://wtc.nist.gov/media/WTC7_Approach_Summary12Dec06.pdf
8. The summary found at the link listed above in paragraph
7. states at pg. 11 thereof a materially false statement to wit: “While
NIST has found no evidence of a blast or controlled demolition event, NIST will estimate the magnitude of hypothetical blast
scenarios…”. That statement is materially false because it stands
in clear, palpable, direct and blatant contradiction of the statement acknowledging and admitting that WTC7 was felled by
controlled demolition which statement was made by Larry Silverstein, a principal of defendant Silverstein Properties, in a
publicly disseminated video statement airing on the US Public Broadcasting System, in which Larry Silverstein stated, and
we quote him verbatim:
“I remember getting a call
from the er, fire department commander, telling me that they were not sure they were gonna be able to contain the fire, and
I said, ‘We’ve had such terrible loss of life, maybe the smartest thing to do is pull it.’ And they made that decision to pull and we watched the building collapse.”
Silverstein Properties is or was a consultant for NIST under and pursuant to the preparation of NCSTAR 1, it is utterly incongruent,
inconsistent and incomplete for NIST to declare it has no evidence of controlled demolition when, in fact, it has actively
consulted with a party who has admitted just that. In addition, said admission,
and NIST’s misleading and fraudulent declaration that it has no evidence of controlled demolition, confirms the existence
of a clear and palpable conflict of interest mandating the injunction here sought.
Plaintiff’s RFC goes to the essence of the defendant, NIST’s improper lack of treatment of the issue of
controlled demolition with respect to WTC7.
Based on the amount of time that has already elapsed since the 6.6 second top to bottom destruction of WTC7 on the
afternoon of September 11, 2001, it is acknowledged that it is in the public interest to have a report on that event issued. However, the same could be said for anytime after, roughly, 90 days from the event
itself in that one can safely assert that 90 days should have been a reasonable time to issue an official report on an event
that is both as important and as anomalous as is the complete and utter destruction of a skyscraper in a matter of seconds
where such skyscraper had not been hit by either an acknowledged bomb or by an apparent jetliner or by anything else. Yet it fell right straight down, looking for all the world to see, like a controlled
demolition. It should not take any competent group of investigators six (6) years
to determine the destruction of WTC7 was a controlled demolition. Yet, despite
the interest and the urgency in needing to know how on earth such an event could have happened, promptly, we are now nearly
six (6) years’ time from the event and it is only with the last one-hundred-twenty (120) days, or so, that NIST has
even acknowledged it might need to look into “hypothetical blast events”.
Based upon the confirmed and verifiable facts here asserted, a delay in the further processing, by NIST, of analytical
work pending resolution of plaintiff’s RFC is plainly meritorious and just. Plaintiff’s
RFC alleges the existence of conflicts of interest and other elements found that may be dispositive of a) why it has taken
so long; b) why the obvious evidence of controlled demolition has been: i) hidden; ii) ignored; and iii) downplayed.
Annexed hereto as Exhibit A is a copy of plaintiff’s RFC, appended to a request for negotiations addressed to
NIST’s Deputy Chief Counsel for Technology, Attorney Melissa Lieberman, that sought negotiations for forbearance of
further work done on analyzing what caused the 6.6 second destruction of WTC7 pending outcome of plaintiff’s RFC.
To date, there has been neither acknowledgment nor reply from NIST via either defendant, Catherine Fletcher, Deputy
Chief Counsel Lieberman, nor anyone else in apparent authority at NIST.
In any event, and as indicated, Deputy Chief Counsel Lieberman has not responded to the request for negotiations heretofore
submitted with respect to forbearance on further assessment by NIST of what caused the near instantaneous destruction of WTC7.
Based upon all of the foregoing, plaintiff herein asserts that:
15. The Fifth Amendment’s
Due Process clause requires notice and the opportunity to be heard before NIST can continue to proceed on its investigation
of what caused the near-instantaneous destruction of WTC7.
16. NIST’s lack of response
is in violation of the APA’s procedural requirements, and is arbitrary, capricious, and unreasonable in the circumstances
here presented and is an abuse of discretion and otherwise not in accordance with law.
17. In the DQA, Congress established
a federal scheme that
regulates the requirements and standards that information promulgated by agencies of the government of
the United States, “Federal Agencies” must adhere to in order to assure that such information comports with quality
standards. When such information is deemed as “influential information”
the requirements for meeting quality standards are higher than they otherwise would be.
It is here asserted that the information that is to result from the analysis of what caused the near-instantaneous
destruction of WTC7 will be deemed, under the DQA, to be “influential information.” Thus, plaintiff’s RFC that alleges certain well-documented particulars as to how and why the information
thus far released with respect to the investigation of WTC is internally inconsistent and fraught with obvious indicators
of unlawful conflict of interest, all as more fully elaborated in Exhibit A, clearly mandates the relief to be requested herein.
18. The claims in this complaint
are cognizable under Bivens and the APA.
19. Plaintiff, Edward F. Haas,
[“EFHaas”] is a United States citizen and a resident of the State of South Carolina.
20. Defendant Carlos M. Gutierrez
is the Secretary of Commerce of the United States. He is sued here in his individual and official capacity for the purpose
of obtaining declaratory and injunctive relief.
21. Defendant William A. Jeffrey
is the Director of the National Institute of Standards and Technology (as aforesaid, “NIST”). In that role, he
is responsible for exercising the authority delegated by the Secretary of Commerce to enforce the DQA. He is sued here in
his individual and official capacity for the purpose of obtaining declaratory and injunctive relief.
22. Defendant Dr. Shyam Sunder
is the Lead Investigator of the team designated to and charged with determining what caused the near-instantaneous destruction
of WTC7. As such, he is charged with conducting, and is authorized to direct
the processes and procedures for and on behalf of NIST is furtherance of the WTC7 investigation. He is sued here in his individual
and official capacity for the purpose of obtaining declaratory and injunctive relief.
23. Defendant Dr. Theresa
McAllister is employed by NIST as a Research Structural Engineer and who
is known to have responsibilities directly related to performance of work and tasks in furtherance of NIST’s attempt
to determine what caused the near-instantaneous destruction of WTC7, such as the first-time announcement made in or about
the month of October 2006, that NIST would then investigate the possibility of “hypothetical blast events” as
being causal of the near-instantaneous destruction of WTC7. Accordingly, Dr. McAllister appears to have significant responsibility
for overseeing the work done in furtherance of the WTC7 investigation. She is
sued here in her individual and official capacity for the purpose of obtaining declaratory and injunctive relief.
24. Defendant Catherine Fletcher
is the Chief, Management and Organization Division of NIST charged with the acknowledgment of RFCs to the sender of said RFCs. She is sued here in her individual and official capacity for the purpose of obtaining
declaratory and injunctive relief.
25. Defendant Applied Research Associates Inc. (ARA) is an “employee owned” corporation having its
principal office and place of business at 4300 San Mateo Blvd. NE • Suite
A-220 • Albuquerque, NM 87110 that currently operates ARA 73 offices in the United States and in Canada,
some of which have classified computing and storage and military applications abbreviated as:
- SEI CMMI
- SCIF facilities
ARA also has:
located in various states, including, without limitation, the States of Vermont, Florida, Colorado and Texas. ARA, upon information and belief, manufactures or causes to be manufactured, develops
and/or tests DEW that are operational in Earth orbit, at high altitude, low altitude, at sea and on land ranging in lethality
from the capacity to do great damage, such as that of destroying the World Trade Center Twin Towers in less than 10 seconds
each, as occurred on 9/11/01, down to and including imposition of a disabling stun on human beings for crowd control and/or
other psy ops purposes.
26. Defendant Science Applications International Corporation
(SAIC) is a publicly traded company which has its principle office at SAIC Headquarters, 10260 Campus Point Drive, San Diego,
CA 92121. It has offices in 150 cities worldwide.
It describes itself as “one of the largest science and technology contractors to the U.S. Government” and
provides services and products for “all branches of the U.S. military, agencies of the U.S. Department of Defense (DoD),
the intelligence community, the U.S. Department of Homeland Security (DHS) and other U.S. Government civil agencies”. In January 2005, SAIC was awarded an Air Force Research Laboratory Contract for High
Power Microwave Program (http://www.saic.com/news/2005/jan/03.html). In 2005, SAIC also ran chemical oxygen iodine laser (COIL) at
a branch of the Air Force Research Laboratory in Albuquerque, NM. (http://www.saic.com/news/saicmag/2005-fall/directedenergy.html). SAIC also engages in psy ops of the type that are intended to
mislead the publics of targeted countries in furtherance, it would appear, of the Hobbesian principal that “in warre
force and fraud are the cardinale virtues.” Be that as it may be from a
philosophical perspective, embodying, as it does, the more commonly expressed notion that “might makes right”,
the DQA, by its terms, prohibits the use of fraud in the preparation of governmental documents and the provision of governmental
services. SAIC engaged in fraud, then, in the wrong place and in the wrong context. Between ARA and SAIC, some twenty-five (25) persons were assigned to work on, by literally
surrounding and, accordingly, controlling and manipulating, NIST officials such that fraud, the intended outcome, did, in
fact, occur and will continue to occur unless enjoined from doing so. It is telling
that the two contractors who were most numerous among NIST’s contractors were those whose primary expertise is in weapon
development and PSY OPS respectively. Small wonder, then, that NIST has found
no evidence of controlled demolition, irrespective of an admission to that effect having been publicly made by a principal
owner of the WTC complex.
27. Defendant Silverstein Properties has an office or place of business at 250 Greenwich Street,
38th Floor New York City, NY 10007 and holds a leasehold interest in and to the WTC site.
As such, this defendant had a clear conflict of interest in steering the investigation away from any hint, suggestion,
much less conclusion that controlled demolition was a causal factor in the destruction of WTC7. Indeed, one anomaly that should be a hint that something is amiss is that all buildings having an address
prefix of “World Trade Center,” namely buildings 1 through and including 7, were all completely and utterly destroyed
on 9/11/01. Yet, for as horrific as that destruction was, virtually all other
buildings in the area, some having a spatial relationship that was as close or nearly so as the WTC buildings were, one to
the other, were not damaged very much at all, relatively speaking. Upon
information and belief, Silverstein Properties benefited from an insurance claim relating to the events of 9/11/01. Upon information and belief, at least two of the insurers found to have been liable under their policies
of insurance or of reinsurance with respect to this defendant, have, nonetheless, questioned the validity of the claim, based,
in part, on the admission made by Larry Silverstein that WTC7 was intentionally demolished, or words to that effect as quoted
above in paragraph 8; and, further based on the as yet inadequate explanation of what did, in fact, cause the destruction
of the World Trade Center complex,. In that and in other ways, defendant chose to use its expertise to commit fraud based on either withholding
information or manipulating information and by then accepting payment improperly. Most
assuredly, this defendant has a clear, palpable conflict of interest that would motivate it to manipulate and avoid any consideration
that controlled demolition might have been a causal factor in the destruction of WTC7.
28. Defendants John Does I
- V are employed by NIST as contractors to prepare for and carry out the work being done and to be done in furtherance of
NIST’s ongoing investigation of the destruction of WTC7. Plaintiff does
not know, and the defendants have not revealed, their identities.
29. The defendants are acting,
and each of them at all times relevant hereto were acting, in their respective official capacities with respect to all acts
described herein, and were in each instance acting under the color and authority of federal law. Upon information and belief,
unless preliminarily and permanently enjoined, the defendants, and each of them, intend to act in their
respective official capacities and under the authority of federal law in carrying out the ongoing investigation
of the destruction of WTC7, in violation of the plaintiff’s constitutional and statutory rights.
Jurisdiction and Venue
30. This Court has jurisdiction
over this matter pursuant to 28 U.S.C. § 1331, in that it arises under the Constitution and laws of the United States; Bivens,
403 U.S. at 390-97, in that it seeks to secure prospective, equitable relief directly under the Constitution, specifically
the Fifth Amendment; under 28 U.S.C. § 2201(a), in that one purpose of this action is to secure declaratory relief; and under
28 U.S.C. § 2202, in that one purpose of this action is to secure preliminary and permanent injunctive relief. Judicial review
of the agency action at issue is authorized by the APA, 5 U.S.C. §§ 702, 704 and 706.
31. This Court has venue under
28 U.S.C. § 1391(b)(2), in that a substantial part of the events giving rise to the claims made herein – i.e., the location
of the building destroyed on September 11, 2001, namely, WTC7, took place in this District. Alternatively, this Court has
venue under 28 U.S.C. § 1391(b)(3) because defendants maintain an office in New York City.
32. The plaintiff incorporates
by reference all facts and allegations contained in paragraphs 1 through 31.
33. The plaintiff filed an
RFC under the DQA on or about February 28, 2007. To date, there has been no reply
or other acknowledgment by defendants or anyone acting on their behalf of receipt of plaintiff’s said RFC.
34. The defendants likewise
rejected, by non-responsiveness, plaintiff’s request for negotiations for forbearance that plaintiff had submitted on
or about March 2, 2007, as per Exhibit B.
35. On information and belief,
the defendants and/or their agents may wish to continue disregarding plaintiff’s RFC with the intent to issue a report
on the destruction of WTC7 based on continued adherence to the flawed premises and with the existing conflicts of interest,
irrespective of plaintiff having now called attention to them, all as more fully articulated in Exhibit A hereof.
Exhaustion of Remedies
36. Plaintiff EFHaas has exhausted
his administrative remedies, having filed an RFC with NIST, in compliance with the DQA, challenging certain specific aspects
of disseminated information and having made specific requests for relief that are presently pending, but which, even if favorably
acted upon, would be rendered moot, absent a temporary order that would permit a determination of rights and of responsibilities
in the present and before any further harm can be done; in other words, for prospective injunctive relief.
First Claim: Violation of Administrative Procedure Act –
Ultra Vires Agency Action
37. Plaintiff incorporates
by reference the allegations of paragraphs 1 through 36.
38. Under § 706(2)(c) of the
Administrative Procedure Act, a reviewing court must set aside any agency action that is “in excess of statutory jurisdiction,
authority, or limitations . . .” 5 U.S.C. § 706(2)(c).
39. The regulations promulgated
by the defendants to implement the DQA would be rendered moot in the absence of an agreed upon format for forbearance pending
the completion of the RFC process presently pending before NIST. Indeed, in the
absence of such procedure for obtaining forbearance, it is clear that the DQA procedures currently followed by NIST are, were
promulgated without any “statutory jurisdiction, authority, or limitations,” and must therefore be set aside.
5 U.S.C. § 706(2)(c).
Second Claim: Violation of Administrative Procedure Act –
Agency Action That Is Arbitrary, Capricious, An Abuse Of
Discretion And Otherwise Not In Accordance With Law
In Promulgating DQA Regulations.
40. Plaintiff incorporates by reference the allegations of paragraphs 1 through 39.
41. The APA imposes upon the
defendants a number of nondiscretionary duties regarding rulemaking procedures. 5 U.S.C. § 553. The APA requires a federal
agency to provide adequate notice to the public regarding the nature, scope and effects of any proposed or final agency action.
The APA also requires that the federal agency provide the public with a full and
fair opportunity to comment regarding any proposed agency action.
Based upon the filing of his RFC on February 28, 2007, it is clear that even though he has done so, the absence of
an agreement for forebearance by NIST pending the outcome of that RFC would render his having filed it moot. The defendants
have failed to respond adequately – or at all – to plaintiff’s request to be heard on the issue of forbearance.
42. The APA also requires
a federal agency to fully articulate its basis and reasons regarding any final agency action. The defendants have failed to
explain adequately the basis and reason(s) for not responding to plaintiff’s request for negotiations concerning procedures
pending the determination of plaintiff’s RFC.
43. The defendants’
failure to comply with the APA’s procedural requirements was arbitrary, capricious, an abuse of discretion or otherwise
not in accordance with law. Therefore, in refusing to either negotiate with plaintiff concerning forbearance during the pendency
of plaintiff’s RFC, the defendants violated the APA, and their actions must be set aside.
Third Claim: Violation of Administrative Procedure Act –
Arbitrary And Capricious Failure To Abide
By The Standards
44. Plaintiff incorporates
by reference the allegations of paragraphs 1 through 43.
45. Now that plaintiff has
filed an RFC, it should not be rendered ineffectual before it can even be determined.
46. Regulations promulgated
by NIST and/or the defendant U.S. Department of Commerce simply do not permit for a meaningful consideration of RFC’s
in the absence of any procedure allowing for either mandatory or permissible forbearance from action pending the outcome of
submitted RFCs. Moreover, on information and belief, the defendants have arbitrarily
and capriciously failed to exercise their authority to enforce the DQA, by not responding within sixty (60) days, either with
respect to the DQA request and the investigation into what caused the destruction of WTC7.
Such arbitrary and capricious action violates the APA.
Prayer for Relief
47. An order to prevent the defendants from violating the plaintiffs’ rights under
the Fifth Amendment to the United States Constitution and the Administrative Procedure Act, the plaintiff requests that this
Court grant preliminary and permanent injunctive relief barring the defendants from engaging in either all or some specifically
designated portions of work on determining the causes of the near-instantaneous destruction of WTC7, until the outcome of
plaintiff’s presently pending RFC is known.
48. The plaintiff is entitled
to a preliminary injunction barring the defendants from engaging in certain additional work on determining the causes of destruction
of WTC7 because:
(a) there is a significant likelihood that the plaintiff will prevail on the merits;
(b) the plaintiff will suffer irreparable harm if his RFC is allowed to languish while ongoing
work on determining the causes of the destruction continue despite his having raised the serious concerns that he has raised
that show how and in what manner that investigation is imperiled;
(c) there is a compelling public interest in ensuring that persons charged with engaging
in work for and on behalf of the public not be allowed to steer investigations in a manner so as to produce a false, fraudulent
and/or misleading outcome, as will almost certainly happen unless this Court requires that defendants cease and desist from
certain designated activities in furtherance of the ongoing WTC7 investigation pending the outcome of plaintiff’s presently
49. Plaintiff further request
that this Court grant declaratory relief by issuing an Order declaring that the defendants’ current means, methods,
practices, procedures, and customs regarding procedures under the DQA violate the Fifth Amendment to the United States Constitution,
Administrative Procedure Act.
50. Plaintiff requests that
this Court grant reasonable attorney fees pursuant to 42 U.S.C. § 1988 and the laws of the United States.
51. Plaintiff requests that
the Court grant such further relief as it deems just and proper.
V. Leaphart JL4468
JERRY V. LEAPHART &
8 West Street, Suite 203
Danbury, CT 06810
(203) 825-6265 - phone
(203) 825-6256 - fax
Dated: Danbury, CT