Kirk v. WhiteKirk v. White
OPINION AND ORDER
Petitioner, proceeding
pro se,
filed this petition for a writ of habeas corpus under
On 12 November petitioner filed a motion for a preliminary injunction in which he asks that the Court order his immediate release on parole. Respondents have replied to this motion and the Court will rule on it together with the instant petition.
Paul Kirk, an inmate at the Federal Correctional Institution (F.C.I.) in Petersburg, Virginia, brings this action challenging a recent decision by the United States Parole Commission to set a parole release date “outside the guidelines.” (U.S.P.C.)
Kirk’s present thirty-year sentence results from separate convictions for bank robbery in 1975 and 1976. His eligibility for parole began 5 June 1985, the point at which he had served one-third of his total sentence. On 7 May 1985, an examiner panel of the U.S.P.C. held a hearing at the F.C.I. in Petersburg to determine whether and when petitioner should be paroled. The panel recommended that Kirk be paroled effective 5 November 1985, a period five months after his initial parole eligibility date. By notice of action dated 17 May the Regional Commissioner adopted that recommendation. Understanding Kirk’s challenge to the above decision necessitates a brief review of Parole Commission regulations.
Inmates’ presumptive parole dates are generally calculated by using the “guidelines” promulgated by the U.S.P.C. pursuant to
In response, the Parole Commission maintains that a release plan is an essential element of the parole process which insures that an inmate “properly reintegrates into society.” Further, formulation of such a plan is required, it argues, by the U.S.P. C.’s statutory mandate of ensuring that “release [of a parolee] would not jeopardize the public welfare” see 18 U.S.C.S. 4206(a)(2). Respondent also points to language in the Parole Commission’s regulations stating that: “A grant of parole is conditioned upon the approval of release plans by the Regional Commissioner.”
The first step in addressing Kirk’s claim is to determine what standard ought to govern the Court’s review of his allegation that the U.S.P.C. has acted in contravention of its own regulations. Kirk has brought this action pursuant to
Because judicial review of agency action is founded on the A.P.A., it may be restricted by a congressional determination that certain actions are committed to agency discretion. See
Nevertheless, although the U.S.P. C.’s substantive decisions oh the merits are exempt from review, courts retain the power to review allegations that an agency has taken action in violation of its own regulations. See R. Pierce, Jr., S. Shapiro and P. Verkuil, Administrative Law and Procedure p. 219 (1985) or acted “without observance of procedure required by law.”
In reviewing an allegation that an agency has taken action in contravention of its own regulations, a court may sometimes be required to scrutinize the agency’s contention that its own interpretation of its regulations indicate that they were in fact followed. Review of the reasonableness of the agency’s interpretation is required if the principle that agency discretion is bounded by its own regulations is to have any meaning. Nevertheless, in conducting its inquiry into whether the agency’s interpretation can be rested upon the regulation, a court should not attempt to substitute its own judgment for that of the agency or choose the “best” interpretation over a viable one advanced by the agency. An agency’s interpretation of its own regulations is due special deference by virtue of its unique familiarity with the subject matter of regulation. See
National Assoc. of Metal Finishers v. Environmental Protection Agency,
In the present case Kirk contends that the U.S.P.C.’s application of the
Determining whether the U.S.P.C. properly used
A plausible interpretation of a regulation standing alone may lose its persuasiveness when the regulation is considered within the context or an overall statutory or regulatory scheme. Here, a careful review of the U.S.P.C.’s rules and procedures manual has led the Court to two conclusions, first, the U.S.P.C. may in an appropriate case retard release on parole for lack of a release plan, second, in the instant case the decision to retard was made by the wrong arm of the U.S.P.C. and without the procedural protections that the regulations provide for such decisions.
In reviewing the U.S.P.C.’s regulations, the Court looks first to those circumstances which the regulations specifically advise may constitute “good cause” for a decision above the guidelines. The Notes and Procedures following
*427 Judging from the above Notes, the U.S. P.C. generally finds the “good cause” required for going above the guidelines in factors that bear directly upon the applicant’s essential fitness for parole, e.g., dangerousness, attitude, etc. By contrast, formulation of a release plan would appear to be primarily an administrative matter that could, and should, be performed at some time before the inmate is otherwise ready to be released. In the instant case, the last year or so of the ten years during which Mr. Kirk has been imprisoned surely constitutes an adequate period of time in which to arrive at a satisfactory “release plan.”
There appear to be circumstances explaining the failure of the U.S.P.C. to come up with a release plan prior to Kirk’s initial parole eligibility date of 5 June 1985. According to the unrefuted affidavit of Stephen Michniak, a “Correctional Treatment Specialist” at Petersburg, Kirk “prior to his 7 May hearing ... refused to assist or cooperate with staff in the preparation of release planning, despite warnings that the lack of release planning could possibly result in the retardation of his release date.” Kirk’s lack of cooperation adequately explains why a release plan had not been designed previous to 5 June.
It might be argued that the “good cause” exception of
When an effective date of parole has been set by the Commission release on that date shall be conditioned upon the completion of a satisfactory plan for parole supervision. The appropriate Regional Commissioner may on his own motion reconsider any case prior to release and may reopen and advance or retard an effective parole date for purposes of release planning. Retardation without a hearing may not exceed 120 days.
Other sections of the U.S.P.C. regulation which speak of the necessity of retarding ‘release in order to formulate a release plan refer back to
Consideration of the above sections has convinced the Court that delay of release because of the lack of a release plan should be handled pursuant to the explicit provisions of
It is true that
The problem with this argument is that
*428
In making the determination whether petitioner’s presumptive parole date should become his effective date of release the examiner panel erred in considering whether an adequate release plan had been arrived at. The examiner panel should have set an effective release date without regard to that factor. It would then have been up to the Regional Commissioner to decide, pursuant to
Agencies are bound by their own regulations and courts have the responsibility of reviewing “allegations that an agency exceeded its legal authority ... or failed to follow its own regulations.”
Garcia v. Neagle,
Kirk’s effective date of release, 5 November 1985, has come and gone; he remains incarcerated. The pleadings indicate that sometime before his effective date of release, Kirk had a change of heart as to where he wished to serve his parole. Kirk’s new itinerary again caused delay in the approval of his release plan and evidently the U.S.P.C. retarded his release pursuant to
Kirk, in his motion for injunctive relief, seeks immediate release. As the case now stands such relief is premature. Rather the Court will insist that the Commission restore to Kirk the procedural rights he would have received had the regulations been properly followed.
The Court will assume that Kirk’s effective date, of release, absent U.S.P.C. error, would have been 5 June 1985. Because no release plan had been formulated, the Regional Commission could have retarded release pursuant to
Had the Commission followed appropriate procedures, petitioner would already have had the hearing mandated by
And it is so ORDERED.