PLAINTIFF’S VERIFIED COMPLAINT AND CLAIM FOR TRIAL BY JURY
INTRODUCTION
1. This
case concerns the refusal of employees of the
Executive Branch of the United States of America to
enforce Public Law 98—473, Title II, Chapter II, Section
235(b) (3), as enacted on October 12, 1984, which specifically
mandated the United States Parole Commission to establish
release dates for Plaintiffs within the parole
guidelines respectively applicable
to them within five years of the effective date
thereof. The retroactive application of Public Law
100-182, Section 2, to the Plaintiffs by Defendants
of Public Law 100-182, contrary to the plain language of Public Law
100-182, Section 26, which mandated application
only to offenses committed after December 7, 1987, violates the
prohibitions of Article I, Section 2 (Ex Post Facto
Clause), Article I, Section 2 (Bill of Attainder
Clause), and Article V (Due Process Clause) of the Constitution of the
United States.
2. Plaintiff Leonard Peltier is a citizen and a person residing in
the United States Penitentiary in Leavenworth, Kansas and is a prisoner
held therein by and through the custody and commitment of the Attorney
General for the United States, the United States Parole Commission through
the National Commissioners thereof, and through the Director
of the United States BOP.
3. Plaintiff Yorie Von Kahl is a citizen and a person residing in
the United States Penitentiary in Leavenworth, Kansas and is a prisoner
held therein by and through the custody and commitment of the Attorney
General for the United States, the United States Parole Commission through
the National Commissioners thereof, and through the Director
of the United States BOP.
4. Defendant United States Parole Commission (“Commission”) is an
agency of the United States located in the State of
Maryland.
5. Defendant The Office of the Attorney General (“AG”) for the
United States of America is located
in the District of Columbia.
6. Defendant The United States Bureau of Prisons (“BOP”) is an
agency of the United States located in the State of
Maryland.
7. Defendants include the particular Chairman and each particular
National Commissioner of the United States Parole Commission specially
named herein, and in respect to each act or acts, or
failure to act, alleged herein, whether individually or collectively
on behalf of the Commission, was or presently is acting or failing to act
under color of his or her respective office in or
from the State of
Maryland.
8. Defendants include the particular Attorney General for the
United States of America specially named herein, and
in respect to each act or acts, or failure to act,
alleged herein, on behalf of the Office of the Attorney General for the
United States of America, was or presently is acting
or failing to act under color of his or her office in or from the District
of Columbia.
9. Defendants include the particular Director
of the United States BOP specially named herein, and in respect
to each act or acts, or failure to act, alleged herein, was or presently
is acting or failing to act under color of his or her office in or from
the State of
Maryland or from the BOP’s central office in
Washington, D.C.
JURISDICTION
10. Each respective Count hereafter arises
under an express provision of the Constitution of the United States or an
express law properly enacted by Congress or both. This Court, therefore,
is endowed both by the Constitution expressly and implicitly and by
Congress expressly with full judicial power and jurisdiction to hear and
decide the matters alleged. See Article III, Section
2, Constitution (constitutional grant of judicial power over all “Cases...
arising under this Constitution”); Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics 403 US 388 (1971) (implicit grant of
jurisdiction to ensure remedy against 4th Amendment violations); United
States v. Lee 106 US 196 (1882) (same to ensure remedy against 5th
Amendment violations); 28. U.S.C. § 1331 (express congressional grant of
jurisdiction over all civil actions arising under the Constitution, laws,
or treaties of the United States). Jurisdiction also arises directly
under the ex post fact and bill of attainder clauses of the United States
Constitution.
GENERAL STATEMENT OF FACTS
11. On June 1, 1977, Plaintiff Leonard Peltier was sentenced to
consecutive life sentences for the alleged killing of two FBI agents on
June 26, 1975.
12. On June 24, 1983, Plaintiff Yorie Von Kahl was sentenced to life
plus fifteen years for the alleged killing of two United States
Marshals on February 13, 1983.
13. In 1984, Congress enacted Public Law 98—473, Title II, Chapter
II, Section 235(b) (3).
14. This enactment made substantial changes by stripping the
Commission of any discretion and by establishing a method of determinate
sentencing.
15. Section 235(b) (3): (1) became
effective October 12, 1984, (2) provided a
mechanism by which prisoners sentenced “under the old system” would be
issued a
release date within a five-year period from the effective
date, and (3) mandated that “the Parole Commission shall set a
release date consistent with the applicable
parole guideline” for those remaining in its custody “prior to the
expiration of the five years,” early enough to exhaust expected
appeals. Pub. L. 98—473, Title II, Section 235(b) (3)
16. Congress retained the Commission for five years following the
effective date of the Act solely “to set
release dates for prisoners sentenced before that
date” emphasizing that by “the end of that period, the Parole Commission
would set final
release dates for all prisoners still in its
jurisdiction.” Senate Report No. 98-225, 98th Congress, First Session,
September 12, p. 56 n.82.
17. Congress also expressly repealed Title 18, United States Code,
Branches 309 and 311 in the same act on the same date, October 12, 1984,
at Section 218(a).
18. On December 7, 1987, Congress amended Section
235(b) (3) to repeal the mandatory
release criteria and to restore the discretionary
parole system (hereafter “Public Law 100—182”).
19. This amendment substantially changed existing law, and Congress,
therefore, expressly mandated that Public Law 100—182, Section
2, only applied to crimes committed after its effective
date. See Public Law 100-182, Section 26.
20. The amended Section 235(b)(3) (Public Law
100—182, Section 2) became effective
three years and 36 days into the effective period of
the original Section 235 (b) (3).
21. The five—year period ended on October 11, 1989, and the
Commission and all the parole laws listed in §§ 218(a) and 235(b) (1) were
abolished and repealed on October 12, 1989.
22. On December 1, 1990. well after the Commission and all the
parole laws listed in §§ 218(a) and 235(b)(3) were abolished and repealed,
Congress enacted an intended five-year continuation of the Commission and
the parole statutes by Public Law 101-650, Section
316, 104 Stat. 5115.
23. Public Law 101-650 had no operational effect.
There was no Commission or parole statutes left to continue for five
years, and the amendments passed since that time granting additional
extensions, the latest being Public Law 107-273, Section
11017(a), 116 Stat. 1758, 1824 (2002), had no applicability.
24. Contrary to Congress’ express command that Public Law 100-182,
§2, applied only retroactively, the Commission has applied, and continues
to apply, the December 7, 1987 amendment to Plaintiffs herein.
25. Under the guidelines in effect, Plaintiff
Leonard Peltier should have been given a certain
release date by October 11, 1989 within sufficient
time to exhaust appeals. Instead, the Commission violated Section
235(b) (3) and refused to issue the mandatory
release date.
26. Under the guidelines in effect, Plaintiff
Yorie Von Kahl should have been given a certain
release date by October 11, 1989 within sufficient
time to exhaust appeals. Instead, the Commission violated Section
235(b) (3) and refused to issue the mandatory
release date.
COUNT I (Ex Post Facto Against the Commission)
27. Plaintiffs repeat, re-allege, and incorporate paragraphs 1—26 of
this complaint as if set forth herein.
28. Since Section 235(b) (3) took effect
on October 12, 1984, Plaintiffs were thereafter vested with the rights
conferred by the legislation of Section 235(b) (3).
29. The Commission on the other hand was stripped of discretion and
was obligated to set
release dates as required by Section
235(b)(3).
30. The Commission, however, applied Public Law 100—182, Section
2 to offenses committed before its effective date,
including offenses committed by Plaintiffs (all committed before 1984) in
direct contravention of Congress’ expressed intent.
31. The Commission’s retroactive application of
Public Law 100-182, Section 2, resulted both in a
longer period of incarceration and a state of extreme
uncertainty and anxiety for the Plaintiffs than the original enactment of
Section 235(b) (3) with respect
to each Plaintiff.
32. Plaintiffs rights under the original enactment of Section
235(b) (3) were stripped from them by the application
of the December 1987 amendment.
33. The Commission’s refusal to follow Congress’ mandate about prospective
application only of the amendment violates the Ex
Post Facto Clause of the United States Constitution.
34. As a result of the Commission’s actions, Plaintiffs have been
irreparably damaged.
COUNT II (Ex Post Facto Against Commissioner’s Individually)
35. Plaintiffs repeat, re-allege and incorporate paragraphs 1-34 of
this Complaint as if set forth herein.
36. The Commission’s acts alleged herein are the acts of its
Chairman, Commissioners and subordinate officers and employees.
37.
Cameron M. Batjer was a Commissioner of the
Commission from November 4, 1981 through October 3, 1990 and the acts
complained of are attributable to him for failure to
ensure enforcement of Section 235(b) (3) as enacted
on October 12, 1984.
38. Batjer authorized, acquiesced in the authorization or sanctioned
amendment of Commission regulations, namely, 28 C.F.R. § 2.12(b), 2.14(a)
(2) (ii) and (c), which were altered during Congress’ legislating the
Commission out of existence and which previously had permitted
reconsideration for parole after ten years. The amendment extended the
Commission’s powers to set off and reconsider parole
release after a fifteen year delay, in clear defiance
of Section 235(b)(3)’s mandate to set
release dates within five years minus time to exhaust
expected appeals.
39. Batjer abused the Commission’s powers or permitted such abuse in
a manner contrary to Congress’ intent to abolish parole, the Commission
and to limit the Commission’s acts to the ministerial duty of setting the
legislatively mandated
release dates, which contributed
directly to the failure to set
release dates for Plaintiffs thereby delaying their
actual
release in direct non-compliance
with Section 235(b) (3).
40. Batjer abused the Commission’s powers or permitted such abuse by
authorizing an interpretation of the original Section
235(b) (3) on February 26, 1987, 28 C.F.R. § 2.64, 52 Fed. Reg. 5764,
altering Congress’ command to issue
release dates within the published guidelines to
“within the guidelines found by the Commission to be appropriate”
re-assuming discretion and by re-defining the time period to permit
appeals by limiting them to “administrative appeals”
all of which contributed directly
to the failure to set
release dates for Plaintiffs and to result in their
actual
release in compliance with Section
235 (b) (3).
41. Batjer abused the Commission’s powers or permitted such abuse by
applying Public Law 100-182, Section 2, to Plaintiffs
in defiance of Section 26 of that Act, which mandated
the amendments of the Act “shall apply to offenses committed after”
December 7, 1987, directly resulting in the failure
to issue the mandatory
release dates for Plaintiffs within the five-year
period minus sufficient time to exhaust appeals resulting in delayed
release of Plaintiffs and extreme uncertainty and
anxiety.
42.
Carol Pavilack Getty was a Commissioner of the
Commission from
March 1, 1983 through April 1, 1996 and the acts
complained of are attributable to her for failure to
ensure enforcement of Section 235(b) (3) as enacted
on October 12, 1984.
43. Ms. Getty committed the same wrongs set forth in paragraphs
36-61which are incorporated herein.
44. Vincent J. Fechtel, Jr. was a Commissioner of the Commission
from November 22, 1983 through April 1, 1996 and the acts complained of
are attributable to him for failure to ensure
enforcement of Section 235(b) (3) as enacted on
October 12, 1984.
45. Mr. Fechtel, Jr. committed the same wrongs set forth in
paragraphs 36-61 which are incorporated herein.
46. Jasper R. Clay, Jr. was a Commissioner of the Commission from
October 12, 1984 through October 16, 1996 and the acts complained of are
attributable to him for failure to ensure enforcement
of Section 235(b) (3) as enacted on October 12, 1984.
47. Mr. Clay Jr. committed the same wrongs set forth in paragraphs
36-61 which are incorporated herein.
48. Saundra Brown Armstrong was a Commissioner of the Commission
from July 24, 1986 through January 27, 1989 and the acts complained of are
attributable to her for failure to ensure enforcement
of Section 235(b) (3) as enacted on October 12, 1984.
49. Ms. Armstrong committed the same wrongs set forth in paragraphs
36-61 which are incorporated herein.
50. George Mackenzie
Rast was a Commissioner of the Commission from
October 14, 1986 through June 30, 1990 and the acts complained of are attributable
to him for failure to ensure enforcement of Section
235(b) (3) as enacted on October 12, 1984.
51. Mr.
Rast committed the same wrongs set forth in
paragraphs 36-61 which are incorporated herein.
52. John R. Simpson was a Commissioner of the Commission since April
20, 1992 and the acts complained of are attributable
to him for failure to ensure enforcement of Section
234(b) (3) as enacted on October 12, 1984.
53. Mr. Simpson committed the same wrongs set forth in paragraphs
36-61 which are incorporated herein.
54. Edward F. Reilly, Jr. is Chairman of the Commission and was a
Commissioner of the Commission since August 12, 1992 and the acts
complained of are attributable to him for failure to
ensure enforcement of Section 235(b) (3) as enacted
on October 12, 1984.
55. Mr. Reilly, Jr. committed the same wrongs set forth in
paragraphs 36-61 which are incorporated herein.
56. Michael J. Gaines was a Commissioner of the Commission from
September 28, 1994 through May 15, 2003 and the acts complained of are attributable
to him for failure to ensure enforcement of Section
235(b) (3) as enacted on October 12, 1984.
57. Mr. Gaines committed the same wrongs set forth in paragraphs
36-61 which are incorporated herein.
58. Cranston J. Mitchell is and has been a Commissioner of the
Commission since
March 6, 2003 and the acts complained of are attributable
to him for failure to ensure enforcement of Section
235(b) (3) as enacted on October 12, 1984.
59. Mr. Mitchell committed the same wrongs set forth in paragraphs
36-61 which are incorporated herein.
60. Deborah A. Spagnoli is and has been a Commissioner of the
Commission since 2004 and the acts complained of are attributable
to her for failure to ensure enforcement of Section
235(b) (3) as enacted on October 12, 1984.
61. Ms. Spagnoli committed the same wrongs set forth in paragraphs
36-61 which are incorporated herein.
62. As a result of the individual Commissioner’s actions, Plaintiffs
have been irreparably damaged.
Count III (Ex Post Facto Against the Office of the Attorney General)
63. Plaintiffs repeat and re-allege the allegations of paragraphs
1-62 as if set forth herein.
64. Since the enactment of Public Law 98-473, Title II, Chapter II,
Section 235(b) (3), the Office of the Attorney
General for the United States had either permitted or sanctioned the
United States Parole Commission and the Commissioners thereof to
promulgate rules and regulations contrary to the plain language of the Section,
all of which contributed to both delay in setting
release dates and ultimately the failure to do so as
well as
causing imprisonment beyond the terms of Section
235(b) (3) as originally enacted, while
causing uncertainty of
release and exceptionally high and tormenting anxiety
in Plaintiffs which has resulted in irreparable harm.
65. The Office of the Attorney General was aware that Congress,
after long and enduring investigation expressly found that the parole
system was so defective that it “actually promotes
disparity and uncertainty,” Senate Report 98—225, supra p. 46, “which is
fair neither to the offenders nor to the public,” id. p. 49, and that
“correcting” the then existing “arbitrary and
capricious” system, id. p. 65, required “that parole
should be abolished.” id. p. 53.
66. Consistent with Congress’ stated findings and intent, express
repeals were entered for all existing parole statutes, including good-time
statutes for those who were then and would be subject
to the mandatory
release dates and
release pursuant to the later—enacted Section
235(b) (3). See Senate Report, supra pp. 184-185.
67 Congress also noted the findings of the GAO studies that the
Commission made errors in setting
release dates in “53 percent” of the
cases studied and that most of such “errors were not
corrected in the internal appeals process.” Id. p.
55.
68. Congress repeatedly noted its intent to retain the “Commission
and current law” only for a “five—year period after the effective
date” solely “in order to deal with sentences imposed under the current”
system. Id. p. 189.
69. Congress clearly intended the applicable
parole guidelines to replace the sentences of the then—current prisoners
and those who would be sentenced under the then— “current sentencing
practices” and “a term of imprisonment in the current” law, was expressly
to remain “in effect during the period described
in subsection (a) (1) (B) ,” which was the same
“five—year period” of section 225(b). Id. p. 189.
70. Section 225(a) (1) (B) of the bill became
Section 235(b) (1) of the statute, while Section
225(b) became Section 235(b)
(3). See Public Law 98—473, Title II, Chapter II, Section
235(b) (1) and 235(b) (3).
71. Congress did indeed, exactly as the Report demonstrated, order
that the “maximum term of imprisonment in effect on
the effective date for an offense committed before
the effective date” “shall remain in effect
for five years after the effective date as to an
individual convicted of an offense.., before the effective
date...” Section 235(b) (1) and (b) (1) (F), Public
Law 98—473, supra.
72. The Attorney General on the day Section
235(b) (3) went into effect was the custodian of
Plaintiffs and Plaintiffs were committed by law into the Attorney
General’s custody pursuant to 18 U.S.C. § 4082(a).
73. However, 18 U.S.C. § 4082(a), which authorized commitment of
Plaintiffs into the custody of the Attorney General “for such term of
imprisonment as the court may direct,” was expressly
repealed by Public Law 98-473, Title II, Chapter II, Section
218(a) (3) and such “term[s] of imprisonment” were saved only for the
express five—year period for the purpose of issuing mandatory
release dates within their respective
and applicable parole guideline range. See Section
235 (b) (1) (F) and 235 (b) (3).
74. The parole guidelines superseded the original sentences imposed
by the court, but the ministerial duty of the Parole Commission to issue
them to Plaintiffs within five years minus time to exhaust appeals was
never
carried out.
75. The Parole Commission made repeated but failed attempts to
persuade Congress not to abolish them and to retain them if even for
superficial purposes, but Congress “strongly disagree[d]” with any
retention of the Commission except to process the then—held prisoners by
certain
release dates within their respective
guideline without the “shameful disparity” and “arbitrary and
capricious method”
caused by Commission discretion. Senate Report,
supra, pp. 53—54 & n. 74, 56, 65 & 189; Section
235(b) (3), supra.
76. Congress clearly rejected leaving the
Commission armed with their “arbitrary and
capricious” discretion and left them with the single
command to process the mandatory
release date with
relative promptitude, namely, within five years minus
time to exhaust appeals, and expressed the intent, consistent with its
cumulative findings, that the Commission set such
release dates at the minimum parole guideline or
lower, if possible. See Section 235(b) (3), supra;
see also Senate Report, supra p. 189 & n. 430 (“The Committee intends
that, in the final setting of
release dates under this provision, the Parole
Commission give the prisoner the benefit of the applicable
new sentencing guideline if it is lower than the minimum parole
guideline.”).
77. The Parole Commission’s promulgation of 28 C.F.R. §§ 2.12(b) and
2.14(c) expanding their discretion contrary to Congress’ manifest intent
in 1984 following the public
release of Senate Report No. 98—225, if not an
illegal and rebellious act, certainly
caused great harm to Plaintiffs when it was employed
against them following its promulgation and against Congress’ mandate to
set
release dates in Section 235(b)
(3)
78. Plaintiffs were irreparably harmed by the Commission’s action on
February 26, 1987, when the Commission promulgated 28 C.F.R. §§ 2.64(a)
and (b). Therein the Commission “interpret[ed]” the mandated
release dates consistent with respectively
applicable guidelines to embrace discretion in the
Commission to decide the guideline range rather than merely
to set
release dates by the guideline published at the time
of the legislation. At the same time the Commission expanded its
discretion to choose the guideline, it also expanded its period to set the
mandated
release dates by constricting Congress’ grant of
sufficient time to appeal the set
release dates by interpreting Congress’ choice of the
term “appeal” as an “administrative appeal.”
79. Plaintiffs, of course, never received their
release dates and were thus denied their right to
appeal as well.
80. The 1984 amendments to 28 C.F.R. §§ 2.12(b) and 2.14(c) and the
promulgation of 28 C.F.R. § 2.64(a) and (b) were employed against
Plaintiffs delaying issuance of their
release dates until passage of the amendment to Section
235(b) (3) by Public Law 100-182, Section 2 on
December 7, 1987, which has since been applied by the Commission along
with 28 C.F.R. §§ 2.12(b) and 2.14(c) to maintain the non-release
of Plaintiffs, uncertainty of
release, delay in setting
release dates and
release and excessive anxiety in Plaintiffs.
81. The United States Attorney General’s Office, through United
States Attorney’s Offices, joined the Commission in resisting the
enforcement of Section 235(b) (3) as enacted on
October 12, 1984. E.g. Romano v. Luther 816 F. 2d 832 (1987).
82. “The Attorney General shall: [s]upervise and direct
the administration and operation of the Department
of Justice, including the offices of U.S. Attorneys” and “[p]erform or
supervise the performance of other duties required by statute.” 28 C.F.R.
§ 0.5(a) and (f) (1995 edition).
83. Such supervision and direction includes
that over the United States BOP and the United States Parole Commission.
Id., § 0.1
84. The Attorney General’s Office also sanctioned the regulations
noted in paragraph 78 above and their employment against Plaintiffs
preventing, hindering, delaying or obstructing the implementation and
execution of Section 235(b) (3) as enacted on October
12, 1984.
85. The Attorney General’s Office also sanctioned the retrospective
application of the amendment to Section
235 (b) (3), Public Law 100—182, Section 2 enacted on
December 7, 1987, contrary to the plain language of its mandated applicability
as provided in Section 26 of the Act.
86. The United States Attorney General’s Office has refused to
enforce Section 235(b)(3) as enacted on October 12,
l984 to Plaintiffs, although Plaintiffs are entitled to its execution
nunc pro tunc.
87. The United States Attorney General’s Office has refused to
enforce Public Law 100-182, Section 2 to “offenses
committed after” December 7, 1987, as commanded by Congress in Section
26 of the Act.
88. The retrospective application
of the December 7, 1987 amendment to Plaintiffs has deprived them of
certainty of
release within five years of the effective
date of Section 235(b) (3) as originally enacted.
89. The retrospective application
of the December 7, 1987 amendment to Plaintiffs have prolonged their
imprisonment contrary to the terms and intent of Section
235 (b) (3) as originally enacted.
90. Such retrospective application
of the December 7, 1987 amendment has
caused irreparable damage to Plaintiffs.
91. The United States Attorney General’s Office in sanctioning the
above actions of the Parole Commission is as responsible for the acts and
damage
caused thereby as the Parole Commission and its
Commissioners.
92. The Attorney General’s Office has applied the December 7, 1987
amendment in clear violation of the constitutional prohibition against Ex
Post Facto laws.
Count IV (Ex Post Facto Against Individual Attorney Generals)
93. Plaintiffs repeat, re-allege and incorporate paragraphs 1-92 of
this complaint as if set forth herein.
94. The Office of the Attorney General functions through the person
of the respective Attorney General appointed to such
office.
95. The functions of the officers of the United States Parole
Commission and the United States BOP are vested in the Attorney General.
28 U.S.C. § 509; 28 C.F.R. § 0.1 and 0.5(a) and (f).
96. Edwin Meese III was the United States Attorney General from 1985
to 1988 and permitted and/or sanctioned the acts alleged and did not
compel enforcement of Section 235(b) (3) as enacted
in respect to Plaintiffs.
97. Edwin Meese III during such period permitted or sanctioned the
retrospective application of Section
2, Public Law 100—182 contrary to the plain language that the act “shall
apply to offenses committed after” December 7, 1987 to the injury of
Plaintiffs as alleged.
98. Edwin Meese III during such period violated the constitutional
prohibition against Ex Post Facto laws by such action or inaction.
99. Plaintiffs repeat, re-allege and incorporate paragraphs 94-98 of
this Complaint as if set forth herein, except that Richard Thornburgh is
substituted for Edwin Meese III wherever it appears there and the term of
office specified in paragraph 100 is hereby substituted by the term “from
1988 to 1991.”
100. Plaintiffs repeat, re-allege and incorporate paragraphs 94-98 of
this Complaint as if set forth herein except that William P. Barr is
substituted for Edwin Meese III wherever it appears therein and the term
of office specified in paragraph 100 is hereby substituted by the term
“from 1991 to 1993.”
101. Plaintiffs repeat, re-allege and incorporate paragraphs 94-98 of
this complaint as if set forth herein except that Janet Reno is
substituted for Edwin Meese III wherever it appears therein and the term
of office specified in paragraph 100 is hereby substituted by the term
“from 1993—2000.”
102. Plaintiffs repeat, re-allege and incorporate paragraphs 94-98 of
this Complaint as if set forth herein except that John Ashcroft is
substituted for Edwin Meese III wherever it appears therein and the term
of office specified in paragraph 100 is hereby substituted by the term
“from 2000 and presently continues in that
capacity.”
103. Such action and/or inaction of Attorney Generals listed in this
count is the
cause of Plaintiff’s irreparable injuries as alleged
in violation of the prohibition against Ex Post Facto laws.
Count V (Ex Post Facto Against the BOP)
104. Plaintiffs repeat, re-allege and incorporate paragraphs 1-103 of
this Complaint as if set forth herein.
105. The United States BOP is under the direction
of the Attorney General of the United States through a Director
appointed by and serving directly thereunder 18 U.S.C.
§ 4041.
106. The general duties of the BOP are defined in 18 U.S.C. § 4042 and
devolve upon the Director with greater specificity
under 28 C.F.R. §§ 0.95-0.98 and §§ 500.1—572.40 as such duties involve
federal prisons and prisoners.
107. The BOP determines classification,
commitment, control, or treatment of persons committed to the custody of
the Attorney General. 28 C.F.R. § 0.95(d)
108. The BOP acting through the Director is
authorized to exercise or perform any of the authority, functions, or
duties conferred or imposed upon the Attorney General by any law
relating to the commitment, control, or treatment of
persons committed to the Attorney General, including designation of places
of imprisonment, transfers of prisoners, and providing for the classification,
government, discipline, treatment,
care,
rehabilitation, and reformation of inmates confined
in its institutions. 28 C.F.R. § 0.96(c) and (p)
109. The BOP applies, and has applied to Plaintiffs, parole statutes
and regulations through the December 7, 1987 amendment to the original Section
235(b) (3) contrary to Congress’ manifest and clear statement that the
amendment “shall apply to offenses committed after” December 7, 1987.
110. Specifically, the BOP applies 18 U.S.C. §
4206, 28 C.F.R. §§ 524.41(b) and 2.53, 18 U.S.C. §§ 4161 and 4205, and has
applied them to Plaintiffs, and forwards the results of such application
to the Parole Commission pursuant to 28 C.F.R. § 524.41(c), which are then
employed, and have been employed against Plaintiffs, by the Parole
Commission for the purpose of exercising discretion in determining future
release of Plaintiffs.
111. Application of the above statutes and
regulations upon the retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) has prevented and presently is employed to prevent application
of the original Section 235(b) (3) to Plaintiffs
resulting in failure to set the mandatory required
release dates, prolonged imprisonment of Plaintiffs,
and has left Plaintiffs with uncertainty of
release and extreme anxiety contrary to the
provisions of the original Section 235(b) (3).
112. Such retrospective application
by the BOP of the above statutes and regulations to Plaintiff’s
disadvantage, exacerbating their punishment, violates the constitutional
prohibition against Ex Post Facto laws.
113. Plaintiffs have suffered irreparable damages by such actions and
failure to act.
Count VI (Ex Post Facto Against BOP Individuals)
114. Plaintiffs repeat, re-allege and incorporate paragraphs 1-113 of
this Complaint as if set forth herein.
115. J. Michael Quinlan was the Director of the
BOP from 1983—1994 and was responsible for all acts or failure to act as
alleged that resulted in the damages to Plaintiffs as asserted.
116. Kathleen M. Hawk Sawyer was the Director of
the BOP from 1994-2000 and was responsible for all acts or failure to act
as alleged that resulted in the damages to Plaintiffs as asserted.
117. Harley G. Lappin is and has been the Director
of the BOP since 2000 and was and is responsible for all acts or failure
to act as alleged that resulted in the irreparable damages to Plaintiffs
as asserted.
Count VII (Bill of Attainder Against the Commission)
118. Plaintiffs repeat, re-allege and incorporate paragraphs 1-117 of
this Complaint as if set forth herein.
119. Retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) by the Commission targeted a specifically
identified group or class for the purpose of precluding execution of Section
235(b) (3) as enacted and to delay
release of the members of said group or class and to
lengthen their respective terms of imprisonment.
120. Plaintiffs are members of said class and have suffered
irreparable injury by application of such amendment
in violation of the constitutional prohibition against bills of attainder.
121. As a result of the Commission’s wrongful actions, Plaintiffs have
suffered irreparable harm.
Count VIII (Bill of Attainder Against Individual Commissioners)
122. Plaintiffs repeat, re-allege and incorporate paragraphs 1-121 of
this Complaint as if set fort herein.
123. Retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) by the individual commissioners identified in paragraphs 36-61
targeted a specifically identified group or class for
the purpose of precluding execution of Section 235(b)
(3) as enacted and to delay
release of the members of said group or class and to
lengthen their respective terms of imprisonment.
124. Plaintiffs are member of said class and have suffered irreparable
injury by application of such amendment in violation
of the constitutional prohibition against bills of attainder.
125. As a result of the individual Commissioners wrongful actions,
Plaintiffs have suffered irreparable harm.
Count IX (Bill of Attainder Against the Office of Attorney General)
126. Plaintiffs repeat, re-allege and incorporate paragraphs 1-125 of
this Complaint as if set forth herein.
127. Retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) by the Office of Attorney General targeted a specifically
identified group or class for the purpose of precluding execution of Section
235(b) (3) as enacted and to delay
release of the members of said group or class and to
lengthen their respective terms of imprisonment.
128 Plaintiffs are member of said class and have suffered irreparable
injury by application of such amendment in violation
of the constitutional prohibition against bills of attainder.
129. As a result of the Office of Attorney General’s wrongful actions,
Plaintiffs have suffered irreparable harm.
Count X (Bill of Attainder Against Individual Attorney Generals)
130. Plaintiffs repeat, re-allege and incorporate paragraphs 1-129 of
this Complaint as if set forth herein.
131. Retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) by the individual Attorney Generals identified in paragraphs 96-102
targeted a specifically identified group or class for
the purpose of precluding execution of Section 235(b)
(3) as enacted and to delay
release of the members of said group or class and to
lengthen their respective terms of imprisonment.
132. Plaintiffs are member of said class and have suffered irreparable
injury by application of such amendment in violation
of the constitutional prohibition against bills of attainder.
133. As a result of the individual Attorney General’s wrongful
actions, Plaintiffs have suffered irreparable harm.
Count XI (Bill of Attainder Against BOP)
134. Plaintiffs repeat, re-allege and incorporate paragraphs 1-133 of
this Complaint as if set forth herein.
135. Retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) by the BOP targeted a specifically identified
group or class for the purpose of precluding execution of Section
235(b) (3) as enacted and to delay
release of the members of said group or class and to
lengthen their respective terms of imprisonment.
136. Plaintiffs are member of said class and have suffered irreparable
injury by application of such amendment in violation
of the constitutional prohibition against bills of attainder.
137. As a result of the BOP’s wrongful actions, Plaintiffs have
suffered irreparable harm.
Count XII (Bill of Attainder Against BOP Individuals)
138. Plaintiffs repeat, re-allege and incorporate paragraphs 1-137 of
this Complaint as if set forth herein.
139. Retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) by the BOP individuals set forth in paragraphs 115-117 targeted a
specifically identified group or class for the
purpose of precluding execution of Section 235(b) (3)
as enacted and to delay
release of the members of said group or class and to
lengthen their respective terms of imprisonment.
140. As a result of the individual BOP’s wrongful actions, Plaintiffs
have suffered irreparable harm.
Count XIII (Violations of Due Process by the Commission)
141. Plaintiffs repeat, re-allege and incorporate paragraphs 1-140 of
this Complaint as if set forth herein.
142. Retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) by Defendants deprived Plaintiffs of rights to established
release dates and to
release from imprisonment, increasing their
punishments as they existed at the time of the amendment, and such application
was arbitrary, as expressly recognized by Congress, and without notice or
opportunity to be heard prior to such application.
143. Plaintiffs suffered injury by the Commission’s application
of the arbitrary and
capricious amendment in violation of the
constitutional prohibition against such deprivations without due process
of law.
144. As a result of the Commission’s wrongs, Plaintiffs suffered
irreparable injuries.
Count XIV (Violations of Due Process By Individual Commissioners)
145. Plaintiffs repeat, re-allege and incorporate paragraphs 1-144 of
this Complaint as if set forth herein.
146. Retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) by the individual Commissioners set forth in paragraphs 36-61 deprived
Plaintiffs of rights to established
release dates and to
release from imprisonment, increasing their
punishments as they existed at the time of the amendment, and such application
was arbitrary, as expressly recognized by Congress, and without notice or
opportunity to be heard prior to such application..
147. Plaintiffs suffered irreparable injury by the Commission’s by
application of the arbitrary and
capricious amendment in violation of the
constitutional prohibition against such deprivations without due process
of law.
148. As a result of the Commission’s wrongs, Plaintiffs
suffered irreparable injuries.
Count XV (Violations of Due Process By The Office of Attorney
General)
149.
Plaintiffs repeat, re-allege and incorporate paragraphs 1-148 of this
Complaint as if set forth herein.
150.
Retrospective application of the
December 7, 1987 amendment of Section 235(b) (3) by
the Office of Attorney General deprived Plaintiffs of their statutory
rights that their
release dates be established and that they be
released from imprisonment, increasing their
punishments as they existed at the time of the amendment, and such application
was arbitrary, as expressly recognized by Congress, and without notice or
opportunity to be heard prior to such application.
151.
Plaintiffs suffered irreparable injury by the Office of the Attorney
General’s application of the arbitrary and
capricious amendment in violation of the
constitutional prohibition against such deprivations without due process
of law.
152.
As a result of the Office of Attorney General wrongs, Plaintiffs suffered
irreparable injuries.
Count XVI (Violations of Due Process by Individual Attorney
Generals)
153. Plaintiffs repeat, re-allege and incorporate paragraphs 1-152 of
this Complaint as if set forth herein.
154. Retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) by the individual Attorney Generals set forth in paragraphs 96-102
deprived Plaintiffs of rights to established
release dates and to
release from imprisonment, increasing their
punishments as they existed at the time of the amendment, and such application
was arbitrary, as expressly recognized by Congress, and without notice or
opportunity to be heard prior to such application..
155. Plaintiffs suffered irreparable injury by the individual Attorney
General’s wrongful application of the arbitrary and
capricious amendment in violation of the
constitutional prohibition against such deprivations without due process
of law.
156. As a result of the individual Attorney General’s wrongs,
Plaintiffs suffered irreparable injuries.
Count XVII (Violations of Due Process by BOP)
157. Plaintiffs repeat, re-allege and incorporate paragraphs 1-156 of
this Complaint as if set forth herein.
158. Retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) by the BOP deprived Plaintiffs of rights to established
release dates and to
release from imprisonment, increasing their
punishments as they existed at the time of the amendment, and such application
was arbitrary, as expressly recognized by Congress, and without notice or
opportunity to be heard prior to such application..
159. Plaintiffs suffered irreparable injury by the BOP’s application
of the arbitrary and
capricious amendment in violation of the
constitutional prohibition against such deprivations without due process
of law.
160. As a result of the BOP’s wrongs,
Plaintiffs suffered irreparable injuries.
COUNT XVIII (Violations of Due Process by Individual BOP Directors)
161. Plaintiffs repeat, re-allege and incorporate paragraphs 1-160 of
this Complaint as if set forth herein.
162. Retrospective application
of the December 7, 1987 amendment of Section 235(b)
(3) by the individual BOP Director’s set forth in
paragraphs 115-117 deprived Plaintiffs of rights to established
release dates and to
release from imprisonment, increasing their
punishments as they existed at the time of the amendment, and such application
was arbitrary, as expressly recognized by Congress, and without notice or
opportunity to be heard prior to such application..
163. Plaintiffs suffered irreparable injury by the individual BOP Director’s
wrongful application of the arbitrary and
capricious amendment in violation of the
constitutional prohibition against such deprivations without due process
of law.
164. As a result of the individual BOP Director’s
wrongs, Plaintiffs suffered irreparable injuries.
COUNT XIX (VIOLATION OF CONGRESS’ MANDATE)
165. Plaintiffs repeat, re-allege and incorporate paragraphs 1-164 of
this Complaint as if set forth herein.
166. Defendants have ignored and violated Congress’ mandate that
Public Law 100-182, §2, applies only to crimes committed after December 7,
1987.
167. By doing so, Defendants have wrongfully applied Public Law
100-182, §2, to Plaintiffs and have
caused Plaintiffs irreparable harm.
168. As a result, of Defendants’ wrongs, Plaintiffs have suffered
irreparable injuries.
Wherefore, Plaintiffs Leonard Peltier and Yorie Von Kahl seek a preliminary
and permanent injunction prohibiting Defendants from applying the Public
Law 100-182, Section 2, enacted December 7,1987, and,
through its equitable powers, this Court should enforce the rights created
by the original Section 235(b)(3), nunc pro tunc,
and that Plaintiffs be granted bail pending final judgment.
Wherefore, Plaintiffs Leonard Peltier and Yorie Von Kahl also
demand that judgment enter in their favor in an amount of compensatory
damages determined by the jury and for punitive damages determined by the
jury, as well as attorney’s fees and any other
relief this Court deems just and equitable.
I
declare under penalty of perjury that the foregoing is true and correct.
Executed this ______ day of August, 2004.
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