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Thunder v. U.S. Parole Commission

United States District Court, D. Columbia

September 28, 2015

JAMES DAVID BLUE THUNDER, Plaintiff,
v.
U.S. PAROLE COMMISSION, Defendant

          JAMES DAVID BLUE THUNDER, Plaintiff, Pro se, FLORENCE, CO.

         For UNITED STATES PAROLE COMMISSION, Defendant: Peter Rolf Maier, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Page 6

         MEMORANDUM OPINION

         EMMET G. SULLIVAN, United States District Judge.

         This matter is before the Court on defendant's Motion to Dismiss. For the reasons discussed below, the motion will be granted.[1]

         

Page 7

          I. BACKGROUND

         Plaintiff 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.[2] 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.[3]

         Plaintiff's 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.

         At the 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.

         Plaintiff 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 ...

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