Pickus v. U.S. Bd. of Parole

• Decision Date: 10 December 1974
• Docket Number: No. 73-1987,73-1987
• Citation: 165 U.S.App.D.C. 284,507 F.2d 1107
• Parties: Richard PICKUS et al., Appellees, v. UNITED STATES BOARD OF PAROLE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1107

507 F.2d 1107

165 U.S.App.D.C. 284

Richard PICKUS et al., Appellees, v. UNITED STATES BOARD OF PAROLE, Appellant.

No. 73-1987.

United States Court of Appeals, District of Columbia Circuit.

Argued March 11, 1974.

Decided Oct. 11, 1974, Rehearing Denied Dec. 10, 1974.

Victor D. Stone, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed, was on the brief for appellant. Earl J. Silbert, U.S. Atty. and Robert M. Werdig, Jr., Asst. U.S. Atty., entered appearances for appellant.

Victor H. Kramer, Washington, D.C., with whom Richard B. Wolf, William L. McGovern, Abe Krash and Patrick F. J. Macrory, Washington, D.C., were on the brief for appellees.

Before HASTIE, ^* Senior Circuit Judge for the Third Circuit, and ROBB and WILKEY, Circuit Judges.

HASTIE, Senior Circuit Judge:

Section 4 of the Administrative Procedure Act (hereinafter, the Act) 5 U.S.C. 553, requires that federal agency rulemaking be attended by advance public notice and opportunity for interested persons to participate through oral or written submission of data or opinion. For many years the United States Board of Parole has published guidelines which specify many of the factors which it considers in the exercise of its discretion to parole eligible federal prisoners. E.g., Rules of the United States Board of Parole (1971). ¹ It has never complied with section 4 of the Act.

In May, 1972, the appellees, three federal prison inmates, petitioned the appellant Board of Parole to conduct a public rule-making proceeding consistent with section 4 of the Act, to amend various of its stated rules. ² Since the Board failed to act on their petition, appellees filed their complaint in the district court in January, 1973. The complaint did not specifically request the court to declare that any of the Board's rules had been illegally promulgated, but sought only to compel a response to the petition, pursuant to 4(d), 6(d), and 10(e)(A) of the Act. In March, 1973, after appellees filed a motion for judgment by default, Maurice Sigler, Chairman of the Parole Board, denied appellees' May, 1972, petition in a letter to their attorney.

The parties then presented various motions and arguments to the district court, with consequent sharpening and modifying of the issues in the case. The Board admitted that it is an agency as that term is defined in section 2(a) of the Act, 5 U.S.C. 551(1), and moved to dismiss the complaint as mooted by Mr. Sigler's letter denying appellees' petition. The court accepted the Board's concession, but correctly ruled the case not moot, because a controversy still existed over the validity of the rules then in effect. The court then suggested that those rules could be valid if and only if they were exempted from the effect of section 4. Accordingly, the case went forward on the issues of whether the denial of the inmate's petition for a public rule-making proceeding was arbitrary, and whether the rules then in effect should be declared void for failure to comply with section 4 of the Act. Following the submission of memoranda of law, the court held that the rules were void and ordered the Board to adopt replacements in proceedings which complied with the Act. The Board has appealed from that order. ³

The jurisdiction of the district court is the first issue that requires consideration. In a number of decisions, this court has recognized Section 10 of the Administrative Procedure Act, 5 U.S.C. 701-706, as an independent source of jurisdiction that empowers district courts to review much agency action regardless of the amount in controversy. Independent Broker-Dealers' Trade Ass'n v. Securities and Exchange Commission, 1971, 142 U.S.App.D.C. 384, 442 F.2d 132, cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57; Scanwell Laboratories, Inc. v. Shaffer, 1970, 137 U.S.App.D.C. 371, 424 F.2d 859; Hurley v. Reed, 1961, 110 U.S.App.D.C. 32, 288 F.2d 844; Robbins v. Reed, 1959, 106 U.S.App.D.C. 51, 269 F.2d 242; but compare Pan American World Airways, Inc. v. Civil Aeronautics Board, 1968, 129 U.S.App.D.C. 159, 392 F.2d 483; Kansas City Power & Light Co. v. McKay, 1955, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780. Decisions of other courts of appeals on this question are irreconcilably conflicting. ⁴ The Supreme Court has not clearly and explicitly settled the matter, but we read the Court's decisions as lending significant support to the view that Section 10 of the Administrative Procedure Act does authorize district courts to entertain suits challenging the validity of agency action without regard for the amount in controversy. Citizens To Preserve Overton Park, Inc. v. Volpe, 1971, 401 U.S. 402, 91 S.Ct. 828, 28 L.Ed.2d 168; Abbott Laboratories v. Gardner, 1967, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681; Rusk v. Cort, 1962, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809, aff'g, D.D.C.1960, 187 F.Supp. 683.

We hold that the district court had jurisdiction to entertain the present complaint under the mandate of Section 10(a) of the Act, 5 U.S.C. 702, that 'a person . . . adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof;' the provision of Section 10(b), 5 U.S.C. 703, that the 'form of proceeding for judicial review is . . . any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction'; ⁵ and the requirement of Section 10(e),5 U.S.C. 706, that the 'reviewing court shall . . . (2) hold unlawful and set aside agency action, findings and conclusions found to be . . . (D) without observance of procedure required by law . . ..'

We have considered the Board's argument that its promulgation of parole selection criteria is not subject to judicial review- whether or not subject to the Act- because release on parole is committed to agency discretion within the meaning of Section 10 of the Act, 5 U.S.C. 701(a)(2), by 18 U.S.C. 4203(a). But we are not reviewing the granting or denying of parole in a particular case, action which may reflect an unreviewable exercise of agency discretion. We are not even reviewing the merits of the rules and standards the Board has adopted. The appellees' complaint and our consequent adjudication address themselves solely to the procedures by which those rules may be formulated. The justiciability of such a complaint depends upon Section 10, particularly subsection (e), of the Act, as already discussed, not the discretionary character of the Board's determinations as to when parole shall be granted. The giving of notice of rule-making and the consideration of consequent submissions by interested persons might inform, but would not otherwise impinge upon, the Board's discretion in framing its standards and guidelines.

We turn now to the merits of the appeal. The procedure below and certain events subsequent to the entry of judgment necessitate preliminary identification of the issues that are properly before us. First, although the complaint did not specifically ask for a declaration that the rules then in effect were invalid, and although it was never formally amended, the general prayer for necessary, just, and proper relief, coupled with the above mentioned focusing of the parties' attention upon their basic controversy about the rules' validity, justified the district court's adjudication of that issue. See also Rule 54(c), F.R.C.P. Thus, unless the question of the validity of the rules which the district court invalidated has since been mooted, that issue is properly before this court.

The mootness issue arises from the fact that on September 19, 1973, the Parole Board published new rules. 38 Fed.Reg. 26652, 31942. The first publication altered many of the Board's procedures for hearing and deciding parole applications. It also placed in the Federal Register, with slight change, the criteria for parole selection which appear in the 1971 Rules, supra. Those regulations, however, were made applicable to only one part of the country, and they do not apply to two of the appellees.

The November announcement consists of a complex, detailed table which purports to state the range of months which the Board will require an inmate to serve depending upon the severity of his offense (six classifications) and his 'salient factor score' (four classifications), a number computed according to factors also announced in the November publication. The November regulation apparently applies nationwide and may largely replace prior rules regarding the criteria used for parole selection, though no such statement appears. In any event, the November regulation speaks to one of the areas of Board operation which the original complaint addressed. Within that area it is a more rigid structuring of the Board's discretion than were the criteria it replaces. Indeed, it is designed to, and almost surely will lead to, more nearly uniform decisions, and more restricted decision-making. In these circumstances, the Board's September and November pronouncements preserve, rather than moot, the original controversy over the validity of rules adopted without compliance with Section 4 of the Act.

As it promulgated the November regulation, the Board asserted that it was not subject to the Act, the belief of the court below notwithstanding. 38 Fed.Reg. 31942. The Board reasoned then and contends on this appeal that it is not an 'agency' as that term is defined in the Act, although in the district court it conceded that it is such an 'agency' and subject to the Act. Appellees do not rely on that concession and we shall dispose of the Board's present contention on its merits.

Section 2(a) of the act ⁶ defines agency for purposes of the Act as 'each authority of the United States', other than certain exclusions. None of the specified exclusions embraces the Board. Moreover, this...