George D. Van Curen v. A. R. Jago and William J. Brown
641 F.2d 411
6th Cir.
1981
Check Treatment

*1 whether, supports substantial evidence is one of question In essence the by the that Mr. Holden does in all services rendered ALJ’s determination view of surrounding circum- to Holden provide individual and the substantial services stances, reasonably he can be considered Hardware. may legiti- Clearly an individual

retired. IV. his affairs try to conduct business mately his social improve in a manner as to such lastly The ALJ ruled that Social necessary benefits, it is to security but recover Administration should Security determine look the form and beyond This petitioner. from the was the $853.70 fact, whether, has retired. in the claimant petition paid to the amount which the SSA right An individual has a to discontinue determining that er for months before two any trans- self-employment his because he not entitled to benefits was to other members his business ferring to Hol rendering was substantial services so family, his and the fact that he does den Hardware. makes retirement benefits qualify for 404(b)7, the to 42 ALJ Pursuant U.S.C. § transfer no less valid. this without fault plaintiff found that has claimant must show that there him. How- over-payment made to jure de as well as attempted transfer ever, AU it would not concluded that de Security facto. Adminis- Social and conscience contrary equity good impose against tration deduction money. The petitioner repay for the to pro- if an individual continues benefits hardship. does not claim financial petitioner vide substantial in a business services We ALJ’s see no abuse of discretion has to a attempted which he transfer Weinberger, decision. Sierakowski See 15). family. (App. member of 1974). 504 F.2d if the Even ALJ relied af- court is judgment of the district factor, family member not have would firmed. ALJ the authori committed error. Thé ty duty and the to consider all of the facts surrounding

and circumstances a transfer subsequent performed assets and work

by the 404.447. wage-earner. C.F.R. § The fact that a of assets is made to transfer George CUREN, D. VAN a member of the household that house and Petitioner-Appellant, hold income thus is certain change does a ly relevant factor. a member of Since female, one’s or family could be male there A. Brown, R. JAGO and William J. nothing considering about this. sex-based Respondents-Appellees. Finch, (transfer Skalet v. supra, See No. 80-3351. son); wife business to and Perez Secre United Appeals, States Court of HEW, (D.P.R. tary F.Supp. Sixth Circuit. 1972) (transfer of vice-president title of and nephew). wage treasurer from earner to Argued Dec. 1980. No questions one Mrs. Holden’s knowl- Decided Feb. 1981. edge ability and to run Holden Hardware Rehearing Rehearing En Banc issue, by herself. That is not the however. 26, 1981. Denied March The issue is whether Mr. Holden continues provide substantial to the services store. above, For we the reasons outlined think adjustment 404(b) provides: fault son who without if such § U.S.C. recovery purpose or would defeat the case which more than the correct sub-chapter equity against or would be made, payment amount of has been there good to, adjustment conscience. payments shall be no from, recovery any per- the United States *2 forgery,

counts of uttering three counts of forged one publishing instruments and obtaining money by pretense. false count of existing Under law he would have first eligible become March *3 1, 1974, However, January effective Ohio parole” statute, Re- a “shock enacted 17, April vised On 1974 a Code 2967.31.1 § panel Authority Parole of the Ohio Adult (the Board) interviewed Van OAPA or the he granted Curen and recommended that 23, 1974, April shock “on after or by when Division of Parole.” arranged approved panel’s The OAPA recommen- minutes of its incorporating dation it in the Jacobs, University, Louis A. Ohio State meeting. given was regular Van Curen Columbus, Ohio, petitioner-appellant. for immediate notice of the decision and Ohio, L. Sipe, Atty. Dennis Asst. Gen. Agreement” of Parole which “Statement Columbus, Ohio, respondents-appellees. for signed, acknowledging that understood agreed and that he conditions KEITH, LIVELY and Circuit Before opening to observe and abide them. The PHILLIPS, and Circuit Judges, Senior were, this “The sentences of statement Judge. agreed Board have Members of the Parole LIVELY, Judge. Circuit you opportunity have earned the a final release from eventually and deciding we determine appeal this Board your present conviction. The Parole must be process requirements what due met in a Parole Release ordering therefore may a state parole authority before rescind Van and com- your ease.” Curen attended action to an inmate ef- granting its and was measured pleted pre-release classes fective at a future date. The district court for civilian clothes. inmate of petitioner, held that an an no facility, Ohio correctional “had constitu- April meeting At protectable expectation early in re- tionally adopted were in minutes” “special OAPA lease, even the unusual circumstances under its which the Board rescinded earlier presented by case.” reverse for We to Van and continued Curen reasons hereafter set forth. meeting. June case to the June 1974 On hearing. was after a dispute. in Van denied The facts are not Curen brought action less than six nor Van a mandamus was sentenced to not more Curen years In that action the Su guilty against than 100 incarceration on the OAPA. embezzlement, plea two preme to counts of four of Ohio held no penal reformatory or in more or institution 2967.31 Shock § any in in in this state or a similar institution any Notwithstanding provision other for other state or United States. determining parole eligibility, prisoner con- prisoner dangerous (C) The is not offend- reformatory penal fined in a or state institu- Re- er as defined section 2929.01 of the any tion be released on vised Code. serving custody after six months in the of (D) prisoner further The does not need department correction, hygiene of mental reformatory penal in a insti- confinement or following apply: when all of the (A) tution for correction or rehabilitation. prisoner The offense for which the was condition, character, (E) history, The aggra- sentenced was an offense other than prisoner attitudes of the that he vated murder murder. indicate respond affirmatively (B) prisoner likely previously re- been which, felony pursuant unlikely convicted of lease on and is to commit sentence, thirty days he was confined for offense. another required parole authority argument was for the At oral it was suggested rescind an at a granting parole respondent order future this case is moot in view of the fact that Van now date where rescission occurred re Curen has before paroled. Principal reliance for this lease from confinement. ex rel. Van State contention rests on the decision of the Su Authority, Curen v. Adult Parole 45 Ohio Bradford, preme Court Weinstein v. (1976). St.2d 345 N.E.2d 75 The Su L.Ed.2d preme Court of the United denied an States authority where an action against application for certiorari. held be moot when the inmate was (1976). 50 L.Ed.2d 326 Van Cu paroled. the fact which created petition ren then filed a for a writ of habe mootness was not the inmate’s release. as corpus, the district court denied. Rather, the case moot when this became this court affirmed without appeal opin On “ripened complete status into a ion. 578 F.2d ” from supervision.... Id. at *4 certiorari, Court granted judg vacated at 348. Van remains under the Since Curen ment and remanded the case to this court supervision present of the OAPA the case “for light further consideration in of Green not controlled Weinstein. We conclude holtz v. Inmates of Nebraska Penal Com that mootness has not been established and 1, 2100, plex S.Ct. L.Ed.2d [442 important that constitutional issue (1979)] 926, ....” 442 U.S. presented by appeal should be decided 2854, (1979). 61 L.Ed.2d 294 This court at this time. then remanded to the district court for “de prisoners Parole for lies Ohio termination of petitioner, whether under wholly within the discretion of the OAPA. case, the peculiar pro facts of this had a The provide parole statutes which for do tectable entitlement to release under the protected not create a interest liberty for statute, 2967.31; parole Ohio shock O.R.C. § Leonard, process purposes. Sharp due v. exist, and if such interest did whether he (6th 1979); Wagner 611 F.2d 136 Cir. was accorded adequate procedural proc due 1979); Gilligan, 609 F.2d 866 State ess safeguards.” ex rel. Newman v. Lowery, 157 Ohio St. Upon remand the court district found denied, 105 N.E.2d cert. that grant parole Van Curen’s of was re- 97 L.Ed. 682 S.Ct. Re scinded because the OAPA received infor- statute, ferring to general parole Ohio’s mation that he had not been truthful before respect which does not differ in this from the panel or in parole plan.2 Van Curen statute, parole its shock this court stated was given no opportunity to be heard on Wagner Gilligan, at “The supra stat the truthfulness of this information or to ute presumption does mandate a of explain it before rescission. The district therefore, parole and, release does cre court concluded that under Ohio law there protected ate a statutory entitlement is no protectable in early interest release parole appellees ground on which can their from imprisonment actually until release Thus, process due present claim.” case occurs. early entirely Since release is Greenholtz, may be distinguished from su matter of grace, parole may be pra, Supreme where the found Court that revoked without a hearing prior parole Nebraska statute which man to release. The court treated the expecta- dates release in the absence certain con tion of mere hope as a desire or “unique ditions is in structure and lan expecta- release and contrasted it with the guage.” U.S. at tion of already continued of one The expectancy provided by of release released on Nebraska statute was found to be entitled corpus hearing 2. The at the evidence habeas interview. The Board also had information that, contrary disclosed that the Board had unverified infor- to Van Curen’s statement in his $6,000,- parole plan, person mation planned that Van Curen had embezzled with whom he $1,000,000 000 rather than as he had stated in to live after release was not a relative. respondents argue that since the protec of constitutional to “some measure tion.” Id. clearly statute so creates no district early release the expectancy Ohio statute

Petitioner concedes that the corpus relief. denied habeas properly court only possibility provides expectation creates no reasonable petitioner’s argument, Responding that once a argues he release. Morrissey assert that Brew- respondents its re- made parole determination er, supra, which with revocation of dealt scission is more like revocation release, controlling. Two after is not determination. original parole than an between rescis- distinctions are noted Brewer, Morrissey held in (1) revo- and parole sion revocation: liberty al- of a deprives cation requirements procedural that certain at most de- while rescission ready obtained parole may be revoked. must met before desired; liberty merely nies conditional process due argues Petitioner same depends retrospective on a (2) revocation have been met in requirements should with the attendant factual determination he points case. out that present Petitioner mere for release. risk of error in the absence had far more than a desire “earned the subjective He had been purely told while rescission remains a eventually opportunity a final law, determination. Under Ohio O.R.C. release,” “order- board as 2967.01(E), parole is defined § case,” your ing Parole Release the OAPA. Until the from confinement *5 parole agree- had signed statement of contend, release, an respondents time of argues acquired ment. He that had a hope, nothing more than a cer- inmate has parole had protected interest in a which early entitlement to an end to tainly an effect; taken granted yet but had were held Even if a incarceration. necessary it that he be released was not determination, parole a to rescission of prior entitled parole before his interest became set of facts could be established no protections. to constitutional rescission law. release under Ohio require would a was based on determination that he had decision, at issue in unlike the one That information, a question falsified of fact Greenhoitz, purely discretionary. remains and a upon which was entitled to notice hearing. was vacated previous judgment Our expectancy also argues Petitioner that his in light for reconsideration and remanded past practice of release was based on early v. Inmates of Penal of Nebraska Greenholtz person and of who custom the OAPA. The Though Greenholtz was Complex, supra. petition- when chairman of the OAPA statute, particular decided on the basis parole er’s determination was tes- rescinded generally more deposition opinion tified Board rescind- the Court’s deals ed 25 or 30 of the six approximately paroles to due the criteria for entitlement with year during to ten thousand granted each setting. determine parole in the To process more than 99 year three term. Since process applies a whether the due clause percent granted of Ohio inmates who are into the inquire court must nature having without actually are released by government which is affected interest rescinded, paroles petitioner their contends implicated Constitution is not action. The justifiable expectation he had a of release deprives person of some where state based on state This practice. custom and for which he has no more than an thing expectation “liberty” is a interest which the desire, or unilateral ex abstract need away observing state not take without instead, must, a legiti have “He pectation. procedural process due he as- requirements, 442 claim of entitlement it.” mate serts, Sindermann, citing Perry prin Applying these 99 at 2103. at S.Ct. 570 92 33 L.Ed.2d S.Ct. held Greenhoitz Court ciples Roth, Regents Board holds the mere a state law which out S.Ct. Rather it parole provides necessary no more than is to determine each possibility hope early hope for release and creates no case whether an inmate’s for of en- meaning “legitimate interest within the of the into a claim ripened has process due clause. titlement.” In not- reaching this conclusion Court It seems clear to this that Van court ab- purely discre- great ed the differences between Curen had a deal more than expectation and a fact- tionary decision stract desire or unilateral Sindermann, In su- Perry related determination to revoke once release. pra, legitimate found a granted. An is that the obvious difference basis of state enjoying claim of entitlement on the already paroled individual understandings.” “mutually explicit rules or relative freedom of the “outside” while an 2699. A nonten- A U.S. at at incarcerated. S.Ct. applicant university was professor public ured at a second difference lies in the nature of the hearing on the universi- held entitled to a decision to be made in each case. In to renew his contract after ty’s decision not revocation is whether the the first decision years system. in the state The universi- actually violated the terms of ty policy, no tenure but fostered an “wholly retrospective This is a fac- understanding job there would be se- question,” tual at id. years teaching. after seven curity involving predictive judgments none of the Henderson, F.2d 1287 Bills v. involved in an initial determination. 1980), prison’s guide- this court found that a hand, initial parole-release On other segregation lines for administrative created depends decision “is more subtle and on an claim entitlement to free- elements, amalgam of some of which are Notice and a segregation. dom from such purely factual but of which are sub- required before a meaningful hearing are jective appraisals by Board members person may general be removed from the based with the experience their diffi- prison population placed in administra- evaluating cult and sensitive task of segregation. specifically tive The court rec- 9-10, advisability release.” Id. at “[ljiberty interests can be cre- ognized that Thus, Morrissey 2104-2105. *6 by mutually explicit ated state rules or Brewer, supra, parole- does not control the (at statute.” understandings by as well as release where state authority decision a has Rowe, 1291). Compare Durso 579 F.2d unfettered discretion. (7th 1978). Cir. parole-release It is not the decision consideration of the entire rec Upon petitioner questions, however. It is ord this court concludes that Van Curen had the action of the Board which rescinded a liberty a interest which was based a previous grant Is rescis understanding. Having mutually explicit sion more like the or more paroled” been that he been notified “ha[d] clearly like a revocation? It contains ordering and that “the Board is a Parole elements of both. the inmate has not Since case,” in your Release released, yet parole authority the would be expectation that his still in engaged subjec to a certain extent expectation liberty This was a effected. predictive tive and determination. Never interest, deprivation of which would theless, authority the same has previously loss. It was an grievous indeed constitute made the “more subtle” in favor of decision him which could not be taken from interest release and the decision to rescind must procedural due according petitioner without extent, necessarily depend, at least to some process. on a “retrospective factual determination.” We do not believe that the nature of the not reach this conclusion on the We do places jurisdictions decisions involved in rescission from which have basis of cases such entitle clearly guidelines determinations within the am rules or that establish bit of either revocation or initial release. rescission under permit ment to g., intention to consider rescission. notice E. The narrowly circumstances. defined Parole, for the S. Board should state the reason decision Christopher U. McCall, 1978); (7th rescission, Drayton should disclose F.2d Cir. consider see, (2d 1978); based, but F.2d Cir. Sex decision is information on which the Wise, 1974), 494 F.2d 1176 ton not though sources of the information need prison parole of federal (all involving cases in the notice. This will enable be disclosed ers). no evidence that Ohio There is prepare hearing. for the At the inmate we Nor do base guidelines. rules or such hearing permitted the inmate must be less than the evidence our decision on docu- and to file affidavits and testify parole grants are re percent one of Ohio’s hearing will be held mentary evidence. The v. Board Par scinded. Dumschat Cf. If panel thereof. either OAPA or granted, (2d Cir.), cert. dons, 618 F.2d it must state rescinds Board - -, 101 S.Ct. its action and writing the reasons for paroles This evidence related formal find- upon, though evidence relied proof was no directed generally and there are ings required. of fact compara to shock specifically hearing will make procedures These new method release involved tively Ohio provide meaningful protection and will Rather, present the decision in the case. they We believe arbitrary from actions. case which lead based on the facts parties, includ- will of all serve the interests ineluctably the conclusion acts of treating parol- ing society’s “interest protected liberty inter created OAPA .. . ee basic fairness: fair treatment with in Van est Curen. of rehabilitation will enhance the chance process that due Having determined arbitrariness.” Mor- avoiding reactions to required present in the safeguards were Brewer, at at rissey v. 408 U.S. case, process we consider what now 2602. process re flexibility due. the due re- district court is judgment of the many stressed times. quirement has been versed. depends on the nature process What is due It seems clear of the interest involved. PHILLIPS, (dissent- Judge Senior Circuit prescribed that all the procedures ing). Morrissey revocation in v. Brewer are not agree I I dissent. respectfully grantee required for rescission. A for the would have been practice better yet who has ac not been released has con- Authority to have Adult Parole quired which “includes Van Cu- rescinding before ducted a unqualified liberty.” the core values of Morrissey See contemplated parole. ren’s Morrissey, *7 484, 2593, Brewer, 471, 92 v. 408 U.S. S.Ct. Rather, person, though such a still an in 2601, (1972). I do L.Ed.2d 484 33 mate, in liberty a conditional acquired the Amendment Fourteenth agree in terest similar to that of the Nebraska facts of under the required such mates in Greenholtz. this case. evidence showed uncontradicted 344, 341, 96 Wood, In Bishop v. 426 U.S. no role in parole that the OAPA has further 2077, (1976), 684 the 2074, S.Ct. signed approv release minutes are after its sufficiency of a Supreme Court said: “[T]he recommendation, panel unless the in ing must be decided claim of entitlement is institutional “negative mate involved Cf. Greenholtz to state law.” reference information disqualifying conduct” or new 12, Inmates, 99 442 Penal U.S. Nebraska A brought light. is to decision on either of 2100, 2106, (1979). L.Ed.2d 668 S.Ct. necessarily fact-relat these bases would be “no law, had Van Curen process requires ed. We conclude that due Under Ohio Adult The State the be claim entitlement.” opportunity grantee an of any Authority right, of the Board’s Parole had heard after reasonable notice released, The emphasis of foregoing quotation before Van Curen rescind previous granting parole. its action rights prisoner to a due pa- process hearing before revocation of Lowery, Newman v. ex rel. State role Because of the dif- after his release. 463, 464, (1952), 105 N.E.2d 643 Ohio St. ference between the nature of revo- denied, cert. U.S. recission, agree cation and I do (1952), Supreme L.Ed. 682 Court of Ohio majority opinion with the that Van Curen question prisoners said: “The meaning interest within the being in the discretion of the Pardon and the fourteenth amendment. Commission, Parole that commission had authority to rescind its order of March Inmates, In Greenholtz v. Penal Nebraska 1950, granting a effective on or after 99 S.Ct. at Su- a future date.” preme said: Court stat- emphasis that [W]e Brewer, [Nebraska]

In Morrissey supra, unique language ute has structure and 2593, 2600, 471, 481, L.Ed.2d 484 any and thus whether other state statute pa- which involved the revocation of provides must protectible entitlement prisoner, role after the of the case-by-case be decided on a basis. not, case, present as in the the rescission of by parole action authorities before re- statute, in footnote 1 of quoted lease, Supreme said: ques- “The majority opinion, is not the same as the tion is ... whether the nature of the inter- applied Nebraska statute in Greenholtz. As est is contemplation one within the of the Ohio, interpreted by Court of ‘liberty property’ language of the Four- not, Van have “a my opinion, Curen did teenth Amendment.” The Court examined claim of entitlement” nature of revocation and found Roth, Regents See Board that: 2701, 2709, 33 L.Ed.2d 548

The liberty parolee enables him to do a wide range things open persons Therefore, judgment I would affirm the who have never been convicted of of the district court. crime. The has been released prison from based on an evaluation that

he shows reasonable promise being

able society to return to and function as a

responsible, Subject person. self-reliant

to the conditions of his he can be

gainfully employed and is free to be with

family PRODUCTS, and friends and to form the other POLYMER NATIONAL INC., enduring Plaintiff-Appellant, attachments of normal life. Though properly subjects him State applicable restrictions not to oth- CORPORATION, BORG-WARNER citizens, er very condition different Defendant-Appellee. from prison. that of confinement in a He may have been on No. 78-1543. parole for number of years living relatively nor- Appeals, United States Court of mal life at the time he is faced with *8 Sixth Circuit. revocation. The has relied on at least implicit promise will Argued Aug. 1980. be revoked if only up he fails to live Decided Feb. 1981. cases, conditions. parolee faces lengthy incarceration if his (Footnotes omitted.) is revoked.