Fardella v. Garrison, 82-6171

• Decision Date: 23 December 1982
• Docket Number: No. 82-6171,82-6171
• Citation: 698 F.2d 208
• Parties: Vincent FARDELLA, Appellee, v. William L. GARRISON, Warden; Cecil C. McCall, Chairman, U.S. Parole Commission, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 208

698 F.2d 208

Vincent FARDELLA, Appellee, v. William L. GARRISON, Warden; Cecil C. McCall, Chairman U.S. Parole Commission, Appellants.

No. 82-6171.

United States Court of Appeals Fourth Circuit.

Argued Sept. 2, 1982.

Decided Dec. 23, 1982.

Robert W. Jaspen, Asst. U.S. Atty., Richmond, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., on brief), for appellants.

Judith E. Schaeffer, Washington, D.C. (Justin D. Simon, Dickstein, Shapiro & Morin, Washington, D.C., Dennis W. Dohnal, Bremner, Baber & Janus, Richmond, Va., on brief), for appellee.

Before MURNAGHAN, Circuit Judge, and BUTZNER and FIELD, Senior Circuit Judges.

BUTZNER, Senior Circuit Judge:

The United States Parole Commission appeals from an order of the district court directing it to reclassify the parole status of Vincent Fardella, a federal prisoner. We reverse because (a) the Commission was authorized to reopen the prisoner's parole proceedings on the basis of information that it had not considered when it initially determined the prisoner's parole status, even though the information was in existence at that time; and (b) the Commission's action did not create a presumption of vindictiveness.

I

Fardella was sentenced to 15 years imprisonment for his participation in an arson that destroyed a retail store. In calculating his presumptive parole release date, the Commission classified Fardella's offense severity as "Greatest I," a category defined as including:

Arson or explosive detonation [involving potential risk of physical injury to person(s) (e.g., premises occupied or likely to be occupied)--no serious injury occurred]. (brackets in original) ¹

The Regional Commissioner notified Fardella: "Your offense behavior has been rated as Greatest I severity because you committed an arson involving detonation of explosives." ² Fardella unsuccessfully appealed through administrative channels, claiming that the Commission failed to make a finding that the arson involved a potential risk of physical injury to persons as required by its regulations.

After exhausting his administrative remedies, Fardella filed a petition for a writ of habeas corpus. During the pendency of that action, the Commission conceded that it had erred by failing to make a finding of potential risk of physical injury. It proposed, however, to reopen the case under 28 C.F.R. Sec. 2.28(f), which provides for reopening a parole determination "[u]pon receipt of new and significant adverse information." The Commission stated that it had received new information, including an extract of Fardella's trial transcript which disclosed that two firemen were injured and that other firemen were endangered. The Commission took the position that it should be afforded an opportunity to reopen the case on the basis of this information to consider whether the potential risk of physical injury the fire posed to the firemen was sufficient to warrant a "Greatest I" classification.

The district court held that the Commission's decision to reopen the case was unauthorized because the Commission "neglected to observe its own regulation governing the reconsideration of parole determinations." The court concluded that the information was not "new" because it was in existence and available to the Commission at the time of the initial parole hearing; furthermore, the information could have been considered earlier by the Commission had any of it been "relevant to the severity rating." The court stated that it doubted whether a risk of injury to firemen could ever justify a "Greatest I" classification, noting that a "potential risk of injury to firemen is present in every fire." Consequently, the court ordered the Commission to reduce Fardella's offense severity rating from "Greatest I" to "Very High" and recalculate his earlier presumptive parole release date accordingly.

II

Title 18 U.S.C. Sec. 4203(a)(1) directs the Commission to establish guidelines for parole. Pursuant to this authority, the Commission has promulgated regulations, codified at 28 C.F.R. Sec. 2.1 et seq., and a Rules and Procedures Manual. District courts can review a prisoner's claim that the Commission has failed to follow pertinent constitutional, statutory, or regulatory provisions. See Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir.1981).

To define the term "new information," the district court turned to Sec. 114(4) of the Commission's procedure manual, which describes new information as "information not in existence at the time of the Regional Commissioner's Review." ³ Because the transcript was in existence at the time of the initial review, the district court concluded that the commission violated its rules and regulations by relying on the information the transcript disclosed as the basis for reopening Fardella's parole determination.

The definition in the manual on which the district court relied deals with a procedure quite different from reopening parole determinations. In essence, Sec. 114(4) provides that when a prisoner presents to the National Appeals Board information that was not in existence when the Regional Commissioner reviewed the file, the Board usually should remand the case to the Regional Commissioner for his initial consideration of the new information.

In contrast, 28 C.F.R. Sec. 2.28 describes the kinds of new information that justify reopening "[n]otwithstanding the appeals procedure ...." A parole determination may be reopened at any time upon "receipt of new information of substantial significance favorable to the prisoner," ⁴ or upon "receipt of new and significant adverse information." ⁵ For the purpose of reopening, the manual describes "new adverse information" as follows:

This subsection [28 C.F.R. Sec. 2.28(f) ] is the appropriate mechanism for reopening cases to consider new information about the prisoner's original offense behavior or earlier criminal activities that would have resulted in a different decision had the information been presented to the Commission at the time of the initial parole hearing. ⁶

This definition places emphasis on the effect the new information would have had at the initial hearing if it had been considered, and not on whether it was in existence at that time. We conclude, therefore, that the Commission's regulations and rules allow it to reopen a case under Sec. 2.28(f) on the basis of previously existing information that was not considered at the initial hearing.

The Commission's interpretation of the term "new information" has been sustained by other courts. Fox v. United States Parole Commission, 517 F.Supp. 855 (D.Kan.), aff'd, No. 81-1432 (10th Cir. Nov. 23, 1981); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981); McClanahan v. Mulcrome, 636 F.2d 1190, 1191 (10th Cir.1980). The rationale of these decisions is that the Commission is not an investigative agency. Its duty is to review information that has been furnished by other government agencies, the courts, and the prisoner. Consequently, information is new if it is received by the Commission after the initial parole determination even though it was in existence prior to that time.

Fardella relies on Ready v. United States Parole Commission, 483 F.Supp. 1273 (M.D.Pa.1980), where the court found that certain information was not "new" because the Commission had been aware of the substance of that information when it granted parole and had failed to investigate it at that time. The court held that "[t]heir failure to seek such information about an event brought to their attention precludes them from relying upon subsequently discovered information to rescind Ready's parole." 483 F.Supp. at 1277. We cannot accept the opinion's suggestion that the Commission is under an obligation to investigate and supplement its files. We note, however, that Ready did treat other information as "new" where the Commission was unaware of it and therefore did not consider it earlier. To this extent, Ready is consistent with Fox, Iuteri, and McClanahan, supra.

Though the extract from the transcript of Fardella's trial was in existence at the time he was classified for parole, the Commission did not receive it until much later. The transcript, which furnished information about the injuries to firemen, had not been included in Fardella's file. Therefore, in accord with the cited decisions of the Second and Tenth Circuits, we conclude that the extract from the transcript was new information justifying the Commission to reopen Fardella's case pursuant to 28 C.F.R. Sec. 2.28(f).

We also conclude that the Commission, not the district court, should make the initial decision whether risk of injury to firemen satisfies the requirements of the Greatest I classification set forth in 28 C.F.R. Sec. 2.20. An "agency, and not the reviewing court, is to be accorded the first opportunity to construe its own regulations." F.T.C. v. Atlantic Richfield Co., 567 F.2d 96, 103 (D.C.Cir.1977).

The district court noted that Fardella's co-defendants were not classified Greatest I because the Commission expressly found that the fire posed no risk of injury. The classification of the co-defendants, while pertinent to the Commission's classification of Fardella, does not preclude reopening, because the record does not disclose that the Commission had been informed of the injury to firemen at the time it classified the co-defendants. ⁷

III

Finally, Fardella argues that even if we find the district court erred, we should affirm its judgment on the ground that the Commission's conduct is "tainted with vindictiveness." Although Fardella initially contended that the facts gave rise to an appearance of retaliation, the district court found it unnecessary to address this issue. The government does not oppose a remand to the district court for initial consideration of the question of actual vindictiveness. Fardella filed a supplemental reply brief in which he reiterated that he need not prove actual vindictiveness, for it is sufficient...