Rastelli v. WARDEN, METRO. CORRECTIONAL CENTER, 85 Civ. 613 (ADS).

• Decision Date: 09 June 1985
• Docket Number: 85 Civ. 613 (ADS).
• Citation: 610 F. Supp. 961
• Parties: Philip RASTELLI, Petitioner, v. WARDEN, METROPOLITAN CORRECTIONAL CENTER, New York, New York; United States Department of Justice, Bureau of Prisons; and United States Parole Commission, Respondents.
• Court: U.S. District Court — Southern District of New York

610 F. Supp. 961

Philip RASTELLI, Petitioner, v. WARDEN, METROPOLITAN CORRECTIONAL CENTER, New York, New York; United States Department of Justice, Bureau of Prisons; and United States Parole Commission, Respondents.

85 Civ. 613 (ADS).

United States District Court, S.D. New York.

June 9, 1985.

COPYRIGHT MATERIAL OMITTED

Stanley A. Teitler, New York City, for petitioner; Amy Adelson, New York City, of counsel.

Rudolph W. Giuliani, U.S. Atty. S.D.N.Y., New York City, for respondents; William E. Simon, Jr., New York City, of counsel.

OPINION AND ORDER

SOFAER, District Judge.

Philip Rastelli, who is currently incarcerated in the Metropolitan Correctional Center ("MCC") pursuant to the revocation of his mandatory release on parole, petitions for a writ of habeas corpus. Rastelli's parole was revoked because the United States Parole Commission ("Commission") found that he had associated with persons who had a criminal record in violation of an express condition of his mandatory release. Petitioner challenges this decision on several grounds. He claims that he did not in fact "associate" with persons with criminal records; that the "association" condition is unconstitutionally vague; that the Commission's findings and decisions were not based on sufficient evidence; and that its findings and decisions were arbitrary, capricious, and an abuse of discretion.

Respondents originally moved to dismiss the petition for failure to exhaust administrative remedies. At the time of that motion, petitioner had an appeal pending to the full Commission pursuant to 28 C.F.R. § 2.27 (1984), which applies to cases which have been designated as "original jurisdiction" cases under 28 C.F.R. § 2.17 (1984). Petitioner argued, however, that because the Commission would not be able to hear and decide his appeal within sixty days, as required by 18 U.S.C. § 4215(b) (1982), he was not required to follow the procedures set out in the Commission's regulations prior to seeking judicial relief. On April 3, 1985, this court ordered the parties to submit further briefing on "the question whether section 4215(b) requires that the Commission decide appeals in original jurisdiction cases within sixty days of its receipt of an appellant's papers or forfeit its right to insist on exhaustion." Order at 4. While that motion was pending, petitioner's counsel informed the court that the full Commission had affirmed the parole revocation. Accordingly, the court ordered the government to respond on the merits.

I. Legality of 28 C.F.R. § 2.27 (1984).

Respondents' motion to dismiss the petition for failure to exhaust administrative remedies became moot when the full Commission voted to affirm the National Commissioners' decision. See Notice of Action on Appeal at 1 (Apr. 23, 1985) (Affidavit of Henry J. Sadowski, Exh.L. (May 16, 1985)); 28 C.F.R. § 2.27(a) (1984). But whether the Commission can require the exhaustion of administrative processes in original jurisdiction cases, even when review will take more than sixty days, is a question paradigmatically "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); cf. Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 861 n. 11, 43 L.Ed.2d 54 (1975) (pretrial detainees). The statutory scheme established by the Parole Commission and Reorganization Act of 1976, Pub.L. 94-233, 90 Stat. 219 ("PCRA") (codified as amended at 18 U.S.C. §§ 4201-18 (1982)), shows that the procedure established by the Commission under 28 C.F.R. § 2.27(a) (1984) for dealing with appeals of original jurisdiction cases is invalid to the extent that it permits the Commission to take up to 119 days to review an appeal.

The PRCA authorizes the Commission to "revoke an order paroling any eligible prisoner." 18 U.S.C. § 4203(b)(3) (1982). Normally, a parole revocation hearing is conducted by two hearing examiners, who have the power to make a recommendation to the Regional Commissioner. A prisoner has the right to appeal the hearing examiners' recommendation to the Regional Commissioner, who must review the appeal and inform the applicant within thirty days of his decision. See 18 U.S.C. § 4215(a) (1982); 28 C.F.R. § 2.25(c) (1984). The prisoner then has the right to appeal the Regional Commissioner's decision to the National Appeals Board, which "must act ... within sixty days to reaffirm, modify, or reverse the decision...." 18 U.S.C. § 4215(b) 1982); see 28 C.F.R. § 2.26(b) (1984) ("National Appeals Board shall act within 60 days").

Some cases, however, are designated "original jurisdiction," pursuant to 28 C.F.R. § 2.17 (1984). Section 2.17(b) provides the following criteria for designating a case one of original jurisdiction:

(1) Prisoners who have committed serious crimes against the security of the Nation, e.g., espionage or aggravated subversive activity.

(2) Prisoners whose offense behavior: (i) involved an unusual degree of sophistication or planning, or (ii) was part of a large scale criminal conspiracy or a continuing criminal enterprise.

(3) Prisoners who have received national or unusual attention because of the nature of the crime, arrest, trial, or prisoner status, or because of the community status of the offender or his victim.

(4) Long-term sentences. Prisoners sentenced to a maximum term of forty-five years (or more) or prisoners serving life sentences.

Rastelli's case was designated one of original jurisdiction pursuant to 28 C.F.R. § 2.17(b)(2)(i) (1984), because of his "sophisticated offense behavior." Notice of Action (Dec. 4, 1984) (Rastelli Exh. 3).

The Commission has established separate procedures for dealing with original jurisdiction cases. In these cases, the Regional Commissioner "forwards the case with his vote ... to the National Commissioners for decision." 28 C.F.R. § 2.17(a) (1984). A special procedure also exists for appealing from the National Commissioners' decision:

Appeals of cases "decided under the procedure specified in § 2.17" will be reviewed at the next regularly scheduled meeting of the Commission which is required to be held quarterly, 18 U.S.C. § 4203(a) (1982) provided they are received thirty days in advance of such meeting. Appeals received in the officer of the Commission's National Appeals Board in Washington, D.C., less than thirty days in advance of a regularly scheduled meeting will be reviewed at the next regularly scheduled meeting thereafter.

28 C.F.R. § 2.27(a) (1984). As respondents acknowledge, this means that an appeal in an original jurisdiction case might first be reviewed as much as 119 days after it is received by the Commission. Memorandum of Law in Support of Respondents' Position That the Sixty Day Rule of 18 U.S.C. § 4215(b) Does Not Apply to the Appeal of an Original Jurisdiction Case Pursuant to 28 C.F.R. § 2.27(a) at 9 ("Sixty Day Rule Memorandum").

Rastelli argues that the sixty-day rule of 18 U.S.C. § 4215(b) (1982) should apply to appeals to the full Commission in original jurisdiction cases. Respondents reply that Congress was aware of the Commission's practice of designating certain matters as cases of original jurisdiction, and that its references to the National Appeals Board in section 4215(b) therefore manifest its decision to exclude actions taken by the full Commission from the sixty-day limit. Sixty Day Rule Memorandum at 9. See H.R. Conf.Rep. 838, 94th Cong.2d Sess. 22, reprinted in 1976 U.S.Code Cong. & Ad. News 335, 355 ("the statutory language if flexible enough to permit the Commission by regulation to reserve special categories of cases for ... decision by the Commission as a whole"). In addition, respondents note that Congress required the full Commission to meet quarterly under 18 U.S.C. § 4203(a) (1982), and therefore could not have expected the Commission to process all original jurisdiction appeals in sixty days. See Sixty Day Rule Memorandum at 9.

The legislative history of the PCRA makes clear that two of Congress' primary concerns in revamping the parole system were to ensure fair and uniform treatment of prisoners, and to ensure prompt decision and review. See Sen.Rep. No. 369, 94th Cong., 1st Sess. 19, reprinted in 1976 U.S. Code Cong. & Ad.News 335, 340 ("It is essential, then, that parole has both the fact and appearance of fairness to all."); Parole Reorganization Act: Hearings on H.R. 1598 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 93d Cong., 1st Sess. 130 (statement of Maurice Sigler, Chairman of the United States Board of Parole) (goals of system should be efficient and legal review procedures) hereinafter cited as Hearings; id. at 219 (statement of Norman Carlson, Director of the Bureau of Prisons) ("three key elements in a good parole system" are "promptness, the reasons for denial, and a systematic approach of assuring uniformity"); id. at 233 (statement of Howard Eglit, former counsel to subcommittee) (arguing reorganization was necessary because of Parole Board's intransigence in establishing efficient and uniform system).

Courts which have considered the question have uniformly upheld the Commission's authority to designate cases as matters of original jurisdiction. But each opinion upholding the Commission's promulgation of 28 C.F.R. § 2.17(b) (1984) has explicitly rested its holding on a finding that "such a referral does not implicate any constitutional or statutory rights. `The original jurisdiction referral ... does not affect the prisoners' chances for parole but merely requires that the decision be made by the commission members rather than by hearing examiners.'" Baker v. McCall, 543 F.Supp. 498, 501 (S.D.N.Y.1981) (quoting Wilden v. Fields, 510 F.Supp. 1295, 1308 (W.D.Wis.1981)), summarily aff'd, 697 F.2d 287 (2d Cir.1982); see Christopher v. U.S. Board of Parole, 589 F.2d 924, 932 (7th Cir.1978). As the Fifth...