504 F.2d 396 (10th Cir. 1974), 73-1632, Mower v. Britton

Docket Nº:73-1632, 73-1845, 73-1846, 73-1882 and 74-1172.
Citation:504 F.2d 396
Party Name:Clarence A. MOWER, Appellant, v. Samuel J. BRITTON et al., Appellees. Joe Alfred SIRCOLOUMB, Appellant, v. UNITED STATES BOARD OF PAROLE, Appellee. Gary Dwaine STALDER, Appellant, v. Loren E. DAGGETT, Warden, Appellee. Rudolph WILLIAMS, Appellant, v. UNITED STATES BOARD OF PAROLE et al., Appellees. Luther Anthony STEVENSON, Appellant, v. Loren E. D
Case Date:September 04, 1974
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 396

504 F.2d 396 (10th Cir. 1974)

Clarence A. MOWER, Appellant,

v.

Samuel J. BRITTON et al., Appellees.

Joe Alfred SIRCOLOUMB, Appellant,

v.

UNITED STATES BOARD OF PAROLE, Appellee.

Gary Dwaine STALDER, Appellant,

v.

Loren E. DAGGETT, Warden, Appellee.

Rudolph WILLIAMS, Appellant,

v.

UNITED STATES BOARD OF PAROLE et al., Appellees.

Luther Anthony STEVENSON, Appellant,

v.

Loren E. DAGGETT, Warden, et al., Appellees.

Nos. 73-1632, 73-1845, 73-1846, 73-1882 and 74-1172.

United States Court of Appeals, Tenth Circuit

September 4, 1974

Richard G. Singer, Newark, N.J. (Tom W. Neal, Denver, Colo., with him on the briefs), for appellants.

Monti Belot, Asst. U.S. Atty., Topeka Kan. (Robert J. Roth, U.S. Atty., with him on the briefs), for appellees.

Before SETH and HOLLOWAY, Circuit Judges, and TALBOT SMITH, [*] Senior District Judge.

TALBOT SMITH, Senior District Judge.

We here consider five civil actions consolidated for briefing and argument on appeal. Since the actions originated as prisoners' pro se claims for relief, counsel was appointed and directed to focus primarily on the common issue presented, namely, a parole applicant's right to learn the reasons for the denial of his parole. Each of the petitioners before us, at the time of filing his asserted cause of action in the District Court for the District of Kansas, was

Page 397

confined in the United States Penitentiary, Leavenworth, Kansas.

Although in view of our resolution of this matter we deem it unnecessary to recite in detail the various pro se claims and charges made, bases of jurisdiction asserted, and forms of relief demanded, 'the thrust of each petition,' as agreed by the government, 'was that the petitioner was eligible for parole, yet had been denied parole' without having been given a statement of reasons therefor. 1 In each case, the District Court declined all types of relief sought, including a statement of reasons for denial of parole, and dismissed the actions on the pleadings.

The appellants rely on a duality of arguments. It is first contended, citing United States ex rel. Johnson v. Chairman, Board of Parole, 500 F.2d 925 (2nd Cir. 1974), that the failure to give reasons constitutes a constitutional offense, a denial of due process. With respect to the process that is due in this situation, we agree with the opinion of the court in King v. United States, 492 F.2d 1337, 1343 (7th Cir. 1974) that 'a substantial argument can be made that some modicum of due process should attend the denial of the expectation of conditional freedom on parole inasmuch as its termination after having been granted inflicts a 'grievous loss' of a 'valuable liberty," Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). But the appellants present, as well, a statutory argument, that the refusal to give reasons constitutes a violation of the requirements of the Administrative Procedure Act, 5 U.S.C. 551-559 (hereinafter the 'Act'). In accordance with well established principles we will proceed first to a resolution of the statutory issue, construing the prisoners' pro se petitions with respect thereto as actions in the nature of mandamus under 28 U.S.C. 1361. 2

We note at the outset of our statutory exploration that we are not plowing new ground, prior exhaustive examination having been had by the Seventh Circuit in King v. United States, supra. It was there held that the Parole Board 3 was an 'agency' within the meaning of the Act, since it is an 'authority of the Government of the United States' 4 and is not otherwise excepted from the operation of the Act. It was further held that the action of the Parole Board came within the requirements of 6(d) of the Act, 5 U.S.C. 555(e), which provides:

Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.

We agree with the Seventh Circuit's reading of the act. The term 'agency proceeding,' above employed, is defined as an agency process comprehending rule making, licensing and adjudications, 5

Page 398

the latter being an 'agency process for the formulation of an order.' 6 In view of the fact that an order 'means the whole or a part of a final disposition * * * in a matter other than rule making * * *,' 7 it seems clear that the decision whether to grant a prisoner parole is an adjudication' within the meaning of the Act. 8

We reject the Board's argument, based on Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 236-237 (en banc), cert. denied, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963), that the parole decision is not an 'adjudication.' There the court was confronted with convicts whose parole had been revoked and who claimed 'in essence . . . they (were) entitled to a revocation hearing before the Board' at which certain procedural rights should be granted. Id. at 233. The court held that no hearing was required under the Act since the procedures in 5 U.S.C. 554, 556-557 apply in terms only 'to agencies which are required by their own statute of creation to adjudicate, after hearing.' Id. at 237. 5 U.S.C. 554(a). 9 Section 6(d), on the contrary, applies to 'any agency proceeding, whether or not formal or upon hearing.' 10 It is to be noted that 6(d) requires only a 'brief statement of the grounds of denial' 'as contrasted with the more elaborate findings which are customarily issued to support an order,' 11 e.g. the requirements of 5 U.S.C. 557(c) relating to decisions after a full hearing.

This 'seldom heeded' section, 12 we hold, is applicable to the situation presented and governs the action of the Parole Board. Not only is such the plain import of the text, as discussed above, 13 but the result, also, is clearly consonant with the purposes of the Act and the purposes of the parole system. The framers of the Act were determined to bring the 'fourth branch' of government-- the administrative agencies-- within the rule of law:

(The Act) is a bill of rights for the thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal Government. It is designed to provide guaranties of due process in administrative procedure. 14

Whether or not the parole decision is...

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