579 F.2d 238 (3rd Cir. 1978), 77-1679, Geraghty v. United States Parole Commission

Docket Nº:Appellant in 77-1679,
Citation:579 F.2d 238
Party Name:John M. GERAGHTY, Individually and on behalf of a class,
Case Date:March 09, 1978
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 238

579 F.2d 238 (3rd Cir. 1978)

John M. GERAGHTY, Individually and on behalf of a class,

Appellant in 77-1679,



United States and Superintendent Federal Prison,

Allenwood, Pennsylvania.

Appeal of Eliezer BECHER, in 77-1858.

Nos. 77-1679, 77-1858.

United States Court of Appeals, Third Circuit

March 9, 1978

Argued Oct. 21, 1977.

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Kenneth N. Flaxman, Chicago, Ill., Waring R. Fincke, Montoursville, Pa., for appellants.

Benjamin R. Civiletti, Asst. Atty. Gen., Washington, D. C., Harry A. Nagle, Lewisburg, Pa., George W. Calhoun, Patrick J. Glynn, Attys., Dept. of Justice, Washington, D. C., for appellees; S. John Cottone, U. S. Atty., Scranton, Pa., Joseph F. Cimini, Asst. U. S. Atty., Lewisburg, Pa., of counsel.

Before ADAMS and GARTH, Circuit Judges, and LACEY, District Judge. [*]


ADAMS, Circuit Judge.

This appeal, in an action challenging the parole guidelines promulgated by the United States Parole Commission, raises two issues of broad import. First, it requires us to examine the conditions under which a class action, which the trial court refused to certify, may be submitted to an appellate court despite the fact that the named plaintiff no longer retains a "live" personal grievance. Second, it presents the question of the validity, under both statutory and constitutional standards, of the guidelines that govern federal grants of parole.


  1. The Guidelines

    Beginning in 1910, certain prisoners incarcerated for conviction of federal crimes have been eligible for release on parole. 1 To facilitate such arrangement, the United States, in 1948, established a Parole Board (the Board), within the Department of Justice, to rule on applications for parole. While originally the Board's decisions were not based on formally articulated policies and procedures, in 1973 the Board published a series of regulations governing parole decisions, including "guidelines" to establish "customary release dates" for given classes of offenders. 2

    In 1976, Congress enacted the Parole Commission and Reorganization Act (the PCRA). 3 The PCRA reconstituted the Parole Board as the United States Parole Commission (the Commission), an independent federal agency. Under the PCRA, the Commission is responsible for promulgating "guidelines" for the exercise of statutory discretion concerning the granting of parole. 4 In making a decision regarding an individual inmate, the Commission is directed to examine "the nature and circumstances of the offense and the history and characteristics of the prisoner," and then to determine whether release would "depreciate the seriousness of his offense," "promote disrespect for the law" or "jeopardize the public welfare." Inmates are to be

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    released "pursuant to the guidelines" if the determination by the Commission, in light of the statutory criteria, is favorable. 5

    The "guidelines" currently utilized are substantially the same ones that channeled the Board's discretion before the enactment of the PCRA. Under them, offenses are assigned a "severity" rating, and are placed into one of six categories, ranging from "low" to "greatest." Each inmate is assigned a "parole prognosis score" of between 0 and 11, using "salient factors" such as the age at which the inmate was first convicted, his employment background, his drug history, his previous parole revocations, and his prior convictions. The "guidelines" include a grid in which a combination of salient factor score and offense severity rating identifies a "customary" time span to be served. 6

  2. The Named Plaintiff

    John M. Geraghty, a Chicago policeman, was convicted in 1973 of conspiracy to commit extortion and of making false declarations to the grand jury. The extortion charge was based on Geraghty's use of his position as a Chicago Vice Squad Sergeant to shake down local dispensers of alcoholic beverages; the false declaration charge arose out of denials of involvement in this activity. After attempts to overturn his sentence proved unsuccessful, 7 Geraghty applied for parole. Despite the good institutional adjustment one might expect from a former policeman, parole was denied Geraghty on the ground that:

    Your offense has been rated as very high severity. You have a salient factor score of 11. You have been in custody for a total of 4 months. Guidelines established by the Board for adult cases which consider the above factors indicate a range of 26-36 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found that a decision at this consideration outside the guidelines does not appear warranted.

    As finally amended, Geraghty's sentence was 30 months. Thus, under the "customary release date," he could not be granted parole before the end of his sentence as reduced by "good time" credits.

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    Geraghty applied for parole a second time, but that request was also denied in June, 1976. The second statement of reasons given by the Commission was substantially identical with the first. 8 Asserting that he was being denied parole by reason of a mechanical application of the guidelines, Geraghty then brought the present suit as a class action challenging the validity of the guidelines, and questioning the procedures by which the guidelines were applied to his case. 9

    Judge R. Dixon Herman, of the District Court for the Middle District of Pennsylvania, declined to certify the class action, and granted summary judgment against Geraghty on all of the claims he had asserted. After an appeal from both rulings was docketed, but before oral argument was heard by us, Geraghty's sentence expired and he was released.


    Before proceeding to the merits of Geraghty's contentions, we must consider a number of significant procedural objections.

  3. Jurisdictional Basis of Suit

    Initially, the question of the jurisdictional underpinning of the suit before us must be resolved. In his complaint, Geraghty claimed jurisdiction under (1) 28 U.S.C. § 2241 (the habeas corpus statute), (2) 5 U.S.C. §§ 700-706 (the Administrative Procedure Act), and (3) 28 U.S.C. § 1331 (federal question jurisdiction). The trial court held that under Preiser v. Rodriguez, 10 habeas corpus is the only remedial base available to the plaintiff. To the contrary, however, we conclude that it is appropriate to treat this action as one for declaratory judgment under 5 U.S.C. §§ 700-706 (1970) and 18 U.S.C. § 4218(c) (1976).

    In Preiser, state prisoners brought suit seeking an injunction restoring "good time" credits that they claimed were unconstitutionally taken from them. The Supreme Court held that since the prisoners were challenging the fact or duration of their imprisonments, § 1983 was unavailable, and their sole federal remedy was by habeas corpus. The Preiser opinion rested on two grounds. First, the Court noted that the interest in federal-state comity weighed against the advisability of allowing state prisoners to bypass the exhaustion requirement 11 of the state habeas corpus statute. 12 Second, the Court stated that the more specific provisions of the habeas corpus act should be read to modify the general cause of action granted by § 1983. 13

    Neither of these considerations is applicable here. The courts face no barriers resulting from federal-state relations in adjudicating issues such as the ones before us, since the present controversy involves the application of a federal statute by federal authorities. And, unlike a habeas corpus action challenging state confinements, no exhaustion has been statutorily mandated. Indeed, in contrast to the situation in Preiser, Congress expressly contemplated declaratory actions to challenge the provisions of the federal parole guidelines. 18 U.S.C. § 4218(c) (1976) declares that Parole Commission actions, except for individual parole decisions, are to be reviewable under the Administrative Procedure Act. 14 The legislative history of § 4218(c) states, Inter alia:

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    This section brings the Commission rule-making process within the coverage of the Administrative Procedure Act judicial review procedures. In this regard, the Conferees recognize the principles established in Pickus v. United States, 165 U.S.App.D.C. 284, 507 F.2d 1107 (1974). 15

    Pickus v. Parole Board, 16 entailed a challenge by prisoners to parole guidelines brought as an action for declaratory judgment under the APA. It appears that Congress in citing Pickus clearly evinced an intent to allow suits like the one before us to proceed by way of an action for declaratory judgment. 17

    Moreover, even under the strictures of Preiser, itself, the present action would not be inexorably channeled into the form of a habeas corpus proceeding. While the relief requested for Geraghty included "enlargement from custody" pending review of his parole status, such request is now moot. In comparison, the Class relief sought was (1) a declaration that the parole guidelines are invalid, and (2) an injunction against further actions denying parole to other federal prisoners on the basis of the guidelines. This relief falls within the Supreme Court's holding in Wolff v. McDonnell, 418 U.S. 539, 554-55, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), that Preiser does not bar either a declaratory judgment or a prospective injunction against enforcement of unconstitutional regulations relating to revocation of good time credits. The class does not demand that its members be released on parole, but only that the Parole Board not utilize the guidelines in evaluating future parole applications.

    Therefore we conclude that this suit may proceed as an action for declaratory judgment. 18

  4. Mootness

    We are next...

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