Lyle v. Sivley, CIV 92-575 TUC RMB.

Citation805 F. Supp. 755
Decision Date02 November 1992
Docket NumberNo. CIV 92-575 TUC RMB.,CIV 92-575 TUC RMB.
PartiesWilliam V. LYLE, Petitioner, v. Joseph L. SIVLEY et al., Respondents.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona

William V. Lyle, in pro per.

Roger L. Duncan, Asst. U.S. Atty., Tucson, Ariz., for respondent Joseph L. Sivley.

ORDER

BILBY, District Judge.

Petitioner William V. Lyle, currently incarcerated at FCI-Safford, has brought a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that he has illegally been denied placement in a Community Corrections Center (more commonly known as a "halfway house").

I. BACKGROUND

On September 9, 1987, petitioner was convicted on federal charges of possession of unregistered firearms and unregistered destructive devices. He was sentenced to a five year term of incarceration, and looks forward to a projected mandatory release date of March 1, 1993. The exact course of events underlying petitioner's claim herein is somewhat unclear; petitioner's convoluted and conflicting recitations of facts include many details not mentioned by respondent. But as will be seen below, the factual discrepancies are irrelevant to the ultimate resolution of this matter. For background, it suffices to say that on January 15, 1992, petitioner's Unit Team, after meeting with petitioner and reviewing his records, recommended that petitioner be given a sixty day placement at a Community Corrections Center ("CCC") to ease his reentry into the community. Respondent Joseph L. Sivley, warden of FCI-Safford rejected the Unit Team's recommendation and denied petitioner's CCC placement, stating:

Mr. Lyle, due to sic the seriousness of the particular firearms involved in the instant offense, i.e., two model KG-9, 9mm machine guns, one RPB Industries, model M-10, 9mm machine gun, seven pipe bombs, and what appeared to be a smokeless propellant, your halfway house placement has been denied.... Placement at a halfway house would depreciate the seriousness of the crime(s) committed.

Petitioner thereafter pursued various administrative remedies, which proved fruitless. By way of this petition for writ of habeas corpus, Lyle now requests that the Court order respondent to immediately place him in an appropriate pre-release program for the remainder of his sentence.

II. EXHAUSTION

A preliminary question is whether petitioner has exhausted available administrative remedies. Before filing a petition for writ of habeas corpus, a federal prisoner challenging any circumstance of imprisonment first must exhaust all administrative remedies. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir.1986); Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir.1983). In this regard, the Bureau of Prisons has established a three-level administrative remedy procedure, set forth at 28 C.F.R. § 542.10 et seq., governing prisoner complaints. At the first level, a prisoner may file a Request for Administrative Remedy (BP-229(13)) with the prison warden. If dissatisfied with the warden's response, the prisoner may proceed to the second level by filing a Regional Administrative Remedy Appeal (BP-DIR-10). The third and final level involves the filing of a Central Office Administrative Remedy Appeal (BP-DIR-11). Only after exhausting this three-level process may the prisoner file a petition for writ of habeas corpus in the United States District Court.

The exhaustion requirement is subject to exception, however. Unlike the situation in which a state prisoner petitions for writ of habeas corpus, exhaustion of administrative remedies is not a jurisdictional requirement in the context of a federal prisoner's habeas corpus petition. E.g., Brown v. Rison, 895 F.2d 533, 535 (9th Cir.1990). Thus, this Court may, in its discretion, excuse a petitioner's failure to exhaust and reach the merits of the claim. Id.; United States v. Browning, 761 F.Supp. 681, 683 (C.D.Cal.1991).

Here, the parties dispute whether petitioner has exhausted available administrative remedies. The court is unable from the written record to determine whether in fact the exhaustion requirement has been satisfied. Rather than further delay this matter by virtue of an evidentiary hearing on the exhaustion issue, however, the Court will excuse what may be a failure to exhaust and proceed directly to the merits.

III. PETITIONER'S CLAIMS

Petitioner asserts entitlement to relief under two distinct legal theories. First, he alleges that the decision to deny CCC placement was arbitrary, capricious, and politically motivated. Second, he contends that the decision deprived him of a constitutionally protected liberty interest without due process of law. Warden Sivley has failed to address the merits of either of petitioner's claims; instead, he responds with the broad argument that federal prison authorities have wide-ranging discretion to determine an inmate's place of confinement. While respondent's citation of the general rule is correct, see, e.g., 18 U.S.C. § 4082 (repealed Oct. 12, 1984; applicable to all offenses committed before Nov. 1, 1987); United States v. Doe, 734 F.2d 406, 407 (9th Cir.1984), it is equally true that respondent's decision may be subject to reversal if it constitutes an abuse of discretion or an unlawful deprivation of a right protected by the Due Process Clause. Thus the Court must, on its own, address the merits of petitioner's claims.

A. Arbitrary and Capricious Exercise of Discretion

A threshold question is whether this Court has jurisdiction to review the decision challenged. While there is a presumption that agency action is subject to judicial review, where Congress has specifically precluded review or committed agency action to discretion by law, the federal courts lack jurisdiction. Wallace v. Christensen, 802 F.2d 1539, 1542 (9th Cir.1986) (en banc) (quoting Heckler v. Chaney, 470 U.S. 821, 828-29, 105 S.Ct. 1649, 1654, 84 L.Ed.2d 714 (1985)). According to the Supreme Court, only "clear and convincing evidence" of Congress' intent to foreclose judicial review will overcome the general presumption that it is available. Abbot Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); see Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 673, 106 S.Ct. 2133, 2137, 90 L.Ed.2d 623 (1986); Block v. Community Nutrition Institute, 467 U.S. 340, 349-51, 104 S.Ct. 2450, 2455-56, 81 L.Ed.2d 270 (1984). Congress need not, however, flatly state its intent to preclude review; examination of other relevant factors may suffice as proof of congressional intent. Carlin v. McKean, 823 F.2d 620, 623 (D.C.Cir.1987). Where Congress has immunized agency decision-making from judicial scrutiny, a court may conduct only the most limited of reviews, and may consider only whether the agency has acted outside its statutory limits or has violated the constitution. Wallace, supra, 802 F.2d at 1551-52; accord United States v. Bozarov, 974 F.2d 1037, 1044-45, (9th Cir.1992) (colorable constitutional claim reviewable even where judicial review ostensibly precluded by statute) (citing Webster v. Doe, 486 U.S. 592, 602-05, 108 S.Ct. 2047, 2053-54, 100 L.Ed.2d 632 (1988)).

The precise question presented by this case — whether Congress has foreclosed judicial review of decisions to grant or deny pre-release treatment — appears to be one of first impression. The statutory provision governing the transfer of federal prisoners to pre-release treatment is 18 U.S.C. § 3624(c), enacted as part of the Sentencing Reform Act of 1984. The jurisdictional question arises because section 3625 of title 18, also enacted as part of the Sentencing Reform Act, provides that "the provisions of sections 554 and 555 and 701 through 706 of title 5, United States Code, do not apply to the making of any determination, decision, or order under this subchapter." The provisions of title 5 referenced by section 3625 represent the heart of the Administrative Procedure Act ("APA"): sections 554 and 555 set forth the procedures which are to guide agency rule making and adjudication; sections 701 through 706 govern judicial review of agency action. Thus, by express provision, section 3625 establishes that the APA does not apply to decisions made under 3624(c).

It is somewhat unclear whether, considered alone, the statutory language of section 3625 constitutes the sort of "clear and convincing" evidence necessary to overcome the presumption of judicial review. While it is clear that the review provisions of the APA do not apply to determinations made under section 3624(c), it could be argued that the federal courts have inherent authority to review agency action even where the APA is inapplicable. But see Carlin, supra, 823 F.2d at 623 (expressing doubt that courts "should continue to indulge a presumption of reviewability under the old administrative law principles when Congress has explicitly exempted an agency from the APA's coverage"). Reference to the House Report on the Sentencing Reform Act of 1984, however, provides conclusive proof that Congress indeed intended that determinations made pursuant to section 3624(c) not be reviewable.

First, the Report declares that section 3625 is "parallel" to a similar statutory provision making the APA inapplicable to certain determinations of the federal Parole Commission. See H.Rep. No. 98-1030, 98th Cong. 2d Sess. 149 (1984) reprinted in 1984 U.S.C.C.A.N. 3182, 3332. That provision, 18 U.S.C. § 4218(d) (repealed Nov. 10, 1986), allows for full APA review of the Parole Commission's rule-making activities, but commits to agency discretion specific adjudicatory determinations affecting the status of individual prisoners or parolees. Likewise, the House Report on section 3625 provides that rule-making activities are to be reviewable under the APA, while "adjudications of specific cases" are not. It is apparent that the House Report's reference to section 4218(d) as a "parallel"...

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