Sturm v. James, 86 Civ. 4868 (JES)
| Citation | 684 F. Supp. 1218 |
| Decision Date | 20 April 1988 |
| Docket Number | No. 86 Civ. 4868 (JES),86 Civ. 9610 (JES).,86 Civ. 4868 (JES) |
| Parties | Frederick C. STURM, Petitioner, v. Jesse JAMES, Warden, Otisville, FCI, and the United States Parole Commission, Respondents. Frederick C. STURM, Petitioner, v. UNITED STATES PAROLE COMMISSION and Jesse James, Warden, F.C.I. Otisville, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Cheryl J. Sturm, Port Jervis, N.Y., for petitioner.
Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for respondents; Susan P. Johnston, Asst. U.S. Atty., of counsel.
In these two related actions, petitioner Frederick C. Sturm seeks various remedies for alleged violations of his rights flowing from the circumstances surrounding a new initial parole hearing held on January 15, 1986. The portion of 86 Civ. 4868 () which sought a writ of habeas corpus was dismissed by the Court after Oral Argument, and the Court ordered that the record be supplemented as to the remaining aspects of that petition. Subsequently, petitioner filed another petition, 86 Civ. 9610, which the Court accepted as a related case. For the reasons set forth below, the Court concludes that both petitions must be dismissed.
On March 27, 1981, petitioner was sentenced to a ten-year term of imprisonment based upon his conviction of five counts of mail fraud and one count of conspiracy to commit mail fraud. See Petition (86 Civ. 4868) ("Pet. I") at ¶ 6; Affidavit of Jack Schneider dated February 26, 1986 ("Schneider Aff.") at ¶ 2 (). While released on bail pending appeal, petitioner applied for and received a passport under a false name and used it to travel outside the United States. See Schneider Aff. at ¶ 3; see also Petition (86 Civ. 9610) ("Pet. II") at ¶ 5. Petitioner subsequently pleaded guilty to an indictment based on this offense, and on August 25, 1982, he was sentenced to a three-year term to run concurrently with the ten-year term previously imposed. See Pet. II at ¶ 5; Schneider Aff. at ¶ 3.
At petitioner's initial parole hearing conducted in 1983, a presumptive parole date of December 2, 1985 was recommended. See Pet. I at ¶ 9. This recommendation that petitioner be paroled after service of 40 months imprisonment was adopted by the United States Parole Commission ("Parole Commission" or "Commission") and in July 1985, the presumptive parole date was changed to an effective parole date of December 2, 1985. See id. at ¶ 12.
Subsequently, however, petitioner was convicted of two counts of filing false claims against the United States and one count of mail fraud. See Schneider Aff. at ¶ 6. On October 10, 1985, petitioner was sentenced to an eighteen-month term of imprisonment on each count. These terms were to run concurrently with one another but consecutive to the previously-imposed ten-year term. The Parole Commission was notified of this new conviction and sentence by letter dated October 28, 1985. See id.
On November 27, 1985, petitioner received a notice of action which retarded his effective parole date and incorrectly indicated that his case had been scheduled for a new initial parole hearing pursuant to 28 C.F.R. § 2.28(a), which provides for reopening upon receipt of "new significant favorable information." See Pet. II at ¶ 12; see also 28 C.F.R. § 2.28(a) (1987). A corrected notice of action was therefore issued on January 6, 1986, stating that the reopening was pursuant to 28 C.F.R. § 2.28(c), which provides for reopening to consider additional sentences received following initial parole consideration. See Pet. II at ¶ 13 & Ex. A; see also 28 C.F.R. § 2.28(c) (1987).
On January 15, 1986, petitioner's new initial hearing was held. See Pet. I at ¶ 17. Pursuant to the direction in 28 C.F.R. § 2.20(i), which sets forth the paroling policy guidelines for criminal behavior committed while in confinement, the rescission guidelines at 28 C.F.R. § 2.36 were consulted. See Schneider Aff. at ¶ 10. Applying those guidelines, the Examiner Panel concluded that petitioner's mailing of false and fictitious tax returns to the Internal Revenue Service while incarcerated constituted "new criminal conduct in the community while incarcerated" and thus was governed by section 2.36(a)(3). See id. Petitioner contends that in making this determination, the Examiner Panel improperly relied on section 2.36-02(b) of the Commission's Notes and Procedures Manual ("Manual"), which contained a note providing that "offenses not limited to the confines of a prison facility or Community Treatment Center (e.g., submitting false tax returns to the IRS from a prison facility) are graded as new criminal behavior in the community." See Pet. I at ¶ 18; see also Manual at 102 (Ex. B to Memorandum of Law in Support of Respondent's sic Motion to Dismiss the Petition and for Costs ( )).1
Unlike 28 C.F.R. § 2.36(a)(2), which applies to crimes committed in or confined to the prison and includes its own parole release guidelines, section 2.36(a)(3) requires calculation of a new salient factor score and application of the more severe section 2.20 guidelines. Thus, a new salient factor score was assessed for petitioner and this score, coupled with the offense severity rating deemed applicable, resulted in a presumptive parole release guideline range of 48-60 months. See Schneider Aff. at ¶ 10. Pursuant to section 2.36(a)(3), this range was then added to the 40 months petitioner had originally been required to serve, resulting in a range of 88 to 100 months to be served before release. The Commission then fixed a release date at the low end of that range, requiring petitioner to serve 88 months before being released. See Schneider Aff. at ¶ 10.
The Commission adopted the recommendation of the Examiner Panel by notice of action dated February 11, 1986, and on April 16, 1986, the National Appeals Board rendered a final decision affirming the presumptive parole date. See Pet. II at ¶¶ 16-18.
At the outset, the Court notes that review of Parole Commission decisions is extremely limited because of the broad discretion granted to the Commission. See 18 U.S.C. § 4218(d) (1982); Bialkin v. Baer, 719 F.2d 590, 593 (2d Cir.1983).2 Moreover, "deference to the Commission's interpretation of its own regulations is required unless that interpretation is shown to be unreasonable." Bialkin, supra, 719 F.2d at 593.
The only issue raised by the first petition that warrants extended discussion is petitioner's assertion that the Note contained in section 2.36-02(b) of the Manual is a substantive rule "masquerading" as a procedural regulation and, as such, is void because it was not adopted in conformity with the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 551 et seq. (1982). See Pet. I at ¶¶ 24-30.3
Section 4 of the APA, 5 U.S.C. § 553 (1982), requires that agencies publish notice of proposed rules in the Federal Register and provide interested parties with an opportunity to comment. However, excepted from this provision are "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." 5 U.S.C. § 553(b)(A). It follows that plaintiff's claim must be rejected if the rule at issue is interpretative rather than substantive.
Applying the principles enunciated in New York v. Lyng, 829 F.2d 346 (2d Cir. 1987), it is clear that the rule is interpretative and that neither notice nor comment was required.4 In Lyng, the Second Circuit rejected the contention that a ruling by the Secretary of Agriculture interpreting a previously promulgated food stamp eligibility regulation was a substantive rule promulgated in violation of the APA. See id. at 353-54. At issue was a ruling by the Secretary of Agriculture providing that reimbursements received pursuant to New York's restaurant allowance must be included in calculating income for the purposes of establishing food stamp eligibility. This restaurant allowance was paid to individuals who were unable to prepare food at home to compensate for the increased cost of food prepared away from home. See id. at 348-49.
The State of New York contended that the ruling was inconsistent with a prior regulation which provided that reimbursements for normal household living expenses, including food eaten at home, were not excluded from the calculation of income. See id. at 350. The State argued that the inclusion of income for meals at home clearly implied that the cost of meals outside the home was not includable in calculating income. See id. The Second Circuit rejected this argument, holding that the ruling including as income reimbursements received for food prepared away from home was not "plainly inconsistent" with the regulation including as income reimbursements for food eaten at home. See id. at 351. The Court also rejected appellant's challenge under the APA, noting that "since there was no prior interpretation of the food stamp regulations concerning any program like New York's restaurant allowance, the Secretary's interpretation did not change any `existing rights or obligations.'" Id. at 353. Therefore, the ruling was held to be an interpretative rule not subject to the notice and comment requirements of § 553. See id. at 354.
That holding is dispositive here. No prior contrary interpretation of section 2.36(a)(3), the regulation governing "new criminal behavior while in the community," is alleged to have ever been rendered in a situation such as petitioner's. Indeed, the facts are precisely to the contrary. The Note was promulgated in response to a situation analogous to that of petitioner's, wherein the Parole Commissioners applied the rescission guidelines of section 2.36(a)(3) to a large scale fraud perpetrated on members of the community by an incarcerated prisoner. See Affidavit of James L....
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