Wallace v. Christensen

• Citation: 802 F.2d 1539
• Decision Date: 23 October 1986
• Docket Number: No. 85-5560,85-5560
• Parties: Conklin WALLACE, Petitioner-Appellant, v. Robert CHRISTENSEN, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1539

802 F.2d 1539

55 USLW 2275

Conklin WALLACE, Petitioner-Appellant, v. Robert CHRISTENSEN, Respondent-Appellee.

No. 85-5560.

United States Court of Appeals Ninth Circuit.

Argued and Submitted En Banc June 17, 1986.

Decided Oct. 23, 1986.

Noel M. Ragsdale, William J. Genego, Post-Conviction Justice Project, Los Angeles, Cal., for petitioner-appellant.

Janet Goldstein, Asst. U.S. Atty., Major Frauds Unit, Los Angeles, Cal., for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, GOODWIN, ANDERSON, TANG, FARRIS, POOLE, CANBY, REINHARDT, HALL, KOZINSKI and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge:

Appellant-petitioner Conklin Wallace appeals from the district court's denial of his petition for a writ of habeas corpus challenging the action of the United States Parole Commission (the "Commission") in setting his presumptive parole date. Wallace contends that the Commission's application of the 1983 Parole Guidelines (the "Guidelines") to his parole determination violated the ex post facto clause of the Constitution, art. 1 Sec. 9, cl. 3. He also argues the Commission abused its discretion and was arbitrary and capricious in determining his "offense behavior" rating for parole purposes. We affirm.

I FACTS AND PROCEEDINGS

In November 1982 a jury found Wallace guilty of extortion (18 U.S.C. Sec. 1951), use of an explosive to commit a felony (18 U.S.C. Sec. 844(h)), and possession of an unregistered destructive device (26 U.S.C. Sec. 5861(d)). Wallace and his brother (the "defendants") had attempted to extort $400,000 by making a bomb threat via telephone to American Airlines ground personnel at Los Angeles International Airport. The defendants stated that a bomb had been placed in a suitcase which was located in the luggage loading area for an American Airlines flight scheduled to depart later that day. They provided a description of the location of the suitcase, and told officials that they would reveal the location of two other bombs after the airline paid them $400,000. Security officers subsequently removed the bomb from the loading area. The bomb contained explosives. Although the bomb was not completely wired and, therefore, not operational, it could have been set off by radio transmissions at the airport.

On January 6, 1983 Wallace was sentenced to fifteen years imprisonment under 18 U.S.C. Sec. 4205(b)(2). A copy of Wallace's sentence and prior record was forwarded to the Western Region, United States Parole Commission (the "regional commission") for a parole evaluation. His first parole hearing was held in November 1983.

Between the time Wallace was sentenced and his first parole hearing, the Commission revised the Parole Commission Offense Behavior Severity Index portion of the Guidelines. 28 C.F.R. Sec. 2.20. Adopted on an experimental basis in 1972 and promulgated pursuant to the Parole Commission and Reorganization Act of 1976, Pub.L. No. 94-233, 90 Stat. 219-231 (1976) (codified at 18 U.S.C. Secs. 4201-18) [the "Parole Act" or "Act"], the Guidelines take the form of a "grid" or "matrix" for the setting of presumptive parole dates. On the vertical side, the prisoner is given an "offense behavior" rating from category one through Applying the 1983 Guidelines, as amended, and after notice and hearing, the regional commission classified Wallace's "offense behavior" as "Interference with a Flight Crew" explaining:

                eight ("low severity" to "Greatest II severity") based upon the type of offense committed and the characteristics of the offense in that particular case (i.e., use of force, value of items stolen, if any).  The 1983 revision added to the "offense behavior" categories a category seven "Interference with a Flight Crew."    28 C.F.R. Sec. 2.20 (242)(a).  On the horizontal side, the prisoner is given a "salient factor" score ranging from "poor" to "very good" based upon such factors as prior convictions, parole violations and escapes, age, and drug dependence.  28 C.F.R. Sec. 2.20, at 101;  United States Parole Commission Rules and Procedures Manual, 61-66 (1983).  The "offense behavior" rating and "salient factor" score are then correlated to arrive at a presumptive parole range
                

This offense certainly had the potential to cause injury or death and destruction of aircraft. At least one bomb was placed in luggage about to be placed on flight 75 to San Diego and allegedly two other bombs were to have been placed on two other flights. Certainly the explosive device which was found in luggage as described by the call to the FBI which was destined for flight 75 had the potential to cause death or serious injury to innocent bystanders and certainly to those law enforcement personnel charged with disarming the device.

The regional commission gave Wallace a "salient factor" score of "good." The "offense behavior" rating of seven, when correlated with a "salient factor" score of "good," gave Wallace a presumptive parole range of sixty-four to ninety-two months. The regional commission set a presumptive parole date of seventy-eight months.

Wallace filed an appeal with the full Commission alleging that application to his case of the 1983 Guidelines, as amended, violated the ex post facto clause of the United States Constitution. He contended that had the Guidelines been applied at the time he was committed and began serving his sentence, the only offense classification then applicable would have been "Extortion." Wallace argued he would have received an "offense behavior" rating of "five" instead of the "seven" applied by the regional commission under the amended Guidelines for "Interference with a Flight Crew." Wallace also argued that the regional commission's calculation of his "offense behavior" as "seven" was arbitrary, capricious, and an abuse of discretion.

The full Commission denied Wallace's appeal, finding:

Reasons: In response to your claim that your offense severity has [been incorrectly] rated as Category Seven, this claim is without merit. Your conduct had the potential for creating a significant safety risk to an aircraft or passengers and has been correctly placed in the Category Seven rating.

It is the Commission's policy that the ex post facto clause does not apply to paroling policy guidelines.

In July 1984 Wallace filed the present habeas corpus petition in the district court realleging the claims made before the full Commission. The district court denied the petition and Wallace appealed.

II JURISDICTION

A. Review of Commission's Decisions Under 18 U.S.C. Sec. 4203(b)

We first consider our jurisdiction to review decisions made by the Commission acting under the authority granted by 18 U.S.C. Sec. 4203(b)(1), (2), (3). ¹ This provision Previous cases in this circuit have referred to an "abuse of discretion" standard as the basis for review of Commission decisions, and have implicitly assumed the existence of jurisdiction to conduct that analysis. See, e.g., Tatum v. Christensen, 786 F.2d 959, 963 (9th Cir.1986); Torres-Macias v. United States Parole Commission, 730 F.2d 1214, 1216 (9th Cir.1984); Roth v. United States Parole Commission, 724 F.2d 836, 839-40 (9th Cir.1984); Williams v. United States Parole Commission, 707 F.2d 1060, 1063-64 (9th Cir.1983); Hatton v. Keohane, 693 F.2d 88, 90 (9th Cir.1982); O'Brien v. Putman, 591 F.2d 53, 55 (9th Cir.1979). We took this case en banc to reconsider this assumption and evaluate our standard of review.

of the Parole Act empowers the Commission, by majority vote and under proper procedures, to grant, deny, modify or revoke, or impose reasonable conditions upon (hereinafter "grant or deny") parole. Wallace argues that our jurisdiction to review these decisions is plenary and extends to a claim that the Commission abused its discretion in determining an "offense behavior" rating and a "salient factor" score. The government responds that our jurisdiction to review any decision of the Commission is limited to claims that the Commission violated the Constitution, a statute, or a regulatory command.

1. Preliminary Overview

We begin our analysis by acknowledging an enduring principle of federal jurisdiction. The federal courts, both primary and appellate, were created and remain courts of limited jurisdiction. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978); Sheldon v. Sill, 49 U.S. 441, 445-46, 12 L.Ed. 1147 (8 How. 1850); Jones v. Giles, 741 F.2d 245, 248 (9th Cir.1984). In each case, the threshold question of jurisdiction must be addressed and answered before the merits may be reached and resolved. See, e.g., id. That we have assumed the existence of jurisdiction to review an agency's determinations on previous occasions does not end our present analysis. Our task is to examine the relevant statutory framework, specific review provisions, and congressional intent to determine whether we may review an agency's decisions. See, e.g., Johnson v. Robison, 415 U.S. 361, 366-74, 94 S.Ct. 1160, 1165-69, 39 L.Ed.2d 389 (1974) (examining these factors involving decisions by Veterans' Administration); Abbott Laboratories v. Gardner, 387 U.S. 136, 139-41, 87 S.Ct. 1507, 1510-11, 18 L.Ed.2d 681 (1967) (same, decisions under Food, Drug & Cosmetic Act); Garcia v. Neagle, 660 F.2d 983, 987-88 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982) (same, Parole Act).

We bring an important presumption to this inquiry. Established principles of separation-of-powers counsel against loosely inferring a congressional intent to preclude judicial review of administrative decisions. See, e.g., Bowen v. Michigan Academy of Family Physicians, --- U.S. ----, 106 S.Ct. 2133, 2135-36, 90 L.Ed.2d 623 (1986); Abbott Laboratories, 387 U.S. at 140, 87 S.Ct. at 1511. See also Barlow v. Collins, 397 U.S. 159, 165-66, 90 S.Ct. 832, 836-37, 25 L.Ed.2d 192 (1970); Sunstein, Reviewing Agency...