492 F.2d 1337 (7th Cir. 1974), 73-1387, King v. United States

Docket Nº:73-1387.
Citation:492 F.2d 1337
Party Name:Charles Joseph KING, Jr., Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
Case Date:March 13, 1974
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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492 F.2d 1337 (7th Cir. 1974)

Charles Joseph KING, Jr., Plaintiff-Appellant,


UNITED STATES of America et al., Defendants-Appellees.

No. 73-1387.

United States Court of Appeals, Seventh Circuit.

March 13, 1974

Argued Jan. 25, 1974.

Patrick L. Baude, Indiana University School of Law, Bloomington, Inc., for plaintiff-appellant; Charles Joseph King, Jr., pro se.

Stanley B. Miller, U.S. Atty., Thomas L. Bose, Asst. U.S. Atty., Indianapolis, Ind., for defendants-appellees.

Before PELL, STEVENS and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

This appeal seeks the answer to the single narrow question: Does due process

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or statute require that reasons be given for the refusal of the United States Board of Parole to grant parole?


The plaintiff, Charles Joseph King, Jr., filed an action on July 21, 1972 for declaratory judgment in the District Court for the District of Columbia against the United States, the Attorney General, the director of the Bureau of Prisons and the chairman of the United States Board of Parole. The District of Columbia court granted the defendants' motion to transfer the action to the Southern District of Indiana inasmuch as plaintiff was confined as a prisoner in the United States Penitentiary at Terre Haute, Indiana. 28 U.S.C. § 1404(a); Young v. United States Bureau of Prisons, 125 U.S.App.D.C. 105, 367 F.2d 331 (1966).

In his pro se complaint, plaintiff alleged that he was sentenced to 15 years in the custody of the Attorney General on November 7, 1969; that he 'appeared before the U.S. Board of Parole and was sent off for 2 years without cause or reason'; and prayed that the court 'issue a show cause order to the U.S. Board of Parole to show why at time time' he cannot be released on parole and otherwise to declare his rights. He added:

'One cannot improve or correct the reason for denial if he is not aware of that reason. What sureness is there, that one year or one month from this time he will be any different. Why he was denied, there is all the cause in the world for him to become bitter when one is being denied justice.'

The defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted. 1 The district court dismissed the complaint, noting that the plaintiff 'seeks a mandate from this Court ordering the respondents to show cause why petitioner was denied a parole' and concluding that 'this Court will not review the decision of the Parole Board, nor will it repass on the credibility of reports and information received by the Board in making its determination.'

In his complaint and in his response to the defendants' motion to dismiss in the district court, the plaintiff stressed that his claim was based on failure of the Parole Board to give reasons for its denial of his application for parole. He cited the due process clause of the Fifth Amendment and the Administrative Procedure Act as giving him a right to have reasons expressed. A reasonably creditable but discursive brief was filed as plaintiff's pro se brief in this court.

We subsequently granted leave to Professor Patrick L. Baude of Indiana University Law School as amicus curiae to file a brief and present oral argument on behalf of the plaintiff. Professor Baude has argued that (1) the Fifth Amendment forbids denial of parole without a stated reasons and (2) the Administrative Procedure Act requires the Parole Board to state its reasons for denying parole.


The district court relied upon Brest v. Ciccone, 371 F.2d 981, 983 (8th Cir. 1967) where the conclusion was that 'the courts have no jurisdiction and no power to . . . review or control the discretion of the Board of Parole in the exercise of its duties under § 4203.' 2

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Two public bodies have taken diverse views on the question of the reviewability of the Parole Board's discretion. The Task Force on Corrections for the President's Commission on Law Enforcement and Administration of Justice recommended that reasons for the board's decision be given so that meaningful judicial review could be undertaken. 3

On the other hand, the Proposed New Federal Criminal Code of the National Commission on Reform of Federal Criminal Laws sets forth that 'discretionary action of the Board of Parole is an administrative decision not subject to judicial review on its merits.' Section 3406 of the proposed code reads: 4

'The federal courts shall not have jurisdiction to review or set aside, except for the denial of constitutional rights or procedural rights conferred by statute, regulation or rule, the discretionary action of the Board of Parole regarding but not limited to the release or deferment of release of a prisoner whose maximum term has not expired, the imposition or modification of conditions of a first or subsequent parole, and the reimprisonment of parolee for violation of parole conditions during the parole period.' (Emphasis added).

We need not directly confront the problems of discretion or its abuse because the plaintiff has carefully limited his quest for reasons to the exceptions noted in the proposed code of 'denial of constitutional rights or procedural rights conferred by statute.'

Even if we agree that the district court has no jurisdiction to review the Parole Board's discretion under § 4203, it does have jurisdiction to consider at least the plaintiff's statutory claim that the Board has disobeyed a nondiscretionary command that it provide reasons for its determination after exercising its discretion. Christian v. New York State Dept. of Labor, 414 U.S. 614, 617, n. 3, 94 S.Ct. 747, 39 L.Ed.2d 38 (1974).

28 U.S.C. § 1361 provides that:

'The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.'

Whether the district court has jurisdiction to consider the plaintiff's constitutional claim in view of plaintiff's argument that the requisite amount in controversy (28 U.S.C. § 1331) is established by the possibility of his gaining earlier freedom, need not be addressed by us in view of our disposition of plaintiff's constitutional claim (Part IV hereof). 5

Before considering plaintiff's constitutional and statutory claims, it may be

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helpful to review some recent administrative developments.


The Administrative Conference of the United States, created by the Administrative Conference Act (5 U.S.C. § 571), consisting in part of all of the heads of independent regulatory agencies, executive departments and other administrative agencies (§ 573(b)) and empowered to 'adopt such recommendations as it considers appropriate for approving administrative procedure' (§ 575(a)(1), adopted the following recommendation on June 9, 1972: 6

'A statement of reasons for the deferral or denial of parole should in all instances be given the prisoner. In some cases the Board can simply adopt as its own decision the examiner's recommendation. 7 The cases where this is not appropriate may well be so voluminous 8 as to require the use of a check-list form, such as that with which the Board is now experimenting, 9 but there should in each such case be added at least a sentence or two of individualized explanation.'

The Conference further recommended that the Parole Board 'should develop a body of fully reasoned decisions-- whether granting, denying or deferring parole-- in typical or recurrent fact situations' in order to 'serve as time-saving precedents and as the raw material for the subsequent formulation of standards.' Finally, in this area, the Conference recommended that the Board's decision should be open to public inspection. 10

In the preparation leading up to the Conference's recommendations, it developed the advantages inherent in giving reasons, 11 as well as the 'pitfalls to be avoided.' 12

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The Parole Board has taken the position that it will experiment with giving reasons on a limited basis if doing so does not cause 'extensive delays in the delivery of parole decisions to inmates, resulting in rehabilitative damage outweighing any advantages.' 13 The Board has published a list of 27 unweighted factors which guide its decision whether to grant or deny parole, 14 but the Administrative Conference believes that 'a more specific formulation of the standards

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of decision should be possible after the development of a body of reasoned decisions.' 15

The Administrative Conference recommendations relating to the giving of reasons are the culmination of a long period of dissatisfaction with Parole Board procedure in this regard. Professor Kenneth Culp Davis has said: 16

'Because no one ever knows the reason for any decision of the board, no prisoner is ever told why the board has denied parole . . .. Even the most flagrant abuse of discretion is likely to go uncorrected . . .. Withholding reasons is likely to harm the rehabilitation process.'

Several states have instituted judicially or legislatively inspired requirements of reasons for the denial of parole. 17

The administrative trend is toward greater procedural safeguards in the parole release hearing, including the stating of reasons for denial, but the plaintiff can succeed only if such statement is constitutionally or statutorily mandated.


It is no longer necessary to draw a hard and fast line between affording the full panoply of procedural due process or giving none. Categorization of 'rights' as opposed to privileges or acts of grace or clemency has ceased being a touchstone.

Full procedural due process is required during a criminal prosecution; some but not full due process must be accorded thereafter during parole revocation proceedings. Parole release proceedings have not been as clearly identified.

Morrissey v. Brewer, 408 U.S. 471, 480-482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484...

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