United States District Court, D. Columbia
DAVID BLUE THUNDER, Plaintiff, Pro se, FLORENCE, CO.
UNITED STATES PAROLE COMMISSION, Defendant: Peter Rolf Maier,
LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division,
G. SULLIVAN, United States District Judge.
matter is before the Court on defendant's Motion to
Dismiss. For the reasons discussed below, the motion will be
was convicted of murder in 1978 in the United States District
Court for the District of North Dakota, sentenced to a life
term of imprisonment, and released on parole in August
1995. The United States Parole Commission
(" Commission" ) issued a warrant on October 3,
1997 charging plaintiff with violations of two conditions of
his parole. See Mem. of Law in Support of Mot. to
Dismiss (" Def.'s Mem." ), Attach. A
(Revocation Hearing Summary) at 1, 4. A preliminary hearing
took place on November 20, 1997, and on December 1, 1997,
" the Commission found probable cause that [plaintiff]
was in violation of his parole conditions."
Id., Attach. A at 1.
revocation hearing began on January 14, 1998. Id.,
Attach. A at 1, 4. The hearing examiner made " findings
. . . on Charge No. 1 -- Fraud and Charge No. 2 -- Violation
of Special Condition" that he undergo mental health
treatment. Id., Attach. A at 1. When it was
determined that plaintiff had committed additional criminal
conduct, the hearing was continued to June 3, 1998.
Id., Attach. A at 1, 4-11.
June 3, 1998 hearing, several witnesses testified, and based
on their testimony, the hearing examiner found that plaintiff
had assaulted his ex-wife (Charge No. 4 -- (B) Assault), beat
his two step-children (Charge No. 5 -- Assault), sexually
assaulted his step-daughter (Charge No. 6 -- Sodomy or
Unlawful Sexual Contact with a Minor), and had unlawful
sexual contact with another child (Charge No. 7 -- Unlawful
Sexual Contact with a Minor). See generally id.,
Attach. A at 5-12. He recommended revocation of
plaintiff's parole and a 15-year continuance of the
matter, id., Attach. A at 14, and the Commission
concurred, id., Attach. B (Notice of Action dated
June 24, 1998) at 1-2. The Commission reconsidered the matter
in December 2013, denied re-parole and, " continue[d
plaintiff] to the expiration of [his] sentence."
Id., Attach. C (Notice of Action dated January 23,
2014) at 1.
purports to bring this action against the Commission under
the Administrative Procedures Act (" APA" ),
see 5 U.S.C. § 701 et seq. He contends
that the Commission exceeded the scope of its rulemaking
authority when it promulgated a regulation, 28 C.F.R. §
2.23, and its corresponding internal Rule 2.23. See
Compl. at 2. Specifically, plaintiff posits that the
Commission misinterpreted 18 U.S.C. § 4203(c)(2),
see Compl. at 1, which in relevant part states:
The Commission . . . may delegate to hearing
examiners any powers necessary to conduct hearings and
proceedings, take sworn testimony, obtain and make ...