UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
David Sieverding and Kay Sieverding Appellants v. United States Department of Justice Appellee |
Case No 10-5149 |
Appeal from the U.S. District Court for the District of Columbia, Civil
Action No 1:09-cv-00562, The Honorable John D. Bates of an Order Granting Summary Judgment to the Department of Justice and Dismissing all claims and Denying copy of 5 USC § 552a(u) report.
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INITIAL BRIEF OF PETITIONERS DAVID AND KAY SIEVERDING
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JURISDICTIONAL STATEMENT
The DDC had jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), 5 USC § 552a, and 18 USC § 1512.
Relief was requested from acts of witness intimidation involving records within systems of DOJ records criminally directed towards 3rd party civil litigation that the Sieverdings filed in 2005 in the District of Columbia[1]. The Court of Appeals has jurisdiction based on 28 U.S.C. § 1291 because a final judgment was issued on 3/15/10. Plaintiffs’ notice of appeal was filed on 5/10/10, within the 60 days authorized under Appellate Rule 4 when the federal government is the defendant.
This Appeal is from a final order disposing of all parties’
claims and denying a copy of a DOJ Data Integrity Committee report required by 5 USC § 552a(u).
STATEMENT OF ISSUES
1.) Does the First Amendment limit restraints against PRO SE speech?
2.) Is there an exemption from the NonDetention Act, 18 USC § 4001, for the detentions and threats that DOJ inflicted on the appellants?
3.) When arrest and detention are accomplished without a criminal charge, and systems of records are used, is there remedy under the Administrative Procedure Act?
4.) If either Mr. or Mrs. Sieverding does not have remedy under the Administrative Procedure Act, is there remedy under 42 USC § 1985(2), Obstructing justice; intimidating party, witness, or juror?
5.) Is DOJ required by the Administrative Procedure Act to make annual reports available to the public?
STATEMENT OF FACTS
The Sieverdings lived in and owned property in Steamboat Springs, CO. Their neighbor, Kevin Bennett, the City Council President, fenced off the road adjoining their home and the Sieverdings were threatened if they disturbed it.[2] Then, they were threatened with criminal prosecution in municipal court unless they agreed to give up their rights to the street, which they did.[3] Then, the city council president built extra buildings on his property in violation of the zoning.[4] Their family lawyer told them he would lose the Water and Sewer Commission account if he represented them.[5]
Pro se, the Sieverdings applied for a Court order to contain their neighbors’ construction to that allowed within the zoning. Judge Joel Thompson ruled that the Sieverdings didn’t have standing to enforce the zoning.[6]Judge Thompson also approved a temporary restraining order, then made permanent, ordering that Mrs. Sieverding keep 30 feet from her adjoining neighbor at risk of 18 months in jail.[7] [8] No statutory basis was stated.[9] Summary procedure was used.[10] Mrs. Bennett followed Mrs. Sieverding around asking the police to arrest her and the Sieverdings were forced to move because of the danger of arrest for ordinary legal acts.[11]
The City Council president’s wife signed a criminal complaint against Mrs. Sieverding in capacity as police officer, even though she was only a civilian. [12] With no written statement of probable cause[13] [14] a Colorado prosecutor maintained the charges against Mrs. Sieverding for six months [15]and a trial date was set and announced in the local paper. The prosecutor was married to a real estate developer.[16] [17] Mrs. Sieverding hired a defense lawyer and pled not guilty. In violation of criminal procedure, the prosecutor dismissed the criminal complaint without an oral hearing. She refused to state the probable cause. Then the prosecutor issued a statement, reported in the press, that Kevin Bennett’s wife was Kay Sieverding’s victim but that a trial was too expensive.[18] [19]A few months later, in open court, in front of a reporter, the police retaliated for an unfavorable ruling by announcing that they were going to have Judge Thompson’s live-in girlfriend arrested by the federal Drug Enforcement Agency. The DEA then arrested the judge’s girlfriend.[20] [21]
In the District of Colorado, 02-cv-1950, the Sieverdings argued that they had claims because the defendants had devalued their property in Steamboat Springs CO by converting the road and building in violation of the zoning, [22]obtaining a civil restraining order without a statutory basis and without a statutory exemption allowing summary procedure, pursuing a criminal charge against Mrs. Sieverding without a written statement of probable cause,[23] [24]and publishing that Mrs. Kevin Bennett was Mrs. Sieverding’s victim but a trial was too expensive. [25]
In the District of Colorado, 02-cv-1950, the Sieverdings argued that the ABA should be liable for their civil claims as a proximate cause because over 100 lawyers knew that they had been extorted [26]and that Mrs. Sieverding had been criminally prosecuted in Routt County CO without a written statement of probable cause[27] but failed to protest[28] and because their lawyer, William Hibbard, had claimed that he was worried about retaliation if he represented them in federal court.[29] They argued that the ABA made public representations on its web site that implied that lawyers could not be sued in tort and that that discouraged lawyers from representing parties who wanted to sue lawyers in tort therefore violating 42 USC § 1985 (1) because a lawyer is generally required for a successful lawsuit. [30]Mr. Hibbard reviewed their complaint and provided them with a letter generally agreeing with it. [31] This is political speech.
The District of Colorado lawsuit was dismissed without a trial and without an opinion.[32] The magistrate issued a report and recommendation, which the Sieverdings filed a timely objection to. The assigned judge, Edward Nottingham, adopted it in a one-page order and claimed that he had performed a De Novo review but he didn’t address the facts, claims, statements of law or objections, as required in a De Novo review see THOMAS v. ARN, 106 S.Ct.466,474U.S.140
In the Colorado magistrate’s report, he recommended a NO PRO SE order. No statutory basis was stated and there was no motion filed supporting it and no document labeled “injunction” or complying with Rule 65(d).[33]
The pro se plaintiffs were unsuccessful in their 10th Circuit appeal. They filed a motion under Rule 60b(3) in the District of Columbia, 05-cv-01283, for relief from judgment in a nonrendering court. They also filed a new complaint, 05-cv-01672, in the federal District for the District of Columbia (hereinafter DDC), which reproduced the 02-cv-1950 complaint and added a claim that the ABA had prevented the proper adjudication of the Colorado lawsuit. [34]
The Sieverdings continue to have a “live” issue in their litigation because they had not been financially compensated for their economic claims, the restraining order against Mrs. Sieverding continues in effect,[35] the Steamboat Pilot continues to publish articles about Mrs. Sieverding on the Internet, (claiming that she was to stand trial for harassing Mrs. Kevin Bennett),[36] [37]the Internet publications affect the Sieverdings’ current reputation and employment opportunities:
A case is [only] moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. County of Los Angeles v. Davis, 440 U. S. 625, 631.
Because there was no memorandum opinion in 02-cv-1950, it cannot be res judicata to succeeding cases based on related facts.[38]
In 2004, DOJ Office of Inspector General warned USMS that its prisoner tracking systems were vulnerable to fraudulent use and advised that USMS should implement adequate procedures to verify the accuracy and completeness of required input data. However, to this day those audit issues remain open and unresolved.[39][40]
Without a government prosecutor and without using a published procedure, [41] Judge Nottingham ordered the United States Marshals service (a bureau of the Department of Justice under the direction of the Attorney General see 28 USC § 566, hereinafter USMS) to incarcerate Mrs. Sieverding. The minute entry stated that this was because she refused to withdraw the DDC complaints.[42] There was no arraignment, bail hearing or any other criminal procedure. Mrs. Sieverding was told in court on 9/02/05 that because she was not accused of a crime, she was not entitled to a lawyer or an evidentiary hearing.[43] Judge Nottingham told her that she would only be allowed to make a 5-minute presentation and vowed that he would not listen.[44] In response to threats of Department of Justice (hereinafter DOJ) incarceration, Mr. Sieverding agreed to file a motion “voluntarily” dismissing the DDC complaints. After doing so, he sent the law firms in the DDC action an email saying that he didn’t want to dismiss the DDC complaints and they filed in DDC that they therefore expected him to be incarcerated.[45] [46]This was reported in the Steamboat City Council minutes.[47]
Mrs. Sieverding was held by DOJ in a state contract jail in Colorado for 124 days based on the minute entry by Judge Nottingham.[48] However, USMS cellblock operations directives require a warrant issued by a judge or a proper commitment document neither of which USMS had.[49] She was released when she agreed to file the demanded motion, after the 3rd parties had filed a motion to have Judge Nottingham hold her husband in contempt for assisting her prosecution of civil lawsuits while she was in jail.[50] She then returned to Wisconsin. DOJ re-arrested her in Wisconsin because that she didn’t file the motions in DDC that had been demanded from her as a condition of her release. To stay out of jail, she filed the motions in DDC that were demanded.[51]
While she was in jail the first time, the Sieverdings wrote to and called DOJ and complained that Mrs. Sieverding was being held by DOJ in a contract jail without a criminal charge and that Mr. Sieverding had been threatened with DOJ incarceration without a criminal charge as a vehicle to affect their third party civil lawsuits in D.DC.[52] There was no response to these communications or to later similar communications.[53] [54][55][56][57][58][59][60][61][62][63][64]
5 USC § 552a(u) requires that DOJ have a Data Integrity Board and that allegations of violations of DOJ matching programs, and response of the department to such complaints, be reported to the Office of Management and Budget (hereinafter OMB) and the public, but DOJ did not report their complaints through an official report by the Data Integrity Committee.
Six months after filing the demanded motion to dismiss the DDC. complaints, Mrs. Sieverding filed motions to reconsider a decision by the DDC court that the Colorado action caused res judicata to the DDC actions. In response, Judge Nottingham issued what DOJ calls a “civil bench warrant”. Again the procedure was unpublished and no statutory basis was stated. The document called warrant stated that the offense was “failure to appear” and was captioned “U.S.A. v. Kay Sieverding” but it was not requested by a government attorney. 28 USC § 516 reserves conduct of litigation to officers of DOJ under the direction of the Attorney General, but DOJ did not appear in the action except as USMS guards.[65]
To avoid detention, Mrs. Sieverding went to Canada for 10 weeks. Mr. Server called her there and threatened to arrest her.[66] [67] She sent a fax from Canada to the USMS Wisconsin office and demanded they cease harassing her unless they had a statutory basis.[68] She also filed an appeal in the 10th Circuit against the NO PRO SE order, which was partially successful in that the 10th Circuit ruled that Judge Nottingham didn’t have authority to enjoin the DDC actions.[69] Relying on that, she returned to Wisconsin and filed a notice of appeal of the DDC actions.
Months later, USMS asked the Verona WI police to arrest Mrs. Sieverding. The name of the Colorado USMS marshal, Ed Zahren, was affixed to a Wisconsin USMS, “Detainer against Unsentenced Prisoner” which specified that she was a “felony no bond hold”.[70] That form is normally used for criminal defendants who have been convicted but not yet sentenced. It was determined that there were no state or local charges against Mrs. Sieverding.[71]
There was a hearing in federal court in Madison before a clerk magistrate. The docket report showed no initiating, pending or terminated charges.[72] An assistant U.S. attorney, Robert Anderson, showed up and stated that the “government is not a part of this”. Again, the procedure was unpublished. Mrs. Sieverding argued to the acting magistrate that the NonDetention Act prohibited her detention without criminal charges.[73] However, the acting magistrate in Wisconsin issued an order that Mrs. Sieverding should be detained and brought to Colorado. She was held in a Dane County jail under contract with USMS for three weeks and then brought in chains by USMS employees to Colorado. There she was held overnight in a third county jail under contract with USMS. The signature of the Colorado marshal Ed Zahren and another USMS officer were attached to a USMS form when she was brought to Colorado stating that she was arrested for “failure to appear”.[74] The following day, USMS employees brought her before Judge Nottingham again and he stated that the defendants had a right to pursue additional detentions of Mrs. Sieverding if she pursued her claims.[75]
During the 22 days of that detention, the civil defendants in DDC filed a successful motion to dismiss the Sieverdings’ appeal of the 3rd party DDC civil actions on the basis that the appeal notice was untimely.
The Sieverdings filed a petition in the Supreme Court appealing the dismissal of the DDC actions and the NO PRO SE award but it was not chosen for hearing. Within 30 days, they filed a complaint in the District of Minnesota under 42 USC § 1985(2) against the law firm of Faegre & Benson, whose former partner had requested the imprisonments of Mrs. Sieverding. That action was dismissed on the sole basis that the Sieverdings were not allowed to represent themselves.[76] The Sieverdings filed a timely paid appeal in the 8th Circuit. Faegre & Benson filed a motion to dismiss that on the basis that the Sieverdings were not allowed to represent themselves and that was granted within hours. The Sieverdings appealed that to the Supreme Court but again their petition was not picked for hearing. 30 days later they filed for relief against DOJ in the DDC, resulting in this appeal.
STATEMENT OF CASE
The Sieverdings’ claimed damages under 5 USC § 552a or, alternately, under 28 U.S.C. § 2201 Creation of remedy and in it they alleged extortion. DOJ did not file an answer. Within 28 days of the memorandum opinion dismissing all claims, the Sieverdings filed a motion requesting permission to pursue their claims under 42 USC § 1985(2). DOJ’s only stated basis of objection is that it was not allowed under Rule 59. That motion was denied without explanation.
The District Court ruled that David Sieverding didn’t have standing and that Kay Sieverding’s damage claims were exempt from the Privacy Act damages provisions because the systems or records had been exempted from the Act due to their ordinary use in criminal proceedings.
The District Court didn’t address the Sieverdings’ motion for a copy of DOJ’s Data Integrity Committee Report.
SUMMARY OF ARGUMENT
Strict scrutiny of all questions is required because of the First Amendment issues. Because this Court has stated that it is bound by Supreme Court dichta, it must rule that the First Amendment limits restrictions on pro se speech. Because no statutory basis was stated for imprisonment, and the 6th Amendment requires notice of the charges before imprisonment, this Court must rule that the NonDetention Act was violated. The All Writs Act cannot be construed in conflict with the First Amendment.
The District Court’s decision was based on the supposition that U.S. citizens can be imprisoned by their government without a stated statutory basis and that there are “authorized enforcement law enforcement functions” not defined as crimes by Congress, that should be considered as crimes for the purposes of construing federal statutes including 5 USC § 552a and 42 USC § 14616 National Crime Prevention and Privacy Compact. The exemptions from the Privacy Act require that the records within systems of records be associated with a criminal investigation, criminal prosecution or conviction and none of those applied. There was no search warrant and in response to Freedom of Information Act requests, the U.S. Attorney’s offices in Colorado and Wisconsin stated that they had no responsive records or files on Mrs. Sieverding. 42 USC § 14616 defines predicate offenses as crimes. The District Court states that there is a “civil bench warrant” but a word search of the Rules of Civil Procedure does not find the word “warrant”.[77] 5 USC § 552 states that no person can be disadvantaged on the basis of unpublished procedure. [78] Thus, the District Court was in error in its reasoning that there are federal “civil bench warrants” and in error in its interpretation of 5 USC § 552a. By finding that holding people without charges is an DOJ and/or U.S. Courts authorized law enforcement function, the District Court granted both branches plenary powers to define crime, in conflict with the Constitution, which reserves the definition of crime to Congress. By finding that incarceration to limit truthful PRO SE speech is an authorized law enforcement function, the District Court granted both the executive and the courts plenary powers over speech, in conflict with the First Amendment.
Both the Sieverdings stated injuries in fact. Mr. Sieverding had records cognizable under 5 USC § 552a because he was subjected to a verifiable threat future DOJ imprisonment, which would have required creation of records in his name within the Prisoner Tracking System and because with DOJ’s knowledge he was extorted by DOJ’s unauthorized creation and dissemination of prisoner records about his wife.
The facts as stated in DOJ’s motion to dismiss show that there were threats of violence for the purpose of affecting the Sieverdings’ third party civil litigation in DDC. DOJ officials participated in the conspiracy of witness intimidation as defined by 18 USC § 1512 and there is jurisdiction in this Court because the intimidation was designed to affect civil litigation in DDC, 05-cv-01672. Therefore, the Sieverdings have standing to pursue damages under 42 USC § 1985(2) against “any party” including the government. Damages recognized for First Amendment Retaliation by the Supreme Court include personal damages and property damages. The claim for damages under Obstructing Justice, Intimidating Witnesses is properly against DOJ because of 1.) its informal policy of joining in the conspiracy including its statements in the litigation in the District Court, 2.) because of its policy of deliberate indifference as shown by its failure to fix its Prisoner Tracking System as recommended by the Office of Inspector General so that there would be verification of the completeness and accuracy of input records and 3.) its failure to respond to the Sieverdings’ years of complaints or to report their complaints to OMB and the public as required by 5 USC § 552a(u).
The Sieverdings have standing to get a copy of the reports required by 5 USC § 552a(u) because of the principles of statutory interpretation and because their future freedom is plausibly related to DOJ reporting requirements.
STANDING
The Sieverdings’ request a copy of the required DOJ Data Integrity Board Reports as described in 5 USC § 552a(u). These reports are supposed to be filed with the Office of Management and Budget and made available to the public. They have not been filed in years. OMB’s current web site discusses collecting these reports at some unnamed future date.
The Sieverdings believe they have a cognizable legal interest in the reports because the Sieverdings were injured by violations of DOJ’s data matching agreements with contract jails. The jail contracts define prisoner and Mrs. Sieverding was held for 5 months in three different contract jails but she did not fall within the definition of prisoner in the contracts.
The reports to OMB and the public, required by 5 USC § 552a(u) and ratified on OMB’s current website, are supposed to include reports of allegations of violations of matching agreements and remedial actions. The Sieverdings have been complaining about these illegal imprisonments since 2005 but DOJ did not file any public report of their allegations. This allows DOJ to keep secret complaints of unconstitutional retaliation. The Sieverdings’ personal freedom and First Amendment Rights are linked to the required reports.
ARGUMENT
1.) Does the First Amendment limit restraints against PRO SE speech?
Strict Scrutiny review is required because the Sieverdings stated a First Amendment claim.[79] Citizens United v. Federal Election Commission 130S.Ct.42(2009)
DOJ claimed in the District Court that the imprisonment of Mrs. Sieverding to control the Sieverdings’ PRO SE speech was an authorized law enforcement function.[80]
Appellants can rely on Supreme Court statements in this Court because this court stated,
Vertical stare decisis -- both in letter and in spirit -- is a critical aspect of our hierarchical Judiciary headed by "one supreme Court." U.S. CONST. art. III,§1. And as we have said before, "carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.” United States v. Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006). Winslow v. Federal Energy Regulatory Commission, 587 F.3d 1133 (D.C.Cir. 12/01/2009)
“The First Amendment does not protect speech and assembly only to the extent it can be characterized as political. “Great secular causes, with small ones, are guarded. The grievances for redress of which the right of petition was insured, and with it the right of assembly, are not solely religious or political ones. And the rights of free speech and a free press are not confined to any field of human interest.” MINE WORKERS V. ILLINOIS BAR ASSN.,389U.S.217(1967)[81]
“[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." The Constitution demands that content-based restrictions on speech be presumed invalid, R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992), and that the Government bears the burden of showing their constitutionality. Ashcroft v. American Civil Liberties Union, 322 F.3d 240.
A PRO SE lawsuit that has overlapping facts with a previous PRO SE lawsuit that was dismissed may still be valid and the litigant must be allowed to try to convince the Court that that is so. This is consistent with the Rules of Civil Procedure Rule 65(d)[82]
First Amendment protections do not depend on the speaker's "financial ability to engage in public discussion." …Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest… The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech…. Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. Citizens United v. Federal Election Commission.
The Supreme Court “invalidated an outright compulsion of speech” in West Virginia Bd. of Ed. v. Barnette,319U.S.624(1943) affirmed in Johanns v. Livestock Marketing Association. 125S.Ct.2055(2005).
“This Court's past recognition of the right of self-representation, the federal court authority holding the right to be of constitutional dimension, and the state constitutions pointing to the right's fundamental nature form a consensus not easily ignored.” Faretta v. California 422U.S.806(1975 )
“Nor does the text of the First Amendment speak in terms of successful petitioning -- it speaks simply of "the right of the people ... to petition the Government for a redress of grievances." Even unsuccessful but reasonably based suits advance some First Amendment interests. Like successful suits, unsuccessful suits allow the "`public airing of disputed facts,' " Bill Johnson's, supra, at 743 (quoting Balmer, Sham Litigation and the Antitrust Law, 29 Buffalo L. Rev. 39, 60 (1980)), and raise matters of public concern. They also promote the evolution of the law by supporting the development of legal theories that may not gain acceptance the first time around….Finally, while baseless suits can be seen as analogous to false statements, that analogy does not directly extend to suits that are unsuccessful but reasonably based. For even if a suit could be seen as a kind of provable statement, the fact that it loses does not mean it is false. At most it means the plaintiff did not meet its burden of proving its truth. That does not mean the defendant has proved -- or could prove -- the contrary.” BE&K Construction Co. v. National Labor Relations Board 536 U.S. 516 (2002)
“But we cannot endorse the proposition that a lawsuit, as such, is an evil. Over the course of centuries, our society has settled upon civil litigation as a means for redressing grievances, resolving disputes, and vindicating rights when other means fail. There is no cause for consternation when a person who believes in good faith and on the basis of accurate information regarding his legal rights that he has suffered a legally cognizable injury turns to the courts for a remedy: "we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action." Bates v. State Bar of Arizona, 433 U.S., at 376. That our citizens have access to their civil courts is not an evil to be regretted; rather, it is an attribute of our system of justice in which we ought to take pride.” Zauderer v. Office Disciplinary Counsel, Supreme Court Ohio 105 S. Ct. 2265, 471U.S.626
For the reasons stated by the Supreme Court and quoted above, The First Amendment limits restrictions on PRO SE speech.
2.) Is there an exemption from the NonDetention Act, 18USC§4001, for the detentions and threats that DOJ inflicted on the appellants?
The Sieverdings claimed that the detentions and threats that DOJ inflicted on the Sieverdings violated the NonDetention Act, 18USC§4001.[83]
Strict Scrutiny review is required because the basis for incarceration was the Sieverdings’ speech. Citizens United v. Federal Election Commission, 130S.Ct.42
Justice Souter’s opinion in Hamdi v. Rumsfield, 542 U. S. ____ (2004), was
The threshold issue is how broadly or narrowly to read the Non-Detention Act, the tone of which is severe: “No citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an Act of Congress.” Should the severity of the Act be relieved when the Government’s stated factual justification for incommunicado detention is a war on terrorism, so that the Government may be said to act “pursuant” to congressional terms that fall short of explicit authority to imprison individuals? With one possible though important qualification, see infra, at 10–11, the answer has to be no. For a number of reasons, the prohibition within §4001(a) has to be read broadly to accord the statute a long reach and to impose a burden of justification on the Government.
In the Sieverdings’ case, the war on terrorism was irrelevant.
DOJ recognized the NonDetention Act claim but brushed it off writing:
“Plaintiffs allege that David Sieverding ‘wrote twice to the FBI in Colorado in November 2005 and told them [Kay Sieverding] was being held without a federal offense being charged.—This claim is wholly meritless and should be dismissed.”[84]
DOJ claims that it incarcerated Mrs. Sieverding based on a NO PRO SE order affirmed by Judge Nottingham. No motion was filed in support of the order. It was, however, preceded by a circulated draft motion. The verified attorney bills show that the draft NO PRO SE order was discussed with judicial personnel and that it was based on the All Writs Act.[85] [86]
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction. 28USC § 1651. Writs
The Supreme Court has already found that:
To the victor belong only those spoils that may be constitutionally obtained. Rutan et al. v. Republican Party Illinois et al. 110 S. Ct. 2729, 497U.S.62
And
Although the [All Writs ] Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate. Pennsylvania Bureau of Correction v. United States Marshals Service. 474 US 34
Therefore District of Colorado 02-1950 could not be res judicata to DDC 05-cv-01672.
The appellants recognize that pro se litigants are sometimes seen as a burden to the Courts. The Supreme Court, however, has already ruled that:
Constitutional rights do not always have easily ascertainable boundaries, and controversy over the meaning of our Nation's most majestic guarantees frequently has been turbulent. As judges, however, we are sworn to uphold the law even when its content gives rise to bitter dispute. Thornburgh v American College Obstetricians and Gynecologists et al. 106 S.Ct.2169,476U.S.747
The Supreme Court has already found that:
For at least a quarter century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not act. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests -- especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly. Speiser v. Randall, 357 U.S. 513, 526. Such interference with constitutional rights is impermissible. Rutan et al. v. Republican Party Illinois et al. 110 S. Ct. 2729, 497U.S.62
The Supreme Court stated:
The 1871 Congress intended § 1 to "throw open the doors of the United States courts" to individuals who were threatened with, or who had suffered, the deprivation of constitutional rights, id. at 376 (remarks of Rep. Lowe), and to provide these individuals immediate access to the federal courts. Patsy v. Board of Regents of State of Florida, 457 U.S. 496 (1982)
Therefore, the NonDetention Act and the All Writs Act must be construed so as to comply with the First Amendment’s Right to Petition and the statutory right to self-representation, 28 USC § 1654.[87]
3.) When arrest and detention are accomplished without a criminal charge, and systems of records are used, is there remedy under the Administrative Procedure Act?
Again, strict scrutiny analysis is required because PRO SE speech was the stated reason for the arrests and detention.Citizens United v. Federal Election Commission 130S.Ct.42(2009)
“The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech.”
“Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people.” Citizens United v. Federal Election Commission.
The District Court ruled:
“Ms. Sieverding next alleges that the USMS violated the Privacy Act's requirement that agencies may not maintain records "describing how any individual exercises rights guaranteed by the First Amendment." 5 U.S.C. § 552a(e)(7). Even assuming that the USMS maintains records describing how Ms. Sieverding exercises her First Amendment rights, however, these records are all exempt from 5 U.S.C. § 552a(e)(7)'s requirements….The Privacy Act allows agencies to maintain records describing how individuals exercise their First Amendment rights if the records are "pertinent to and within the scope of an authorized law enforcement activity."… Thus, to be excepted from 5 U.S.C. § 552a(e)(7),records need only be "'relevant to an authorized criminal investigation or to an authorized intelligence or administrative one.'"….All the records that allegedly describe Ms. Sieverding's First Amendment activities fall within this exception.”[88]
The memorandum opinion states:
All the records that allegedly describe Ms. Sieverding's First Amendment activities fall within this exception. A document entitled "Request for Assistance - Fugitive Investigation," for example, is plainly pertinent to authorized law enforcement activity, see Am. Compl. ¶ 28 & Exhibit 2.
Exhibit 2, a USMS document, reads:
“Request for Assistance Fugitive Investigation…Purpose. On 10/11/2002, Kay SIEVERDING filed a civil lawsuit naming numerous defendants including city council members, the State of Colorado, several police departments and numerous attorneys. The case stems from an incident where SIEVERDING objected to someone adding an addition onto their house and the Steamboat Springs government did not stop the building. On 9/02/05, U.S. District Judge Nottingham found SIEVERDING to be in contempt of court and ordered her held in custody until she complied with orders of the Court. Sieverding was ordered to file a notice of proof of withdrawal of the cases in other judicial districts. On 01/04/06, SIEVERDING was produced in Court and agreed to dismiss all pending lawsuits within eleven days of her release. SIEVERDING was released from custody and ordered to dismiss all cases. On 02/02/06, SIEVERDING failed to appear for a status hearing and a bench warrant was issued. DUSM [redacted] spoke with Attorney David Brougham, the attorney for several defendants in the case… [redacted] DUSM was contacted by a news reporter on 02/06/06. The reporter advised that SIEVERDING was sending numerous emails to the newspaper concerning the fair media coverage of her case. The reporter also advised of the possibility that SIEVERDING may be suicidal. Please make attempts to locate and arrest SIEVERDING.”[89]
The District Court wrote:
“Ms. Sieverding argues that the USMS keeps numerous inaccurate documents concerning her investigation, arrest, detention, and transportation in violation of 5 U.S.C. § 552a(e)(5)'s maintenance requirements. These contentions fail, however, as the allegedly inaccurate documents are all kept in systems of records that have been exempted from the Privacy Act's maintenance requirements: the Warrant Information System ("WIN"), the Prisoner Processing and Population Management System ("PPM"), and the Prisoner Transportation System ("PTS")[90]… Together, the Department's three declarations establish that all the records Ms. Sieverding contends were kept in violation of the Privacy Act's maintenance requirements are kept in systems of records that are exempt from these requirements. Accordingly, the Court will grant the USMS summary judgment on the allegations made by Ms. Sieverding in the following paragraphs of her pleadings: Compl. ¶¶ 31, 37, 45, 69, 75, 81-85, 92, 101, 154; Am. Compl. ¶ 36 & Exhibit 10 (USMS detainer form); ¶ 38 & Exhibit 12 ("Commitment To Another District" form from the Western District of Wisconsin); ¶ 40 & Exhibit 14 (USMS Subject Report for Mrs. Sieverding); ¶ 41 & Exhibit 15 (February 2006 arrest warrant); ¶ 42 & Exhibit 16 (September 2006 arrest warrant); ¶ 43 & Exhibit 17 (USMS prisoner transportation form); ¶ 46 & Exhibit 20
(USMS individual custody and detention report); ¶ 47 & Exhibit 21 (WIN message).[91]
The District Court wrote:
“The Privacy Act allows agencies to maintain records describing how individuals exercise their First Amendment rights if the records are "pertinent to and within the scope of an authorized law enforcement activity." Id. "Although the Privacy Act does not define 'law
enforcement activity,' [the D.C. Circuit] ha[s] interpreted the phrase broadly." Maydak v. United States, 363 F.3d 512, 517 (D.C. Cir. 2004). Thus, to be excepted from 5 U.S.C. § 552a(e)(7), records need only be "'relevant to an authorized criminal investigation or to an authorized
intelligence or administrative one.'" Nagel v. United States Dep't of Health, Educ. & Welfare, 725 F.2d 1438, 1441 n.3 (D.C. Cir. 1984) (quoting Jabara v. Webster, 691 F.2d 272, 280 (6th Cir. 1982)); see also J. Roderick MacArthur Found. v. FBI, 102 F.3d 600, 603 (D.C. Cir. 1996)
(holding that valid law enforcement activities require neither an active investigation nor a "current law enforcement necessity").”[92]
The District Court wrote
“[S]he contends that the Marshals violated the Privacy Act's requirements that they "establish rules of conduct for persons involved in the . . . operation . . . of any system of records," and "establish appropriate . . . safeguards to . . . protect against any unanticipated threats . . . to [records'] security." 5 U.S.C. 552a(e)(9)-(10); see Compl. ¶ 107.[93]
The District Court wrote:
“she argues that the USMS violated the Privacy Act by conducting a non-criminal investigation of her. See Am. Compl. ¶ 44 ("I believe this shows a violation of the Privacy Act because the USMS is confined to criminal matters."); Am. Compl. Exhibit 18 (USMS "Reportof Investigation"). The Privacy Act does not, however, restrict the Marshals' investigative authority. And in any event, the Marshals' authority plainly extends to the non-criminal matter -- enforcement of a civil bench warrant -- noted in the USMS's Report of Investigation that Ms.Sieverding references. See 28 U.S.C. § 566(c) (USMS "shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties").[94]
The District Court wrote:
“Ms. Sieverding contends that DOJ violated the Privacy Act's maintenance requirements "as shown by the fact that their prosecutor showed up for an incarceration hearing [held in the Western District of Wisconsin] without an offense being listed on the docket report." Compl. ¶ 60; see Am. Compl., Exhibit 3 (docket sheet for the Western District of Wisconsin).11 But Ms. Sieverding offers no explanation, and the Court can think of none, for how a prosecutor's appearance at "an incarceration hearing" could reflect a violation of the Privacy Act.[95]
The District Court wrote:
Ms. Sieverding also contends that the Marshals "exceeded their statutory authority" by transporting her in chains to a hearing for a civil case "without a law enforcement purpose." Compl. ¶¶ 78-81. There is no statutory limit on the Marshals' authority to transport individuals in their custody, however. Nor is there, as Ms. Sieverding argues, any statutory requirement that the Marshals receive "written authorization" from DOJ before searching for an individual, see Compl. ¶¶ 116, 122, 129, 134, 137, or before "discuss[ing]" one individual with another, see Compl. ¶ 135. The Court will dismiss all such claims.14[96]
The District Court wrote:
“Ms. Sieverding alleges that the Marshals conspired with a federal judge "to bypass the security provisions set by Congress to protect the rights of citizens." Compl. ¶ 110.[97]
The District Court wrote:
“Ms. Sieverding also alleges that no DOJ representative was present at several court hearings in 2005 and 2006 that led to her being detained in federal custody. See Compl. ¶ 166.Thus, she says, "[b]y its silence, DOJ illegally allowed non-DOJ lawyers to conduct litigation involving the U.S. government without the participation of DOJ lawyers." Compl. ¶ 171; see also Compl. ¶¶ 167-70. She apparently relies on 28 U.S.C. § 516, which generally reserves "to officers of the Department of Justice" "the conduct of litigation in which the United States . . . is interested." See Compl. ¶ 168 (citing 28 U.S.C. § 516). But while a violation of § 516 may provide a defense to an allegedly improper proceeding, see, e.g., Mehle v. Am. Mgmt. Sys., 172 F. Supp. 2d 203, 205-06 (D.D.C. 2001), no court has ever found a civil cause of action against DOJ for alleged violations of this statute. Rather, the time and place for Ms. Sieverding to raise this claim was at the allegedly improper hearings themselves.” [98]
The District Court wrote:
“The Court will also grant defendant's motion to dismiss Ms. Sieverding's allegations that the USMS violated 5 U.S.C. § 552a(e)(7) by maintaining records related to its "detention[],surveillance, and searching" of her. See Compl. ¶¶ 16-20. These claims, as alleged, fall within the Privacy Act's exception for valid law enforcement activity.[99]
The Sieverdings filed motions for reconsideration and on 4/19/10, the District Court wrote a second memorandum opinion stating:
Kay Sieverding contends that the Court incorrectly dismissed her Privacy Act claims. She offers that the United States Marshals' Prisoner Processing and Population Management/Prisoner Tracking Systems -- which contain several purportedly inaccurate records concerning Ms. Sieverding -- "only appl[y] to prisoners who have been charged with a crime," and she was never charged with a crime. Kay Sieverding's Mot. for Reconsideration [Docket Entry 59], at 1 (citing 69 Fed. Reg. 23,213, at 23,214 (Apr. 28, 2004)). But whether Ms. Sieverding's records should be kept in those systems is irrelevant to Ms. Sieverding's Privacy Act claims. The Marshals, pursuant to 5 U.S.C. § 552a(j)(2), have exempted these systems of records from the Privacy Act's maintenance and accuracy requirements. See 28 C.F.R. § 16.101(o)(1), Mrs. Sieverding thus cannot challenge those records under the Privacy Act.[100]
In its memorandum opinion there is no discussion of Mr. Sieverdings’ claims at all except the statement that “the Court notes that David Sieverding lacks standing to sue on behalf of his wife.” [101]
The Sieverdings’ claimed damages under 5 USC § 552a or, alternately, under 28 U.S.C. § 2201 Creation of remedy.
Complaint ¶8.…. I sent them [the FBI] the transcript showing that the prosecutor, an attorney who was a defense attorney in a lawsuit I had filed, said that I was not accused of criminal contempt only of civil contempt and therefore I was not entitled to an evidentiary hearing.
Complaint ¶9.) There is an established standard and procedure for recognition of a guilty plea and that was not followed. In my case, I was never asked to plead and I never pled.
Complaint ¶11.“fail[ed] to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual.”
Complaint ¶11 The FBI was required by 5 USC § 552 (d)(B)(ii) to inform me of the reason for denial of reclassification from “5005 civil contempt” to “innocent until proved guilty”.
Complaint ¶ 20 Maintenance of records by the U.S. Marshals of my first amendment activities willfully and wantonly violated U.S.C. § 552 I (7)
Complaint ¶ 31The fact that Verona police officers were led to believe that I was to be arrested for a felony shows the extent to which the U.S. Marshals failed to maintain their records in a way that is “accurate, complete, timely, and relevant for agency purposes” as required by § 552 (f)(1)(4)(I)(6).
Complaint ¶44.) The U.S. Marshals and Dane County Jail have a contract that specifies who will be held in the Dane County Jail. It defines “Federal detainees” as “individuals sentenced or charged with federal offenses and detained while awaiting trial or sentencing awaiting designation and transport to a BOP facility”.
Complaint ¶ 45 the papers I have been able to get do not show that I was shown as charged with a federal defense or convicted and do not show that I met the classification of “federal detainees” covered by the contract. There was a failure to maintain adequate records system
Complaint ¶ 51.) An Assistant U.S. Attorney Robert Anderson was there and he said:
“All I’ve gotten was this morning just the warrant for the arrest on the
bench warrant itself and the Government isn’t a party to this and so—I
have no background on this at all except what I’ve heard from Mr.
Rodgers [court services] and Mr. Lieberman.”
Complaint ¶52.) The public defender, Mr. Lieberman, (who I met for the first time that day) said:
“she’s not charged with a crime. The judge has not charged her with
contempt or anything else. It is simply failure to appear at a civil
proceeding” (p.3.)
Complaint ¶ 53.) In the presence of the assistant U.S. Attorney, Owens ordered that I be forcibly detained and transferred to Colorado without being accused of an offense. ‘We are here based on the bench warrant that has been issued by District Judge Nottingham out of the District of Colorado under Case Number 02-1950. Ms. Sieverding that is the reason you have been arrested.” Transcript p. 2
Complaint ¶59.) Owens, the court clerk of the District of Western Wisconsin, created a criminal docket that did not list an offense. It says clearly “opening offense none”. DOJ got a copy of that somehow, or Anderson would not have shown up.
Complaint ¶ 60 DOJ did not adequately maintain its system of records as shown by the fact that their prosecutor showed up for an incarceration hearing without an offense being listed on the docket report.
Complaint ¶ 63 on 5/31/07, the U.S. Marshals transported me to Colorado. The transportation involved my being taken through the Madison and Denver airports and on a United Flight in chains by three armed officers. ¶ 69 by transporting me without transport papers that had the “§” filled in, the
Marshals: “failed to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination related to …rights”
Complaint ¶64.) I told the female officer that I was being held illegally and had not been charged with an offense and that there was no statutory basis for my detention or forced movement across state lines.
Complaint ¶66.) On the transport papers, there was a place for the statute. It was printed “§” but no statute was filled in.
Complaint ¶ ¶76-81 In December 2005, I filed a civil lawsuit in the District of Kansas. A lawyer named Christopher Beall mailed a document threatening to have my husband incarcerated if I served or otherwise prosecuted that complaint. [102]The U.S. Marshals in Colorado brought me in chains to a hearing on 1/4/06 even though there was no law enforcement purpose stated and the number of the case, 02-cv-1950, made clear that it was a civil case not a criminal case. I was not served with a subpoena, was not named as a material witness, and there was no trial scheduled.
By bringing me to the hearing, in chains, the U.S. Marshals implemented an extortionist scheme. The purpose of the hearing was extortion. I was brought there to pressure me by watching my husband be threatened. I was damaged by the fact that the U.S. Marshals failed to maintain any record concerning myself with adequate accuracy and exceeded their statutory authority by transporting me in chains and at gunpoint without a law enforcement purpose.
Complaint¶84 The Marshals office in Colorado did not maintain an accurate record as required as to the purpose of their informing the Marshals in Wisconsin that I was on a “felony hold” and willfully and wantonly engaged in a misrepresentation of my status.
Complaint¶92 As a result of the Marshals failing to maintain accurate records, to show that there was no valid warrant and I was not accused of an offense, I was extorted and forced to file motions to dismiss my civil lawsuits. This resulted in the loss of the economic value of my claims and also resulted in unfair determinations of my character, rights, opportunities, and professional qualifications as a graduate of the MIT city-planning program.
Complaint¶97 One of the documents show that I was jailed from 9/2/05 to 1/4/06 because I “pled guilty” to offense 5005.
Complaint ¶98. I didn’t plead guilty to any offense. I was not arraigned. I made no plea at all, but simply quoted Federal Procedure Lawyers Edition and the U.S. Supreme Court.
Complaint¶100The Marshals stated on another record in the same time period that I was “AWT” which I think means “awaiting trial”. However no trial was scheduled and there was no bail hearing.
Complaint¶101 By maintaining a fraudulent record showing that I “pled guilty” or was “awaiting trial” the U.S. Marshals: “fail[ed] to maintain any records concerning any individual with such accuracy, relevance, timeliness and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights or opportunities of, or
benefits to the individual that may be made on the basis of such record.”
Complaint ¶106 By their first and second seizures of my body, and their …visit to my home on 2/7/06, the Marshals participated in an elaborate ruse to pretend that a subpoena is not required to force someone into court against their will.
Complaint ¶107 The Marshals did not: “(9) establish rules of conduct for persons involved in the…operation…of their systems involving contact with the public….and (10) establishing safeguards to protect against any anticipated threats and hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained.”
Complaint¶111 The so called warrant issued by Judge Nottingham on 9/25/06 could not possibly have gone thru WIN because it did not state an offense…
Complaint¶112 The Marshals failed to establish and comply with the required safeguards to stop use of a fraudulent/counterfeit warrant for arrest as required by § 552 d (b) (10).
Complaint¶113 The U.S. Marshals were prohibited from maintaining records having no relationship to criminal offenses and they are prohibited from maintaining, without express permission, records related to civil lawsuits, which are by definition first amendment activities.
Complaint¶128 they visited my neighbors looking for me. However, the records do not show the date or purpose of their visit or my neighbors name. That violated their duty to maintain: (A) the date, nature, and purpose of each disclosure of a record to any person… and (B) the name and address of the person to whom the disclosure is made.
Complaint¶137 The Marshals exceeded their statutory authority and violated the Privacy Act by collecting information as to my whereabouts, which activity had no relationship to the Marshals’ statutory authority.
Complaint¶151 The U.S. Marshals effectively arrested me on 9/2/05, although they did not use those words, when they seized me. They never said “you are under arrest for the offense of….”
Complaint¶152 The Marshals had no authority under Title 18 § 3050 to arrest me because none of the conditions applied.
Complaint¶153 I was then taken to Georgetown County Jail even though I did not meet the description of a federal prisoner in the contract between the jail and the Marshals.
Complaint¶154. The Marshals arrest without authority was a willful and wanton deprivation of my rights, which was accomplished by inadequate record keeping.
Complaint¶202 “DOJ knew I was repeatedly injured as a part of Witness Intimidation and Witness Retaliation and they knew that the crimes involved government corruption. DOJ also knew that I was injured by a judge whom engaged in obstruction of justice on multiple occasions.”[103][104]
Complaint¶208 The threats and seizure were a necessary part of a successful extortionist scheme promulgated by former Judge Edward Nottingham. The result of this extortionist scheme is that we lost both the economic value of our claims and the intangible value of the airing of disputed facts, which related to our character and our professional qualifications as graduates of the Massachusetts Institute of Technology.
Complaint¶214 Because of the threats and illegal seizures, I was unable to properly pursue my civil actions. I couldn’t go to the law library and Court officials were prejudiced against me.
Complaint ¶215 The City of Steamboat Springs on the Internet starting 9/05/05 published the illegal incarcerations and invalid warrants. They were not described as illegal or invalid. The Internet publications by the City of Steamboat Springs include:
“Mr. Lettunich reported his work on the following: 1. The Federal
District Court held a contempt hearing regarding Kay Sieverding. She
refused to dismiss the cases that she filed and was arrested. Mr. Sieverding dismissed the cases but later reneged and said
He will not dismiss the cases; so he may be arrested as well.” (See
http://steamboatsprings.net/sites/default/files/2005/09/06/ccmn0906.pdf[105]
David Sieverding stated his damages:
Complaint¶¶222-223 “As a result of the facts alleged above, I was subject to threatening communications and I was extorted. Being forced to burden and delay my civil complaints damaged me. I was deprived of the economic contribution, sexual relationships, and general attention of my wife Kay Sieverding. Seeing my wife seized and assaulted by government agents emotionally distressed me. I had direct out of pocket expense caused by the events above. My reputation was damaged. I was distracted from my economic activities by the need to protect and rescue my wife from an illegal Conspiracy Against Rights, which agents of the U.S. Marshals and DOJ directly participated in.”
As the Supreme Court has explained:
[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. Connecticut Nat'l Bank v. Germain, 112 S.Ct.1146, 1149(1992)
The FBI record under dispute, Exhibit 26, showing that Mrs. Sieverding was found guilty and sentenced to 124 days in county court for “5005 Civil Contempt” was a record of the “Criminal Justice Information Services”. Those records are used to verify people’s eligibility for certain employment and licensing functions. [106]
The district court wrote:
Ms. Sieverding alleges that the FBI violated 5 U.S.C. § 552a(e)(1) by maintaining a record concerning her arrest and imprisonment for civil contempt without statutory or executive authorization, and 5 U.S.C. § 552a(e)(5) by maintaining an inaccurate record about her entitled an "FBI identification record," falls squarely within these exemptions. Am. Compl., Exhibit 26; see 28 C.F.R. § 16.31 (describing FBI identification records).[107]
The 42 USC §14616, directed authorized the FBI “Criminal Justice Information Services” and explicitly defined
(4) Criminal history records
The term “criminal history records”—
(A) means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, or release; and
(B) does not include identification information such as fingerprint records if such information does not indicate involvement of the individual with the criminal justice system.[108]
The plain language of the statute doesn’t allow the FBI to maintain information of any sort in the “Criminal Justice Information Services” unless the person has been involved in the criminal justice system. “5005 civil contempt” is not a crime.[109] The Office of Justice Programs doesn’t even know what violation code 5005 is.[110] Congress defines crimes and “5005 civil contempt” isn’t one of them. The federal courts don’t have plenary powers of incarceration. Thus, the District Court was in error in its finding the definition of records that can be kept in that system.
The district court wrote:
“And in any event, the Marshals' authority plainly extends to the non-criminal matter --enforcement of a civil bench warrant -- noted in the USMS's Report of Investigation that Mrs.Sieverding references. See 28 U.S.C. § 566(c) (USMS "shall execute all lawful writs, process and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties").[111]
US Courts publishes the Rules of Criminal Procedure and the Rules of Civil Procedure. The Rules of Civil Procedure do not include the term “warrant”. Thus, US Courts does not recognize the term “civil bench warrant”.[112]
5 USC § 552. Public information; agency rules, opinions, orders, records, and proceedings
(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—
(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.[113][114]
Therefore, the District Court was in error in arguing that the USMS can serve a “civil bench warrant.”
DOJ USMS department stated that it asked the Verona WI police department to detain Mrs. Sieverding. [115] 5 USC section 552a(u) states
“(10) the term “non-Federal agency” means any State or local government, or agency thereof, which receives records contained in a system of records from a source agency for use in a matching program;”[116]
Furthermore, sharing of records between state and local government law enforcement and DOJ is regulated by 42 USC§ 14616. National Crime Prevention and Privacy Compact and it defines “Criterion offense” --
“The term “criterion offense” means any felony or misdemeanor offense not included on the list of nonserious offenses published periodically by the FBI.” [117]
Thus, there is no miscellaneous category of information that can be shared with state and local government law enforcement without a criterion offense defined as a felony or misdemeanor.
Therefore, the district court is in error in its statement that:
The records about which Ms. Sieverding complains, however, are "the records of the city," Compl. ¶ 35, and thus are not maintained in the Department's "system of records."
5 USC section 552a subsection (j) General Exemptions.— The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553 (b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from any part of this section except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of records is—
(1) maintained by the Central Intelligence Agency; or
(2) maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of
(A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status;
(B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or
(C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.[118]
Thus, even though the Warrant Information System, the Prisoner Tracking System and the Prisoner Management System were all published in the Federal Register as being exempt from the liability section of the Privacy Act, the individual records about Mrs. Sieverding were not exempt under “ “C” because they were not “compiled at any stage of the process of enforcement of the criminal laws”. Thus the District Court was in error again.
Even if Mrs. Sieverding were to be considered “an alleged [criminal] offender”, the records about her were not exempt because exemption only applies to:
“identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status”.
Mrs. Sieverding was not criminally charged. And:
“Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.”5 USC § 552. Public information; agency rules, opinions, orders, records, and proceedings.
The Rules of Civil Procedure make no reference to “ arrest”, “sentencing”, “confinement”, “release”, “parole” or “probation”. Thus, the District Court was in error.
The third subcategory:
“(B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual”
also is inapplicable to the Sieverdings. The District Court wrote:
Thus, to be excepted from 5 U.S.C. § 552a(e)(7), records need only be "'relevant to an authorized criminal investigation or to an authorized intelligence or administrative one.'"[119]
and the District Court wrote:
“The Privacy Act does not, however, restrict the Marshals' investigative authority.”[120]
Federal Rules of Criminal Procedure Rule 41. Search and Seizure regulates search warrants and investigations. It authorizes a judge to issue a search warrant good for 14 days “in the district” “At the request of a federal law enforcement officer or an attorney for the government”. But no federal judge issued a “search warrant” for the Sieverdings. Judge Nottingham only issued “arrest warrants”.[121] Furthermore in response to Mrs. Sieverdings’ open records act requests DOJ responded:
“A search for records in the U.S. Attorney’s office for the District of Colorado has revealed no responsive records regarding the above subject” [122]
and
“the District of Wisconsin opened no file on you”[123].
Thus, by its own statement DOJ has no record of applying for a search warrant against the Sieverdings.
USMS is authorized to
“investigate such fugitive matters, both within and outside the United States, as directed by the Attorney General” 28 USC §566 UNITED STATES MARSHALS SERVICE Powers and Duties (B)[124][125][emphasis added]
28 CFR § 16.22 General prohibition of production or disclosure in Federal and State proceedings in which the United States is not a party [126] requires all federal employees including the Marshals to file a written notice with the district office of the U.S. Attorney when they are requested to provide documents or information for a third party civil lawsuit. This, they did not do as shown by the fact that the U.S. Attorneys’ offices in Colorado and Wisconsin have no responsive records or files about Mrs. Sieverding.
Privacy Act offers remedy in damages under g(1)(d) for violation of any other provision of the Act including creation of records without a statutory purpose or an executive order of the President.
(e) Agency Requirements.— Each agency that maintains a system of records shall—
(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.[127][128]
Therefore the District Court was in error in finding that the Act does not restrict the investigative powers of the Marshals.
Therefore, the Rules of Statutory Construction prohibited the District Court from finding an exception for the records about Mrs. Sieverding in 5 USC section 552a (2) (j) (A) (B) or (C) and the District Court was in error in finding that there was. This analysis is consistent with
28 CFR § 16.101 Exemption of U.S. Marshals Service Systems—limited access, as indicated. Warrant Information System. That publication justifies exemptions of systems from The Privacy Act and states
(b) Exemptions from the particular subsections are justified for the following
reasons: (1) From subsection (c)(3) because the release of disclosure accounting for disclosure made pursuant to subsection (b) of the Act, including those permitted under routine uses published for this system of records would permit a person to determine whether he is the subject of a criminal investigation, and to determine whether a warrant has
been issued against him, and therefore present a serious impediment to law
enforcement.[129]
When there is no law enforcement function, exemption from The Privacy Act does not present an “impediment to law enforcement”. As explained by this Court:
An examination of subjection (j) against the rest of the Act and its accompanying legislative history demonstrates that the provision is intended principally to permit the government to withhold access to certain sensitive information so as not to hamper law enforcement efforts. …Moreover, the exemptions provision details the kinds of records that may be exempted, and they all relate to law enforcement activities that require a measure of secrecy. As the House Report explained,[130]
Only records maintained by the Central Intelligence Agency and criminal justice records could be so exempted. Even they would be subject to the requirements relating to conditions of disclosure . . . . The Committee believes that such a broad [exemption] is permissible for these two types of records because they contain particularly sensitive information…Maria H. Tijerina, v. Honorable Harry N. Walters
In the District Court, the Sieverdings wrote:
The Sieverdings’ extortions meet the requirements of Article III standing: injury- in-fact, causation, and redressability. Mr. Sieverding was a plaintiff in the lawsuits that he was forced to drop and in those lawsuits he made specific claims about his house and property in Steamboat Springs, his relationships in Steamboat where he had lived half his life, his expenses in moving away, and threats that were made to him personally in Steamboat. The judgment he protested was in his name as well as his wife and in August
2006 the defendants in the lawsuits garnished bank accounts in his name and he was called personally to give information about his finances. He had the standard husband’s interests in his wife but in addition the Sieverdings worked full time as business partners together for over 20 years. His wife was an active part in those businesses. She dealt directly with customers and investors and product marketing and positioning. In fact, the Sieverdings had once sold stock in a company that listed Mrs. Sieverding as president.
The Sieverdings have customers who have offered to testify about the adverse affect of the witness intimidation on their businesses. So Mr. Sieverding had “injury-in-fact” from his wife’s illegal incarcerations. There was causation because the USMS implemented the illegal jailings. If USMS had not participated, Nottingham could have threatened all he wanted and it would have had limited effect. There is redressability thru The Privacy Act
both in injunctive relief thru a correction of the records that Mrs. Sieverding was imprisoned for civil contempt and that Mr. Sieverding narrowly escaped imprisonment for civil contempt and thru financial relief. [131][132]
This analysis is consistent with the statement that DOJ publishes on its website and that the Solicitor General filed in the Supreme Court in 2007:
“Absent a specific statutory provision authorizing or precluding judicial review, a contention that the Attorney General was maintaining or disseminating criminal records in violation of law would be cognizable under the Administrative Procedure Act, 5 U.S.C. 551 et seq. (APA), in a suit brought by a person aggrieved by the alleged violation.” [133] [134]
For the reasons above this Court must rule that the Sieverdings have remedy in civil damages through the APA.
4. If either Mr. or Mrs. Sieverding does not have remedy under the Administrative Procedure Act, is there remedy under 42 USC § 1985(2), Obstructing justice; intimidating party, witness, or juror?
Again there must be strict scrutiny because the purpose of the intimidation by DOJ was to affect the Sieverdings’ speech.Citizens United v. Federal Election Commission 130S.Ct.42(2009)
DOJ had adequate notice of the Sieverdings’ obstruction of justice and witness intimidation /extortion claims.
Complaint ¶80.) By bringing me to the hearing, in chains, the U.S. Marshals implemented an extortionist scheme. The purpose of the hearing was extortion. I was brought there to pressure me by watching my husband be threatened.
Complaint ¶92.) As a result of the Marshals failing to maintain accurate records, to show that there was no valid warrant and I was not accused of an offense, I was extorted and forced to file motions to dismiss my civil lawsuits. This resulted in the loss of the economic value of my claims and also resulted in unfair determinations of my character, rights, opportunities, and professional qualifications as a graduate of the MIT city-planning program.
Complaint ¶202 DOJ knew I was repeatedly injured as a part of Witness Intimidation and Witness Retaliation and they knew that the crimes involved government corruption. DOJ also knew that I was injured by a judge whom engaged in obstruction of justice on multiple occasions.
Complaint ¶208. The threats and seizure were a necessary part of a successful extortionist scheme promulgated by former Judge Edward Nottingham. The result of this extortionist scheme is that we lost both the economic value of our claims and the intangible value of the airing of disputed facts, which related to our character and our professional qualifications as graduates of the Massachusetts Institute of Technology.
Complaint ¶214 Because of the threats and illegal seizures, I was unable to properly pursue my civil actions. I couldn’t go to the law library and Court officials were prejudiced against me.
Complaint ¶215.The City of Steamboat Springs on the Internet starting 9/05/05 published the illegal incarcerations and invalid warrants. They were not described as illegal or invalid. The Internet publications by the City of Steamboat Springs include:
“Mr. Lettunich reported his work on the following: 1. The Federal
District Court held a contempt hearing regarding Kay Sieverding. She
refused to dismiss the cases that she filed and was arrested. Mr. Sieverding dismissed the cases but later reneged and said
He will not dismiss the cases; so he may be arrested as well.” (See
http://steamboatsprings.net/sites/default/files/2005/09/06/ccmn0906.pdf
Complaint ¶222. I was subjected to threatening communications and I was extorted.
Complaint ¶223 Being forced to burden and delay my civil complaints damaged me.
“It can be argued that there is a cause of action under 42 USC § 1985” [revised objection to motion to dismiss pp 16-19]
“The Sieverdings allege a coordinated pattern of conduct not series of isolated events for the purpose of interfering with their civil lawsuits.”
[revised motion to dismiss p 24]
In DOJ’s Memorandum in Support of Motion to Dismiss or alternately for summary judgment, DOJ confessed to participation in obstruction of justice as defined in 42 USC § 1985(2)[135]
In 2002, Plaintiffs filed a 106-page complaint related to a zoning dispute with their former neighbors in the United States District Court for the District of Colorado. In October 2003, a magistrate judge recommended that the district court dismiss the case with prejudice and ordered Plaintiffs to pay defendants’ costs and fees. See Sieverding v. Colorado Bar Ass’n, 2003 WL 22400218 (D. Colo. Oct. 14, 2003) (unpublished). Adopting those recommendations in a March 19, 2004, order, the district court [former judge Edward Nottingham] additionally [ordered] Plaintiffs from initiating further litigationregarding the same factual nexus without first obtaining counsel.
Flouting [former judge Edward Nottingham] order, in 2004 and 2005 Plaintiffs contumaciously filed actions related to the subject matter of the original lawsuit in federal district courts in the District of Minnesota, the Northern District of Illinois, the District of Columbia, in Colorado state court, and in the United States Court of Appeals for the Eighth Circuit. At a hearing on September 2, 2005, the [former judge Edward Nottingham] found Plaintiffs in contempt of court for violating the March 2004 injunction. See Minute Entry, Civil Action No. 02-01950-EWN-OES (D. Colo. Sept. 9, 2005).[136]
[Former judge Edward Nottingham] then gave Plaintiffs the choice to dismiss the remaining lawsuits or go to jail. Mr.Sieverding acquiesced and withdrew his name from the still-pending lawsuits. Mrs. Sieverding refused and was jailed. See Declaration of Stephen D. Wallisch (“Wallisch Declaration”) ¶ 5-6.
At a January 4, 2006, show-cause hearing, [former judge Edward Nottingham] again ordered Mrs. Sieverding to dismiss the remaining lawsuits filed in violation of the March 2004 order and released her from custody on the condition that she dismiss the lawsuits by January 11, 2006. After being released, however, Mrs. Sieverding once again ignored the district court’s order and failed to dismiss the lawsuits. When she failed to appear at a status conference on February 2, 2006, a warrant was issued for her arrest. Mrs. Sieverding surrendered herself to the United States Marshals in Madison, Wisconsin, on February 8, 2006. See Wallisch Declaration ¶ 7. Later that day she appeared before a magistrate judge at a preliminary examination at which she promised to appear at a contempt hearing in the Colorado federal district court on February 14, 2006. See United States v. Sieverding, Case No. 06-0019M-X-01 (W.D. Wis. Feb. 8, 2006).
At the February 14, 2006, contempt hearing [former judge Edward Nottingham] again ordered Mrs. Sieverding to dismiss lawsuits pending in this Court and in a Kansas federal district court and to provide proof that she had done so. Yet again, Mrs. Sieverding promised to dismiss the lawsuits. This time, however, Mrs. Sieverding obeyed the district court order – for a while at least. Less than three months later, on May 8, 2006, Mrs. Sieverding contumaciously filed a notice appeal in the United States District Court for the District of Kansas in violation of the district court’s order.
And again, on August 1, 2006, Mrs. Sieverding contumaciously filed motions to reconsider in three lawsuits which had been pending in this Court. In response, defendants in the original Colorado action – who were also named in the Kansas and District of Columbia actions – moved for a new show-cause order as to why Mrs. Sieverding should not be subject to a renewed contempt citation.
On August 15, 2006, the district judge ordered Mrs. Sieverding to appear in court on September 22, 2006. Mrs. Sieverding failed to appear and a warrant was issued for her arrest on September 25, 2006. She was ultimately detained by the [Verona] Wisconsin, Police Department on May 10, 2007, and was held in the Dane County Jail until the USMS transported her to Denver on May 31, 2007. See Declaration of Paul Sever (“Sever Declaration”) ¶ 6-7.
At a contempt hearing the next day, [former judge Edward Nottingham] ordered that any future filings by Mrs. Sieverding related to the subject matter of the original action would be rejected. At the conclusion of the hearing Mrs. Sieverding was released from USMS custody.[137]
The Supreme Court has already ruled,
“The gist of the wrong at which § 1985(2) is directed is not deprivation of property, but intimidation or retaliation against witnesses in federal-court proceedings. The terms "injured in his person or property" define the harm that the victim may suffer as a result of the conspiracy to intimidate or retaliate.” Haddle v. Garrison, 525 U.S. 121, 119 S.Ct. 489, 142 L.Ed.2d 502 (U.S. 12/14/1998).
DOJ employees engaged in a conspiracy to use force and threat of force and misleading conduct to deter the Sieverdings from filing papers and/or appearing as witnesses in the District of Columbia federal civil cases numbered 05-cv-01283, 05-cv-01672 and 05-cv-02122. Thus, there is a cause of action under 42 USC § 1985(2).[138]
Many DOJ officials took part in violating the Sieverdings’ rights and did so by departing from written procedure as explained above in the Facts section. This includes the signers of papers, the guards, the arresting officers, and the Assistant U.S. Attorney. In addition, USMS officials knew that their Prisoner Tracking System was vulnerable to unauthorized use, as reported to USMS by the Office of Inspector General.[139] Furthermore, this extortion, witness intimidation, and witness retaliation continued for years during which time both the Sieverdings were contacting multiple DOJ offices requesting assistance to no avail.
The Sieverdings’ damages didn’t stop accruing when Mrs. Sieverding was released from jail. They had filed their third party civil lawsuit because of personal and professional defamation. Because of DOJ’s participation in the extortion they were unable to get a hearing on the merits and the defamation and reputation problems continued. They also had sued over illegal property takings and those funds were never returned to them. The Sieverdings complained to DOJ officials about that too but instead of responding to protect the Sieverdings, DOJ officials stonewalled. This is known as “deliberate indifference”, or informal policymaking and is a basis for government liability.
Both the Supreme Court and the Circuit of the District of Columbia have ruled that governments have liability for the actions of their subordinates when there is informal policymaking or deliberate indifference. See Monell v. Department of Social Services 436 U.S. 658[140] and Josiah Haynesworth and Fred Hancock v. Frank P. Miller 820 F.2d 1245. [141]
When the Sieverdings filed their lawsuit against DOJ, well over one year ago, DOJ could have apologized for the actions of its employees and offered a financial settlement and other assistance. But instead, the litigation team joined the conspiracy of witness retaliation and ratified use of force by government officials to determine the outcome of a third party lawsuit. When DOJ filed its motion to dismiss, the witness intimidation became government policy.[142] Therefore this Court must rule that the Sieverdings have an alternative statutory basis for remedy in 42 USC § 1985(2).
5.Is DOJ required by the Administrative Procedure Act to make annual reports available to the public?
Strict scrutiny analysis should be applied to analysis of the reporting requirements because DOJ is evading the statutory reporting requirements in order to cover up the fact that it incarcerates people without a criminal charge in order to control their speech. Citizens United v. Federal Election Commission 130S.Ct.42(2009)
Complaint ¶ 44 The Sieverdings complained to DOJ that Mrs. Sieverding was held in a DOJ contract jail that defined“Federal detainees” as “individuals sentenced or charged with federal offenses and detained while awaiting trial or sentencing awaiting designation and transport to a BOP facility”. But that she didn’t meet that description.
5 USC § 552a(u) mandates that because the United States DOJ engages in matching records within systems of records it must establish a Data Integrity Board, the composition of which is defined in (u)(2), the functions of which are defined in s (u)(3). This board is required to compile an annual report that is to be made available to the public on request, with various information that is required to be included including
“(v) any violations of matching agreements that have been alleged or identified and any corrective action taken”. [143]
The Data Integrity Board is required to receive and provide information about the accuracy and completeness of records used in matching programs including programs that match prisoner and criminal records and must ensure that record keeping complies with 5 USC § 552a. The Data Integrity Board is required to “provide information and guidance” to DOJ components and personnel on the requirements of 5 USC § 552a . DOJ didn’t acknowledge or report the Sieverdings’ complaints about abuse of the matching programs. The report required clearly hasn’t been published at least not for years.
The plaintiffs motioned for a copy of the report. DOJ opposed the Sieverdings’ motion to get the report and has not provided a copy of the report even though OMB has declared on its web site that it will require the agencies to file the report.[144] [145]
Former Attorney General Thornburg announced he would appoint a Data Integrity Board and somehow the reports didn’t materialize.[146] [147]DOJ is a very powerful agency and because it is so large and complex in organization, change within DOJ is slow. This Court should give DOJ a deadline to complete the report. 90 days sounds reasonable.
The Sieverdings have standing to get the reports because they made a credible allegation of violations of matching agreements and DOJ didn’t report it as required.[148] And, in its objection to the Sieverdings’ motions to get the report, DOJ left open the possibility that the Sieverdings would be again subjected to violations of matching agreements by imprisonment in county jails without a criminal charge.
This Court has already ruled,
“We first determine whether "the intent of Congress is clear." Id. at 842. If it is, then "that is the end of the matter," id., and we enforce the plain language of the statute regardless of the agency's views.” Gillan v. Winter, 474 F.3d 813
Therefore, this Court should enforce the reporting requirements of 5 USC § 552a(u).
CONCLUSION
For the foregoing reasons, this Court should set aside the decision of the District Court and remand for proceedings consistent with these findings:
1.) The First Amendment limits restrictions on PRO SE speech.
2.) The Non-Detention Act prohibited DOJ from incarcerating either Mr. or Mrs. Sieverding without charge of a federal offense.
3.) There is remedy in damages for Kay Sieverding under 5 USC § 552a g 1 or under 42 USC § 1985(2).
4) There is remedy in damages for David Sieverding under 5 USC § 552a g 1 or under 42 USC § 1985(2).
5.) DOJ is required to provide appellants with an electronic copy of the mandatory reports described in 5 USC § 552a(u) within 90 days.
Dated this 25th day of July 2010.
[1] Federal District for the District of Columbia 05-cv-01672.
[2] Exhibit 287-325¶116¶ 123
[3] Exhibit 287-325¶112¶147 -163
[4] Exhibit 287-325 ¶ 80,¶81¶87¶¶202 -204¶206¶ 214¶326¶327¶330
[5] Exhibit 287-325¶217
[7] Exhibit 287-325¶250,¶¶252 -254,
[8] Exhibit 332-342
[9] Exhibit 287-325¶ 200
[10]Exhibit 287-325¶257,¶ 258,¶¶260 -262
[11] Exhibit 287-325¶284¶285¶287¶288¶289¶290¶291¶293¶294¶296¶297
[12] Exhibit 287-325¶238
[13] Complaint¶265¶ 266
[14] Exhibit 286
[15] Exhibit 287-325¶310
[16]Exhibit 287-325¶ ¶302- 305
[17] Exhibit 534
[18] Exhibit 287-325¶ ¶310-315
[19] Exhibit 473
[20] http://www.craigdailypress.com/news/2001/aug/22/judge_quits_murder/
[21] http://www.steamboatpilot.com/news/2001/aug/24/new_judge_in/
[22] Exhibit 287-325¶366¶368
[23] Exhibit 474
[24] Exhibit 475
[25] Exhibit 287-325¶156-158,¶163¶165
[26] Exhibit 287-325 ¶194¶198¶229
[27] Exhibit 287-325 ¶ ¶ ¶ 238-240¶243¶244
[28] Exhibit 287-325 ¶232
[29] Exhibit 287-325 ¶388
[30] Exhibit 287-325 ¶ ¶ 375-382 ¶389¶417¶ 418
[31] Exhibit 285
[32] Federal District of Colorado 02-cv-1950 document455, DDC05-cv-01672¶423
[33] Amended complaint ¶53, amended objection to MTD p 65
[34] Exhibit 287-325¶423
[35] Exhibit 287-325¶298¶374
[38] Exhibit 287-325¶423
[39] Exhibit 2084-2094
[40] http://www.justice.gov/oig/reports/USMS/a0429/final.pdf appendix 13 pp 92-104
[45] Exhibit524
[46] Exhibit1336
[49] Exhibit238
[50] Memorandum opinion supporting motion to dismiss pp 3-6
[52] Exhibits393-411
[53] Exhibits367-368
[54] Exhibit412-415
[55] Exhibit416-422
[56] Exhibit423-425
[57] Exhibit426-430
[58] Exhibit503-505
[59] Exhibit564
[60] Exhibit567
[61] Exhibit570-571
[62] Exhibit572-573
[63] Exhibit654
[64] Exhibit646-647
[68]Exhibit352-353
[70] Exhibit10 Amended complaint
[71] Exhibit8 Amended complaint
[75] Exhibit 284
[76] Amended complaint ¶¶18-21
[77] Amended complaint ¶¶38-39
[78] Amended complaint ¶ 53
[79] Complaint¶16¶17¶19¶20¶102¶113,Amended complaint¶24,
[80] Memorandum to Motion to Dismiss pp 3-6
[81] NAACP v. Button 371U.S.415(1963), Chambers v. Baltimore & O.R. CO 207 U.S. 142(1907), Canadian Northern Ry. Co.v. Eggen 252 U. S. 553 (1920).
[82] Amended complaint ¶ 53
[83] Amended complaint ¶ 3 ¶ 24, ¶ 53, Complaint ¶ 117 ¶ 120 ¶ 136 ¶ 210 ¶ 54 ¶ 55 ¶ 57 ¶ 58 ¶14¶ 15 ¶18¶ 23 ¶ 24, ¶ 25 ¶ 26 ¶28 ¶ 29 ¶ 30 ¶36 ¶37 ¶38 ¶53 ¶87 ¶ 108
[84] Defendant’s memorandum in support of Motion to Dismiss pp 18-19.
[85] Exhibit 105-118
[86] Amended objection to MTD. P 16
[87] Addendum p54
[88] Memorandum opinion pp 12-14.
[89] Amended complaint Exhibit 2 Assistance Wanted Fugitive Investigation
[90] First Memorandum opinion p 9
[91] First Memorandum opinion p 11
[92] First Memorandum opinion pp 12-13
[93] First Memorandum opinion p 15
[94] First Memorandum opinion p 15
[95] First Memorandum opinion p 16
[96] First Memorandum opinion pp 20-21.
[97] First Memorandum opinion p. 21
[98] First Memorandum opinion p. 23
[99] First Memorandum opinion footnote p 13
[100] Second Memorandum opinion p 3
[101] First Memorandum opinion p. 6
[102] Exhibit 671-676
[103] Exhibit 201-201 10th Circuit order
[104] Exhibit 625
[105] Exhibit 550
[106] Exhibit 221
[107] First memorandum opinion pp 8-9
[108] Addendum pp59-73
[109] Complaint ¶3
[110] Exhibit 670
[111] First memorandum opinion p 15
[112] Amended complaint ¶ ¶ 38, 39
[113] Addendum P.10
[114] Complaint ¶¶8,9,13,15,25,49,50,78,87,108
[115] Exhibit 375, letter from John J. McNulty
[116] Addendum p. 29
[117] Addendum p 61
[118] Addendum p37
[119] First Memorandum opinion p 12
[120]First Memorandum opinion p 15
[121] Exhibit 12, Exhibit 15
[122] Exhibit 6
[123] Exhibit 4
[124] Complaint ¶ 113
[125] Exhibit 1251
[126] Addendum p 52
[127] Addendum
[128] Complaint ¶137
[129] Addendum p. 79
[130] H.R. Rep. No. 93-1416, 93d Cong., 2d Sess, reprinted in Legislative History of the Privacy Act of 1974, at 311-12 (1976).
[131] Objection to motion to dismiss p 42-43.
[132] Amended objection to motion to dismiss p 43
[134] Motion for reconsideration p.1
[135] Addendum pp 47-50
[136] Exhibit 681 District of Colorado 02-cv-1950 document 593
[137] DOJ’s memorandum in support of Motion to Dismiss Document 8-2 pp.
[138] Addendum p. 57
[139] http://www.justice.gov/oig/reports/USMS/a0429/final.pdf appendix 13 pp 92-104
[140] Objection to Motion to Dismiss p 36
[141] Amended objection to motion to dismiss p.30, 31-42.
[142] Memorandum to motion to dismiss pp 3-6, p 18.
[143] Addendum pp 43-45
[145] docket report see entries 46, 49.
[146] Regan, Priscilla, “Data Integrity Boards: Institutional Innovation and Congressional Oversight”, Government Information Quarterly, Vol 10 No 4 pp443-459 ISSN 0740-624X
[147] Exhibit 1158-1160
[148] Complaint¶157¶158¶163¶166¶173¶203