UNITED STATES DISTRICT COURT

PLAINTIFFS RESPONSE TO COURT’S ORDER TO SHOW CAUSE

AND REQUEST FOR HEARING

INTRODUCTION

Plaintiffs have not filed a writ of Habeas Corpus.  The lawsuit filed by Mr. Peltier and Mr. Kahl seeks, among other things, monetary damages for past and present injuries for executive action committed in violation of Congress’ express mandate and the United States Constitution.  Significantly, the United States Court of Appeals for the District of Columbia, in an en banc decision, expressly concluded that suits seeking monetary damages are excluded from the habeas analysis entirely.  Chatman-Bey v. Thornburgh, 864 F. 2d 804, 810n. 5 and 6, 816-17 (D.C. Circuit 1988)[1] (habeas analysis “has no bearing on prisoner’s claims for money damages” and the court’s “analysis goes solely to situations where the federal prisoner is seeking non-monetary redress for alleged violations of federally secured rights going to the lawfulness of his or her custody.”)  In fact, the majority opinion expressly agreed with the concurring opinion on this point. 864 F.2d at 816-17, quoting Preiser v. Rodriguez, 411 U.S. 475, 494 (1973), and Wolff v. McDonnell, 418 U.S. 539, 55 (1974) (emphasizing that in damages cases habeas is “not appropriate or available” and injunctive relief is proper in such suits.)[2]

The essence of the complaint concerns a series of actions taken over the course of many years by various bureaucrats within various branches of the Parole Commission, the Department of Justice, and the Bureau of Prisons which has led to the unconstitutional application of an unambiguous statute, contrary to Congress’ express mandate, and which has resulted in the illegal incarceration of numerous federal prisoners. Plaintiffs also seek declaratory[3] and injunctive relief to enjoin the unconstitutional conduct of Defendants who have harmed numerous federal prisoners over many years by knowingly violating unambiguous statutes and mandates of Congress. In accord with prior Court decisions, Plaintiffs have concurrently filed a motion for bail pending final resolution of the suit.

Courts have long recognized that federal prisoners are not restricted to Habeas Corpus actions and can seek declaratory and/or injunctive relief to remedy their being subjected to unlawful and unconstitutional behavior by the Defendants’ unconstitutional enforcement of statutes in circumstances such as these.  Geraghty v. United States Parole Commission, 579 F.2d 238, 243 (3^rd 1974); Greenfield v. Scafati, 277 F. Supp. 644 (D. Mass. 1967), aff’d, 390 U.S. 713 (1968).  See also Howard v. Ashcroft, 248 F. Supp. 2d 518 (M.D.La. 2003).  Thus, for the reasons set forth more fully below, this case is properly before this Court and should proceed forthwith.

FACTS[4]

In 1984, Congress passed the Sentencing Reform Act (“SRA”), arguably the first comprehensive sentencing law reform for the federal system. (S. Rep. 98-225, 1984 U.S.C.C.A.N. 3182, 3220).[5]  The Comprehensive Crime Control Act of 1984 (hereinafter “CCCA”), constituted several chapters within the SRA and represented the decade long efforts by Congress to create a sentencing structure that would eliminate disparity in sentencing, establish certainty as to release from confinement, and abolish the Parole Commission and parole. The Senate Report noted:

At present, the concepts of indeterminate sentencing and parole release depend for their justification exclusively upon this model of ‘coercive’ rehabilitation. . . Recent studies suggest that this approach has failed.  Most sentencing judges, as well as the Parole Commission, agree that the rehabilitation model is not an appropriate basis for sentencing decisions.

(S. Rep. 98-225 at 3221, 3223.)  The Senate Report continued:

The efforts of the Parole Commission to alleviate this disparity unfortunately contributed to a second grave defect of present law: no one is ever certain how much time a particular offender will serve if he is sentenced to prison ... Thus, prisoners often do not really know how long they will spend in prison until the very day they are released. The result is that the existing Federal system lacks the sureness that criminal justice must provide if it is to retain the confidence of American society and if it is to be an effective deterrent against crime.

Id. at 3232-3233.  The Senate Report concluded:

The shameful disparity in criminal sentences is a major flaw in the existing criminal justice system, and makes it clear, that the system is ripe for reform. Correcting our arbitrary and capricious method of sentencing will not be a panacea for all of the problems which confront the administration of criminal justice, but it will constitute a significant step forward.

The bill, as reported, meets the critical challenge of sentencing reform. The bill’s sweeping provisions are designed to structure judicial sentencing discretion, eliminate indeterminate sentencing, phase-out parole release, and make criminal sentencing fairer and more certain.

Id. at 3248 (emphasis added).

To address these issues, Congress enacted Section 235(b)(3), effective October 12, 1984, Lyons v. Mendez, 303 F.3d at 289, which 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,” at which point the Commission would be dissolved. 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, 98^th Congress, First Session, September 12, 1983, p. 56 n.82.

In enacting Section 235(b)(3), Congress thereby recognized the inherent arbitrariness underlying parole decisions. As the United States Supreme Court recognized  in Mistretta v. United States, 488 U.S. 361, 366 (1989):

It is observed that the indeterminate-sentencing system had “unjustified” and “shameful” consequences. The first was the great variation among sentences imposed by different judges upon similarly situated offenders. The second was the uncertainty as to the time the offender would spend in prison.

On December 7, 1987, over three years later, Congress amended Section 235(b)(3) to repeal the release criteria and to restore the criteria under 18 U.S.C. 4206, Public Law 100-182,§2. Because this amendment substantially changed existing law, Congress explicitly provided under the “General Effective Date” of the act at section 26: “The amendments made by this Act shall apply with respect to offenses committed after the enactment of this Act.” 101 Stat. 1272 (Emphasis added.)

Based on the original version of Section 235(b)(3) which became effective October 12, 1984, the Commission was abolished as of midnight on October 11, 1989,[6] and prisoners, such as the Plaintiffs, would have each possessed release dates and would have, in fact, been released long ago. 

ARGUMENT

1. CASE LAW ESTABLISHES THAT THIS CASE IS PROPERLY BEFORE THIS COURT.

The instant case is properly before this Court. The Amended Complaint seeks damages, declaratory relief and injunctive relief concerning Defendants’ unconstitutional application of Section 235(b)(3), contrary to Congress’ express mandate. Defendants have ignored Congress’ mandate that Section 235(b)(3) applies to prisoners such as Mr. Peltier and Mr. Kahl and, in doing so, have violated the ex post facto, bill of attainder, and due process clauses of the United States Constitution.  Plaintiffs have brought an action directly under these provisions of the United States Constitution to seek enforcement against Defendants’ wrongful conduct which has spanned many years and involves the actions of numerous Commissioners, United States Attorney Generals, and Directors of the Bureau of Prisons.  Put simply, it is an action brought directly under provisions of the United States Constitution which action seeks enforcement of Congress’ express mandate and has wide ranging effect upon the rights of numerous federal prisoners.

Plaintiffs seek declaratory relief that Defendants have wrongfully applied Public Law 100-182, Section 2, enacted on December 7, 1987, and that the rights created by the original Section 235(b)(3) must be enforced, nunc pro tunc.  They also specifically seek damages and injunctive relief prohibiting Defendants from applying the Public Law 100-182, Section 2, enacted on December 7, 1987. Through its equitable powers, this Court should enforce the rights created by the original Section 235(b)(3), nunc pro tunc, and the Plaintiffs be granted bail pending final judgment.

Courts have made clear that Habeas Corpus is not the only remedial option available to the Plaintiffs in these circumstances. See Geraghty, 579 F.2d at 243; Greenfield, 277  F. Supp. 644. Greenfield and Geraghty are particularly instructive here.

In Greenfield, 277 F.Supp. 644, the Plaintiff sought an injunction against the enforcement of a sentence under a state statute claiming it was unconstitutional and also filed a motion for bail.  The Court approved this procedure, granted bail and ultimately ruled that the statute violated the ex post facto provisions of the United States Constitution. 277 F.Supp. at 644-45.  As such the Court issued the requested injunctive relief. 277 F.Supp. at 646. This case was affirmed in its entirety by the United States Supreme Court. 390 U.S. 713 (1968).  This is the very same procedure followed by the Plaintiffs herein. Since it has been approved by the United States Supreme Court, this case is properly before this Court.

Geraghty also compels this Court to exercise jurisdiction over this matter. In Geraghty, a federal prisoner challenged the validity of parole guidelines utilized by the United States Parole Commission.  Contrary to the lower court’s ruling that Habeas Corpus was the only remedy available to the prisoner, the Third Circuit ruled that the action could properly be considered as one for declaratory judgment which was an appropriate remedy. Geraghty, 579 F.2d at 243. In doing so, the Court reasoned that the instant case did not raise issues of federal and state comity:

The Courts face no barriers resulting from federal-state relations in adjudicating issues such as the ones before us, since the present controversy involves the application of a federal statute by federal authorities. And, unlike a Habeas Corpus action challenging state confinement, no exhaustion has been statutorily mandated. Indeed, in contrast to the situation in Preiser, [411 U.S. 475 (1973)] Congress expressly contemplated declaratory actions to challenge the provisions of the federal parole guidelines.

As in Geraghty, the instant action seeks a declaration that the Parole Commission and the remaining Defendants have illegally applied Section 235(b)(3) as originally enacted and as amended.  The complaint seeks declaratory and  injunctive relief against Defendants continuing to take  illegal activities against numerous federal prisoners, such as Mr. Peltier and Mr. Kahl.  As, acknowledged by the Geraghty Court, this relief falls within the United States Supreme Court’s holding in Wolff v. McDonnell, 418 U.S. 539, 554-55(1974).

 The Plaintiffs ultimately seek monetary damages for which Habeas Corpus is not appropriate or available. Indeed, contrary to the Court’s order, Plaintiffs are entitled to bring their damage claims under one of the very cases relied upon by the Court.  Chatman-Bey, 864 F.2d at 810n. 5and 6, 817-18. The Chatman-Bey Court stated that habeas analysis “has no bearing on prisoner’s claims for money damages” and the court’s “analysis goes solely to situations where the federal prisoner is seeking non-monetary redress for alleged violations of federally secured rights going to the lawfulness of his or her custody.” 864 F.2d at 810n. 5and 6.  See also approval of concurring opinion on this issue at 864 F.2d 817-18.  For those reasons, this case should proceed in this Court.

2. THE UNITED STATES SUPREME COURT DECISIONS FURTHER SUPPORT THAT THIS CASE IS PROPERLY BEFORE THIS COURT.

This Court’s reliance on Burke v. Hawk-Sawyer, 269 F.3d  1072 (D.C. Cir. 2001), is misplaced.  Contrary to the Court’s rationale in its Order, a “probalistic impact” on the duration of custody alone cannot supplant a civil action and compel habeas review only, not even with respect to a section 1983 claim brought by a state prisoner in federal court.  Fletcher v. District of Columbia, 370 F.3d 1223, 1227 (D.C. Cir. 2004) (limiting holding of Chatman-Bey “to claims brought by federal prisoners.”)

 The Supreme Court’s “trilogy” of Preiser v. Rodriguez, 411 U.S. 475 (1973), Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balistock, 520 U.S. 641 (1997), all established only very limited holdings regarding state prisoner claims under statutes enacted by Congress which stem exclusively from the post Civil War Civil Rights and Habeas Corpus Acts – all of which dealt with the role of federal courts overseeing state court matters.  As the Supreme Court noted, Section 1983 necessarily intersected with the habeas statute, and the Court had to reconcile Section 1983 actions with the requirement that “federal Habeas Corpus requires that state prisoners first seek redress in a state forum.”  512 U.S. at 480-81.  See also Nelson v. Campbell, 541 U.S.___, ___, 158 L.Ed. 2d 924, 932 (2004) (State prisoner claims under Section 1983 “must yield” to the habeas statute concerning review of state prisoner confinement.) 

Neither the language, history or purposes of the habeas statute confirm jurisdiction on this Court, (cf. 28 U.S.C. §1331), nor do they address the issues presented by the Supreme Court’s “trilogy,” which this Court suggests confine the Plaintiffs to a single (and in this case clearly inadequate) remedy.  This is particularly true where, as here, the United States Constitution provides this Court with inherent jurisdiction to remedy violations such as those presented in this case. See e.g. Bivens v. Six Unknown Federal Agents, 403 U.S. 388, 392, 396 (1971); Marbury v. Madison, 5 U.S. 137, 163-66 (1803) (citizen of United States who suffers “injury” has a “right to resort to the laws of his country for a remedy”). 

It is also significant that both the Civil Rights Act of 1871, now 42 U.S.C. §1983, and the Habeas Corpus Act of 1867, now 28 U.S.C. §2241 (C)4 and (D) and 28 U.S.C. §2254, were enacted in light of the Thirteenth, Fourteenth and Fifteenth Amendments and involved the potential clash of sovereignty retained by the 10th Amendment.  The history of those statutes and their purposes are so well known that repeating them here is not necessary.  However, any construction of the Civil Rights Act of 1871 and its progeny and the federal-state comity issues arising from that Act formed the basis  for the “trilogy” of decisions by the United States Supreme Court.  Preiser, 411 U.S. at 491-93.

It is also critical that 42 U.S.C. §1983 “`creates a species of tort liability’” Heck, 512 U.S. at 483 (citing cases), whereas 28 U.S.C. §1331 grants subject matter jurisdiction in district courts for constitutional and federal claims.  Plaintiffs’ claims against Defendants arise predominantly under the express terms of federal statutes, the ex post facto, bill of attainder and due process clauses.  Plaintiffs’ right to seek redress for injuries suffered under those clauses arise directly under the fundamental charter of this Country itself.  Bivens, supra, United States v. Lee, 106, 196 (1882); Marbury, supra.  With respect to Plaintiffs’ federal statutory claims, they rest on Defendants’ failure to perform mandatory ministerial duties which Congress required of Defendants, and  they are based on Defendants’ failure to follow Congress’ command to apply the amended statute to offenses committed after December 7, 1987.  Defendants, however, arbitrarily applied the 1987 amendment to offenses committed before December 7, 1987 to the direct injury of Plaintiffs and, of course, in direct violation of the above noted constitutional provisions.

Even if the limited holdings of the Supreme Court “trilogy” could be expanded to restrict cases by federal prisoners and citizens arising directly under the Constitution, even though Congress has never expressly attempted to restrict theses rights, any attempt to do so would violate the Constitution.  Indeed, Plaintiffs fall directly into the exception expressly emphasized repeatedly by the Supreme Court.  Heck,  512 U.S. at 486-87,  (Heck held that “the § 1983 plaintiff must `bring his action for damages whenever he shows that his conviction or sentence has been `reversed’, `expunged’, or even `brought into question’ by a proper authority”).

By Public Law 9A-473, Title II, Chapter 2, effective October 12, 1984, Congress expressly required the Parole Commission to establish relief dates for federal prisoners such as Plaintiff’s “within” the respective “applicable guidelines,” a simple ministerial task. Section 235(b)(3) mandated issuance of their release dates within five years  of October 12, 1984, with sufficient time for federal prisoners to exhaust appeals. Section 235(b)(2)(b)(1)(F) repealed all parole statutes pertaining the Commission, giving them a five year period to complete their ministerial duties. Sections 218 (a)(5) and 235 (b)(2)(b)(1)(A) repealed all statutory authority of the Executive Branch to “hold” plaintiffs.  Furthermore, Congress expressly found the sentences under the pre-sentencing guideline system to be inherently “arbitrary and capricious.”  Senate Report, No. 9A-225, page 65.

Congress’ deliberate actions more than satisfied the “reverse,” “expunged” and/or “brought into question” exceptions of the “trilogy.”  Arguably, Congress’ declaration that the sentences were “arbitrary and capricious” rendered them null and void and declared that the continued deprivation of plaintiffs’ liberty indisputably violated the Due Process clause.  Consequently, the Preiser, Heck, Edwards rulings permit the instant suit even if plaintiffs were state prisoners proceeding under 42 U.S.C. §1983. 

Unlike the state prisoner plaintiffs challenging state judgments in Preiser, Plaintiffs are not challenging any judgments by these proceedings.  They seek damages for defendants’ refusal to perform their ministerial duties under the original 235(b)(3).  Defendants have ignored that the amended section 235(b)(3) applied to offenses committed after December 7, 1987 and instead have applied it to plaintiffs in violation of the ex post facto bill of attainder and due process prohibitions, thereby causing plaintiff’s severe injury. 

Plaintiffs seek damages and request this court to exercise its inherent power to enforce the federal statutes and constitutional prohibitions to prevent further injury to Plaintiffs and the numerous other prisoners in their position.  Congress has granted this court full jurisdiction to address Defendants’ wrongs and to remedy them.  28 U.S.C. §1331; 28 U.S.C. §1657; 28 U.S.C. §§2201-2202; 28 U.S.C. §1651.  See United States v. Will, 449 U.S. 200, 215 n. 19 (1980) (“`We have no more right to decline the exercise of jurisdiction which is given, then to usurp that which is not given.’”)  “But 'it is … well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.”  Bivens, 403 U.S. at 396, quoting, Bell v. Hood, 327 U.S. at 684 (footnote omitted.)  Any constitutional “limitation” of “federal power… to citizens of the United States the absolute right” to judicial enforcement, federal “`courts will…adjust the remedies so as to grant the necessary relief.’”  403 U.S. at 392, 396 (“federal courts may use any available remedy to make good the wrong done.”)  Since this court has full jurisdiction granted it by Congress to proceed, 28 U.S.C. §§1331, 1657, 2201-2202, 1651, the Courts should do so promptly.

CONCLUSION

Plaintiffs have properly brought this action in this Court.  Plaintiffs are not limited to habeas as their sole remedy in the circumstances presented. The unlawful and continued ignorance by the Defendants regarding the unambiguous statutes has violated not only the constitutional rights of these Plaintiffs, but numerous federal prisoners in their same situation, and thus has entitled the Plaintiffs to pursue the present action in this Court.  Thus, Plaintiffs request that this case proceed forthwith in this Court and that the Court schedule their motion for a preliminary injunction and motion for bail.

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