Tremblay v. Riley

• Decision Date: 06 March 1996
• Docket Number: No. 95-CV-6316L.,95-CV-6316L.
• Citation: 917 F. Supp. 195
• Parties: Stephen TREMBLAY, Plaintiff, v. Richard RILEY, Secretary of Education, Defendant.
• Court: U.S. District Court — Western District of New York

917 F. Supp. 195

Stephen TREMBLAY, Plaintiff, v. Richard RILEY, Secretary of Education, Defendant.

No. 95-CV-6316L.

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

March 6, 1996.

Stephen Tremblay, Collins, NY, pro se.

Anne VanGraafeiland, Asst. U.S. Atty., United States Attorney, Rochester, NY, for defendant.

DECISION AND ORDER

LARIMER, Chief Judge.

Plaintiff, Stephen Tremblay, is an inmate at Collins Correctional Facility in Collins, New York. He has filed a class-action complaint challenging Section 401(b)(8) of the Higher Education Act ("HEA"), 20 U.S.C. § 1070a(b)(8), which was amended by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994 ("the Violent Crime Control Act"), Pub.L. No. 103-322, 108 Stat. 1796, to prohibit the award of Pell Grant funds to any incarcerated individual in a federal or state penal institution.

Defendant Richard Riley, the Secretary of Education ("the Secretary") has moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In addition, plaintiff has filed motions for a preliminary injunction and for class certification.

BACKGROUND

The complaint alleges that plaintiff has been incarcerated within New York State penal institutions since April 3, 1990. He has been taking college courses since the Spring 1991 semester. Among other financial aid, he had been receiving federal Pell Grants.¹ Prior to the enactment of the Violent Crime Control Act, Pell Grants were available to prisoners other than those on death row or serving life sentences without the possibility of parole. In 1994, however, the Violent Crime Control Act amended the HEA to prohibit the award of Pell Grant funds to all prisoners in state or federal penal institutions.

Plaintiff alleges that as a result of this amendment, he will no longer be able to take college courses and he will not be able to accumulate the 120 credit hours that he needs to receive a Bachelor's degree.

Based on these allegations, plaintiff contends that the Violent Crime Control Act violates the Constitution's prohibition of ex post facto laws, Art. I, § 9, cl. 3; that it violates the Equal Protection and Due Process Clauses of the Fifth Amendment; and that the Act constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Defendant's motion to dismiss is granted and the complaint is dismissed.

DISCUSSION

I. Ex Post Facto

"An ex post facto law is one which reaches back in time to punish acts which occurred before enactment of the law." Peeler v. Heckler, 781 F.2d 649, 651 (8th Cir.1986). Plaintiff alleges that the Violent Crime Control Act is an ex post facto law because it imposes a punishment — the denial of Pell Grants — for criminal conduct that occurred prior to passage of the Act.

The ex post facto clause applies only to punitive measures. "Essential to the success" of this claim, therefore, "is the validity of characterizing as `punishment' in the constitutional sense the termination of plaintiff's benefits ..." Flemming v. Nestor, 363 U.S. 603, 613, 80 S.Ct. 1367, 1374, 4 L.Ed.2d 1435 (1960).

I find that plaintiff's claim fails on this ground. The denial of Pell Grant funds to state and federal inmates is not "punitive" as that term has been construed by the courts.

Although there do not appear to be any reported cases addressing the ex post facto implications of the Violent Crime Control Act, several cases involving the denial of various types of benefits to different classes of persons are instructive.

The first of these cases is Flemming, in which the Supreme Court held that an amendment to the Social Security Act providing for the termination of benefits to deported aliens was not an ex post facto law. In analyzing this issue, the Court stated that "the question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation ..." Id. at 614, 80 S.Ct. at 1374-75 (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1866) (plurality opinion)). The Court stated that the sanction in Flemming was not a punishment, but "the mere denial of a noncontractual governmental benefit. No affirmative disability or restraint is imposed ..." Id. at 617, 80 S.Ct. at 1376.

The standard that the Court set forth for the assessment of ex post facto challenges to federal statutes was not a light one. The Court stated that "the presumption of constitutionality with which this enactment, like any other, comes to us forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it." Id. The Court further added that "unmistakable evidence of punitive intent ... is required before a Congressional enactment of this kind may be struck down." Id. at 619, 80 S.Ct. at 1377.

The Court also made clear that even if there is some punitive intent behind a statute, that alone is an insufficient basis to strike it down as an ex post facto law. The Court stated that a court reviewing a statute "cannot with confidence reject all those alternatives which imaginativeness can bring to mind, save that one which might require the invalidation of the statute." Id. at 621, 80 S.Ct. at 1378.

Applying the holding of Flemming, a number of reported cases in the 1980s uniformly rejected ex post facto challenges to an amendment to the Social Security Act ("the SSA amendment") that suspended disability and other benefits for incarcerated felons. In Jensen v. Heckler, 766 F.2d 383, 386 (8th Cir.) (per curiam), cert. denied, 474 U.S. 945, 106 S.Ct. 311, 88 L.Ed.2d 288 (1985), for example, the Eighth Circuit held that the SSA amendment was not an ex post facto law, "because the suspension of a noncontractual benefit cannot be considered a punishment." Adhering to that holding one year later in Peeler, the court stated that "if the law in question is focused on the past crime, then it is likely intended as a punishment, while if the focus is upon the benefit from which the person is barred, it is not, even thought the impact on the individual may be harsh. The mere denial of a noncontractual government benefit ... without a showing of penal intent, does not fall within the ex post facto prohibition." 781 F.2d at 651. Accord Jones v. Heckler, 774 F.2d 997, 999 (10th Cir.1985) (per curiam) ("suspension of the plaintiff's benefits does not constitute punishment"); Sulie v. Bowen, 653 F.Supp. 849, 852 (N.D.Ind.) (following Peeler), aff'd, 836 F.2d. 552 (7th Cir.1987).

It is also noteworthy that the SSA amendment withstood these challenges notwithstanding some evidence that Congress passed it with at least some punitive motives. The District of Columbia Circuit, for example, upheld the amendment even though it opined that "Congress had come about as close as possible to the line of unconstitutionality without actually crossing it." Wiley v. Bowen, 824 F.2d 1120, 1122 (D.C.Cir.1987). Despite the fact that "the statute singled out incarcerated felons as the class of persons disqualified under the law," which the court said "made one quite suspicious that its intent was punitive," and although "the legislative history included statements by the sponsor and other key legislators that reflected a punitive motivation," the court nevertheless held that the statute was not an ex post facto law. Id. In reaching that conclusion, the court noted the Supreme Court's admonition in Flemming that "`only the clearest proof could suffice to establish the unconstitutionality of a statute' on the ground `that a punitive purpose in fact lay behind the statute.'" Id. (quoting Flemming, 363 U.S. at 617, 80 S.Ct. at 1376). The court concluded that "despite the plaintiff's strong showing, enough doubt remained about the purpose of the statute" to persuade the court that the plaintiff had not met "the extremely difficult standard articulated in Flemming." Id.

The Eighth Circuit in Jensen also recognized that "there was some indication that Congress intended the SSA amendment in part to be punitive," but held that that did not necessitate a finding of unconstitutionality. The court said that even where there is some evidence of punitive intent, the court need not invalidate a statute where "`the rational connection' to nonpunitive ends remains as a rationale for enacting the provision," for "a court should not `reject all those alternatives ... save that one which might require invalidation of the statute.'" Jensen, 766 F.2d at 386 (quoting Pace v. United States, 585 F.Supp. 399, 401 (S.D.Tex.1984)). See also Peeler, 781 F.2d at 652 (statute may not be struck down as an ex post facto law as long as "there is a rational connection between the provision and a nonpunitive goal").

District courts from several circuits also rejected challenges to the SSA amendment on ex post facto grounds, again despite the courts' recognition that the amendment had punitive aspects. In Graham v. Bowen, 648 F.Supp. 298 (S.D.Tex.1986), for instance, the court stated that the amendment's denial of retirement benefits to incarcerated felons was constitutionally sound because it was rationally related to the government's interests in conserving resources, allocating the welfare effort, and reducing discipline problems from prisoners' possession of excess funds. Id. at 301. Rejecting the plaintiff's argument that the amendment was punitive, the court stated that the statute was constitutional so long as it was also "supported by plausible ... purposes that are other than punitive ..." Id. at 303. See also Gross v. Bowen, no. H-82-3683, 1988 WL 252067 *1 (S.D.Tex. Feb. 22, 1988) (SSA amendment denying disability benefits to incarcerated felons served remedial, rather than punitive, purpose and therefore was not ex post facto law); Pace, 585...