511 F.2d 1270 (D.C. Cir. 1974), 74--1052, Childs v. United States Bd. of Parole

Docket Nº:74--1052 to 74--1142 and 74--1274 to 74--1279.
Citation:511 F.2d 1270
Party Name:Wallace Russell CHILDS, Jr., et al. v. UNITED STATES BOARD OF PAROLE, Appellant. James ALLEN v. UNITED STATES BOARD OF PAROLE, Appellant. Willie C. COCHRAN v. UNITED STATES BOARD OF PAROLE et al., Appellants. James E. EATON v. UNITED STATES of America et al., Appellants. John T. SWEENEY v. UNITED STATES BOARD OF PAROLE, Appellant. William HEWLETT v
Case Date:December 19, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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511 F.2d 1270 (D.C. Cir. 1974)

Wallace Russell CHILDS, Jr., et al.









James E. EATON


UNITED STATES of America et al., Appellants.







Nicholas POTERE



Nos. 74--1052 to 74--1142 and 74--1274 to 74--1279.

United States Court of Appeals, District of Columbia Circuit

December 19, 1974

Argued June 5, 1974.

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[Copyrighted Material Omitted]

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Joseph S. Davies, Jr., Atty., Dept. of Justice, with whom Earl J. Silbert, U.S. Atty., was on the brief, for appellant. John A. Terry and Robert M. Werdig, Asst. U.S. Attys., also entered appearances for appellant in Nos. 74--1274--74--1279.

Steven Brodsky, Washington, D.C. (appointed by this court), for appellees. Robert L. Weinberg, Washington, D.C., also entered an appearance for appellees.

Before FAHY, Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.

FAHY, Senior Circuit Judge:

The appeal is by the United States Board of Parole, one of the defendants in the District Court, from parts of an order of the court of October 1, 1973, 371 F.Supp. 1246. The appellees include the original plaintiff Childs, intervenor plaintiffs, and plaintiffs whose suits, on motions of the appellant Board, were consolidated with the original suit. All appellees, now over 90 in number, are federal prisoners whose applications for parole have been denied, allegedly in violation of their respective rights to due process of law.

Jurisdiction was pleaded in the District Court by virtue of 28 U.S.C. §§ 1361, 1391 and 2201; and the complaints sought both declaratory and injunctive relief in the nature of mandamus. The proceedings in the District Court, after a hearing there, resulted in the order granting relief in the following terms:

  1. Defendants (appellants) must provide narrative written statements of reasons based upon salient facts or factors in each case to all prisoners whose applications for parole are acted upon and not granted commencing no later than 90 days hence.

  2. Defendants are to submit to the court within 60 days proposed regulations governing access by a prisoner to the information which will be before the Board and the submission of responses on behalf of parole applicants, and

  3. Defendants are to submit to the court within 60 days proposed procedures for conveying to prisoners reasonably comprehensive explanatory guidance as to the criteria to be considered in passing upon applications for parole. 1

The Board has not appealed from paragraph 3 of the order because shortly after the court's decision the Board promulgated and began to implement new guidelines on a regional basis, and these guidelines were submitted to the trial court as required by paragraph 3.

Thereafter, on October 17, 1973, the District Judge issued his findings of fact in support of his previously-entered order. They are set forth in the Appendix to this opinion. They include a finding that since the Board does not provide on a routine basis written narrative statements of reasons for not granting parole, 'there exists a substantial danger that a significant number of decisions not to grant parole are made without reasoned consideration of the relevant facts and factors in each case, and are, therefore, arbitrary and capricious.'

The litigation had originated in the District Court on an inartistic petition to show cause filed May 27, 1970, by Childs, a federal prisoner, pro se. This was followed by an amended complaint filed by his court-appointed counsel prior to the hearing in the District Court, to allege a class action claim on behalf of Childs and 'all those similarly situated, namely, all federal prisoners who are or will become eligible for parole. . . .'

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On August 13, 1971, an order was entered by the court, the recitals of which will appear subsequently, that the action shall be maintained 'as a class action, the class being all federal prisoners who are eligible for consideration for parole under the terms of 18 U.S.C. § 4203.' On the same day Childs and the intervenor plaintiffs filed an amended class action complaint.

With the foregoing brief opening we take up now the several questions to be decided before reaching the merits.


In its Reply Brief appellant raises for the first time a question of jurisdiction. 2 It is stated as follows: 'The Only Basis for Subject Matter Jurisdiction Alleged in the Complaint is Mandamus (28 U.S.C. 1361) and That Action Does Not Permit the Relief Prayed for or Granted by the District Court.' In support of this contention appellant points out that section 2201, also asserted as a basis for jurisdiction, does not grant subject matter jurisdiction, being available only to provide a remedy where another basis for jurisdiction pertains, and that section 1361, the mandamus statute, did not confer jurisdiction because "the office of mandamus is to enforce and not establish a right.' United States v. Mellon, 59 U.S.App.D.C. 24, 32 F.2d 415 (1929), certiorari denied 280 U.S. 561, 50 S.Ct. 19, 74 L.Ed. 616; Stowell v. Deming, 57 App.D.C. 223, 19 F.2d 697 (1927) certiorari denied 275 U.S. 531, 48 S.Ct. 28, 72 L.Ed. 410,' 3 and 'to obtain mandamus relief the right sought to be enforced must be sufficiently clear and definite so 'as not to permit of reasonable doubt or controversy;" again citing Mellon. Appellant would also discard 28 U.S.C. § 1331 as a basis for jurisdiction 'because the jurisdictional amount is lacking.' We note, however, that plaintiffs have not relied upon 28 U.S.C. § 1331.

In Tatum v. Laird, 144 U.S.App.D.C. 72, 444 F.2d 947, 950 (1971), rev'd on other grounds, sub nom. Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 231, 33 L.Ed.2d 154 (1972), there was a question whether the jurisdictional amount required by section 1331 was met. We found it unnecessary to reach the question. For similar reasons we find it unnecessary to reach the question whether section 1361 conferred jurisdiction in the present case. As we held in Tatum, quoting from Peoples v. United States Department of Agriculture, 138 U.S.App.D.C. 291, 427 F.2d 561, 564 (1970):

The District Court for the District of Columbia has an independent source of jurisdiction in the legislation, passed by Congress, and codified in the District of Columbia Code, 11 D.C.Code § 521, which gives that court general equity jurisdiction, and venue where either party is a resident or found within the District of Columbia. This permits actions for declaratory judgment as well as injunction to be maintained against those whose office in the Federal Government establishes their official residence in the District. Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733 (1944); Nestor v. Hershey (138 U.S.App.D.C. 73), 425 F.2d 504, at 521--523 (1969).

444 F.2d at 950.

Although 11 D.C.Code § 521 was not pleaded as a jurisdictional basis in the complaint in Tatum the court was

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not precluded from determining that jurisdiction of the subject matter attached. And see, Pang-Tsu Mow v. Republic of China, 91 U.S.App.D.C. 324, 201 F.2d 195 (1952), cert. denied, 345 U.S. 925, 73 S.Ct. 784, 97 L.Ed. 1356 (1953). 4

Jurisdiction in the District Court attached also by virtue of section 10(a) of the Administrative Procedure Act, codified as 5 U.S.C. § 702. Peoples v. United States Department of Agriculture, supra; Independent Broker-Dealers' Trade Ass'n v. Securities & E. Com'n, 142 U.S.App.D.C. 384, 442 F.2d 132 (1971), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57 (1971); Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970); Pickus v. United States Board of Parole, 165 U.S.App.D.C. 284, 507 F.2d 1107 (1974).


Childs, the original plaintiff, on May 6, 1971, was ordered released on federal parole to the physical custody of the State of Pennsylvania on detainer. Federal parole supervision of Childs did not expire, however, until August 5, 1973. In the meantime on August 4, 1971, seventeen other federal prisoners moved to intervene as plaintiffs pursuant to Rule 24, F.R.Civ.P. These plaintiffs alleged they had applied for and had been denied parole.

On August 13, 1971, while Childs' suit was still pending, the motion of the seventeen prisoners to intervene was granted, 'it appearing (as the order states) that there is no opposition thereto and the court having determined on the basis of the entire record in the case that permissive intervention under Rule 24(b)(2) of the Federal Rules of Civil Procedure is appropriate. . . .' This action of the court is not contested on the appeal, nor was it in the District Court.

The intervenors and Childs filed an amended class action complaint seeking relief similar to that sought by Childs in his complaint. In Count I they prayed for an order granting declaratory relief, and, in Count II, for an injunction in the nature of mandamus. Thereafter the cases of Childs and the intervenors were consolidated by order of the District Court on their motion.

Though the Board now states that the case of Childs has been mooted, no suggestion of mootness is addressed to the cases of the intervenors, or to the nearly 80 additional cases of prisoners similarly situated which on motion of the Board were consolidated with the Childs case in which interventions had been allowed by the order of August 13, 1971.

Non-justiciability was first raised in appellant's Reply Brief in this court. The Board's argument is limited to the position that there is no case or controversy...

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