Van Blaricom v. Forscht

• Decision Date: 06 March 1974
• Docket Number: No. 72-1374.,72-1374.
• Citation: 490 F.2d 461
• Parties: Earl VAN BLARICOM, Petitioner-Appellant, v. Donald FORSCHT, as United States Marshal, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

490 F.2d 461 (1974)

Earl VAN BLARICOM, Petitioner-Appellant, v. Donald FORSCHT, as United States Marshal, Respondent-Appellee.

No. 72-1374.

United States Court of Appeals, Fifth Circuit.

March 6, 1974.

J. V. Eskenazi, Federal Public Defender, Theodore J. Sakowitz, Asst. Federal Public Defender, Miami, Fla., for petitioner-appellant.

Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for respondent-appellee.

Before BROWN, Chief Judge, RIVES, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

PER CURIAM:

Appellant Earl Van Blaricom filed for habeas corpus relief in United States District Court on November 9, 1971 contesting the validity of the revocation of his parole as a federal prisoner. The district court denied Van Blaricom's petition by an order entered December 20, 1971. On February 21, 1973, a panel of this Court reversed and remanded to the district court to grant either appellant's petition for habeas corpus or to allow respondents a reasonable time to afford appellant a new revocation hearing meeting applicable federal statutory and administrative requirements discussed in the panel opinion. Van Blaricom v. Forscht, 5 Cir., 1973, 473 F.2d 1323 (1973); petition for rehearing denied and opinion modified per curiam, 5 Cir., 1973, 489 F.2d 1034; opinion denying petition for rehearing amended, (January 15, 1974). The court voted to consider the case en banc and it was so considered on January 15, 1974, after the panel had amended its opinion denying the petition for rehearing.

Appellant was released on bond pending appeal pursuant to an order of this court dated July 13, 1972. It has now been made to appear that prior to our February 21 panel decision, an order was entered by the United States district court revoking appellant's bond for cause. (The district court order was dated January 10, 1973). An evidentiary hearing was held by the district court prior to entering the order revoking bond.¹ At that hearing, appellant's counsel, who has represented Van Blaricom from the time of the parole revocation hearing, conceded that Van Blaricom had violated the conditions of his appeal bond,² and that he, as well as parole board officials, have been unable to contact Van Blaricom at his last given address. The district court directed the issuance of a warrant for Van Blaricom's arrest, and as of the time of our en banc consideration on January 16, 1974, appellant's whereabouts were still unknown to the authorities.

It is within the discretion of this Court not to reach the merits of an appeal where the petitioner is not available and subject to any judgment which might be entered in the case. United States ex rel. Bottoms v. Eberhardt, 5 Cir., 1972, 467 F.2d 578; United States v. Shelton, 5 Cir., 1973, 482 F.2d 848; Brinlee v. United States, 8 Cir., 1973, 483 F.2d 925; United States v. O'Neal, 10 Cir., 1972, 453 F.2d 344; Johnson v. Laird, 9 Cir., 1970, 432 F.2d 77.³ See Molinaro v. New Jersey, 1970, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586. Since Van Blaricom was a fugitive prior to the panel's decision, the opinion of this court February 21, 1973, as modified, supra, is vacated and the appeal is removed from the docket without prejudice to appellant's right to have the appeal reinstated on appropriate motion if, within thirty (30) days from the date hereof, it should be made known to this Court that Van Blaricom is available and subject to any judgment which might be entered in this case. If thirty (30) days elapses without such a representation his appeal is ordered dismissed.

Panel opinion vacated; appeal removed from docket on condition.

RIVES, Senior Circuit Judge, with whom WISDOM, Circuit Judge, joins, dissenting:

I respectfully dissent because I think that the only just determination of this appeal is by a decision on the merits. Otherwise stated, the en banc court should answer the question: Could two members of the eight member Board of Parole validly revoke Van Blaricom's parole and require him to serve his full term remaining at the beginning of his parole. To this date, there has been no denial of the panel's finding that the precise terms of the order of revocation was a one-sentence order, "Parole revoked continued for term, 542 days." Van Blaricom v. Forscht, 5 Cir. 1973, 473 F.2d 1323, 1326, bottom of first column.

The original panel (Rives, Wisdom and Roney) answered that question forthrightly. In deference to the holding of the Tenth Circuit in Earnest v. Moseley, 1970, 426 F.2d 466, 469, the panel limited its holding to the narrow ground that, "As best we can determine, the procedure employed in revoking Blaricom's parole did not conform with the then applicable administrative procedure of the Board itself." 473 F.2d 1328. The panel did express its difficulty in squaring the holding of the Tenth Circuit with the more doctrinaire logic of Cudahy Packing Company v. Holland, 1942, 315 U.S. 357, 363, 364, 62 S.Ct. 651, 86 L.Ed. 895, and its progeny (473 F.2d at 1328, first column). In denying the Board's petition for rehearing on December 14, 1973, the panel adhered to the narrow ground of its original holding but in a footnote added on January 15, 1974, the panel called attention to Federal Trade Commission v. Flotill Products, 1967, 389 U.S. 179, 183, 184, 88 S.Ct. 401, 19 L.Ed.2d 398 and concluded that, "Under that decision, it would seem that five members would constitute a quorum of the eight member Board and that the discretion vested in the Board could, in no event, be exercised by less than three members constituting a majority of that quorum."

Now the en banc court avoids any discussion of the merits by holding that Van Blaricom was a fugitive prior to the panel's decision and opinion of February 21, 1973, vacating that opinion as modified, and removing the case from the docket without prejudice to its reinstatement, if Van Blaricom returns and so moves within thirty (30) days, and with the final provision that "If thirty (30) days elapses without such a representation his appeal is ordered dismissed."

That order is entered by the en banc court sua sponte, without suggestion by either party. Both parties have consistently pressed for an en banc decision on the merits. Such a decision is obviously important to the Board, to courts, parolees and others for jurisprudential reasons. As to Van Blaricom, the failure to render a decision on the merits may well result in a future unjust and unlawful deprivation of his liberty.

With deference, I submit that the en banc court's conclusion that Van Blaricom was a fugitive prior to the panel's decision and opinion of...