United States Board of Parole v. Merhige, 72-2324
| Decision Date | 26 September 1973 |
| Docket Number | 73-1134.,No. 72-2324,72-2324 |
| Parties | UNITED STATES BOARD OF PAROLE, Petitioner, v. Honorable Robert R. MERHIGE, Jr., and Honorable Albert V. Bryan, Jr., Respondents. UNITED STATES BOARD OF PAROLE, Petitioner, v. Honorable Robert R. MERHIGE, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
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David G. Lowe, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., Henry E. Petersen, Asst. Atty. Gen., Jerome M. Feit and George S. Kopp, Attys., Crim. Div., Dept. of Justice, and Joseph A. Barry, Legal Counsel, United States Bd. of Parole, Washington, D. C., on brief), for petitioner United States Board of Parole.
Alvin J. Bronstein, Washington, D. C., (Philip J. Hirschkop, Alexandria, Va., on brief), for respondents Robert R. Merhige, Jr., and Albert V. Bryan, Jr.
Before BOREMAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.
The United States Board of Parole has filed two petitions seeking writs of mandamus; the first, directing the respondents, Judges of the United States District Court for the Eastern District of Virginia, to vacate an order authorizing the taking of the depositions of the members of the Youth Division of the United States Board of Parole; and the second, directing the respondents to vacate an order requiring the Board to answer written interrogatories pertaining to parole determinations made in certain cases involving inmates in ten federal institutions. The orders in question were entered in the case of Bernard J. Novak, et al, v. Gary McCune, et al, Civil Action No. 421-72, in the Richmond Division of the Eastern District of Virginia.
That action was originally instituted by Novak as a class action against the Warden of the Federal Reformatory at Petersburg, Virginia, and the Board of Parole seeking injunctive and declaratory relief after he had been denied consideration for an early parole release. Novak alleged that his application for parole had not been considered in accordance with the regulations of the Board of Parole and, additionally, claimed that he was entitled to (a) access to the substance of the parole hearing examiner's recommendations and report; (b) an opportunity to respond to any adverse aspects of the report; and (c) a statement of the grounds upon which parole was denied. After a hearing respondent Merhige denied Novak's motion for a preliminary injunction, but concluded that the complaint presented a justiciable controversy and that the entertainment of jurisdiction thereof was appropriate.
Incident to the matters considered at this hearing Judge Merhige declined to quash the notice for the taking of the depositions of the members of the Youth Division of the Board of Parole and these depositions were thereafter scheduled to be taken sometime in mid-October, 1972. Subsequent to this hearing, however, the Board of Parole gave further consideration to Novak's request and ultimately Novak's release on parole was advanced to an effective date of October 4, 1972.
Thereafter, the case came on for further hearing before Judge Bryan on October 17, 1972, at which time counsel for the Board of Parole moved to quash the taking of the depositions on the ground that Novak's parole had mooted the issues raised in his complaint. However, the plaintiff-intervenors, George Rouillard, John Leonard and David O'Neill, had moved for leave to intervene as plaintiffs and tendered their complaint in intervention as being representative of the claims of the class embraced in the original complaint of Novak. Counsel for the Board of Parole advised the court that he did not oppose the motion to intervene and thereupon Judge Bryan denied the motion to vacate the notice of depositions upon the basis that they were appropriate for consideration upon the question as to whether or not the action was maintainable as a class action.
Shortly thereafter the plaintiff-intervenors served on the defendants a set of interrogatories seeking information relating to the parole consideration given the three plaintiff-intervenors and twenty-two additional inmates of the Petersburg Reformatory. These interrogatories contained a series of thirty-one questions relating to the parole process and decisions of the Board. The Board responded to thirty of the interrogatories with respect to the three plaintiff-intervenors, but declined to answer the interrogatories relative to the other twenty-two inmates. The Board also declined to answer the thirty-first question which requested "the names and institutional numbers of all inmates at the Federal Reformatory at Petersburg, Virginia, who have been denied parole release either by way of continuation, setoff or outright denial since January 1, 1971." Thereafter the Board was served with a second and third series of interrogatories relative to an additional thirty-one and twenty-eight inmates, respectively. The second set of interrogatories addressed itself to inmates of the Reformatory at Petersburg, and the third sought information with respect to inmates of nine other federal institutions. The Board declined to answer the questions in the second and third series of interrogatories whereupon the plaintiffs moved for an order compelling the defendants to answer. After a hearing on this motion on January 17, 1973, Judge Merhige ordered the defendants to answer all questions contained in each set of interrogatories within ten days thereof. It is this order to which the second petition of the Board is addressed.
Assuming that the depositions of the Youth Division were appropriate in Novak's case, his release on parole unquestionably mooted the issues raised in his complaint and, nothing more appearing, the notice for the taking of the depositions should properly have been vacated. The question remaining, however, is whether the depositions, as well as the series of interrogatories, are appropriate in the light of the allegations of the plaintiff-intervenors.
A review of the complaint in intervention indicates only that the three intervenors are inmates of the Federal Reformatory at Petersburg and that they have been denied release on parole. Unlike Novak, they do not allege that their applications for parole were not considered by the Board in accordance with its regulations. Rather, the various grounds for relief assigned by them represent nothing more than a broad-front challenge of the federal parole procedure including the contention, among others, that the regulations promulgated by the Board, 28 C.F.R. §§ 2.1 et seq., are at variance with the statutory grant of parole authority under 18 U.S.C. §§ 4201 et seq. The allegations of the complaint in intervention raise only questions of law and we fail to see any necessity for extensive evidentiary development,1 particularly the depositions of the members of the Youth Division as well as the exhaustive interrogatories, for determination of the issues raised therein.
As heretofore stated the district court concluded that Novak's complaint presented a justiciable controversy, and in reaching this conclusion the court placed primary reliance upon the panel decision in Scarpa v. U. S. Board of Parole, 468 F.2d 31 (5 Cir. 1972). The complaint in Scarpa, which was strikingly similar to the one at hand, was summarily dismissed by the district court for failure to state a justiciable issue upon which relief could be granted. Upon appeal the panel, one judge dissenting, reversed. Subsequent to the filing of the petitions in the present case, however, the Fifth Circuit, sitting in banc, reversed the decision of the panel and affirmed the action of the district court. Scarpa v. U. S. Board of Parole, 477 F.2d 278 (5 Cir. 1973). In so doing the court reaffirmed its decision in Tarlton v. Clark, 441 F.2d 384 (5 Cir. 1971), wherein it had stated:
441 F.2d 385.
In adhering to its prior position, the Fifth Circuit was in accord with the clear weight of authority. Buchanan v. Clark, 446 F.2d 1379 (5 Cir. 1971), cert. denied 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971); ...
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