Clardy v. Levi

• Decision Date: 24 November 1976
• Docket Number: 76-1259,Nos. 75-3069,s. 75-3069
• Citation: 545 F.2d 1241
• Parties: Harry CLARDY, Petitioner-Appellant, v. Edward LEVI, Attorney General of the United States, et al., Respondents- Appellees. Phillip L. TUCKER, Petitioner-Appellant, v. Edward LEVI, Attorney General of the United States, et al., Respondents- Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1241

545 F.2d 1241

39 A.L.R.Fed. 798

Harry CLARDY, Petitioner-Appellant, v. Edward LEVI, Attorney General of the United States, et al.,

Respondents- Appellees.

Phillip L. TUCKER, Petitioner-Appellant, v. Edward LEVI, Attorney General of the United States, et al.,

Respondents- Appellees.

Nos. 75-3069, 76-1259.

United States Court of Appeals Ninth Circuit.

Nov. 24, 1976.

Rehearing and Rehearing En Banc Denied Feb. 1, 1977.

Stephen Strong (argued), of Bendich, Stobaugh & Strong, Seattle, Wash., for petitioner-appellant.

John S. Obenour, Asst. U.S. Atty. (argued), Tacoma, Wash., for respondents-appellees.

Before BROWNING and SNEED, Circuit Judges, and WILLIAMS, ^* District Judge.

SNEED, Circuit Judge:

Appellants Harry Clardy and Phillip L. Tucker appeal to this court to set aside the disciplinary measures which officials of the Bureau of Prisons at McNeil Island Federal Penitentiary imposed on them pursuant to administrative convictions of assault on another inmate. ¹ They based their appeal, primarily, on their belief that the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1970) (APA), provides them with procedural rights which they were not afforded. Appellant Tucker also asserts that prison officials denied him procedural due process by refusing his request for legal counsel during the prison disciplinary hearings which led to his punishment. The district court dismissed their separate petitions for writs of habeas corpus. For reasons explained hereafter, we find we are without jurisdiction to hear appellant Clardy's appeal from that dismissal ² and we affirm the district court's judgment with respect to appellant Tucker. ³

I. Facts.

Prison authorities placed appellant Clardy in segregation at McNeil on October 30, 1974 for the assault of another inmate occurring on October 27, 1974. On November 4, 1974, he received an Incident Report stating that he was suspected of assault. When brought before the McNeil Island Adjustment Committee on January 31, 1975, for a hearing on the charge, he denied his guilt and asked to be represented by counsel. The committee, composed of unspecified prison employees, found Clardy guilty of assault and recommended referral of the matter to the Institutional Discipline Committee. The Institutional Discipline Committee met with Clardy on February 5, 1975, and Clardy again denied his guilt and also asked to confront the witnesses against him. The Discipline Committee found him guilty and ordered forfeiture of 212 days good-time, continued his segregation, and recommended his transfer to another institution.

Appellant Tucker was placed in segregated confinement at McNeil on October 27, 1974, as a consequence of the same assault. The Incident Report furnished him on November 4, 1974, specified that he was suspected of assault. His segregated confinement continued pending completion of a FBI investigation and was intended to protect witnesses to the assault. On December 3, 1974, Tucker was informed that he would be brought before the Adjustment Committee. This committee met with Tucker on January 31, 1975. Tucker refused to plead to the charge because he was told that he would not be permitted to confront adverse witnesses and because he desired legal representation. On the basis of the investigative reports, the Adjustment Committee concluded that Tucker was guilty and referred the matter to the Institutional Discipline Committee with recommendations. The Discipline Committee gave him a hearing on February 5, 1975, during which they denied him legal counsel and an opportunity to cross-examine adverse witnesses and found him guilty. They approved the recommendations of the Adjustment Committee that Tucker's good-time be forfeited and that he be transferred. Tucker has continued in segregation since that time. He has utilized all available channels within the Bureau of Prisons to obtain relief from these disciplinary measures and his administrative appeals have been rejected.

Mindful of this factual background, we turn first to appellants' claim that the provisions of the APA apply to prison disciplinary proceedings and second to appellant Tucker's assertion that he was denied procedural due process during his hearing.

II. Applicability of the Administrative Procedure Act to Prison Disciplinary Proceedings.

On first encounter, appellant's contention that the APA, particularly 5 U.S.C. §§ 554, 555, 556 and 557, is applicable to disciplinary proceedings in federal prisons is unquestionably surprising and, no doubt to some, absurd. No federal court has ever made such a holding. The contention, however, turns out to have more substance than one might have thought possible.

To do it justice it should be set out reasonably fully. The bedrock of appellants' position is 5 U.S.C. § 551 wherein, for the purpose of the APA, the term "agency" is defined to mean "each authority of the Government of the United States, whether or not it is . . . subject to review by another agency, . . . ." Appellants point out that neither the Department of Justice nor the Bureau of Prisons, a bureau within the Department, is specifically excepted from the definition of an "agency," as are such authorities as Congress and the courts. Thus, the Bureau of Prisons is an "agency" runs appellants' argument.

Building on this foundation, they move to 5 U.S.C. § 554 which imposes certain procedural requirements, such as timely notice and opportunity to submit contrary views, "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing . . . ." This section is applicable to appellants' disciplinary proceedings, they insist, because they involved an "adjudication" which was required by "statute" in "an agency hearing." Appellants point out quite correctly that under Wong Yang Sung v. McGrath, 339 U.S. 33, 50, 70 S.Ct. 445, 454, 94 L.Ed. 616 (1950) hearings compelled by reason of the due process Fifth Amendment requirements are treated for purposes of 5 U.S.C. § 554 as required by " statute." This requirement only exempts "hearings of less than statutory authority, not those of more than statutory authority." Id. Appellants apply this teaching of Wong Yang Sung to their case by pointing out that it follows from such cases as Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) and Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), that prisoners in federal facilities operated by the Bureau of Prisons are entitled under the Fifth Amendment to some type of hearing in discipline matters. Thus, for the purpose of 5 U.S.C. § 554 the "required by statute" condition is met.

The remainder of appellants' argument moves swiftly. 5 U.S.C. § 555, captioned "Ancillary matters," which permits a "person compelled to appear in person before an agency" to be accompanied by counsel, is clearly applicable because a prisoner seldom appears at disciplinary proceedings voluntarily and such proceedings are an "adjudication" which is "required by statute" by an "agency." Cf. 5 U.S.C. § 554. The provisions of 5 U.S.C. § 556 are applicable to disciplinary proceedings because they are explicitly keyed to sections 553 and 554. Furthermore, the rules under which the hearings proceed must be promulgated in accordance with section 553.

This marshalling of the APA's statutory materials is strengthened by appellants pointing to two recent cases in the District of Columbia Circuit in which the court held 5 U.S.C. § 553 applicable to the Board of Parole, Pickus v. United States Board of Parole, 165 U.S.App.D.C. 284, 507 F.2d 1107 (1974) and the Bureau of Prisons, Ramer v. Saxbe, 173 U.S.App.D.C. 83, 522 F.2d 695 (1975). Cf. King v. United States, 492 F.2d 1337 (7th Cir. 1974).

Appellants' argument is technically impressive. Moreover, there are numerous features of the APA that, to promote the general interest of due process could be, and perhaps already are, incorporated into prison disciplinary procedures without difficulty. Thus, certain portions of information required to be made public by 5 U.S.C. § 552, prompt notice of the disposition of a prisoner's request in a disciplinary proceeding pursuant to 5 U.S.C. § 555(e), and timely notice of the time, place, and nature of the hearing, 5 U.S.C. § 554(b)(1), are not incompatible with prison disciplinary proceedings. Undoubtedly there are other provisions of the APA that fall into the same category.

On the other hand, it is also true that the formality envisioned by 5 U.S.C. § 554(b)(c)(d) and (e) and the provision for counsel in 5 U.S.C. § 555 are not suited for various reasons to disciplinary proceedings of the Bureau of Prisons. The same can be said for most of 5 U.S.C. § 556 and § 557. In addition, history strongly suggests that the APA was not intended to apply to such proceedings. See Allen v. Aytch, 535 F.2d 817, 822 n. 23 (3rd Cir. 1976). See also Daughtery v. Harris, 476 F.2d 292 (10th Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973); Royal v. Clark, 447 F.2d 501 (5th Cir. 1971); Sullivan v. Ciccone, 311 F.Supp. 456 (W.D.Mo.1970); Lesser v. Humphrey, 89 F.Supp. 474 (M.D.Pa.1950). Prior to Pickus, Ramer and King the authorities uniformly rejected an application of the APA to the Board of Parole. See Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 236-237 (1963); Washington v. Hagan, 287 F.2d 332 (3rd Cir. 1960). Of particular significance is the fact the Supreme Court, during the same term it decided Wong Yang Sung, affirmed, by an equally divided vote, Hiatt v. Compagna, 178 F.2d 42 (5th Cir. 1949), which held the APA inapplicable to the Parole Board. 340 U.S. 880, 71 S.Ct. 192, 95 L.Ed. 639 (1950).

Two other revealing bits of history are inconsistent, to some degree, with appellants' arguments. The first is that six months after the Supreme Court in Wong Yang Sung held the APA applicable to deportation proceedings, Congress changed the law and...