No.

06-7116
IN THE SUPREME COURT OF THE UNITED STATES ____________ JABARI ZAKIYA. Petitioner v. UNITED STATES OF AMERICA, BUREAU OF PRISONS, et al, Respondents ____________ On Petition For Writ Of Certiorari To The United States Court of Appeals For the Fourth Circuit ____________ BRIEF OF PETITIONER JABARI ZAKIYA ____________

Jabari Zakiya 4900 Quarles ST Ne, #4 Washington DC. 20019 202-390-6398 Pro Se

QUESTIONS PRESENTED 1) Does the Bureau of Prisons have the authority to impose or extend a prison term on inmates pursuant to 18 USC 3624(e), as it claims? 2) If not, did the district court err in ruling, and the Fourth Circuit in affirming, that the BOP's actions were "reasonable", and thus protected under the "due care" provision of the Federal Tort Claims Act against suit for damages, for imprisoning an inmate for over 3 years past his release date, an act which was found to be illegal by one district court which ordered the inmate's immediate release, and for which another district court allowed suit against the government for these actions?

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PARTIES TO THE PROCEEDING Petitioner is Jabari Zakiya. Respondents are the United States of America, Bureau of Prisons, et al.

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TABLE OF CONTENTS QUESTIONS PRESENTED .................................................................................... i PARTIES TO THE PROCEEDING ........................................................................ ii TABLE OF AUTHORITIES .................................................................................. iv CITATIONS TO OPINIONS ................................................................................... 1 JURISDICTION ....................................................................................................... 1 STATEMENT OF THE CASE ................................................................................ 2 SUMMARY OF ARGUMENT ............................................................................. 10 ARGUMENT ......................................................................................................... 11 I. 18 USC 3624(e) DOES NOT GIVE THE BUREAU OF PRISONS AUTHORITY TO IMPOSE OR EXTEND A PRISON SENTENCE ...... 11 II.RESPONENT'S DECISIONS AND ACTIONS TO INDEFINITELY IMPRISON AN INMATE PAST HIS STATUTORILY MANDATED RELEASE DATE WERE "WRONGFUL ACTS" AND THUS NOT PROTECTED FROM LIABILITY BY THE "DUE CARE" PROVISION OF THE FEDERAL TORT CLAIMS ACT......................... 15 CONCLUSION .......................................................................................................17

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TABLE OF AUTHORITIES Cases: Page

Caminetti v. United States, 242 U.S. 470 (1917) ...................................................12 Hatahley v. United States, 351 U.S. 173 (1956) ...............................................15-17 Hillman v. IRS, 250 F.3d 228 (4th Cir. 2001) ........................................................12 Ross v. Thompson, 927 F.Supp. 956 (N.D.W.Va. 1996) ............................... passim United States v. Johnson, 48 F.3d 806 (4th Cir. 1995) .............................. 5,9,10,14 United States v. Miller, 77 F.3d 71 (4th Cir. 1996) ..................................4,5,9,10,14 United States v. Mortimer, 94 F.3d 89 (2nd Cir. 1996) .......................................... 9 United States v. Prouty, 303 F.3d 1249 (11th Cir. 2002) ........................................ 9 Zakiya v. Reno, 52 F.Supp.2d 629 (E.D.Va. 1999) ........................................ passim Statutes: 18 U.S.C. 3614 .....................................................................................................11 18 U.S.C. 3615 .....................................................................................................11 18 U.S.C. 3621(a) ............................................................................................11,13 18 U.S.C. 3624(a) ........................................................................................ 3,12,13 18 U.S.C. 3624(b) ................................................................................................12 18 U.S.C. 3624(e) ......................................................................................... passim 28 U.S.C. 2680 .....................................................................................................15

TABLE OF AUTHORITIES-Continued Miscellaneous: Legal Resource Guide To The Federal Bureau Of Prisons ..................................... 9 Bureau Of Prisons Program Statement (BOP PS) 5380.05 Sentence Computation Manual (CCCA of 1984) .................................................... 2 Bureau Of Prisons Program Statement (BOP PS) 5880.28 Sentence Computation Manual (CCCA of 1984) .........................................10,12,16 Index of Appendices Appendix A Appendix B Appendix C Appendix D Appendix E Decisions of the Fourth Circuit Decisions U.S. District Court Northern District of W.Va. Decision U.S. District Court for District of Columbia Zakiya v. Reno, 52 F.Supp.2d 629 (E.D.Va 1999) Ross v. Thompson, 927 F.Supp 956 (N.D.W.Va 1996)

CITATIONS TO OPINIONS The opinion of the United States Court of Appeals for the Fourth Circuit is set forth in Appendix A. The order of the United States District Court for the Northern District of West Virginia is set forth in Appendix B. The order of the United States District Court for the District of Columbia is set forth in Appendix C. The order and opinion of the United States District Court for the Eastern District of Virgina as reported in Zakiya v. Reno, 52 F.Supp.2d 629 (E.D.VA. 1999) 629 is set forth in Appendix D. The order and opinion of the United States District Court for the Northern District of West Virginia as reported in Ross v. Thompson, 927 F.Supp. 956 (N.D.W.VA. 1996) is set forth in Appendix E.

JURISDICTION The judgment of the United States Court of Appeals for the Fourth Circuit affirming the district court was entered May 18, 2006, and denying rehearing was entered on July 18, 2006. This Court has jurisdiction under 28 U.S.C. 1254(1).

STATEMENT OF THE CASE This case involves much more than simply whether Petitioner has the Right to sue the government for being illegally imprisoned for over 3 years, solely on the decision of an Executive Branch officer. Rather, the underlying rationale, still asserted by the government, to impose non-judicial (indefinite) prison terms on inmates, which affects every person held in custody by the government, is the issue which gives rise to the cause of action of this case. This claim of authority directly conflicts with, and puts in jeopardy, the Constitutionally vested authority of the Courts to be the sole branch of government having the power to impose prison terms on people who have been duly charged, tried, and convicted, of crimes. This issue becomes even more important now, as it legally segues into the associated issue of the claimed authority of the Executive Branch to detain and imprison people under the rubric of the "war on terrorism." The Bureau of Prisons (BOP) has created the Inmates Financial Responsibility Program (IFRP)1. Under the IFRP the BOP attempts to force inmates to pay court imposed fines and restitution while imprisoned. Petitioner Jabari Zakiya (a first time offender) self-surrendered to the minimum security prison at FCI Morgantown, W.Va on Wednesday, January 4,

1 BOP Policy Statement PS 5380.05

1995 to serve a 16 month sentence resulting from a conviction on tax related charges. A (statutory maximum) $25K fine was included in the sentence. With the application of statutorily mandated good time credit 2 his scheduled release date was to be Thursday, February 29, 1996. Prior to his release, the BOP attempted to get Zakiya to sign a form titled Installment Schedule Agreement for Unpaid Fines. This "Agreement" states: I agree to pay, while under supervised release, the remaining balance on any fine relative to the offense under which I am committed... I also understand that failure to agree to adhere to this installment schedule may delay of prevent my release from incarceration. (Zakiya at 630) The day before his mandated release, the BOP presented this form to Zakiya, again, and stated that if he did not sign it he would not be released and would be held indefinitely until he signed it, claiming 18 USC 3624(e) authorized this. Zakiya explained to BOP officials that 3624(e) created no statutory requirement to sign this form to be released from prison, and their interpretation of it conflicted with the clear mandate of 18 USC 3624(a) to release prisoners when their prison terms expired. He, thus, refused to sign it, whereupon he was handcuffed, shackled, and thrown in the hole. Zakiya was held in the hole while BOP and Department of Justice (DOJ) officials in the U.S. Attorney Generals office tried to figure out what to do with

2 "Good Time" credit was irrevocable under the statute when Zakiya was sentenced.

him. This was because Zakiya was the first person in history not to be released based on this new claimed BOP authority, and there were no procedures, or precedent, for doing it. Finally, after two weeks, Zakiya was released back into the general population of FCI Morgantown, imprisoned now solely on the decision of, presumably, the U.S. Attorney General, Janet Reno. Zakiya then filed a habeas corpus, first via his Power of Attorney, with his sentencing court, Judge J.Frederick Motz, of the U.S. District Court of Maryland, Baltimore, MD. Judge Motz refused to accept the habeas and transferred it to the Northern District of W.Va.. Once released from the hole Zakiya also filed with the N.D.W.Va. The case was assigned to Judge William Kidd. On May 1, 1996, Judge Kidd, in Ross v. Thompson, 927 F.Supp. 956 (N.D.W.Va 1996), denied habeas, stating in Ross at 958: Contrary to petitioner's argument, he is not being held merely upon an unfounded internal BOP policy. The BOP policy and procedure are securely grounded in and authorized by the Congressional mandate of 18 USC 3624(e). The BOP is following and carrying out the statutory duty assigned to it. [2] Petitioner's other argument, based upon U.S. v. Miller, 77 F.3d 71, 77-78 (4th Cir. 1996), is that only the sentencing court has authority to set the amount and timing of fine payments, not the BOP. While petition's statement of law is correct, his reliance thereupon is misplaced. (emphasis) In ruling so, Judge Kidd failed to uphold the mandates of U.S. v. Miller, 77 F.3d 71 (4th Cir. 1996), which was issued March 6, 1996, one week after Zakiya's

release date. Following in the footprints of U.S. v. Johnson, 48 F.3d 806 (4th Cir. 1995), Miller at 77-78 ruled: In United States v. Johnson, 48 F.3d 806, 808-09 (4th Cir. 1995) we held that a district court lacks authority to delegate to the probation officer the final authority to determine the amount of restitutionary installment payments, without retaining ultimate authority over such decisions. (77) Like restitution, the statutory duty imposed upon district courts to fix the terms of a fine must be read as exclusive because the imposition of a sentence, including the terms of probation or supervised release, is a core judicial function. Accordingly, we hold a district court may not delegate its authority to set the amount and timing of fine payments to the Bureau of Prisons or the probation officer. (78) (emphasis) The BOP's actions clearly usurped the core judicial function of the sentencing court to set fine payment schedules and impose a sentence. The Fourth Circuit affirmed Ross, also failing to uphold its own rulings in Miller and Johnson. After almost two years of being imprisoned past his release date at FCI Morgantown, Zakiya was transferred in February 1998 to the medium security prison FCI Petersburg, Va., after first spending two weeks in transit at the maximum security prison FCI Lewisburg, Pa. As it worked out, if not for this transfer Zakiya may still be imprisoned. Before being transferred, Zakiya had filed a habeas and civil lawsuit in the U.S. District Court for the District of Columbia against the BOP Director and U.S. Attorney General Janet Reno. Upon his transfer to FCI Petersburg, the DC Court

transferred the habeas to the U.S. District Court for the Eastern District of Va. The case was assigned to Judge Leonie Brinkema. Judge Brinkema denied the original transferred pro se habeas. Luckily, Zakiya, who had never been afforded counsel at any time, through his cousin, finally was able to retain pro bono counsel, who renewed the habeas. Upon review of the merits of the BOP/DOJ's claimed authority to imprison Zakiya (for life) past his release date, Judge Brinkema, in Zakiya v. Reno, 52 F.Supp.2d 629 (E.D.Va 1999), emphatically rebuked the same claims Judge Kidd cited were securely grounded in Congressional authority; Zakiya at 634-36: If we accept the BOP's reading of the statue [sic], we effectively must find that Congress delegated to the BOP, an executive branch agency, the authority to extend a defendant's sentence beyond that ordered by an Article III court. Such a proposition would contravene basic tenets of separation of powers and result in an unconstitutional delegation of judicial power to the executive branch. (634-5) [3,4] Accepting the respondent's reading of 3624(e) would thus require us to strike the statute as an unconstitutional delegation of judicial power to the executive branch. (636) Judge Brinkema issued the ruling on May 4, 1999, ordering Zakiya's immediate release. The BOP/DOJ released Zakiya the next day, May 5, 1999, choosing not to ask for a stay to appeal to the Fourth Circuit, which had previously affirmed Judge Kidd's ruling in Ross on the exact same issues. Zakiya was thus released, after having spent over 3 years and 2 months (1162 days) illegally imprisoned past

his release date for his original 16 months sentence. Upon his release, Zakiya retained counsel, and in April 2001 began the administrative process to seek relief for damages for his illegal imprisonment. In March 2002, Zakiya filed suit in the U.S.D.C for DC, and the case was assigned to Judge Reggie Walton. Judge Walton denied Respondents' Motion to Dismiss, recognizing multiple allowable claims against them, stating in his opinion that the interests of justice requires that Zakiya should pursue his claims. However, in May 2004, Judge Walton transferred the case back to the N.D.W.Va at the request of Respondents. Judge Irene Keeley was assigned the case. Instead of now going to trial or seeking a settlement, Respondents filed another Motion to Dismiss 3. Having the same case history Judge Walton had, plus his decision, Judge Keeley overturned Judge Walton's decision, and granted Respondents' Motion to Dismiss they had lost in DC, thus squashing Zakiya's Right to go to trial won from the DC Court. The basis for Judge Keeley's ruling was that Respondents were granted protection under the due care provision of the Federal Tort Claims Act (FTCA) because the illegally ordered indefinite imprisonment of Zakiya was reasonable solely because her Court in Ross had previously ruled it to be so.
3 This Motion was inadmissible under the Federal Rules of Civil Procedures, because it raised no new issues, and Respondents were required to appeal the denial of their dismissal motion to the DC Court of Appeals. By not appealing its denial by Judge Walton, Respondents had accepted the verdict of the Court, and forfeited the Right to contest that ruling in the appropriate Appeals Court jurisdiction, or raise it in any other Court. The Motion violated Judge Walton's ruling that Zakiya would be allowed to pursue the allowed claims in West Virginia.

In the instant case, the Bureau of Prison's actions were approved by this Court and the Fourth Circuit Court of Appeals (cites omitted). Consequently, it is reasonable to conclude that the BOP utilized due care in exercising its duties. (Keeley App. B, p9) In so ruling, Judge Keeley misstates the ruling of the Fourth Circuit in Ross, which was an unpublished per curiam decision which merely affirmed the denial of Zakiya's habeas and did not address the BOP's claimed authority per 3624(e). Judge Keeley also failed to apply the "due care" provision correctly, as it only applies to "lawful enforcement" actions. But Judge Brinkema and Judge Walton had both ruled the government's actions were illegal (and thus not protected), findings which Judge Keeley did not address, contest, or reconcile in her ruling. Zakiya was, thus, now forced to appeal, again, to the Fourth Circuit, which he was forced to do, again, pro se after his counsel left his case once on appeal. A two judge panel 4 affirmed the district court decision on May 18, 2006. A Petition for Rehearing was denied on July 18, 2006. The ramifications of this case far exceed the direct consequences to Zakiya. The BOP has a national Program, with Policies it flaunts, claiming authority to imprison people past their release dates unless they comply with payment
4 Original panel member Judge J. Micheal Luttig unexpectedly resigned from the Fourth Circuit on May 10, 2006, 8 days before this decision was issued, and did not lend his name to it. Judge Luttig presided over Padilla v. Hanft, and in December 2005 publicly criticized the government, when 2 days before its Supreme Court filing deadline, finally charged Padilla under criminal charges different from those alleged to justify his indefinite military detention. In anger over these discrepancies, he attempted to disallow moving Padilla from military to civilian custody. Apparently, his dismay with the panel in this case, dealing again with the indefinite imprisonment of an American citizen by the Executive Branch, contributed to his decision to quit the Court, after 15 years on it.

schedules it creates for people while in prison, and/or as a condition for release. The BOP cites in its Policy Statements 5 and Guides6 that Ross gives them this authority, selectively ignoring Zakiya's rebuke of this same alleged authority. Similarly, the Fourth Circuit has failed to apply and enforce the statutes, the U.S. Constitution, and even its own case precedent, in a logical, legal, consistent, and Constitutionally required, manner. Thus, there exist clear conflicts, in diametrically opposing written opinions, within the district courts within the Fourth Circuit on the issues this case raises. There exists a clear conflict between the DC Court and the N.D.W.Va. and Fourth Circuit. Other district and circuit courts come down squarely on the side of the rulings invoked in Johnson and Miller.7 If Zakiya is not allowed to sue Respondents for his judicially held illegal imprisonment, then the BOP/DOJ will have carte blanche to continue to apply its illegal IFRP policies, without fear of punishment or accountability, and use this ruling, as it's doing with Ross, to justify violating the Rights of any person held in its custody. Combining the precedent this case would create, with the Executive Branch's claim of unilateral authority to indefinitely detain and imprison anyone labeled a "terrorist", would create an almost impenetrable shield against liability
5 BOP Policy Statement PS 5880.28 6 Legal Resource Guide To The Federal Bureau Of Prisons (2004); www.bop.gov/news/PDFs/legal_guide.pdf 7 See U.S. v. Mortimer, 94 F.3d 89 (2nd Cir. 1996), U.S. v. Prouty, 303 F.3d 1249 (11the Cir. 2002), et al

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from acts people can prove to be illegal and/or unconstitutional, thus effectively rendering people's Right to sue the government null-and-void for such acts. With the increasing number of foreign individuals and citizens found to be illegally or unjustifiably detained or imprisoned by the government, this becomes an urgent issue the Court should address, to protect people's Rights to have their grievances and suits for damages, against illegal government actions, heard before a jury. SUMMARY OF ARGUMENT The Northern District of West Virginia court decisions ruling the BOP has statutory authority to imprison people past the end of their judicially imposed prison terms, and are shielded from liability for doing so, are in error, and the Fourth Circuit's affirming of these rulings are also in error. These decisions are in diametric conflict with Judge Brinkema's in Zakiya v. Reno, who in ordering Zakiya's immediate release for being illegally imprisoned for over 3 years past his release date, ruled the BOP has no authority to impose a sentence, nor to extend one imposed by an Article III Court, and that Congress did not delegate this authority in 18 USC 3624(e) to the Executive Branch. Also, the Fourth Circuit's own case precedent in U.S v. Johnson and U.S. v. Miller rebut these contentions. These decisions also conflict with the findings of Judge Walton of the D.C. Court, who recognized cognizable claims of liability against the government. Thus, the dismissal of Zakiya's lawsuit should be overturned, and allowed to go forward.

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ARGUMENT I. 18 USC 3624(e) DOES NOT GIVE THE BUREAU OF PRISONS AUTHORITY TO IMPOSE OR EXTEND A PRISON SENTENCE 18 USC 3621, titled "Imprisonment of a convicted person", in section (a) provides the statutory basis for the commitment of people to the BOP. (a) Commitment to Custody of Bureau of Prisons, -- A person who has been sentenced to a term of imprisonment pursuant to the provisions of subchapter D of chapter 227 shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed, or earlier released for satisfactory behavior pursuant to the provisions of section 3624. (emphasis) 18 USC 3624, titled "Release of a prisoner", provides in section (a): (a) Date of Release.-- A prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner's term of imprisonment, less any credited toward the service of the prisoner's sentence as provided in subsection (b). The BOP applied "good time" credit to Zakiya's 16 month sentence, which began January 4, 1995, and calculated his release date as February 29, 1996. The BOP, however, refused to release Zakiya, claiming the last sentence of 3624(e) authorized it to indefinitely imprison him past his release date until he signed the "Agreement", created pursuant to its Inmates Financial Responsibility Programs (IFRP), to adhere to a payment schedule for a fine that would be created by a probation officer after he was released from prison to "supervised release." However, imprisonment of people for nonpayment of fines is also a judicial power codified in 18 U.S.C. 3614 and 3615, acknowledged in BOP PS 5880.28.

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18 USC 3624(e) is titled "Supervision after Release", meaning release from imprisonment by the BOP, and "supervision" by a probation officer, begins: A prisoner whose sentence includes a term of supervised release after imprisonment shall be released by the Bureau of Prisons to the supervision of a probation officer... The last sentence of 3624(e) states: No prisoner shall be released on supervision unless such prisoner agrees to adhere to an installment schedule, not to exceed two years except in special circumstances, to pay for any fine imposed for the offense committed by such prisoner. Zakiya had a 3 year term of supervised release to serve after his prison term. The BOP refused to comply with the clear "plain language" mandate of the first sentence of 3624(e) and release Zakiya to a probation officer to begin his term of supervised release. The last sentence of 3624(e) is not an instruction to the BOP on releasing people from prison, but an instruction to probation officers on the release of people on "supervision", i.e. supervised release. By plain language statutory analysis 8, a harmonious reading of all the relevant statutes pertaining to commitment of prisoners to the BOP, and their release, mandate the BOP can only (must) reduce prison terms per 3624(b) and then must release people when their terms have expired pursuant to 3624(a).9 Zakiya is the first person in U.S. history these statutes did not apply to.
8 "The general rule is that unless there is some ambiguity in the language of a statute, a court's analysis must end with the statute's plain language." Caminetti v. United States, 242 U.S. 470, 485 (1917) as cited in Hilman v. IRS, 250 F.3d 228 (4th Cir. 2001), 232-233. 9 As Judge Brinkema found: 'Subsection (a) does not state "except as provided in subsection (e)."' Zakiya at 637.

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Judge Brinkema, in Zakiya v. Reno, 52 F.Supp.2d 629 (E.D.Va.1999) performed a substantial statutory, Constitutional, and case precedent analysis of the government's claim of authority under 3634(e). She emphatically rebuked those claims, ruling they conflicted with the mandate of 3624(a), that the power to impose a sentence is a "sole judicial function" pursuant to Article III of the Constitution, thus the BOP had no authority to impose or extend a sentence, and that Congress did not (and could not) delegate that authority to the BOP. It should also be noted, the BOP chose not to appeal Judge Brinkema's ruling to the Fourth Circuit, yet still claims this authority per its Policy Statements under the IFRP. Conversely, Judge Kidd and Judge Keeley presented no written statutory and Constitutional analysis of the BOP's claimed statutory authority. Judge Kidd made no mention in Ross of the statutory mandates of 3621(a) or 3624(a),(e), which mandate release of prisoners, nor tried to reconcile these with the BOP's statutory claims. Similarly, Judge Keeley also presented no statutory analysis of these claims in her rulings to establish the government's actions were lawful. Thus, there exists a clear conflict between district courts within the Fourth Circuit on the BOP's alleged statutory authority under 3624(e) to continue to imprison people past the end of their Court imposed prison terms. This, thus, creates an unequal jurisdictional treatment of people under the law in the circuit, which the Fourth Circuit has not clearly and directly resolved.

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In addition, the Fourth Circuit's own case precedent clearly supports the statutory analysis. Judge Brinkema relied heavily on U.S. v. Johnson, 48 F.3d 806 (4th Cir. 1995) to establish it is the sole judicial authority of Courts to impose a prison sentence. Also, the 4th Circuit in U.S. v. Miller, 77 F.3d 71 (4th Cir. 1996) ruled, "we hold a district court may not delegate its authority to set the amount and timing of fine payments to the Bureau of Prisons or the probation officer." Miller10 firmly establishes it was illegal for the BOP to not release Zakiya for not signing the "Agreement" as the BOP and probation officers cannot set payment schedules. Petitioner contends Judge Kidd and Judge Keeley clearly misstate the authority of the BOP to imprison people past their release dates per 3624(e), and the plain language of all the relevant statutes assessed and applied in contextural harmony, and Zakiya, rebuke that said authority, and the Fourth Circuit erred by indirectly accepting this claimed statutory authority by affirming these decisions, while ignoring its own case precedent, which this Court should take appropriate measures to correct.

10 The two judge panel which affirmed Judge Keeley's ruling consisted of Judge Clyde Hamilton and Judge Karen Williams. It is ironic that Judge Hamilton wrote the Opinion in Miller but did not apply its mandates in this case.

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II.

RESPONDENT'S DECISIONS AND ACTIONS TO INDEFINITELY IMPRISON AN INMATE PAST HIS STATUTORILY MANDATED RELEASE DATE WERE "WRONGFUL ACTS" AND THUS NOT PROTECTED FROM LIABILITY BY THE "DUE CARE" PROVISION OF THE FEDERAL TORT CLAIM ACT. Judge Keeley cited that 28 U.S.C. 2680(a) protects the Government from

liability for exercising due care in the execution of a statute or regulation, but, citing Hatahley v United States, 351 U.S. 173 (1956), 'Due care' implies some minimal concern for rights of others. But Hatahley also held that wrongful acts are not protected and give rise to compensable claims under 2680(a), stating: 28 U.S.C 2680(a) cannot apply, nor bar liability against agents who were not exercising due care in their enforcement of federal law. "Here, the agents proceeded with complete disregard for the property rights of the petitioner...These acts were wrongful..involving discretion on the parts of the agents, and they do give rise to a claim compensable under the Federal Tort Claims Act. (emphasis) Hatahley v United States, 351 U.S. 173, 181 (1956) It is clear from Zakiya that Respondents were not enforcing federal law by imprisoning Zakiya past his release date, but were in clear violation of it. In fact, their violation of federal law was so extreme, that as Judge Brinkema noted in Zakiya at 636, "Accepting the respondents' reading of 3624(e) would thus require us to strike the statute as an unconstitutional delegation of judicial power to the executive branch." Because Respondents were not enforcing federal law they cannot be provided protection under the "due care" provision of the FTCA, and Judge Keeley's finding "it is reasonable to conclude that the BOP utilized due care

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in exercising its duties" is clear error. Hatahley also requires that government agents must show "a minimal concern" for the rights of others in the exercise of their lawful authority in order to be afforded "due care" protection. The government exhibited virtually no concern for Zakiya's Rights while illegally imprisoning him. Zakiya was never charged with a crime, never taken in front of a judge to assess his imprisonment, never given an internal BOP hearing, and never afforded an attorney. Even though Zakiya was a "minimum security" prisoner, he was subsequently transferred to a medium security prison, after first spending 2 weeks at a maximum security prison while in transit, both violations of BOP policy for his original security level. The BOP also violated a myriad of policies in illegally imprisoning Zakiya. PS 5880.28 requires "Whenever an inmate is not released on the schedule date of release as the result of a fine problem.. Every effort possible should be undertaken to assure that the inmate is not confined past the release date any longer than necessary." But, the BOP never tried to present a payment schedule to Zakiya to begin negotiations on, or obtain one from the sentencing Court to do so, or to even assess Zakiya's ability to pay on such a schedule. The only alternative the BOP gave Zakiya to facilitate his release was to periodically ask him if he was ready to sign the "Agreement" form. Thus, the BOP failed to make "every effort possible" to not confine Zakiya past his release date any longer than necessary.

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Thus, the facts establish the BOP's actions have been judicially found to be unlawful, violated a plethora of Zakiya's Rights, violated various BOP policies and procedures, and were therefore "wrongful acts" and pursuant to the mandates of Hatahley these "wrongful acts" are not "reasonable" and thus not protected by the "due care" provision of the FTCA. Thus, as Judge Walton found, "Therefore, the Court concludes that it is appropriate to transfer the this action to the proper forum where plaintiff may assert his claims against defendants who remain in this case as parties." (RW App C, p22) (emphasis)

CONCLUSION For the reasons stated herein, the decision of the Appeals Court should be reversed and Petitioner's lawsuit allowed to go forward, as initially ordered by the DC District Court.