Conklin Wallace v. Robert Christensen

WALLACE, Conklin

Petitioner-Appellant, CHRISTENSEN,

Robert

Respondent-Appellee.

No. 85-5560. Appeals, Court of States

United

Ninth Circuit. En Banc Submitted

Argued and 17, 1986.

June Oct.

Decided

I FACTS AND PROCEEDINGS jury November 1982 a found Wallace (18 guilty 1951), of extortion U.S.C. use § explosive (18 of an felony commit a 844(h)), possession U.S.C. of an un- § registered (26 destructive device U.S.C. 5861(d)). (the Wallace and his brother § “defendants”) attempted had to extort $400,000 by making a bomb threat via tele- phone ground person- to American Airlines Angeles nel at Los Airport. International The defendants stated that a bomb had placed been in a suitcase which was located luggage loading in the area for an Ameri- flight can depart Airlines scheduled to later day. They provided description suitcase, the location of the and told offi- they cials that would reveal the location of Ragsdale, Genego, Noel M. William J. two other paid bombs after the airline them Project, Ange- Los Post-Conviction Justice $400,000. Security subsequently officers les, Cal., petitioner-appellant. for loading removed the bomb from the area. explosives. The bomb contained Although Goldstein, Atty., Major Asst. Janet and, completely the bomb was not wired Cal., Unit, Angeles, respon- Los for Frauds therefore, operational, it could have dent-appellee. been set off radio transmissions at the airport. January

On 1983 Wallace sen- was years imprisonment tenced to fifteen under BROWNING, GOODWIN, 4205(b)(2). Before AN- copy 18 U.S.C. A of Wallace’s TANG, DERSON, FARRIS, POOLE, CAN- prior sentence and record was forwarded to BY, REINHARDT, HALL, KOZINSKI and Region, the Western United States Parole THOMPSON, Judges. (the Circuit commission”) “regional Commission parole

for a evaluation. His first THOMPSON, Judge: Circuit hearing held in November was Appellant-petitioner ap- Conklin Wallace Between the time Wallace was sentenced peals parole hearing, from the district court’s denial of his and his first the Commis- petition corpus for writ habeas chal- sion revised the Parole Commission Of- lenging Severity portion the action of the United States fense Behavior Index (the “Commission”) in the Adopted Commission Guidelines. C.F.R. 2.20. setting presumptive parole experimental prom- his date. Wal- on an basis in 1972 and appli- ulgated pursuant lace the Commission’s contends that to the Parole Commission (the Reorganization cation of the 1983 Parole Guidelines Act Pub.L. No. “Guidelines”) (1976)(codified his determination Stat. 4201-18) post violated the clause of the “Parole ex Act” or §§ [the facto Constitution, “Act”], cl. 3. He also the Guidelines take the form of art. argues “grid” setting pre- abused its discre- or “matrix” for the Commission capricious sumptive parole dates. arbitrary tion and was On vertical side, rating prisoner given an determining his “offense “offense be- behavior” category parole purposes. rating through havior” one We affirm. appeal filed an II severi- Wallace with the full (“low severity” to “Greatest eight alleging application to his type of offense com- upon the ty”) based amended, case of the 1983 of the of- characteristics and the mitted post the ex clause of the violated (i.e., case use of particular fense in that facto He United States Constitution. contended stolen, force, any). of items value applied that had the Guidelines been at the to the “offense behav- added 1983 revision began serving time he was committed and category seven “Interfer- categories a ior” sentence, only offense classification his 2.20 Flight Crew.” C.F.R. a ence with applicable then would have been “Extor- side, prison- (242)(a). On the horizontal argued he have re- tiоn.” Wallace would ranging score given a “salient factor” er is rating ceived an “offense behavior” upon “very good” based “poor” to applied by “five” instead of the “seven” convictions, parole prior such factors regional commission under the amend- drug escapes, age, and de- violations ed for “Interference Guidelines with a 2.20, 101; 28 C.F.R. Unit- pendence. Flight argued Crew.” Wallace also Rules and Parole Commission ed States regional commission’s calculation of his Manual, The Procedures “offense behavior” as “seven” was arbi- rating and “salient behavior” “offense trary, capricious, and an of discre- abuse to arrive score are then correlated factor” tion. range. presumptive at a ap- The full denied Commission Wallace’s Guidelines, as amend- the 1983 Applying finding: peal, ed, hearing, the re- notice and and after response your In claim that Reasons: classified Wallace’s “of- gional commission your severity offense incor- [been as “Interference with fense behavior” Seven, rectly] Category rated as this explaining: Flight Crew” claim is without merit. Your conduct certainly potential had the This offense potential creating signifi- had the for injury or death and destruction to cause safety passen- cant risk to an aircraft or At least one bomb was of aircraft. gers correctly placed and has been in the placed on placed luggage about rating. Category Seven Diego allegedly two flight to San policy It is the that the ex Commission’s placed on were to have been other bombs parol- post apply facto clause does not flights. Certainly explo- two other guidelines. ing policy luggage was found sive device which present July 1984 Wallace filed the FBI by the call to the as described corpus petition in the district court habeas poten- flight 75 had the was destined realleging the full the claims made before injury or serious tial to cause death The district court denied the Commission. certainly to bystanders and innocent appealed. petition and Wallace personnel enforcement those law disarming the charged with device. II gave regional commission Wallace a The JURISDICTION “good.” The “of- factor” score “salient Decisions A. Review seven, cor- rating of when fense behavior” 4203(b) Under U.S.C. § factor” score of a “salient related with presumptive parole “good,” gave jurisdiction Wallace a to re- first consider our We ninety-two months. range sixty-four decisions made Commission view presumptive acting authority granted set a under the regional The commission (2), (3).1 4203(b)(1), provision This seventy-eight months. U.S.C. parole date of (1) application 4203(b) deny or recom- part: or an provides, in 1. Section eligible prisoner; parole any vote, mendation Commission, (b) by majority (2) impose on an or- reasonable conditions procedures pursuant set out to the parole; granting der power chapter, have the to— shall empowers agency’s the Commis- an previ Parole Act view determinations sion, proper vote and under ous occasions does by majority present not end our deny, modify grant, analysis. or re- Our task is to procedures, examine the rele voke, upon framework, conditions impose specific reasonable vant (hereinafter deny”) parole. provisions, “grant сongressional Wal- intent to de jurisdiction our to review termine argues agen lace whether we review an Johnson v. Robi plenary cy’s and extends to a these decisions is decisions. son, 361, 366-74, abused its dis- claim that 94 S.Ct. determining 1165-69, (1974) an “offense (examining cretion behav- L.Ed.2d 389 rating involving and a “salient factor” score. these factors ior” decisions Veter Abbott Laboratories Administration); government responds jurisdic- that our ans’ Gardner, any tion to review the Commis- 1507, 1510-11, (1967) (same, to claims that sion is limited Commis- statute, Constitution, Food, sion decisions under Drug violated & Cosmetic Neagle, Garcia v. Act); regulatory 983, command. 660 F.2d 987- denied, (4th Cir.1981), cert. 88 454 U.S. cases in this circuit have re- Previous 1153, 1023, (1982) 102 71 S.Ct. L.Ed.2d 309 to an “abuse of discretion” ferred standard (same, Act). as the for review of Commission deci- basis sions, implicitly bring and have the ex- important presumption assumed We an jurisdiction of inquiry. principles istence conduct that this Established sep- of See, Christensen, e.g., Tatum v. analysis. aration-of-powers against counsel loosely 959, (9th Cir.1986); Torres- 786 F.2d 963 inferring congressional preclude intent v. Macias United States Parole Commis- review of administrative decisions. sion, (9th Cir.1984); See, 1214, e.g., Bowen Michigan Academy v. 730 F.2d 1216 of — Roth v. States United Parole Commis- Family Physicians, -, U.S. 106 sion, 836, (9th Cir.1984); 724 F.2d 839-40 2133, 2135-36, (1986); S.Ct. 90 L.Ed.2d 623 v. Williams United States Parole Com- Laboratories, Abbott 140, 387 U.S. at 87 mission, 1060, 707 F.2d Collins, 1063-64 1511. See also Barlow v. Cir. at S.Ct. Keohane, Hatton v. 1983); 88, 693 F.2d 90 159, 165-66, 832, 836-37, 397 U.S. 90 S.Ct. Putman, O’Brien v. (9th Cir.1982); 591 Reviewing (1970); Sunstein, 25 L.Ed.2d 192 53, (9th Cir.1979). F.2d 55 We took this Agency Inaction Chaney, Heckler v. After case en assumption banc to reconsider 52 U.Chi.L.Rev. 653, (1985). Judi- our evaluate standard of review. review, therefore, presumed cial unless precludes the statute review or the action 1. Preliminary Overview entirely is “committed ... to administrative Barlow, begin analysis by acknowledging 165, We our discretion.” 397 U.S. at 90 enduring principle jurisdic- an of (discussing federal S.Ct. at 837 Gressette, courts, Morris v. primary 701(a)(2)); tion. The federal both 432 U.S. appellate, 491, 500-01, 2411, 2418-19, were created and remain courts 97 S.Ct. 53 Equipment Owen jurisdiction. limited Conversely, L.Ed.2d 506 we & Kroger, Erection Co. v. 365, agency 437 U.S. an decision “to the ex- 374, 2396, 2402, 98 S.Ct. preclude judicial 57 L.Ed.2d 274 tent that ... statutes re- Sill, Sheldon v. (1978); 441, agency 445- view ... action is committed to [or] 46, Jones v. law.” Heckler v. (8 1850); 12 L.Ed. 1147 How. Giles, Chaney, 245, (9th Cir.1984). 821, 248 470 1649, U.S. 105 S.Ct. (quoting 5 case, 1654, (1985) each question juris- the threshold see Citizens to 701(a)(1), (2)); also diction must be addressed and answered U.S.C. Park, Volpe, and re- Preserve Inc. v. Overton before the merits reached id. 402, 410, 814, 820, solved. That 28 L.Ed.2d we have as- U.S. (1971); Barlow, sumed jurisdiction the existence of at (3) modify paroling any eligible prisoner____ revoke an order The drafters of the Act stated: “It recently stated that have at 836.2 We [was] S.Ct. purpose legislation law to not the of this to either committed agency action is where discretion, jurisdic- encourage discourage parole any has no a court Rather, purpose prisoner____ of discretion to review for abuse tion [was] offi- judgments openly of administrative assure ... decisions are informed Ilchert, v. Abdelhamid process fair reached and reasonable cials. (citing Cir.1985) Strickland 1447,1450 (9th given after due consideration has been Morton, (9th Cir.1975), F.2d Joint House- information.” the salient authorities). Report 94-838, other No. Senate Conference reprinted Cong. 2d 94th Sess. mind, general principles we these With Cong. & Ad.News 1976 U.S.Code a consideration of the turn to Report Joint Although ]. [hereinafter Act, provi- the Parole the review scheme of Congress recognized prisoner that a is not sions, congressional intent. right, entitled to as a matter of sought system parole to establish a Statutory Schemе appearance would both the fact and “[have] product The Parole Act of 1976 was Report, supra of fairness to all.” Senate study and evaluation nearly a decade in 1976 U.S.Code Cong. & legislative branches. by the executive and Ad.News at 340. See also Cong.Rec. Cong., 94th 2d Sess. S.Rep. No. (1975) (statement Drinan) Rep. Cong. reprinted in 1976 U.S.Code & (“Is right parole? there a Is this a Re- Senate Ad.News [hereinafter right? I qualified say would no to both of legis- port ]. principal elements questions____ imple- those Parole is the (a) of: a Pa- the establishment lation were policy mentation of a correctional and if a deny parole or grant role Commission prisoner prison, abides the rules of the (b) formalized guidelines; promulgate and condition, given is the then he has and that dispositions to governing parole procedures right process.”). due a (c) an uniformity; and and assure fairness Congress expedite objectives, To achieve these es- appeals process to administrative procedural reprinted general a and substan- Id. at tablished dispositions. parole Cong. framework within which deci- & Ad.News 336-37. tive 1976 U.S.Code 701(a) judging agency when an Proce- for how and of the Administrative 2. Section ("APA”) impos- provides: its discretion then it is should exercise dure Act sible to evaluate action for ‘abuse Application; definitions addition, this construc- of discretion.’ (a) applies, according pro- chapter to the This principle statutory con- tion satisfies the thereof, except to the extent that— visions earlier, by identifying struction mentioned review; (1) judicial preclude statutes separate class of cases to which (2) agen- action is committed 701(a)(2) applies. § cy law. Id., sub- S.Ct. at 1655. The Court discussed 105 explained Chaney, the Court In Heckler (a)(1) (a)(2) 701 in Citi- sections and of section (a)(1) relationship subsections between Park, U.S. at to Preserve Overton zens (a)(2) of section 701 of the APA: and clarifying By S.Ct. at 820. and reaffirm- Congress applies ex- when The former Park, ing Chaney the Court re- Overton preclude re- pressed an intent long-standing uncertainty and dis- solved the applies different circum- The latter view. proper interpretation pute of these over the stances; where has not affirm- even See, Berger e.g., Administra- two subsections. review, atively precluded review is not Synthesis, A Yale L.J. tive Arbitrariness: so that a had if the statute is drawn (1969); Nonreviewability: Saferstein meaningful stan- would have no court Agen- Analysis Functional "Committed A against judge agency’s exer- dard ” Discretion, (1968); case, cy Da- 82 Harv.LJRev. 367 the stat- of discretion. In such cise Not Al- Is vis Administrative Arbitrariness (‘law’) ‘commit- can be taken to have ute Reviewable, ways 51 Minn.L.Rev. agency’s judg- decisionmaking to the ted’ the however, Court, sever- did leave absolutely. This construction ment Chaney, questions unanswered. See al of discre- conflict with the ‘abuse avoids (Brennan, concurring); Sun- J. judi- S.Ct. at 1659-60 no § of review in 706—if tion’ standard cially manageable stein, supra at 675-83. available standards are 4206(c) be made. U.S.C. tion provides sions would the Act that governing parole hear- (procedures may grant “Commission or deny release on §§ (administrative provi- appeal ing), and 4215 notwithstanding guidelines 4205(a) sions). requires the Act (a) Section ferred into subsection of this section if parole when to consider the Commission good it determines there is cause for so of his prisoner has served one-third or her doing....” 4206(c). Com- § 4205(a); 28 C.F.R. sentence. Id. section, menting § on this Senator Burdick 2.53(a). Garcia, 660 F.2d also at “Although § stated: exceptions to these determinations, making parole 991. In guidelines permitted would be when the must consider certain Commission informa- Parole Commission can establish reason relevant, tion, including and available it, anticipated that warrants it is that most by staff, reports recommendations deny parole decisions to will be examinations, physical mental guidelines.” based on 122 Cong.Rec. 4861 4207; by victims. 18 statements U.S.C. § (1976) (statement Burdick). of Sen. Con- (1983). The 2.19 C.F.R. § gress “good intended that cause” to devi- the “nature and must also consider circum- ate from the Guidelines would include offense” and the “history stances of the “only grounds put those forward prisoner,” of the and characteristics good Commission in faith and which are 4206(a), and take into U.S.C. account arbitrary, irrational, unreasonable, ir- “depreciate whether release would the seri- capricious.” relevant or Report, Joint su- offense,” “promote ousness of disre- [the] pra, in 1976 U.S.Code law,” spect “jeopardize pub- for the Cong. & Ad.News at 359. 4206(a)(1),(2). lic welfare.” Id. §§ 3. Review Provisions 4203(a)(1) requires Section the Act “promulgate part that the Commission rules foregoing As regulations establishing guidelines framework, section 4218 of the Parole Act powers provisions enumerated governing contains the availabil [section 4203(b)].” 4203(a)(1). Although ity Id. review. 18 U.S.C. Congress recognized 4218(c) decisions provides Section of the Act “subjective judgments],” often involve actions of the promulgating Commission in 16, Report, supra reprinted Senate at the in which ‍​​‌​‌​‌​​​‌‌‌‌‌​‌​‌‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌‌​‌​‌​​‌​​​‍procedural in Cong. 337,3 nature, 1976 U.S.Code & Ad.News at it are “reviewable in accordance with sought disparity among to reduce the sim- provisions the of through sections 701 706 ilarly prisoners provide Five, situated fairer of title United States Code.” Id. predictable parole 4218(c); and more 36, determina- Report, supra Joint at re § 18, reprinted tions. at in 1976 printed Cong. Id. U.S. in 1976 U.S.Code & Ad. Cong. Code & Ad.News at 340. See Kills News at 368 (citing Pickus v. United States, 183, Parole, Crow v. 555 F.2d 186 United States Board 507 F.2d 1107 of (8th Cir.1977); 135, 146-48, (D.C.Cir.1974)). (estab A.L.R.Fed. 61 See 5 U.S.C. 553 (1983 (citing authorities). 3 Supp.1985) lishing procedures & governing enactment of Congress’s pro- rules). 4218(d) As evidence intent to agency Act, of Section of the parole dispositions, however, mote provides more uniform sec- that decisions of the deterrence, recognized subjec- Report 3. The special Joint also the eral retribution parole tive nature determinations: of punishment, all of which are matters body competent empiri- judgment, up There is no of of and come with determina- parole knowledge upon cal decision- depreci- tions of what is meant 'would not yet important rely, makers can is pro- ate the seriousness of his offense or parole process the to achieve an aura of fair- that, disrespect mote for the law’ to the ex- just basing punish- ness determinations of possible, tent are not inconsistent with comparable periods ment on of incarcera- findings parole in other decisions. tion for similar offenses committed un- 26, Report, supra Joint in 1976 U.S. parole der similar circumstances. deci- Cong. Code & Ad.News at 358. weigh concepts gen- sion-makers must of granting, denying, expressed promulgation condi- concern that revoking parole un- Guidelines would cause an increase in tioning, modifying liti- 4203(b)(1), (2), (3), gation in the which are district courts: der section naturе, are committed to the thing substantive The other that disturbs me about not Commission and are bill, of the anything this and there is 701(a)(2). right under say any reviewable bill that would there is parole denied, review is when specif Congress has By provisions, these once we write into the law even a ically presumption of reviewa rebutted right of qualified an individual for cer- deci bility Commission’s substantive of the relief, I tain cannot see how we can avoid and, deny parole, there grant or sions to prisoner giving opportunity to test fore, decisions not be reviewed these courts, of that the denial relief in the of discretion. Farkas even for abuse See very apprehensive I am the U.S. States, 37, 744 F.2d 38-39 v. United begin district courts will to receive a (“substantive Cir.1984) decisions” of Com many petitions great upon based unreviewable); mission Wil Garafola proposition that the Parole Board did not 420, (3rd kinson, 423-24 n. 6 & requirements fulfill of the statute in Cir.1983) (“Congress has committed sub denying parole petitioner. of the parole determinations to the abso stantive (1975) (statement Cong.Rec. Commission.”), of the Parole lute discretion Hutchinson); Rep. also id. at see denied, 466 U.S. 104 S.Ct. cert. (statement Rep. Kindness). (1984); Garcia, F.2d at L.Ed.2d (court jurisdiction explaining no to review the exclusion of the 988-89 has Com- only 4203(b) decisions challenge “the is mission’s under section action where APA, itself”). provisions from the review to the also United Addonizio, 178, 188-89, Report Joint stated: States v. (1979)

99 S.Ct. L.Ed.2d It the intent of the Conferees that (decision release committed to discre involving Commission decisions tion); Grossman, denial, Portley v. grant, modification revocation L.Ed.2d 723 shall be considered actions com- (1980) (one per pur- order Rehn Justice Justice mitted to discretion for the 701(а)(2) quist) power deny Five, section (noting pose title States It is the committed to the discretion United Code. Conferees been understanding passing that the exclusion of of Commission section 4218 such provi- post decisions question); on ex Luther v. Moli facto Five, Chapter na, (7th Cir.1980) sions of Seven of title (power Unit- Code, present reflects the ed States law probation under sec modify or revoke respect judi- with the limitations 4203(b)(3) agency dis tion is committed to parole cial review individual deci- cretion). of sions. History 4. Legislative 36, supra Report, reprinted Joint Cong. U.S.Code Ad.News at & history Act legislative the Parole added). (emphasis Congress’s to ex- further intent evidences Drinan, Congressman manager floor empt deci- from review substantive Act, Congress’s the Parole reiterated intent parole. Although grant deny sions to or floor: the House Congress pa- concerned that individual was uniform, role fair actions of the Commission which decisions be both and While 552a, 553, imprecise sections and other recognized also nature violate expressly many Re- sections of APA not ex- parole determinations. Joint subject judi- H.R. port, empted by 5727 are supra at review, practices other are not cover- Cong. Code & Ad.News at 358. Several cial the review sections of APA. Representatives of the House ed members (d) 4218 of the interpreted Subsection of section bill applied and de- parole decisions from excludes individual termined them, whether to deviate from under the Administrative and judicial review presumptive parole established a date. unique Addonizio, Act. Because of the Procedures 442 U.S. at 99 S.Ct. at (“The nature of the work of the Parole Com- 2242 deсision as to when a lawfully mission, bill, reported by both the sentenced defendant actually shall be re- Senate, exempted House and such deci- leased has been by Congress, committed sions from review in the courts under the limitations, with certain to the discretion APA. of the Commission”) (emphasis add- ed). (1976) (statement Cong.Rec. Drinan). Rep. recognize, To must, as we that the Com mission’s substantive decisions Hence, grant or legislative history of the Act deny parole are unreviewable does not nec Congress substantiates our conclusion that essarily answer whether the exempt Commission’s intended to review the interpretation application and Commission’s substantive decisions Guide lines are also shielded from grant deny parole or review. and that these deci- Garcia, sions, therefore, F.2d 988-90 (recognizing are unreviewable even for grant that decision to Garcia, deny parole or abuse of discretion. 660 F.2d at unreviewable but then (discussing considering legislative history). 988 & n. 5 whether

application of the subject Guidelines is review); Scope Dye B. Discretion United States Parole Commission, alone, however, This conclusion Cir.1977)(same); Brown v. Lundgren, 528 jurisdictional does not end our inquiry. (5th Cir.) F.2d (same), cert. grant The Commission’s decisions to denied, deny parole are not rendered in a vacuum L.Ed.2d 283 We must still deter or made without reference to standards. mine whether and to what extent the re Rather, parole each substantive decision is moval jurisdiction of our to review the product carefully of a pro delineated Commission’s deny decisions by Congress cess established imple precludes also our review of the mented Commission. decision-making processes. directed that the Cоmmission establish recognize We that framing the issue Guidelines make determinations manner tends to invite an “all nothing on the except basis of these Guidelines response.” is, might That tempted one “good 4203(a)(1), cause.” 18 U.S.C. §§ reply may a court either review all 4206(c). noted, prescribe As the Guidelines of the Commission’sinterpretations ap the method which the Commission calcu plications of the Guidelines or it re lates the “salient factor” score and the view processes. none these We believe rating. “offense behavior” 28 C.F.R. proper answer lies somewhere be 2.20. The Commission has declared that rendering tween. Before our view on this regional its commissions deviate from issue, however, perhaps as a means of presumptive parole range of the Guide so, doing we think prove helpful it will “[wjhere warrant,” lines circumstances nothing” consider the positions. two “all or 2.20(c); 2.21(c), C.F.R. see also id. §§ congressional mandate, consistent with 1. The No Review Position provide Commission must a statement of See, reasons for such e.g., deviation. 18 The may first view is that we not review 4206(c); 2.20(d), (e), aspect U.S.C. 28 C.F.R. any of the Commission’s decision- §§ 2.26(e). The making processes. Commission’s substantive de- According view, to this grant cisions deny parole Congress or under sec- has committed to discre- 4203(b), therefore, tion only are rendered tion all action taken the Commission factors, it “pursuant” power grant has evaluated the relevant to its deny or after

1547 4218(d). Act”).4 The of the Parole Commis- directives parole. 18 U.S.C. We of the Guidelines is an interpretation reject must therefore the view sion’s that Con- grant decision to ultimate gress placed element of the scopе has no limits on the of power the court no deny parole. granted Commission, Since or that ultimate to review the Commission’s decision-making the Commission’s pro- decision, therefore, power no it has to re- are completely judicial cesses shielded from the Commission which process view review. reaches that decision. legislative history The of the Act rein- syllo- has a argument certain While this conclusions. See Michigan these forces hy- a mathematical gistic appeal based Academy, (examining 106 S.Ct. at 2139-40 includes greater the less- pothesis that the legislative analyze certain history statu- er, necessarily logical or this is not axiom Act, tory provisions of Medicare notwith- question applied to the of compelling when standing Congress that excluded certain Act. the Parole In con- jurisdiction under aspects review). of Medicare decisions statute, begin with struing a we the lan- By excluding under decisions section United, by Congress. guage employed 4203(b) provisions from the review — James, -, v. 106 S.Ct. States APA, Congress did intend to modify (1986); v. 3116, 3121, 483 Vance 92 L.Ed.2d existing then case law on the limitations on Hegstrom, (9th F.2d 1023 Cir. judicial decisions. review of 1986). language of the Act The indicates Report, supra reprinted Joint at scope has limited the of dis- in Cong. U.S.Code & Ad.News at 368 granted cretion the Commission. Under (quoted supra full; section 4218 “re- Act the Commission section 4206 of the present respect flects the law with to limi- may only deviate from the but judicial pa- tations on review of individual 4206(c). “good for cause.” 18 U.S.C. § 21, decisions”); id. at role (1976) (state- See also Cong.Rec. 4861 Cong. Ad.News 1976 U.S.Code & at 353 supra). (quoted Burdick) ment of The Sen. (“The legislation provides a new statement consider certain in- Commission must also determinations, of criteria for parole rendering parole formation and factors agency, are within the discretion of the but 4206(a)(1), determinations. 18 U.S.C. §§ existing case law judicial as to reaffirms (2), (4), (5). 4207(1), (2), (3), language The decisions.”) (em- review of individual case congressional no of Parole Act reveals Luther, added). See also phasis design to to trans- allow the Commission at 75 & n. 5. At the time the full House Farkas, these limitations. See gress passage and Senate considered of (court may F.2d at consider claim Act, Senator Burdick stated: statute); Garafola, Guidelines violate Garcia, legislation provides (same); F.2d at 424 F.2d at 988 (court rulemaking may Guidelines “as view the Commission’s consider whether carefully preserves promulgated applied, procedure, violate intent also Act, Conservation, 4. Section 4218(d) v. Gas the Parole which lim- Tribes Board Oil and review, Cir.1986); (court its not cross-reference the limita- F.2d does statute, sections tions 4206 and may established review not- violations Rather, references sec- withstanding that certain decisions be com- (3); 4203(b)(1), ‍​​‌​‌​‌​​​‌‌‌‌‌​‌​‌‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌‌​‌​‌​​‌​​​‍(2) (b) tion au- subsection Abdelhamid, discretion); mitted “pursuant proce- thorizes to the the Commission Laboratories, (same); at 1450 Scanwell Inc. chapter" dures in this set out (D.C.Cir. Schaffer, v. F.2d 4203(b). deny parole. Act 1970) (same). Michigan Academy, 106 See by- does not the Commission to authorize ("'only upon showing S.Ct. pass preclude judi- sections 4206 and convincing “clear and evidence" a con- provi- cial of violations these review trary legislative should the courts re- intent sions. ” We therefore whether review;' (quoting strict access to provi- the Commission has violated these Cort, Rusk accompanying sions. cases cited in text (1962)). Assinibоine note. See also and Sioux 1548 Clark,

existing 384, limitations review Tarlton v. 441 F.2d Cir.), denied, parole decisions. individual cert. 403 U.S. 91 S.Ct. (1971); 29 L.Ed.2d 713 Thompkins v. (1976) (statement of Cong.Rec. Parole, United States Board Burdick). Sen. (5th Cir.1970). Other courts had Drinan echoed this under- Representative stated that these decisions were reviewable standing: for abuse of discretion. Dye, 558 F.2d at however, kept in mind It should be (recognizing commitment to discretion pre- do not intend to that the conferees reviewing decisions for abuse of discre provisions of under law oth- clude review tion); Billiteri v. United States Board of be, APA. It for exam- er than the Parole, (2nd Cir.1976) 541 F.2d ple, petition for a writ of that habeas authorities).5 (citing Nearly all of the cir might allegedly lie for certain corpus un- cuits, however, agreed that the decisions of of the Commission even if lawful acts the Parole Board were committed to discre parole they involve individual decisions. tion, and (and that the Board’s decisions matter left But that is a to the courts interpretation Guidelines) could not expresses opinion, and this bill no one “arbitrary” “capricious” be so as to vio way regard. in that or the other (and late the Constitution. See id. cases short, emerged the bill which from supra). cited Brown, See also 528 F.2d at any signif- the conference did not alter to 1054; Calabro, 525 F.2d at 661. degree applicability icant of the APA At the time considered the practices acts and of the Parole Act, House version of the Parole Congress- provisions Commission. And those Wiggins (now man our colleague on this bill, recognizing in this contained to a court) expressed his understanding of these degree peculiar limited nature of the language cases in significant: that we find parole process, equitable. are fair and Chairman, Mr. I would like to make a (1976) (statement Cong.Rec. few additional respect observations with Drinan). Rep. indicated, As I review. have among The decisions the various circuits the bill neither adds to nor subtracts Congress passed at the time the Parole any judicial rights presently Act, Congress’s perception of this case enjoyed by an inmate an institution. law, understanding is thus crucial Some feel existing judicial that Commission’s discretion under section view unwarranted. How could we to- 4218(d). The courts at the time of the Act lerate for one moment in country this entirely were not unanimous on the issue arbitrary governmental action? Clearly, parole review of determinations go unchallenged. it should not Existing (then) Parole Board. Several law, courts had to, per- which this bill does not add decisions, held that these and the Board’s challenges parole mits to a decision of a decision-making processes, were unreview board where the claimed action of the See, Pickus, 1113; able. e.g., 507 F.2d at arbitrary, capricious, board is however, denied, dispute, transpar 5. This is somewhat cert. (1977). However, ent. All of the courts at the time the Parole many agreed Act enacted was the Parole courts which had indicated Board’s decisions were committed to discre Board’s decisions were reviewable for abuse See, accompanying tion. text of discretion also stated that the abuse Addonizio, note. See also 442 U.S. at See, e.g., must violate the Constitution. Billi (applying 99 S.Ct. at 2241-42 the former Pa teri, authorities). (citing 541 F.2d at 944 Oth Act). only "disagreement’’ role was er circuits which reviewed determina over whether these decisions were reviewa tions for abuse of discretiоn did not make Compare ble for abuse of discretion. Calabro clear whether the abuse would have to Parole, v. United States Board justify reach constitutional dimensions to rever (5th Cir.1975), denied, reh’g (cit e.g., Dye, sal. 558 F.2d at 1378 (1976) F.2d 1032 with United States v. Nor ). ing Billiteri ton, (5th Cir.1976), F.2d minimum, requirement this the that the from Com- of law. Retreat in violation “good wrong. rendering show be mission cause” for a existing law would “notwithstanding” decision the Guidelines is consistent me that seems to It 4206(c)) (18 U.S.C. a court system American of fairness authorizes to with the demon- the applicant interpretation can Commission’s and parole if a proceeding that the of the application in a Guidelines for abuse of strate their have violated parole authorities If the Commission has discretion. abused rule, parole the authorities own or that in interpreting applying discretion and its arbitrarily, that man should acted have then the it has rendered a deci- does remedy. This bill not denied be scope granted the sion outside of discretion remedy. already the That is create not short, ex- Congress. greater the Ac- existing him under law. available lesser; cludes power the the to exercise argument about excessive cordingly this grant deny parole or discretion does not review, think, I is overdrawn. power the include abuse that discretion (statement (1975) Cong.Rec. decision-making process. in the Rep. Wiggins).6 view, however, Like the first the second Report the follow- The contained Senate ignores significant legisla- parts also of the ing regarding limits on the the statement history. In the Report Joint tive the in decision-making powers Act, Congress empha- repeatedly challenges: the of constitutional context “process” сertain sized that decisions were applied to constitutional test to be to the committed Commission’s discretion right, whether or parole is not one of were, Congressman in the words of in a fashion parole is administered Drinan, “exempted therefore ... from re- arbitrary capricious to nor that is neither in the courts under the APA.” 122 view individual, jeopardizes unfairly nor (statement (1976) Cong.Rec. Rep. society control legitimate aim of Drinan). Report The Joint stated: “It is behavior. deviant intent of the Conferees that the Parole supra, reprinted Report, at Senate judgments pursu- make Commission certain Cong. & at 341. Ad.News U.S.Code (establishing ant to U.S.C. 4206 crite- [18 decisions)

Hence, legislative ], his- and that the language ria for sub- judgments Act do tory the Parole not indicate of those is committed to stance give Commission.” Joint Congress of the intended discretion supra reprinted the Com- Report, an remove at unbridled decision-making entire- processes Cong. Specif- mission’s & Ad.News at 358. U.S.Code ly judicial review. Congress these deci- ically, intended that “judgments” should include as to: sions Plenary Review Position

2. prospec- behavior of each the “institutional id.; parolee,” the “nature and circum- tive fore- upon builds The second view history and the stances of offense goes step farther. going analysis but id.; prisoner,” view, characteristics although the ulti- According general special “concepts of deter- deny parole mate Addonizio, rence, id. punishment____,” retribution and discretion, see be committed to & Ad.News at Cong. 1976 U.S.Code at 99 S.Ct. at at 358; before At a the “relevance of material process decision-making is not. (1975). Although Cong.Rec. Con- Wiggins Congressman also stated: Wiggins thеn, gressman made these statements be- What, right per- of a is the current provisions added the review custody fore he has who feels that son in 4218(d), probative arbitrarily, capriciously, they on Con- with- section been treated cause, perhaps understanding existing of inter- case gress’s in violation of then law. out remedy? Is he nal rules? without are full he is not. The casebooks Of course now. of such cases Commission,” recognizing illegal in 1976 that detention at id. 360; circumstances; at and the Cong. & Ad.News some see our discussion in- U.S.Code 1054-55; determina- Brown, criteria fra)', 528 F.2d at “statement de la 21, reprinted tions, States, id. ...” Abreu Cova Gonzalez v. United By Ad.News at 353. Cong. & 137, F.Supp. (D.P.R.1985) (same).7 U.S.Code 611 140 discretion, judgments to committing these Second, plenary of review the Commis- a zone or field Congress created within decision-making processes sion’s effectively could exercise “ab- congressional nullifies the directive that Garcia, 660 F.2d at discretion.” solute grant deny parole the decision to or is permit not intend to Congress did process committed to discretion. The area. review within decision-making may separated, not be con- may that contention we review all ceptually practically, or from the ultimate parole decision-making pro- aspects of the grant deny parole. to or This decision is abuse of discretion contains two cess for always interprets because the Commission First, problems. Wallace and other serious applies rendering pa- the Guidelines in prisoners who contest the Commis- other 4206(a) role 18 decisions. See U.S.C. § proceed in fed- parole determinations sion’s (and our supra). discussion at section B way petition of a a writ of eral court may To state that a court the deci- review purpose corpus. The of the “Great habeas sion-making process product but not the to release individuals from unlaw- Writ” is effectively scope nullifies the of absolute See, illegal e.g., or confinement. Preis- ful granted by Congress. For if a 475, 484, 411 Rodriguez, er v. court analy- review (1973); Nguyen interpretation sis and of the Kissinger, Da v. 1202 Yen may always second-guess the substantive Cir.1975). however, prisoner, A has no grant deny parole. decision to or We find See, general right parole. to release unacceptable construction Parole e.g., Stroud United States Com- which eviscerates the limitations on (5th Cir.1982); mission, by Congress review established the Pa- Brown, F.2d at 1054-55. As the draft- Chaney, role Act. at See S.Ct. Parole Act stated: “Parole is ers of the (rejecting analysis; recog- similar mode of right neither a matter of for the inmate nor nizing “the principle commonsense of statu- state, grace for the it is a a matter of tory construction that sections of a statute discretion.” matter of administrative Sen- effect, generally give should read ‘to 19, reprinted at Report, supra ate in U.S. possible, every clause ... see United [.]’ Cong. light Ad.News at 341. In Code & Menasche, 528, 538, States v. congressional intent unmistakable (1955)]....”). S.Ct. L.Ed. 615 [ grant deny parole shield the decision APA, provisions of the from the review we 3. Resolution and Jurisdictional Con- agree every potential cannot that “abuse of clusions scope discretion” within the Commission’s “illegal” foregoing critique From the of discretion an deten- of the two constitutes Luther, (also nothing” approaches tion. 627 F.2d at 76 “all or we draw discussing agency agencies 7. In committed to dis- so limited that will remain freе actions cretion, forcefully programs one commentator has stated: to administer their creative- ly. assuming pres- Even have Even the well-intentioned court that courts tige power remedy impossible all such abus- ac- find it to review found, es when demand that courts expending an inordi- tions without give complainant review whenever a ut- analyzing nate its func- amount time ters the formula ‘abuse of discretion’ tions, constricting without val- somewhat judi- to hazard a serious misallocation of discretion, vagaries given id stifling agen- cial cy well as resources as review, including any standard of review congressional programs. capaci- discretion. for abuse of ty bring frivolous individuals Saferstein, (foot- supra at note claims cannot be overlooked. Nor can it omitted). note scope be assumed of review can be juris- our regarding (1974)). conclusions following L.Ed.2d We have men- decision- review the Commission’s tioned the placed Congress diction to limitations upon making processes. the Commission’s decision-making processes. example, For Congress pro- provisions of the a. Our vided that the Commission must take into history legislative Act and its re account certain factors in rendering an indi- carve out intended to veals vidual decision. which, decision-making like the an area (2), 4206(a)(1), (if relevant §§ deny parole, is commit available). Although the relevance of agency discretion and hence unre ted to information considered the Commission even for abuse of discretion. viewable is a Joint discretion, matter committed to Garcia, (and 660 F.2d at 988-89 cases Report, supra, supra). “judg cited This area includes & Ad.News at Cong. 360, U.S.Code a court by involving ments” made the Commission may whether the com- Commission range of a broаd factors which it takes into pletely failed to consider these factors arriving account in at the ultimate decision which by required statute it is to consider Report, deny parole. See Joint in rendering its Similarly, decision. 21, 25-26, 28, supra reprinted in 1976 at Congress provided has that the Commis- 353, 358, Cong. U.S.Code & Ad.News at may sion a render decision “notwith- (see our su in B2 discussion section standing” “outside” upon the Guidelines pra). petitioner follows It that unless a “good showing 4206(c); a cause.” Id. of beyond alleges Commission acted the the Report, supra, Joint 27, reprinted in at granted Congress, scope of discretion a Cong. U.S.Code & Ad.News at 359-60. A jurisdiction has to enter federal court no court jurisdiction has claim consider a definition, By allega tain his claim. a bare that “good Commission failed to show Commission has abused its tion that noted, Congress cause.” As has indicated acknowledges that the Commis “good put that cause” includes reasons judgment, ‍​​‌​‌​‌​​​‌‌‌‌‌​‌​‌‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌‌​‌​‌​​‌​​​‍improper exercised sion has a if forth good the Commission in faith its ly, Congress spe within discretion. has “arbitrary, irrational, which are not unrea- cifically withdrawn such from our cases sonable, Joint capricious.” irrelevant or See, e.g., Garcia, 660 F.2d at jurisdiction. Report, supra, reprinted at in U.S. 990; Brown, 528 F.2d at 1055. See also Cong. Code Ad.News at & 359. note 8. infra b. has, however, Congress delin A court also consider whether beyond eated boundaries which the Com the Commission rendered a decision “out may not A mission act. consider side” the and court Guidelines hence must show “good whether the If Commission has acted outside cause.” a court could not consid Farkas, statutory issue, requirement these limits. er this that the Com 39; supra “good 744 F.2d at note 4. A claim mission show cause” to render a “notwithstanding” the Commission has acted its statu decision outside the Guidelines tory meaningless. typically limits issue of would involves an be To conclude other contrary construction which review de wise would novel and con we Eco Department novo. See Arizona trolling Congress precedent. has written of Security Depart nomic v. United States express into limits the Act on the Commis Labor, (9th actions, ment jurisdic sion’s and hence we have Cir.1986). The interpretation Commission’s tion to review whether those limits have supra been exceeded. See (and, applicable, Act note 4 and ac text, however, infra), companying see entitled note 8 and infra Markair, See, e.g., to deference. See Acade Michigan id. accompanying text. CAB, my, Inc. v. (examining F.2d Cir. at 2136-42 Medi 106 S.Ct. Co., (citing 1984) Aerospace NLRB v. Bell precludes ben care statute which review of 267, 274-75, “determinations,” 1761- efit the “meth- U.S. S.Ct. however, made). category, latter such decisions od” recognized follow the However, has failure to Guidelines renders its “judgments” make often made must decision one outside the Guidelines Commission such matters “good Guidelines and the Commission applying must show circumstances of the nature cause” as the for that action. for- paraphrase To history and characteristics offense mer Congressman prisoner a Wiggins, has indicated that “the prisoner, remedy should not he be without a where judgments is committed those substance can show a “violation” of a non-discretion- of the Commission.” Id. to the discretion (i.e., ary “rule”). Cong.Rec. standard Cong. Ad. U.S.Code & reprinted at (1975) (statements Rep. Wiggins).8 determining whether the News at Finally, jurisdic c. court has “gone outside” the has Guide- tion to consider whether the Commission lines, at U.S.Code id. See, e.g., violated the Constitution. Califa 358, therefore, it is Ad.News Cong. & Sanders, no v. 99, 109, S.Ct. inquire for the court to wheth- appropriate (1977); Johnson v. 51 L.Ed.2d 192 fact made a er the Commission Robison, Specifi- its discretion. within “judgment” 1160, 1165-66, (1974) (legis inquiry is addressed to cally, the court’s history lative in that no case indicated in the Commission’s involves whether tent preclude constitutional review under among range judgment exercise statute); Garcia, particular F.2d 660 at options, or choices or involves possible jurisdiction 988. therefore have to en We which not a matter does plain violation of tertain that the a claim Guidelines violated See Abdel- and choice. of discretion admit post the ex clause, and this and other (informed hamid, judg- 1450 774 F.2d at facto claims constitutional are reviewable de officials ments of administrative unreview- McConney, States v. United novo. 728 is committed to discre- action able where denied, 1195, (9th Cir.), cert. F.2d 1200-01 tion). into If the decision falls the former 824, 101, 469 105 L.Ed.2d S.Ct. 83 46 merely the has exer- category, Commission (1984). Similarly, a court could consider a judgment within its discretion and cised a Garcia, claim the action in that See cease. judicial review must denying parole granting or was so arbi (applying this of 660 F.2d at 990 method Luther, trary process. to violate due classification of as analysis dispute over behavior”); Brown, Billiteri, 76; 944; F.2d at at 627 F.2d at 541 “offense 528 F.2d Zannino, 687, 690-91; Senate (same). the 531 F.2d If the decision falls into 1055 Commission, agencies, other is sion does not like admit discretion 8. The regulations long choice, own so thus bound its and the has denied they See as remain in force. United States request good prisoner’s the to show cause Skaughnessy, contrast, v. 347 U.S. ex rel. Accardi 260, 267, we such deviation. believe 503, 499, L.Ed.2d 74 S.Ct. 98 committing provision that the Commission deci regula Guidelines are unusual 4218(d)) (section sions to discretion tions in that has authorized the Com (sec provision requiring good the cause when shows mission to exceed them it 4206(c)) should be construed tion so "good cause.” effectively provision the that one nullifies oth Judge Hall acknowl- The concurrence (every provi Chaney, er. 105 S.Ct. at 1655 See jurisdiction edges deter- that a court effect). given sion should be See in statute Commission has shown mine whether the Academy, Michigan also 106 S.Ct. at 2136- rendering good cause for a decision outside Further, contrary the statement 42. 4206(c), 18 U.S.C. § see Hall, Judge ap we do not the concurrence jurisdiction has no but maintains a court ply standard. See an abuse su to determine Commission has ren- whether the (so stating). pra Under that 3a stan section dered a decision outside Guidelines dard, will reverse if it finds a clear er a court According good and hence cause. must show Fjelstad judgment. See v. Ameri ror in view, to this Commission's statement Co., 1334, Motor F.2d can Honda binding has followed the Guidelines (9th Cir.1985). jurisdiction A court has no court, though a federal even the Commis- second-guess judgments by the Commission. plainly provi- sion has a Guideline violated supra in 19, Report, III Cong. & Ad.News at U.S.Code EX POST FACTO CHALLENGE TO INS, Wong v. Wing Hang generally THE GUIDELINES Cir.1966) (2nd (Friendly, 718-19 F.2d We next consider Wallace’s conten J.). application tion that the of the 1983 Guide lines, amended, post violated the ex fac Application Challenges to clause Wallace’s Constitution. C. to the Commission’s Parole Classifi- “Every changes law that punish cation ment, greater punishment, and inflicts a crime, than the law annexed to the when Applying jurisdiction foregoing post the ex committed” violates facto rules, jurisdictiоn we to enter al have no Bull, clause of the Constitution. Colder v. Wallace’s claim that the Commission tain (3 1798) L.Ed. 648 Dall. its his classifying discretion in “of abused (iquoted v. United States Parole Rifai behavior” as with a fense “Interference Commission, (9th 586 F.2d Cir. only Flight Crew.” We consider 1978)). Roth, previous Our decisions in whether Commission exceeded 836, 840; Rifai, F.2d 586 F.2d at deciding scope its discretion in that was and the decisions in the majority vast proper of classification for Wallace’s circuits, see, e.g., Inglese v. United other fense. Commission, States Parole 768 F.2d Baer, (7th Cir.1985); 934-39 v. scope Dufresne The Commission did not exceed (11th Cir.1984), discretion, any provision its violate — denied, cert. U.S.-, Act, Parole or render a outside (1985); Stroud United States L.Ed.2d 49 making Guidelines in determina- Commission, (5th permit Guidelines the classifica- tion. Cir.1982); Hayward v. United States Pa of an tion offense as “Interference with a Commission, role Flight attempted Crew” “the conduct or denied, Cir.1981), cert. 456 U.S. potential creating signifi- has conduct for a (1982); L.Ed.2d 454 Warren S.Ct. safety passen- risk an cant aircraft Commission, United States (242)(a). gers....” 28 C.F.R. 2.20 The de (D.C.Cir.1981), cert. F.2d 193-97 found Commission that Wallace’s offense nied, 1454, 71 potential the injury had to cause death (1982), but see United States L.Ed.2d 665 passen- destruction to an aircraft and McCall, ex rel. Forman v. gers. Commission’s did determination (3rd Cir.1983), have held the violate a mandatory not or non-discretion- guidelines purposes not for the laws standard, rather, ary judg- involved a post ex Congress clause. has That facto among range possible ment choices placed on the boundaries Commission’s dis options relating severity of to the Wal- not transform the cretion does Guidelines offense. pointed lace’s Wallace has to no we stated in Rifai, into law. As the Guide in provision removing the Act or “procedural guideposts Guidelines lines are without characteristics of laws.” 586 F.2d at the classify discretion the Commission to omitted) (citing Ruip (footnote v. Unit category. his offense holdWe States, Cir.1977)). ed F.2d 1331 scope the Commission acted within the granted by Congress and hence persuaded by argu- We are not Wallace’s our review of the Commission’s classifica- Guidelines ment that the are laws because complete.9 allegedly presumptive tion of Wallace’s sets offense is Commission challenging argument as 9. Wallace has not classifica- lace’s the constitution- contended that the classification, arbitrary capri- reject of his crime ality tion was so of his we that chal- pro- as to amount of due cious to a violation lenge. Even if Wal- cess. we were to construe HALL, rough- HOLCOMB guidelines CYNTHIA Circuit parole dates within See cases. percent Judge, Judges of all eighty-five with whom Circuit GOOD- ly Workload WIN, Report ANDERSON, Parole Commission J. BLAINE and KO- High- Trends: Statistical and Decision concurring in join, judgment: ZINSKI See also Years 1981-1983. lights Fiscal agree majority I the result the has with Forman, F.2d 861 & (collecting n. 21 reached, majority’s and with the conclusion high frequency have noted cases which jurisdiction that we have to review consti- within the Guide- decisions of Commission statutory challenges tutional and to Parole Sentencing Eskridge, But see lines). However, decisions. I dis- Commission Be, To To Be Or Not Fed.Pro- Guidelines: agree majority’s with the conclusion that 1986) (March (discussing bation jurisdiction to review claims that our ap- indicating that the Guidelines are port has violated the Guidelines or inconsistently). The Commission re- plied regulations its own under Administra- presumptive pa- to set the discrеtion tains depends Procedure Act on “whether tive above or below Guidelines role dates decision involves the ex- 4206(c). “good cause.” for judgment among range possi- ercise Rifai, F.2d at 699 & n. 7. As See noted, adopted pro- options, plain were choices of or involves a the Guidelines ble consistency greater mote violation of a matter which does not admit 2.20(a). See making. This ob- C.F.R. § of discretion and choice.” Judicial review not achieved if the Com- jective would allegations that the Commission has vio- presumptive parole mission did not set regulations inappropriate lated its own high per- dates the Guidelines within specified by when statute Inglese, centage of cases. 768 F.2d at granting that Commission decisions or de- by the 937. the discretion retained Given nying parole are committed to dis- Commission, frequency with which cretion. Guidelines are followed does convert purposes into the Guidelines laws I post ex clause. facto (APA) Procedure Act The Administrative IV exceptions general provides two to the rule subject that administrative actions are CONCLUSION judicial review: application to Wallace of the 1983 Application; definitions amended, did not violate post ex clause of the Constitution. (a) Procedure facto Administrative Act] [The The did not act outside Parole Commission applies, according provisions to the there- classifying in of- the Guidelines Wallace’s of, except to the extent that— Flight fense as “Interference with review; (1) preclude judicial statutes jurisdiction no to enter- Crew.” We have tain Wallace’s claim that the Commission (2) agency agen- action is committed to classifying abused its discretion in his “of- cy by law. category fense behavior” seven. We previous only overrule our decisions to the Preserve 701(a). In Citizens to § extent that we have held that Commission Park, 402, Volpe, 401 U.S. Overton Inc. v. granting denying parole decisions 814, (1971), the 28 L.Ed.2d 136 S.Ct. subject judicial for an abuse of review excep- Supreme analyzed these two Court discretion.10 Secretary they applied to the tions decision to run a Interior’s claim that his AFFIRMED. 90; O’Brien, 55; Tatum, 963; Wyatt at 591 F.2d at Torres-Ma- 786 F.2d at Commission, cias, 1216; Roth, v. United States 730 F.2d at 724 F.2d at 839- 1089, Cir.1977). 1063-64; Hatton, (9th 40; Williams, F.2d at F.2d highway through public park was not purposes discretion for of section 701(a)(2) subject judicial review. of title United States Code.” This statement is the “clear and convincing case, there is no indication that In this legislative evidence” of a prohibit intent to judicial Congress sought prohibit re- judicial necessary preclude such certainly is most no view and there 701(a)(1). review under section See Farkas convincing “showing ‘clear and evi- States, v. United Cir. legislative dence’ of a ... intent” to re- 1984). Bell, Briscoe v. 432 U.S. judicial Abbott strict access to review. Cf. 2428, 2431-34, 97 S.Ct. 53 L.Ed.2d Gardner, Laboratories v. 387 U.S. (1977) (holding that determination or 1507, 1511, 18 L.Ed.2d S.Ct. 681] [87 certification of Attorney General under (1967). 4(b) section Voting Rights Act, Similarly, Secretary’s decision does 1973b(b), U.S.C. subject was not judi- exception for not fall within the action 4(b) cial review when provided section “committed to discretion.” This such actions were “not any reviewable in very exception____ leg- is a narrow court”). legislative prohibit intent to history of the Administrative islative judicial review would perceive be easier to applica- it Procedure Act indicates that is if, Act, the Parole had referred in those rare instances where “stat- ble 701(a)(1), to sеction rather than section utes are drawn such broad terms that 701(a)(2), but the reference to section given apply.” in a there is no law to case 701(a)(2)is sufficient. There is no need to S.Rep. Cong., No. 79th 1st Sess. 26 application consider the 701(a)(2) of section exception because review in at S.Ct. 820. In Heck 701(a)(1) applicable. section See United 821, 105 Chaney, ler v. 470 U.S. S.Ct. Erika, Inc., 201, 211,102 States v. 456 U.S. (1985), expounded 84 L.Ed.2d 714 the Court 1650, 1655, (1982) S.Ct. 72 L.Ed.2d 12 on the distinction it had drawn Overton (Court concluded that its “task was at an Park. end” legislative once it found pre- intent to [language The above from Overton judicial review). clude questions Park answers several of the ] jurisdiction Federal courts have to re language 701(a)____ raised of § view claims that the Commission’s actions First, clearly separates exception violated the constitution. Johnson v. Cf. provided (a)(1) (a)(2) from the ex- Robison, 361, 366-74, ception. applies The former when Con- 1160, 1165-69, (1974) (find gress expressed preclude an intent to ing jurisdiction to review constitutionality applies review. The latter in dif- legislation veteran’s benefits even circumstances; ferent even where Con- though prohibited statute judicial review of gress affirmatively precluded has not decisions). certain administrative Federal view, review is not to be had the stat- jurisdiction courts also have to review alle ute is so that a court would drawn have gations that the Commission has violated meaningful against no standard which to failing Parole Act to consider cer judge agency’s exercise of discre- factors, tain see 18 U.S.C. §§ tion____ construction satisfies the [T]his setting presumptive parole date outside principle of construction men- good cause, of the Guidelines without see еarlier, identifying by separate tioned 4206(c). 18 U.S.C. ‍​​‌​‌​‌​​​‌‌‌‌‌​‌​‌‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌‌​‌​‌​​‌​​​‍These are 701(a)(2) ap- class of cases to which § on limits the Commission’s discretion over plies. jurisdiction. which we have 105 S.Ct. at 1655. 1331; Neagle, see v. Garcia considering Congress’ 983, (4th Cir.1981), denied, In this case we are 988-89 cert. Act, 1153, in statement the Parole U.S.C. S.Ct. 71 L.Ed.2d 309 4218(d), grant- jurisdiction that Commission actions This is where our ends 4218(d) ing denying parole expression or are “committed to however. Section is an ing agency component re- an decision is a preclude judicial intent to legislative 701(a)(2) the section determination of courts of the deprives federal view which agency whether a matter is committed to decisions authority to review discretion law. See v. APA, Abdelhamid Ec- discretion under for an abuse kert, (9th Cir.1985); regula- mandatory Guidelines or even when Corp. Ness v. .Investment United States issue. are at tions Department Agriculture, 512 F.2d (9th Cir.1975). If there are no stat- II utory regulatory or directives then a court however, past continues majority, The agency conclude that action at stating that: logical conclusion issue falls into that narrow class of cases must, that the Com- recognize, as we to apply. in which there is no law to grant to decisions mission’s substantive Abdelhamid, However, 774 F.2d at 1450. does not parole are unreviewable deny or statement in Court’s Heckler v. Cha- the Commis- necessarily answer whether 701(a)(1) ney, that section and section are interpretation of the Guidelines sion’s 701(a)(2)provide separate exceptions ju- to review____ We must also shielded review, majori- dicial demonstrates that the and to what extent whether still consider ty’s inquiry into the existence and mandato- jurisdiction our to review removal of ry regulations nature of should nоt be un- grant or decisions the Commission’s Congress expressed dertaken when “has an precludes our review of deny parole also preclude judicial intent review.” making pro- the Commission’s Congress specified S.Ct. at 1655. Once has cesses. that a decision is committed to dis- conflicting relies on majority then cretion we should not dissect that decision The regarding judicial components review the into its smallest then re- statements components legislative history of the Parole Act to con- view each of the to determine intended for courts to it is “committed to clude that Farkas, (Commis- are law.” See 744 F.2d at 38 decisions which review Commission findings “necessary sion’s com- factual governed by mandatory standard under ponents of the Commission’sultimate deci- regulations, or other but not Guidelines deny parole subject sion to and are not those decisions which Guidelines review”).1 [judicial] regulations permit the Commission other range analysis This is trou- “a of choices.” Holding jurisdiction have that we re- respects. blesome in several governed by Commission decisions view regu- mandatory regulations whether there are APA inquiry

The into under though Congress specified look to in even a court review- lations which (Joint places emphasis Cong. majority undue on & Ad.News at House-Sen- drawing history Report) legislative its distinc- ate Joint Re- [hereinafter Conference mandatory regula- port). majority places great emphasis Guidelines or tion between permit portions legislative history which the Commission indi- tions and those Although legislative range Congress’ judicial histo- of choices. cate concern that determining ry abrogated, wheth- completely should be considered Con- nоt be convincing er is clear and evidence gress judicial there believed review would remain judicial preclude legislative re- a view, intent adoption the same as before the of the Pa- Community 19, 36, Insti- See, Nutrition see Block Report role Act. Joint tute, Cong. in 1976 U.S.Code & Ad.News at (1984), legislative 368; histo- (1976) (statement Cong.Rec. ry statu- not be used to contradict a should Drinan); Cong.Rec. Rep. of (1975) (statement tory directive. Wiggins). Rep. But sec- 4218(d), adopted, precludes re- tion history legislative discussed thor- Much of the view of Commission decisions majority opinion oughly demon- in the legislative history, espe- deny parole. The Congress’ strates intent limit congress- cially of individual the statements decisions. view of Commission senators, Cong., not be used to circum- men or should e.g., H.Conf.Rep. 94th No. 25, 36, this directive. U.S.Code vent 2d Sess. in 1976 deny parole is before minimum time for eligibility the decision served). has been agency discretion creates two committed to First, ap- problems. under this practical If the federal Parole Act is found to speci- difficulty will have proach, liberty interest, create then question the of action which are not fying areas prisoner is whether the has been afforded contemplated subject judicial review “quantum the quality” process and of due A is by the APA. statement that a matter particular in this situation. See Green- giv- committed to discretion will be holtz, 442 U.S. at 99 S.Ct. at 2106 level, but en effect at the ultimate Eldridge, Mathews v. (citing the decision is broken down into its when 893, 903, (1976)). S.Ct. component parts the result be that the Although the availability subjected judicial actually decision is process under both the due analysis out- Second, view for an abuse of discretion. by lined Supreme the Court Greenholtz agеncies adopt will have disincentive majority’s and the analysis under the APA regulations guiding their decisions because is determined the existence mandato- which would not otherwise be sub- matters ry language, inquiry the into the amount ject review would become re- quality process and required due pro- if a court determines that the viewable tect liberty specified interest in Green- regulation mandatory. is holtz is a more deferential review of the

Commission’s actions than the abuse of Ill discretion review the majority apply would APA. under the process The due clause of the fifth provides appropriate amendment means Because Wallace has not claimed that the addressing that claims application Commission’s of the Guidelines failed to the Guidelines or its follow process rights, violated his due I find it regulations. own unnecessary to process undertake the due inquiry concurring opinion. in this approach, question the first is Under liberty the Parole Act creates a whether KOZINSKI, Judge, Circuit with whom subject process interest which is to due Judge J. BLAINE Circuit ANDERSON protection. Supreme Court has held joins, concurring judgment. in the mandatory language that in a Nebraska liberty only statute created a is fair to start the concession interest with It protected process today’s opinion product is the which was under due that invit- fourteenth amendment. By large of the error. clause ed court follows v. Inmates suggested Greenholtz Nebraska Penal path government 1, 12, Complex, and Correctional argument; its brief at oral no one complain L.Ed.2d should therefore be heard to that Supreme adequately preserve Neither the Court nor this court the court fails to Yet, languаge prerogatives. of Parole has determined whether majority opinion troubling sufficiently the federal Parole Act is man- in a num- perpetuates datory liberty ways: myth to create such a ber of it interest that Compare Sol- constraining under the fifth amendment. laws executive action mean Elsea, (7th omon v. nothing they judicially unless enforce- Cir.1982) able; with (finding interest) pieces legisla- it bits and liberty elevates Crawford, history unambiguous n. over clear and Shahid 5 tive Cir.1979) statutory language; gossamer (noting language draws litigation. invite I write mandatory federal Parole Act is less than distinctions Greenholtz, reading respond majority’s not to to the analyzed the Nebraska act law; concurrence, Judge I avoiding the federal Hall’s issue of whether join, lucidly persuasively. liberty Parole Act ever creates a interest does this finding liberty My majority’s concern the that there is no interest observations implica- the law will be followed. An Act of Con- the unfortunate methodology and land, gress is the approach. law a law all its tions of uphold federal officials are sworn to wheth- I. they judicial, legislative er be the recognizes, supra p. government. executive branches of majority As the (1982) (judicial); the de- Act of 1976 commits U.S.C. U.S.C. § the (1982) (legislative); deny parole to 5 U.S.C. cision whether §§ (1982) (executive). dis- The first and unreviewable the Parole § 4218(b) (1982). important far the most assurance that the 18 U.S.C. cretion. rejects “syllogistic” the diligence law will be followed lies the court nevertheless necessarily precludes good administering faith of conclusion that those it. process by which the Com- overwhelming of “the For the mil- review number of the Supra p. that decision.” mission reaches lions of decisions made оur federal accept reluctance to 1547. The court’s the only government every year, this is the logic is on of the statute based its observa- system grid- assurance. Our would be scope the Act limits “the of discre- tion that locked executive officials could not be granted tion the Commission” and “the Pa- carry out the their trusted law whenever congressional design reveals no role Act escape judicial actions review. transgress Commission to allow the these Congress rely where chooses not to Even limitations.” Id. The court concludes that alone, acting good on the official’s faith judicial necessary keep review only review is not available going Id. See also astray. safeguard. option provide One is to admin- supra p. 1551 (“[i]f a court could not consid- appeals istrative within executive issue, requirement er this that the Com- branch itself. Formal and informal review ‘good mission show cause’ to render a deci- correct within the can errors ‘notwithstanding’ the sion Guidelines would law, of discretion and ensure curb abuses meaningless”). product the decision is not the of a unspoken powerful prem- The court’s single passion prejudice. official’s is that executive branch officials cannot ise provides Parole Act for such internal ad- stay and that be trusted within law ministrative review. It establishes a three- authority empty on their limitations Appeals National Board to which member judicial- paper they unless can be words on appeal prisoners such as Wallace deni- not, view, my This ly enforced. does als, parole. modifications or revocations of ap- comport reality; nor does it show with 4204(a)(5), Under §§ of a coor- propriate deference to officers regulations, appeal may Parole Commission government. of our dinate branch misapplication guide- be based on assertion, lines, or fail- Contrary to the court’s a statu- mistaken conclusions fact proper procedures.1 More- tory on executive action is not ure to follow limitation over, reopen meaningless judge Regional rendered because a Commissioner it; any upon nor is a case at time based on new informa- can’t be called to enforce 2.28(a) (1985). “in- tion. 28 This only way to ensure that C.F.R. (5) regulations provide prisoner That the Commission did not fol- 1. The that a ...; may appeal any procedure correct low following grounds: (6) significant ex- There was information in (1) incorrectly guidelines ap- That the were istence but not known at the time ...; plied hearing; (2) guide- a decision (7) That outside compelling why There are reasons supported by lines was not the reasons ren- a more lenient decision should be stated; or facts as grounds compassion. dered on (3) especially mitigating That circumstanc- 2.26(e)(1985). 28 C.F.R. decision; justify es ... a different (4) errone- That a decision was based on ...; ous information flexibility placing assure denies provided to appeal process is ternal decision, to be sure constraints on executive action every while avoid- fairness adminis- guidelines ing delay judicial are the cost and law and review. that both S.Rep. country.” fairly across the tered II. 15, re- 94-369, Cong., 2d Sess. 94th

No. Cong. & Ad. U.S.Code printed in 1976 notes, Judge majori- As Hall further 335, 336.2 News ty places legisla- far too much reliance on history. Supra pp. 1556-57 n. tive 1. The can and does Finally, Congress itself legislаtive history fact of the is that matter branch of executive monitor the behavior support any proposi- can cited to almost empty an threat. This is not officials. tion, frequently propensity is. The committees congressional Proliferation of judges past statutory language to look burgeoning subcommittees, by aided legislators. is well known It creates staff, has led to extensive congressional strong manipulating legisla- incentives for micromanagement of executive history through tive achieve the courts study describes this A recent practices. during results not achievable the enact- as follows: phenomenon potential process. ment for abuse is scope of expanded the its Congress has (now Justice) great. Judge per- Scalia has activities to for executive branch concern against suasively relying warned on de- opera- minute details of include the most legislative reports: tailed discussions dictating the range These tions. authoritative, opposed calendars to as to the style wall size [T]he weight overruling Treasury Department persuasive, Report depends a deci- payments entirely upon a mailbox address for how reasonable it is to sion on taxes, assign- requiring the of tobacco assume that was reflected in [its view] government attorney adopted. ment of an to a I frankly the law Stillwater, office in Okla. it is ever reasonable to as- doubt details, opposed sume that the to the Lipson, Fitzgerald R. & G. Pork Barrel: purpose, broad outlines of set forth a Unexpurgated Grace Commission report come the attention committee Congressional Profligacy xxv Story of of, approved by, much less are the house Inst.1984); (Cato 92-- see also id. at which enacts the committee’s bill. And I legislative (citing examples numerous con- think it time courts to become micromanagement). fact that routine defer- cerned about the course, is, yet review of another Judicial reports, ence to the detail of committee fidelity statutory way to assure expansion in predictable and the that de- it is not the regulatory standards. But produc- tail which routine deference has me, way. Congress, it seems to only ed, converting system judicial are option judicial to invoke should have the system into a of committee- construction review, oversight or leave rely on its own prescription. staff officials. entirely to executive matters (D.C. FERC, F.2d 7-8 Here, Hirschey execu- v. Congress expressly left to the Cir.1985) (Scalia, J., concurring) (emphasis deny tive branch the decision out, omitted). A footnote to Judge points original; As Hall footnote parole. choice, vividly demonstrates the dan- refusing passage3 the court this by to honor that personnel providing compre- actions in view view of federal 2. A framework available). already of extensive remedies system administrative remedies hensive specifi- may itself foreclose review not footnote, quotes F.2d at 7-8 n. 3. This Lucas, cally See Busk v. authorized. "illuminating exchange between mem- ... 367, 388, 103 S.Ct. Senate, of floor de- in the course bers of (1983) (comprehensive nature L.Ed.2d 648 on a tax bill”: bate declining service remedies reason for of civil My question, ARMSTRONG: ... Mr. Heckler, remedy); to create Veit of the Commit- take chairman [the 1984) (no Cir. by surprise, Is it is this: Finance] tee on according legislative reports control- No оne ger of bothers to hoped-for reconcile this ling weight: Reports usually are written the language result with of the law about legislators; by lobbyists, not few staff or to be enacted. Taken literally, nay- all this reports; they any legislators read the saying 4218(d) would read section right out not voted on the committee whose views existence; if the law is to remain un- they supposedly represent, much less changed, why bother passing the section at Representa- the full Senate or House of Surely all? predictions such about how tives; they cannot be amended or modified likely courts are interpret a statute legislators on the floor who dis- should not self-fulfilling prophe- become agree expressed therein. with the views legislator cies. If a by partic- troubled reports Committee that contradict statu- provision bill, ular try a he should to tory language purport explicate or the modify during or excise it the enactment meaning applicability particular or statu- process. Courts should not allow individu- tory provisions legisla- can short-circuit the legislators al usurp their staffs to leading ap- process, tive to results never uniquely judicial function statutory in- proved by Congress or the President. Of terpretation by countenancing unexplicated course, goes doubly this all for floor state- assertions that the law to be enacted won’t legislators. by ments individual anyway. mean much legislative history by None of the cited today specifically the court addresses the III. 4218(d)which, by any effect of 18 U.S.C. § Having bypassed clear lan- reading, appears preclude fair judicial guage in favor of nebulous assertions in aspects review of all of the Commission’s legislative history, the court confronts deny parole. decision to or The most a dilemma that those legisla- who wrote the that can about excerpts be said these reports legislative tive did not have record is that to deal with: how their authors impression labored under the to reconcile that the Pa- the clear mandate of section 4218(d) role Act would not affect review. with the assertions that the Parole President, intention the chairman that the Inter- Mr. ARMSTRONG: Mr. did mem- nal Revenue Service and the Tax Court bers of the Finance Committee vote on guidance and other report? courts take as to the inten- the committee tion of from the committee re- Mr. DOLE: No. port accompanies President, which this bill? Mr. ARMSTRONG: Mr. the rea- so____ certainly hope Mr. DOLE: I would perhaps appar- son I raise the issue is not President, surface, Mr. just ARMSTRONG: Mr. will ent on the and let me state ____ report Senator tell me whether or not he it: The itself is not considered report? by wrote the committee the Committee on Finance. It was report? subject Mr. DOLE: I Did write the committee not to amendment the Commit- Mr. subject ARMSTRONG: Yes. tee on Finance. It is not to amend- No; Mr. DOLE: Senator from Kansas ment now the Senate. report. did not write the committee any Mr. ARMSTRONG: Did Senator ... If there were matter within this re- report? port disagreed write the committee which was the Sena- Mr. DOLE: I have to check. by majority tor from Colorado or even a Senators, Mr. ARMSTRONG: way Does the Senator all there would be for no us any change report. know of Senator who wrote the commit- I could not offer report? tonight tee an amendment to amend the commit- might identify report. Mr. I DOLE: able to tee one, administrator, any jurist, but I would have to search. I was ... [F]or bureau- written, during crat, practitioner, here all the time it was tax others who might say, carefully might I upon worked with chance the written record of worked____ they proceeding, just staff as let me make the President, law, point Mr. ARMSTRONG: Mr. has that this is not the not vot- was. Kansas, on, amendment, subject the Senator from the chairman of ed it is not Committee, discipline Finance read the commit- we should ourselves to the task report entirety? expressing congressional tee in its intent in the stat- working Mr. DOLE: I am on it. It is not ute. bestseller, 19, 1982). working Cong.Rec. (daily July Ibut am on it. S8659 ed. “judgment” fact made a within its judicially discre- decisions Specifically, inquiry the court’s Seeking to serve two tion. is all. after viewable masters, up faithful addressed to whether the Commission’s opinion winds hand, .plainly judg- the law the exercise of the one decision involves neither. On 4218(d), contrary among range possible by section ment choices changed is hoped. legislators apparently options, plain violation of what some involves hand, of section the effect a matter which does not admit of discre- the other On blunted, 4218(d) shielding from choice. tion and all, some, aspects (citation p. omitted). Supra gives This The result decision. Parole Commission’s litigants and the district courts little useful pedigree. its mixed reflects me, are, it seems to few There guidance. that could not Parole Commission draw a distinction opinion The seeks to decisions ground. challenged on either fairly be claims that the Commission between discretion, scope of its outside the acted case, example. peti- Take this reviewable, that the and claims which are extortion, tioner here was convicted of use discretion, its abused еxplosive felony, of an to commit a pp. e.g., supra 1550-51. are not. possession unregistered of an destructive is, best, In counterintuitive. distinction device. Because the criminal conduct in- basically irrec- trying to reconcile what airplane, an the volved Commission classi- up positions, the court has come oncilable fied his offense as “Interference aWith extremely difficult a standard that is with Flight regulations provide Crew.” The two clog the courts will therefore apply category: levels of offense behavior brought prisoners, many hav- cases with attempted “if the conduct or conduct has colorably fall within ing claims that at least significant potential creating safety for a reserved for review. the class passengers, grade risk to an aircraft or as attempt to flesh out this The court’s 2.20.242(a). Category Seven.” 28 C.F.R. § Thus, help the doesn’t much. standard “Otherwise, grade Category Two.” Id. petitioner that “unless a al- court cautions 2.20.242(b). graded The Commission the § beyond acted leges the Commission offense as a seven. Congress, granted by a scope of discretion jurisdiction to enter- federal court has no possible gives Wallace’s case rise to two Moreover, p. 1551. Supra claim.” tain his action: objections to the Commission’s has allegation that the Commission “a bare first, incorrectly clas- that the Commission acknowledges that abused its discretion his conduct as “Interference with a sified judgment, has exercised a the Commission Crew;” second, (even Flight ac- discretion.” Id. improperly, if within its Flight cepting the “Interference with a surely (emphasis original). This will deter classification) the. Commission Crew” prisoners charging abuse of discre- graded the offense as a two should have They allege will instead that tion. attempted “the conduct or conduct because scope “beyond acted Commission potential creating sig- for a not [did have] discretion.”4 [its] safety passen- risk to an aircraft or nificant contention, it means for majority explains gers.” support what In of the first scope of beyond argues to act the Commission that his offense should Wallace following extortion, terms: its discretion a crime of have been classified as convicted, actually he was and which determining whether the Commission categorization carries an offense behavior there- “gone outside” the has 2.20.322(a). Support- fore, of five. 28 C.F.R. appropriate for the court to it is is the fact that the ing the latter contention the Commission has inquire whether 594, 595, Kerner, however, prisoners Presumably, pro se merely of court will not be thrown out invoking wrong Haines incantation. long along before court early, found somewhere the line the were explosives danger to the pose any realistic will have to consider whether the Commis- they could and, any aircraft, totally or crew offense. passengers sion has misclassified the operative. case, even allegedly why were court it is Because the does not tell us here, with the classification those satisfied objections to the Com- These two participating opin- in majority of us not quite different from action are mission’s in the dark stan- ion remain even as to the effect, is, in that the other. The first each dard which conclusion was reached. guidelines, misapplied its own Commission question a thought I was would have what unexplicated Equally ap- is the court’s law, The second chal- not of discretion. proval of the Commission’s determination findings judgments as well as lenges potential that “Wallace’s offense had the determination that the Commission’s fact: injury or death and to an cause destruction endangered passengers, conduct Wallace’s passengers” “in- aircraft and because this both of and crew. The court resolves plane possi- judgment among range volved a questions single paragraph: in a these options relating ble the se- choices found that Wallace’s of- The Commission verity Wallace’s offense” there- and was potential injury or had the to cause fense scope granted fore “within the of discretion aircraft and destruction to an death by Congresss.” Supra p. 1553. Would The Commission’s determi- passengers. court have reached the same conclusion the mandatory did not violate a nation had uttered this as to a finding standard, rather, non-discretionary wholly defendant convicted of an offense among judgment range involved forgery, unrelated to aircraft such as relating possible options choices and 2.20.331, importation illegal C.F.R. severity of Wal- Wallace’s offense. aliens, 2.20.402? id. Or what if Wallace pointed provision in to no lace merely had written a letter or made a removing discretion from the Guidelines telephone threatening call exist- crank classify his in this offense totally ence of a nonexistent bomb? Will category. We hold that the Commission Commission, all such matters be left to the scope acted within so, precisely and if what is the area the by Congress hence our granted maps judicial scrutiny? court out for of the Commission’s classification view summary fashion in which court complete. Wallace’s offense is diffi- resolves Wallace’s claims masks the p. (footnote omitted). Supra culty applying the standard enunciated adequately explain today The court does not its to his I courts even case. fear that example, though conclusion. For even even more cases will have trouble future actually apply pronouncement trying Wallace was convicted extor- of an en tion, approves panel the court the Commission’s of this to me banc court. It seems classify inflicting complexi- as layer decision to his offense “Interfer- we are another Flight ty litigants already with that because ence Crew.” Was on district courts and rules, doing acting tests, so the Commission was overburdened with standards scope variety of its Because and a within discretion? of review of other fine dis- intuitively the Commission did its discre- tinctions that are not not abuse obvious. Judges lawyers study opin- Or because will today’s tion? the Commission was long seeking guidance right a matter of law? Would result ion and hard type actually resolving been the same if had can have the Commission be used uncertainty disputes. always, the conduct as demand for ran- As will classified som, 2.20.222; litigation piracy, spawn 28 C.F.R. which will fur- aircraft necessitate § .241; end, assault, .212; burglary guidance ther from this id. id. court. § § .311; entry, espionage, predicted I those who section unlawful id. id. fear .1021; 4218(d) evasion, nothing may .501? If mean their tax id. will have done, all is said and anything, way. review is to mean I would think When we having block around the run find ourselves up we were be-

once, only to wind where 4218(d) passed. was section

fore Petitioner, EGAN, E.

Thomas NAVY,

DEPARTMENT OF

Respondent.

Appeal No. 86-579. Appeals,

United States Court

Federal Circuit.

Oct. Clare, Nold, Nold, Mosley, J.

William Towns, Louisville, peti- Ky., & Hubbard tioner. Director, Reutershan, A. Asst.

Robert Branch, Litigation Dept. of Commercial Justice, Washington, argued for re ‍​​‌​‌​‌​​​‌‌‌‌‌​‌​‌‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌‌​‌​‌​​‌​​​‍D.C. him the brief were spondent. With Willard, Atty. Gen. and K. Asst. Richard

Case Details

Case Name: Conklin Wallace v. Robert Christensen

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 23, 1986

Citation: 802 F.2d 1539

Docket Number: 85-5560

Court Abbreviation: 9th Cir.