UNITED STATES DISTRICT COURT

PLAINTIFF’S  AMENDED 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, reallege, 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, reallege 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 reallege 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, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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 Indiduals)

138.     Plaintiffs repeat, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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, reallege 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.

 COUNT XX (DECLARATORY RELIEF)

169. Plaintiffs repeat, reallege and incorporate paragraphs 1-168 of this Complaint as if set forth herein.

170.  There exists a pending controversy between the parties.

171.  Based on the wrongful conduct by Defendants, Plaintiffs’ seek declaratory relief that Defendants have ignored and violated Congress’ mandate that Public Law 100-182, §2, applies only to crimes committed after December 7, 1987. and that Defendants wrongful conduct violates the ex post facto, bill of attainder and due process clauses of the United States Constitution.

 Wherefore,  Plaintiffs Leonard Peltier and Yorie Von Kahl seek a declaratory judgment that Defendants have wrongfully applied Public Law 100-182, Section 2, enacted December 7, 1987, and that the rights created by the original Section 235(b)(3) must be enforced, nunc pro tunc.

 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 September, 2004.

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