4Carol Nye-Wilson Randy Chapel PO Box 711419 Mountain View, HI 96771 E:
[email protected] P: 808-756-0936 5 In Pro Per 1 2 3 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF HAWAII 9 10 11 12 13 14 15 16 17 CAROL NYE-WILSON, RANDY CHAPEL, ) Case No.: ) ) COMPLAINT Plaintiffs, ) ) ) vs. ) ) UNITED STATES DEPARTMENT OF ) EDUCATION, UNITED STATES ) DEPARTMENT OF STATE, ) ) ) Defendants ) ) 18 19 COMPLAINT Plaintiffs Carol Nye-Wilson and Randy Chapel bring this action against Defendant U.S. Department 20 21 of State and U.S. Department of Education to compel compliance with the Freedom of Information 22 Act, 5 U.S.C. § 552 ("FOIA"), as the Government acts to withhold records from Plaintiffs in multiple 23 Departments as a common practice against the Plaintiffs and open record laws. As grounds therefore, 24 Plaintiffs allege as follows: 25 1. The Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 26 27 28 U.S.C. § 1331. 2. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e). FOIA COMPLAINT PAGE: 1 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 PARTIES 1 2 3 4 3. Carol Nye-Wilson (“NYE-WILSON”) and Randy Chapel (“CHAPEL”) seek to promote transparency, integrity, and accountability in government, and fidelity to the rule of law. Plaintiffs regularly request records from federal agencies pursuant to the FOIA to seek an accounting 5 6 of what the Government has been done to harm NYE-WILSON, CHAPEL, and CHAPEL's family. 7 Plaintiffs will disseminate the findings and the requested records to the American public to inform 8 them about "what their government is up to.” 9 10 4. The Plaintiffs also will inform the public of the irreparable damage by the Government in concert with several immoral and unethical Religious frauds, three insurance carriers, 11 12 two accreditors, approximately one dozen attorneys/ law firms, and members of the U.S. Departments 13 of Education and Justice to willfully and knowingly cause as much irreversible damage as possible, 14 while perpetuating known corruption and fraud via their principal actor, Assistant U.S. Attorney 15 James A. Scharf (“SCHARF”) for the Department of Justice. 16 5. Defendant U.S. Department of State (“STATE”) is an agency of the United States 17 18 19 20 21 22 23 24 25 Government and is headquartered at 2201 C Street N.W., Washington, DC 20520. Defendant STATE has possession, custody, and control of records to which Plaintiffs seek access. 6. Defendant U.S. Department of Education (“USDE”) is an agency of the United States Government and is headquartered at U.S. Department of Education, 400 Maryland Avenue, SW., Washington, D.C. 20202. Defendant USDE has possession, custody, and control of records to which Plaintiffs seek access. 7. The United States Government has a history of withholding records and information 26 from Plaintiffs by refusing to be transparent, accountable, and by ignoring rule of law. It refuses 27 transparency and accountability. It refuses rule of law. The United States Government with other 28 FOIA COMPLAINT PAGE: 2 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 parties have caused as much irreversible damage to Plaintiffs as possible, while perpetuating known 2 corruption and fraud that harms the public welfare. 3 4 8. Jefferson’s view of Government held that government can only do what is explicitly enumerated in the Constitution of the United States. One hundred years later, Theodore Roosevelt 5 6 disagreed, holding that government can do anything that is not specifically prohibited in the 7 Constitution, and Government had to be more central and assertive than what the Constitution had 8 envisioned.1 Two hundred years after Jefferson, the Bush Administration's expansive vision of 9 executive power eclipsed the Constitution's mandated system of checks and balances. Some see the 10 11 12 Bush years as lurching toward an imperial presidency, posing a direct threat to the essence of American liberty.2 The overall case and issues are in part, a symptom of that Administration’s 13 obscene power-grab at the direct expense of individual liberties, parameters set forth in the U.S. 14 Constitution, State Constitutions, federal and state laws and decisional cases. 15 16 9. For the record, all the Obama Administration (“OA”) had to do was steer clear of the train wreck of Margaret Spellings (“SPELLINGS”), et al., and her explicit need to prostitute herself 17 18 for corporate America. Instead, the OA simply added to the massive SPELLINGS “clusterfuck” by 19 continuing the Government’s cover up instead of enforcing rule of law that resulted in irreparable 20 damage and educational scandal, the likes of which America has not seen since the Teapot Dome and 21 Watergate scandals. 22 23 24 25 10. In spite of everything going for Arne Duncan (“DUNCAN”) in 2009 to clearly skirt, and distinctly distance himself from the massive SPELLINGS’ “clusterfuck,” he defended the disastrously mishandled undertakings by SPELLINGS, and multiplied the damage. 26 27 28 1 Ken Burns: The Roosevelts: An Intimate History, Directed by Ken Burns, (2014; Alexandria, VA: PBS Distribution, 2014), DVD. 2 www.csmonitor.com/USA/2009/0114/p11s01-usgn.html . Read: Unchecked And Unbalanced: Presidential Power in a Time of Terror by Frederick A. O. Schwarz Jr FOIA COMPLAINT PAGE: 3 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 2 3 WESTERN SEMINARY FUNCTIONS LIKE A CRIME SYNDICATE WITH OTHERS AIDING ONGOING SCHEMES OF CORRUPTION AND FRAUD 11. Over the course of a number of years, RICO parties Western Seminary (“WESTERN”), Steve Korch (“KORCH”), Gary Tuck (“TUCK”), Lynn Ruark (“RUARK”), Randal 4 5 Roberts (“ROBERTS”), Rob Wiggins (“WIGGINS”) and Bert Downs (“DOWNS”) with their co- 6 conspirators: The Association of Theological Schools in the United States and Canada (“ATS”), 7 Daniel Aleshire (“ALESHIRE”), Jeremiah McCarthy (“MCCARTHY”), Charles Willard 8 (“WILLARD”), Tisa Lewis (“LEWIS”), The Northwest Commission on Colleges and Universities 9 (“NWCCU”), Sandra E. Elman (“ELMAN”), GuideOne Insurance Company (“GUIDEONE”), 10 11 12 13 14 15 16 17 18 19 20 21 22 Brotherhood Mutual Insurance Company (“BROTHERHOOD”) and Tudor Insurance Company (“TUDOR”). WESTERN is a 501(c)(3) nonprofit corporation engaged in activities affecting interstate or foreign commerce. 12. There are several enterprises involved. WESTERN's enterprise includes and is not limited to employees KORCH, TUCK, RUARK, ROBERTS, WIGGINS and DOWNS. The NWCCU enterprise includes and is not limited to employee ELMAN. The ATS enterprise includes and is not limited to current and former employees ALESHIRE, MCCARTHY, WILLARD and LEWIS. 13. The enterprises, RICO parties, with their co-conspirators used the services of attorneys, in an attempt to cover-up communications, plans, goals, and practices for the enterprises, RICO parties, and their co-conspirators. The attorneys include: 23 24 25 26 27 a. ATS: Tom Johnson, John Barber, Lisa Sween, Jessica Luke and others. b. NWCCU: Michael Madden and others. c. WESTERN: Linda McPharlin, Jonathan Radmacher, Thomas Hadley, Anthony Lauria, Mark Shem, Anthony Zand, Sam Phillips, Andrew Adler, Ellen Hung, David Trent, and others. d. KORCH: Linda McPharlin and others. 28 FOIA COMPLAINT PAGE: 4 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 2 3 4 14. The various RICO parties at all times relevant were employed by their respective enterprises and practiced a pattern of racketeering activity, conducted or participated, directly or indirectly, in their various enterprising affairs. Beginning in 2001, or earlier, and continuing through 2016, RICO parties and their co-conspirators engaged in a continuing pattern of racketeering activity, 5 6 through the internet, phone, the mail, and in-person interactions to support, defend, and encourage 7 activities for purposes unauthorized by federal and state laws, the U.S. Constitution and state 8 constitutions, legislation by Congress, and court decisional cases. A pattern of racketeering activity 9 extended through a myriad of actions to directly and indirectly cause as much irreparable damage to 10 CHAPEL, NYE-WILSON, Major Dr. Dale Wilson, PhD. (Army ret.) (“WILSON”), and by extension 11 12 13 14 15 16 Joel Chapel (“JOEL”) and Susan Allister (“SUSAN”), while supporting the personal and corporate unlawful gain of the enterprises, RICO parties, and co-conspirators. 15. The enterprises, RICO parties, and co-conspirators engaged in a pattern of racketeering activity so deeply embedded, pervasive, and continuous that it was effectively institutionalized as a business practice, thereby corrupting the very mission of the enterprises, while 17 18 donors to WESTERN, for example, believed they were supporting WESTERNs’ original and 19 approved mission. 20 16. 21 22 23 24 25 Unfortunately for America and the cause of justice, the enterprises, RICO parties, and co-conspirators interfaced their schemes with the U.S. Government, which directly and indirectly protected the enterprises, RICO parties, co-conspirators. 17. The difference between the indictments against FIFA et al. and this case? The enterprises, RICO parties, and co-conspirators cooperate with, rely upon, are encouraged by, and are 26 directly and indirectly protected by the U.S. Government to collectively, actively, knowingly, and 27 willfully promote the corruption and fraud of the enterprises, RICO parties, and co-conspirators. This 28 FOIA COMPLAINT PAGE: 5 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 occurs because the corruption and fraud of the enterprises, RICO parties, and co-conspirators is 2 interwoven with the cover up for current and former U.S. Government employees who exceeded their 3 power and obstruct justice as the government did to Plaintiffs. 4 U.S. GOVERNMENT PROTECTION 5 6 18. The conduct of the enterprises, RICO parties, and co-conspirators violates the 7 Racketeer Influenced and Corrupt Organizations Act, 28 U.S.C. § 1961 et seq., among many other 8 federal and state laws, as well as the U.S. Constitution, the California Constitution and decisional 9 cases. The Government, and in particular OA, has acted to cover up the racketeering, conspiracy, 10 11 wire fraud, money-laundering conspiracy, making willfully false statements and documents to federal 12 authorities, money laundering, and student aid fraud. In spite of this knowledge by the Government 13 and OA, it has acted to protect the enterprises, RICO parties, and co-conspirators at all costs over and 14 against CHAPEL, NYE-WILSON and their family members, causing irreparable damage. 15 FALSE CLAIMS ACT (FCA), 31 U.S.C. §§ 3729 - 3733 16 17 19. The False Claims Act (“FCA”), 31 U.S.C. §§ 3729 - 3733 was enacted in 1863 by a 18 Congress concerned that suppliers of goods to the Union Army during the Civil War were defrauding 19 the Army. The FCA provided that any person who knowingly submitted false claims to the 20 government was liable for double the government’s damages plus a penalty of $2,000 for each false 21 claim. Since then, the FCA has been amended several times. In 1986, there were significant changes 22 23 to the FCA, including increasing damages from double damages to treble damages and raising the 24 penalties from $2,000 to a range of $5,000 to $10,000. The FCA has been amended three times since 25 1986. Over the life of the statute it has been interpreted on hundreds of occasions by federal courts. 26 In fiscal year 2015 alone, the Justice Department recovered over $3.5 Billion from false claim cases. 27 28 FOIA COMPLAINT PAGE: 6 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 2 3 4 20. To violate the FCA a person must have submitted, or caused the submission of the false claim (or made a false statement or record) with knowledge of the falsity. 21. As the OA is now chiefly aware, WESTERN has been in violation of the FCA due to its false claims in the Program Participation Agreement (“PPA”) required by USDE under Title IV 5 6 and HEA requirements since 2003, in order for schools to apply for and receive Title IV federal 7 student financial aid. The OA supports schools like WESTERN circumventing the FCA through 8 intimidation, threats, coercion, and extortion of a student’s education and all future education 9 leading to master degrees. Some 40% of Western Seminary's income is from Title IV funds. The 10 Higher Education Act ("HEA") mandates that an educational institution is ineligible to request Title 11 12 IV student loan and grant funds without first executing a PPA with the Secretary of Education. The 13 PPA requires participating schools to maintain compliance with the HEA, Section 504, Title IV, Title 14 VI, FERPA, and etc. in order to receive Title IV federal student aid funds. If an institution submits 15 knowingly false promises to comply with the HEA and other federal statutes and regulations required 16 by the mandatory PPA, and willfully violates them or is knowingly and willfully violating them at the 17 18 time of signing the PPA, it is actionable under the FCA. The controlling case on point is United 19 States of America ex rel. Mary Hendow and Julie Albertson v. University of Phoenix; Civil Action 20 No. 2:03-cv-00457-GEB-DAD (E.D. Cal.), which netted a $78.5 million settlement. 21 22 23 24 25 22. Defended by the OA, schools like WESTERN can use settlement agreements to prevent students, employees and members of the public from whistle blowing to the government or filing FCA cases. Schools like WESTERN can falsify or destroy records, make false statements to federal investigators, commit tax evasion, make false claims, block First Amendment rights of 26 students and their families, retaliate against whistle blowers reporting Section 504 fraud, obstruct 27 justice, conceal child molestations, and commit offenses of dishonesty in fiscal responsibilities, etc. 28 FOIA COMPLAINT PAGE: 7 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 2 3 4 23. WESTERN has been approved for Federal Student Aid Programs (“FSAP”) since 2003. Since that time, its tuition and fees has increased to $5,526,839 per fiscal year, whereby forty percent coming from FSAP. That is a maximum cap of $71,848,907 for tuition and fees since 2003, with a maximum of $28,739,562.80 paid by FSAP since 2003. Without FSAP in 2003, WESTERN 5 6 would have been out of business and insolvent, since it already had financial troubles for which 7 NWCCU placed WESTERN on institutional probation in 2003. The OA and most importantly, the 8 PRESIDENT, the Attorney General, the current and former Secretary of Education and other high 9 ranking members of Defendant USDE involved in FSAP are now chiefly aware of this due to the 10 investigative work by relator Plaintiffs. 11 12 24. Under the FCA, if the government intervenes in the qui tam action, the relator is 13 entitled to receive between 15 and 25 percent of the amount recovered from the school by the 14 government through the qui tam action. If the government declines to intervene in the action, the 15 relator’s share is increased to 25 to 30 percent. These varieties provide for a possible recovery range 16 of $4,310,934.42 to $8,621,868.84 from the school for the relator Plaintiffs. 17 18 25. CHOOSING TO NOT INVESTIGATE IS NOT AN OPTION FOR THE 19 EXECUTIVE BRANCH. The U.S. Congress makes it clear that (31 U.S. Code § 3730) “The 20 Attorney General diligently shall investigate a violation under section 3729. If the Attorney General 21 finds that a person has violated or is violating section 3729, the Attorney General may bring a civil 22 23 24 25 action under this section against the person.” 26. THE OA INSTEADS CHOOSES TO OBSTRUCT JUSTICE AND ABUSE POWER AGAINST PLAINTIFFS. We have learned, attorneys are reluctant to take the FCA 26 case against WESTERN in fear of retaliation directly or indirectly against themselves and 27 current or future cases by Justice. Because the United States Government is directly involved in 28 FOIA COMPLAINT PAGE: 8 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 the corruption and fraud supporting and defending directly and/or indirectly the enterprises, RICO 2 parties, and co-conspirators, the OA is in violation of the law. Obstructing justice and abuse of 3 4 power by the OA in this case are grounds for impeachment (U.S. Constitution at Art. II Sec. 4.) and clearly grounds for employment termination by Justice attorneys like James A. Scharf. 5 6 7 8 9 Federal Tort Claims Act (“FTCA”) 28 U.S.C. § 1346(b) 27. The FTCA constitutes a limited waiver of sovereign immunity, permitting citizens to pursue some tort claims against the government. There are times when the Government screws up, fails, and in some cases the subsequent damage can wipe out an entire family as in the controlling 10 11 case of Don Yoon, et al. v. United States, United States District Court for the Southern District of 12 California, Case No. 3:10-CV-1578 JM. In Yoon, Don Yoon’s wife, two daughters and mother-in- 13 law were tragically killed when a Navy/Marine Corps jet crashed into the Yoon home. The United 14 States Government fought, but finally admitted liability for the crash that was caused by improper 15 16 17 18 maintenance of the jet which is analogous to improper oversight of WESTERN, ATS and NWCCU by the Defendant USDE which caused irreparable damage to Plaintiffs and their family members. 28. Defendant USDE has an ongoing history of failing oversight of accreditors and thus 19 schools as noted in the 2003 audit by the Inspector General of Defendant USDE. This case and the 20 impact it has had on CHAPEL, and thus SUSAN, JOEL, NYE-WILSON and WILSON, underscores 21 22 23 24 this point. CHAPEL’s life is now eviscerated and his family has been completely destroyed. SUSAN is off with someone else, and is raising JOEL as if CHAPEL doesn’t exist as JOEL’s father. 29. On October 7, 2011, Jill Siegelbaum, Attorney in the Office of General Counsel for 25 Defendant USDE admitted under oath that Defendant USDE “had no responsive records and is 26 unaware of any other location where such records might be located” regarding records required for 27 letters and actions in 2007-2008 by Defendant USDE. Similarly, on December 10, 2015, Defendant 28 FOIA COMPLAINT PAGE: 9 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 USDE stated it “does not have any records documenting any type of waiver or exception to 2 the provisions of the PPA.” The OA and most importantly, the PRESIDENT, the Attorney 3 4 5 6 7 8 9 10 General, the current and former Secretary of Education, and other high ranking members of Defendant USDE are aware that at the heart of this case are the ongoing enforcement failures by Defendant USDE that have now completely and irreparably destroyed a family by all of this with irreparable damage to the relationships. 30. In 2012, Plaintiffs sued the USDE under the FTCA for over $40,000.000. The OA continued to protect and cover for the school (WESTERN) and two accreditors, while flushing millions of dollars of federal money from taxpayers to the school. The USDE and particularly the OA 11 12 13 brushed aside justice under two claims: 1) Sovereign, and 2) 28 U.S. Code § 2680(h). 31. Due to the U. S. Government intervening in this case to support the corruption and 14 fraud of the enterprises, the RICO parties, and the co-conspirators, due to SPELLINGS' underhanded 15 actions in 2008, WESTERN remains in business and unjustly accredited and as far as the unaware 16 public, courts, donors, students, alumni and U.S. Congress know, and did nothing wrong, while 17 18 CHAPEL, SUSAN, JOEL, NYE-WILSON, and WILSON unjustly suffer. 19 20 21 SPELLINGS 32. It is time to publicly call out SPELLINGS for what she has done that has caused so much damage to so many people. It should be clearly understood that Plaintiffs are not the only ones 22 23 24 impacted by all of this. While SPELLINGS only now admits her actions and statements regarding the censorship of the TV show “Postcards from Buster” were wrong and “a mistake,” she is and has 25 been the controlling factor. Without her advocating for the corrupt and fraudulent Religious and 26 other educational leaders, it is reasonable to conclude that the Government would NEVER – EVER 27 have become so deeply involved in this case. 28 FOIA COMPLAINT PAGE: 10 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 2 3 4 33. This SPELLINGS train wreck and her explicit need to prostitute herself for corporate America is her problem and lifestyle choice, not the OA’s. It is time the OA realizes that SPELLINGS needs to be “thrown under the bus” rather than protect that corporate whore. 34. The U.S. Government, and in particular, the OA claims sovereign privilege and 28 5 6 U.S. Code § 2680(h) to support SPELLINGS, her special interests and corrupt Government 7 employees. By doing this, the U.S. Government and in particular the OA, has directly inserted itself 8 into the conflict, obstructing justice in two civil cases, while abusing power and destroying lives. 9 10 35. It says a great deal about a sovereign that it must be deceitful and act with trickery. A lie doesn't become truth, wrong doesn’t become right and evil doesn’t become good just because the 11 12 13 14 15 16 sovereign says so. OBAMA AND OTHERS KNEW OR SHOULD HAVE KNOWN WHAT WAS GOING ON 36. Who in Government knows about this case? The PRESIDENT, Attorney General (Holder, Lynch) and other high ranking members in the Department of Justice, former and current directors of the FBI, current and former U.S. Attorneys across the United States, each member of the 17 18 U.S. Congress, former and current employees of the U.S. Department of Education and State, and 19 many more. Each and everyone one of them in Government has received factual information about 20 this case of Government corruption and educational fraud that irreparably damaged Plaintiffs. 21 22 23 24 25 26 37. The U.S. Government and in particular, the OA has fought for a lack of transparency and the lack of accountability, and thereby perpetuating the massive SPELLINGS “clusterfuck.” It was under SPELLINGS that the General Counsel Office (TALBERT) instructed Defendant USDE employees via memo to disregard and not to speak with Plaintiffs CHAPEL, NYE-WILSON and their attorney, John Hannon making things worse. SPELLINGS, et al., placed their desire to avoid 27 28 FOIA COMPLAINT PAGE: 11 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 public scandal over the well being of a family, to nourish the Religious regarding a sex offender and 2 their corruption. 3 4 38. SPELLINGS, et al., didn’t merely obstruct justice and abuse power in 2007-2008. SPELLINGS, et al., set the Government’s vision to eviscerating CHAPEL and NYE-WILSON using 5 6 the Government as a means to an end. To the extent that the OA proceeded to continued that 7 evisceration, and most unquestionably by using James A. Scharf as a preferred weapon of the 8 Government, betrays the depths of grave depravity Government has been willing to take this case. 9 10 39. Superintendent Beverly Hall was indicted for her involvement in the Atlanta Public Schools cheating scandal. The GBI report said she “knew or should have known” what was going on. 11 12 Throughout this entire ordeal, CHAPEL and NYE-WILSON have repeatedly written to PRESIDENT 13 and others within the U.S. Government, often using certified letter to prove receipt and to show that 14 the OA knew or should have known what was going on. 15 16 A DANGEROUS PRECEDENT 40. Plaintiffs and their family members are irreparably damaged by the U.S. Government 17 18 and in particular by the OA, while the OA continues to support, defend, and cover up educational 19 corruption and fraud with public money at all costs, since the cover up also serves the ongoing 20 failures by Defendant USDE, Defendant STATE, the Department of Justice, and a host of others. 21 22 23 24 25 26 41. The OA is playing with fire and it doesn’t care how many people or families are hurt. As a result of the willful and unjustified damage perpetrated against Plaintiff CHAPEL, he has lost his education, his house, his land, his things, his 2nd Amendment rights, his professional pursuits, and most of all his family, because the Government will stop at nothing to cover for the enterprises, the RICO parties, and the co-conspirators. 27 28 FOIA COMPLAINT PAGE: 12 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 2 3 4 42. Plaintiff CHAPEL no longer has any will to continue. He sees no future for himself, and has become a shell of a human. His life, his 2nd Amendment rights, his things and property, and most of all his family were eviscerated before his eyes. Acting on behalf of the Government, SCHARF says CHAPEL should just “move on.” 5 6 7 Basically, .......... “Government, et al., screwed your life completely over, now move on and live with it.” 43. The Government's lack of rule of law and cover up of corruption and fraud--beginning 8 9 with SPELLINGS through the present OA--resulted in a magnitude of educational fraud and chaos 10 that devastated Plaintiff's very will to live, while it also damaged the integrity of higher education and 11 accreditation. Should anything happen to Plaintiff CHAPEL, there is a paper trail for third parties 12 interested in this case tracing back to the Government sources, and their willful and knowing actions 13 and inactions. 14 15 16 17 18 19 20 21 22 23 24 25 CHAPEL IS A PROTECTED PARTY UNDER THE LAW 44. On or about the fall 2001, CHAPEL became aware of Matt Tuck (son of TUCK) being cheated through WESTERN under false claims of “disability” (Section 504 of the Rehabilitation Act of 1973). WESTERN did not have a Section 504 program, coordinator, or any required policies or procedures. Through FOIA responses in 2010, CHAPEL was able to piece together WESTERN's lies to OCR-SF in 2005. DUNCAN and OCR-SF received CHAPEL’s “OCR Review” exposing WESTERN’s lies the first week of January 2011 (SUSAN filed to divorced CHAPEL 30 days later). 45. RUARK, with other administrators at WESTERN, willfully made known misrepresentations to OCR by false statements and backdated documents (CA Penal Code 134) in order to mislead federal authorities during a federal investigation in order to appear that WESTERN 26 27 28 was compliant with Section 504. Plaintiffs now know that this was done, because such impacted WESTERN’s signed PPA since 2003 and involvement in FSAP. CHAPEL has been at all times FOIA COMPLAINT PAGE: 13 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 protected from retaliation. Barker v. Riverside County Office of Educ. (9th Cir. 2009) 584 F.3d 821, 2 and now 31 U.S.C. § 3730(h)(1) “IN GENERAL.—Any employee, contractor, or agent shall be 3 4 entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner 5 6 discriminated against in the terms and conditions of employment because of lawful acts done by the 7 employee, contractor, or agent on behalf of the employee, contractor, or agent or associated others in 8 furtherance of other efforts to stop 1 or more violations of this subchapter.” 9 10 46. CHAPEL's protection from WESTERN’s retaliation would also include, 31 U.S.C. § 3730(h)(2) “RELIEF.—Relief under paragraph (1) shall include reinstatement with the same 11 12 seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times 13 the amount of back pay, interest on the back pay, and compensation for any special damages 14 sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. 15 An action under this subsection may be brought in the appropriate district court of the United States 16 for the relief provided in this subsection.” 17 18 47. In the fall of 2001, CHAPEL was an employee of WESTERN and he was forced out 19 of his position and as a student in 2002, due to actions taken by WESTERN, RUARK, KORCH, 20 TUCK, ROBERTS, WIGGINS, and DOWNS. Further, as CHAPEL was also a student, “The harm of 21 wrongful expulsion is immediate, real and irreparable.” Carlos Martinez v. University of Colorado, 22 23 24 25 District Court, County of Boulder, State of Colorado OF, Case No. 2000 CV 658. Private universities may not act “arbitrarily and capriciously” towards students. Babcock v. New Orleans Baptist Theological Seminary, Court of Appeal of Louisiana, Fourth Circuit. November 16, 1989. 26 (An ATS accredited school. The court determined that the seminary acted in a manner that was 27 “grossly unfair and arbitrary.”) The doctrine prohibiting “arbitrary and capricious” discipline 28 FOIA COMPLAINT PAGE: 14 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 prevents universities from disciplining students maliciously or dishonestly because a “university does 2 not have the right of arbitrary dismissal” Robinson v. University of Miami, 100 So. 2d 442, 444 (Fla. 3 4 Dist. Ct. App. 1958). 48. The Supreme Court of the United States in Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 5 6 505, 48 L.Ed. 754, approved the famous definition of malice by Bayley, J., in Bromage v. Prosser (4 7 Barn. & C. 247), whose remarks have become a classic in the law, as follows: “Malice, in common 8 acceptation, means ill will against a person, but in its legal sense it means a wrongful act, done 9 intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, 10 I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle, 11 12 without knowing whose they are, if I poison a fishery, without knowing the owner, I do it of malice, 13 because it is a wrongful act, and done intentionally. If I am arraigned of felony, and willfully stand 14 mute, I am said to do it of malice, because it is intentional and without just cause or excuse. And if I 15 traduce a man, whether I know him or not and whether I intend to do him an injury or not, I 16 apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally 17 18 19 works an injury, whether I meant to produce an injury or not.” This case is well beyond malice at this point. 20 21 22 23 24 SILENCE IS NOT GOLDEN 49. The United States has gone silent in this case three times. The first time was in 2008 at the direction of the General Counsel’s Office (TALBERT) of Defendant USDE. At that time, the General Counsel’s office instructed Defendant USDE employees via a memo to disregard and not to 25 speak with Plaintiffs CHAPEL, NYE-WILSON and their attorney, John Hannon, to further obstruct 26 Plaintiff's justice by abuse of power after the 2008 letters were written at the direction of 27 SPELLINGS. Plaintiffs are aware of this due to earlier FOIA responses. SPELLINGS, et al., placed 28 FOIA COMPLAINT PAGE: 15 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 their desire to avoid public scandal over the well being of a family, to nourish the Religious and cover 2 up multiple acts of deceit and corruption.. 3 4 50. The second time of silence was in January 2011, thirty days prior to SUSAN filing for divorce from CHAPEL, and after CHAPEL filed his "OCR REVIEW" to Defendant USDE noting 5 6 the corruption of the enterprises, RICO parties, with their co-conspirators that has been protected 7 through today by United States Government and in particular the OA. At that time, DUNCAN and 8 others within the Defendant USDE were made aware of the facts that WESTERN has been lying to 9 Defendant USDE, making false statements and misrepresentations regarding Section 504 compliance. 10 Plaintiff CHAPEL was able to piece together the lies by WESTERN, et al., due to FOIAs he had 11 12 13 14 15 16 filed, which resulted in him and Plaintiff NYE-WILSON filing additional lawsuits to force Defendant USDE to produce records it was intentionally holding, having gone silent in January 2011. 51. This instant action marks the third USDE period of silence to Plaintiffs. The OA knows it has destroyed lives, including CHAPEL and his family (SUSAN and JOEL), and caused significant damage to NYE-WILSON and WILSON, yet the OA remains silent, apparently hoping 17 18 19 20 21 22 23 24 25 everything will go away. This is not the leadership America expects and needs. Rather this is cowardice by the OA. 52. OA is chiefly aware that its claims of 2007-2008 are baseless, and that it clearly had no evidence to do what it did or continues to do. OA is also chiefly aware that the enterprises, RICO parties, with their co-conspirators claims are not simply baseless, but are in violation of 127 years of stare decisis, the U.S. Constitution, each of the states’ constitutions, federal and state laws and decisional cases, which has caused major problems. (Failed oversight (Navient letter of 9/5/15, p. 1- 26 2), lacked evidence (10/29/15 letter to David Berger, p. 3), lacked legal support (10/29/15 letter to 27 David Berger, p. 1-2), violated public policy (Navient letter of 9/5/15, p. 2-3, 10-29, p. 3 “ATS 28 FOIA COMPLAINT PAGE: 16 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 standards or procedures that override Mary R. v. B. & R. Corp., 149 Cal. App. 3d 308, etc.”), 2 colluded with NWCCU and ATS (Navient letter of 9/5/15, p. 5), obstructed justice, abused 3 4 government power in order to destroy two civil cases (Navient letter of 9/5/15, p. 5-6), violated the False Claims Act with student aid fraud (10/29/15 letter to David Berger, p. 4), and the U.S. 5 6 Department of State (10/29/15 letter to David Berger, p. 5-6, 11/14/15 letter to David Berger, p. 1- 7 5) mishandled a child abduction.) Yet, the OA continues to cover everything up, causing further 8 damage to CHAPEL, SUSAN, JOEL, NYE-WILSON, and WILSON. 9 10 53. CHAPEL has made final notice and has clearly and conclusively noticed the serious nature of this case. Every step of the way, the Government, the enterprises, the RICO parties, with 11 12 their co-conspirators, has fought to silence, cover up and damage Plaintiffs because so much is on the 13 line. For the Government, it used James A. Scharf as a preferred weapon. Now irreparable damage 14 has occurred on multiple fronts and in multiple areas. It is reasonable that, if the roles were reversed, 15 the people in government, the enterprises, the RICO parties, with their co-conspirators would not 16 want the irreparable damage to occur to them or their families. Both CHAPEL and NYE-WILSON 17 18 19 20 21 22 23 24 25 have acted to reason with the OA, to seek documents and perform an intensive investigation to prove their points, but the Plaintiff’s limit has been reached. 54. There are some who are concerned that CHAPEL might do something. Broadly speaking, in Plaintiff's case, the gestalt of the Government for years has been to misrepresent the issues to favor the corruption. By doing the mental gymnastics one can reason that regardless of the evidence and legal arguments the Plaintiffs uncover and note, it follows that it doesn't matter if CHAPEL is a model citizen or not, because the Government will continue to misrepresent the issues 26 to favor the corrupt actors. Thus, the Government created a dilemma: why should CHAPEL make the 27 effort to be a model citizen without the benefits and justice he deserves are being withheld from him 28 FOIA COMPLAINT PAGE: 17 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 by the Government -- A Government hell bent on damaging his family and him? Government has 2 done this; Government has caused this; Government is furthering the problems needlessly. It is not 3 4 CHAPEL the public should be worried about, rather it is the OA – and ironically, these are the arguments of the National Rifle Association (“NRA”). OA is actually supporting the NRA narratives 5 6 by abusing CHAPEL and his family. To the extent that, apparently, no Government employee has 7 done the mental gymnastics on this is exasperating. Apparently, James A. Scharf has not, as his law 8 degree came from a Cracker Jacks box. 9 10 55. Indeed, society is an aggregate of people living together in an ordered community that relies upon the notion that by collaboration, people can be governed by accepted norms, laws, and 11 12 values allowing members of society to live together in peace. America's Founding Fathers invoked 13 this idea with the phrase “Life, Liberty and the pursuit of Happiness” for which they believed 14 governments are created to protect their citizens. But when members of a government denounce 15 those central core values, a society turns from being based on rule of law, to rule by law which 16 17 18 19 20 governments use to oppress members of society. 56. There is very, very limited time left now to see if the PRESIDENT’s promise, “Transparency and the Rule of Law will be the Touchstones of this Presidency” is actually true, or if this case will erupt into societal chaos to envelope the Obama Administration’s legacy. The 21 time is overdue for the PRESIDENT to exterminate the last segments of SPELLINGS massive 22 “clusterfuck” harming education, students, and families. Now is the time for justice. 23 THE FOIA FACTS 24 25 26 27 16-00200-F 57. On October 26, 2015, Plaintiff NYE-WILSON submitted a FOIA request to Defendant USDE, seeking access to the following: 28 FOIA COMPLAINT PAGE: 18 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1. Any and all records concerning the funds made available to Western Seminary for students using the Federal Family Education Loan Program from 2003 to current year. 2. Any and all records concerning the funds made available to Western Seminary for students using the Federal Direct Student Loan Program from 2003 to current year. 3. Any and all records concerning the funds made available to Western Seminary for students using the Federal Perkins Loan Program from 2003 to current year. 4. Any and all records concerning the funds made available to Western Seminary for students using the Federal Work-Study Program from 2003 to current year. 5. Each Fiscal Operations Report and Application to Participate (FISAP) by Western Seminary submitted for 2003 to current year. 1 2 3 4 5 6 7 8 9 10 11 12 13 58. On October 27, 2015, Defendant USDE acknowledged Plaintiff NYE-WILSON’s request and assigned it No. 16-00200-F. 59. On December 7, 2015, Defendant USDE stated, “that your request has been forwarded to the appropriate office to search for documents that may be responsive to your request, but, due to the Department’s voluminous amount of FOIA requests, your request, FOIA Request No. 16-00200- 14 15 F may not be processed within the 20 working-day timeframe. The Department apologizes for any 16 inconvenience this may cause you. Please be assured that your request will be processed as soon as 17 possible. The Department apologizes for any inconvenience this may cause you.” 18 19 60. On that same day, Plaintiff Nye-Wilson informed Defendant USDE, “a component may extend the twenty-day response time "only in unusual circumstances." 34 CFR 5.21(e) Unusual 20 21 22 circumstances exist when: the component needs to collect responsive records from separate offices; the request involves a "voluminous" amount of records that must be located, compiled, and reviewed; 23 or the component needs to consult with another federal agency or other DOJ components that have a 24 substantial interest in the responsive information.” Plaintiff Nye-Wilson went on to note that 25 26 27 28 Defendant USDE’s “assertion doesn't fall within the requirements of the law. Further, according to 34 CFR 5.21(d) or 34 CFR 5.21(e) a requestor can be notified to modify the FOIA request so it can be processed within the 20 day period or ‘arrange with the Department an alternative time period FOIA COMPLAINT PAGE: 19 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 within which the FOIA request will be processed.’ What you have cited to us doesn't fall within the 2 statutory requirements of FOIA. This is key since, the court looks if the request has been fulfilled. It 3 4 has not.” 61. On December 17, 2015, Defendant USDE stated “The Department of Education (the 5 6 Department) anticipates responding to your FOIA request with an interim response by the end of 7 January 2016, and if the date changes, you will be notified in advance.” At that time, Defendant 8 USDE notified Plaintiff Nye-Wilson of her right to appeal within 35 days of the date of the letter. 9 10 62. On December 17, 2015, Plaintiff notified Defendant USDE: “We understand that the Department of Education has ‘punted.’ Let's work together and attempt to make the request more 11 12 streamlined: We are not asking for the Department to provide total amounts, unless it has them. We 13 are not asking for the Department to perform any action such as adding up all the various times 14 Western Seminary has been paid with federal funds. We are not asking for the Department to go 15 through all the various applications and documents for federal student aid for students attending 16 Western Seminary, if such can be avoided, so that we can perform the math to reach the total amount 17 18 of money Western Seminary has been paid with federal funds. If the Department has a REPORT or 19 PRINT SCREENS, that provides information for the years 2003 to the current, concerning the federal 20 funds for the different programs noted in the request, we can do the addition and so on. IF THIS IS 21 EASIER, then we will accept a REPORT or PRINT SCREENS, and do the math. The bottom line is 22 23 24 25 26 27 we are looking for the total amount of federal money that has been paid to Western Seminary since 2003.” 63. As of the end of January, Defendant USDE has produced no records and made no effort to contact Plaintiff NYE-WILSON. F-2015-13699 28 FOIA COMPLAINT PAGE: 20 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 2 3 4 64. On August 19, 2015 Plaintiffs sent seven FOIA requests to Defendant STATE with details to ensure that the records could be reasonably found in short order, including names of people who might hold such records and places where records might be located. 65. On Sept 18, 2015, Defendant STATE acknowledged receipt of Plaintiffs request, and 5 6 7 assigned it Case Control Number F-2015-13699. 66. The requested records from Defendant STATE were: Request 1: Seeking any record(s) that document Susan Anne Chapel or Susan Anne Allister of England is unable to enter the United States of America as of fall 2009. 8 9 10 Request 2: Seeking any record(s) between (Susan Chapel or Susan Allister or her legal representative) and the London embassy. 11 12 13 Request 3: Seeking any record(s) between (Susan Chapel or Susan Allister or her legal representative) and the U.S. Department of State. 14 Request 4: 15 16 Request 5: Seeking any record(s) that references Susan Chapel or Susan Allister. (Same person) 17 Request 6: Seeking any record(s) that references Carol Nye-Wilson. 18 Request 7: Seeking any record(s) that references Randy Chapel. 19 67. Seeking any record(s) that references Joel Chapel. Defendant STATE responsive records were due on Oct 19, 2015. Defendant STATE 20 21 22 never produced any records. An appeal was sent on Oct 19, 2015 and a response was made on Oct 23, 2015 stating that an appeal was not necessary. 23 68. As of this date, Defendant STATE has produced no responsive records. 24 69. It is reasonable to conclude, considering the history between the U.S. Government and 25 26 27 in particular the OA, that the OA will continue to act to damage and harm Plaintiffs and their family, even if it means destroying records to cover up what it has done. 28 FOIA COMPLAINT PAGE: 21 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 2 3 4 70. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), Defendants were required to determine whether to comply with the request within twenty (20) working days of receipt and to notify Plaintiffs immediately of its determination, the reasons therefore, and the right to appeal any adverse determination. 5 6 71. As of the date of this complaint, Defendants each of them, have failed to: (i) determine 7 whether to comply with the request; (ii) notify Plaintiffs of any such determination or the reasons 8 therefore; (iii) advise Plaintiffs of the right to appeal any adverse determination; and/or (iv) produce 9 the requested records or otherwise demonstrate that the requested records are exempt from 10 production. 11 12 72. Because the Defendants, each of them, have failed to comply with the time limit set 13 forth in 5 U.S.C. § 552(a)(6)(A), Plaintiffs are deemed to have exhausted any and all administrative 14 remedies pursuant to 5 U.S.C. § 552(a)(6)(C). 15 16 73. COUNT 1 (Violation of FOIA, 5 U.S.C. § 552) Plaintiffs reallege paragraphs 1 through 72 as if fully stated herein. 74. Defendants STATE and USDE are unlawfully withholding records requested by 17 18 19 20 21 22 23 24 25 Plaintiffs pursuant to 5 U.S.C. § 552. 75. Plaintiffs have been irreparably damaged by reason of both Defendants unlawful withholding of records responsive to Plaintiffs FOIA request, by both Defendants’ actions and will continue to be irreparably harmed unless both Defendants are compelled to conform its conduct to the requirements of the law. WHEREFORE, Plaintiffs respectfully request that the Court: (1) order both Defendants to 26 conduct searches for any and all records responsive to Plaintiffs FOIA requests and demonstrate that 27 it employed search methods reasonably likely to lead to the discovery of records responsive to 28 FOIA COMPLAINT PAGE: 22 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936 1 Plaintiff’s FOIA requests; (2) order both Defendants to produce, by a date certain, any and all non- 2 exempt records responsive to FOIA requests and a Vaughn index of any responsive records withheld 3 4 under claim of exemption; (3) enjoin both Defendants from continuing to withhold any and all nonexempt records responsive to Plaintiffs FOIA requests; (4) grant Plaintiffs an award of attorney's fees 5 6 and other litigation costs reasonably incurred in this action pursuant to 5 U.S.C. § 552(a)(4)(E); and 7 (5) grant Plaintiffs such other relief as the Court deems just and proper. 8 Dated: March 7, 2016 Respectfully submitted, 9 10 11 12 13 /s/ Carol Nye-Wilson P.O. Box 711419 Mountain View, HI 96771 Tel: 808/968-7423 Email:
[email protected] In Pro Per 14 15 16 17 /s/ Randy Chapel P.O. Box 711419 Mountain View, HI 96771 In Pro Per 18 19 20 21 22 23 24 25 26 27 28 FOIA COMPLAINT PAGE: 23 Records Custodian: Carol Nye-Wilson, PO Box 711419, Mountain View, HI 96771, E:
[email protected], P: 808-756-0936