*1 al., Appellees, Richard et PICKUS PAROLE,
UNITED BOARD OF STATES Appellant.
No. 73-1987. Appeals,
United States Court
District of Circuit. Columbia
Argued March
Decided Oct.
Rehearing Dec. Denied *2 Justice, Atty., Dept, Stone, D. Victor Jr., Titus, U. S. Harold H. with whom filed, was was Atty. the brief the time appellant. Earl J. Sil- for on the brief bert, Werdig, Atty. M. and Robert U. S. appear- Atty.,
Jr., entered Asst. S.U. appellant. ances C., Washington, Kramer, D. H. Victor Wolf, L. B. William Richard with whom F. McGovern, J. and Patrick Krash Abe Washington, C., on the Macrory, D. appellees. brief HASTIE,* Circuit Senior Before Circuit, Judge and ROBB Third for the Judges. WILKEY, Circuit Judge: HASTIE, Circuit Senior Proce- Administrative 4 of Act) (hereinafter, dure Act agency rule- 553, requires federal § public making advance be attended opportunity for interested notice and through oral or participate persons to opinion. data submission written Board years many States the United For guidelines which published of Parole has many which specify factors its discre- in the exercise considers eligible prisoners. federal tion to Board United States Rules E. com- (1971).1 It has never Parole plied of the Act. with section appellees, fed- three May, appel- prison inmates, petitioned the eral public Parole to conduct lant Board of with proceeding consistent various to amend 4 of the section the Board rules.2 Since its stated * filed, ap- complaint pursuant Sitting designation was in effect when U.S.C. pears 294(d). in the record. 2.14, petition published §§ on 28 C.F.K. focused Rules has successive edi been (general edition, 2.15, factors copy Rules at 14-16 2.16 and tion since 1930. A appellees adopt proceed- petition, replacements in to act their failed on ings complied complaint Act. The their in the district which filed appealed January, complaint did not Board that order.3 specifically request court to declare jurisdiction of the district court any of had been the Board’s rules requires is the issue that considera first sought only illegally promulgated, decisions, tion. 'In a number *3 compel response petition, to to pursuant the recognized court the has 10 of 6(d), 10(e) (A) 4(d), to and Act, §§ Administrative Procedure 5 U.S.C. 1973, appel- March, of the Act. In after 701-706, independent as of source §§ judgment lees filed a motion de- jurisdiction for empowers that district fault, Sigler, Maurice Chairman agency re courts to review much action Board, appellees’ May, Parole 1972,petition denied gardless controversy. in amount attorney. in a letter to their Independent Broker-Dealers’ Trade Exchange Ass’n parties v. Securities and Com presented mo- The then various mission, 1971, U.S.App.D.C. 384, arguments court, 142 442 and tions to the district 132, denied, 828, F.2d cert. 92 sharpening 404 U.S. consequent with and modi- 63, 57; S.Ct. fying 30 L.Ed.2d Lab of in Scanwell the issues the The case. oratories, 1970, Shaffer, Inc. v. Board admitted 137 U.S. it is an as that App.D.C. 371, 859; Hurley v. 2(a) 424 F.2d that term is defined in section of Reed, 1961, Act, U.S.App.D.C. 32, 551(1), 110 288 the 5 U.S.C. moved and § 844; Reed, 1959, F.2d complaint v. dismiss Robbins 106 the as mooted Sigler’s U.S.App.D.C. 242; 51, denying pe- appellees’ 269 F.2d but com Mr. letter pare Airways, Pan accepted tition. American World Inc. The court the Board’s Board, 1968, v. concession, correctly Civil Aeronautics 129 but ruled the case 483; moot, controversy 159, 392 F.2d Kansas because a still City Light McKay, 1955, validity existed over Power & Co. v. the of the rules suggested 924, then in 96 effect. The 225 F.2d cert. court then denied, 137, 884, those 100 rules could be if 350 U.S. 76 S.Ct. valid and only if L.Ed. appeals exempted were of the Decisions other courts Accordingly, question effect of on section 4. are irrecon the cilably conflicting.4 Supreme case went forward on the Court issues clearly explicitly whether peti- denial of the and inmate’s settled public rule-making matter, tion for a proceeding but we read Court’s decisions arbitrary, lending significant support was whether the rules then view effect should that Section 10 of be declared void the Administra comply failure tive 4 Procedure section Act does authorize dis Following the Act. challenging trict courts entertain submission suits law, validity memoranda held without court action regard the rules controversy. were void and the amount in ordered the parole selection) apparently contrary but contem- Two circuits have reached deci- plated possibility sions : e. Zimmerman of wholesale reform v. United States procedures. public Government, 326; 1970, the Board’s Two 3d Cir. 422 F.2d interest groups co-petitioners, par- Chippewa Twin but are not Cities Tribal v. Min- Council Chippewa Tribe, 1967, ties this action. nesota 8th Cir. 370 529; Highway F.2d but see State Commis- stayed 3. This court has the order dis- Volpe, 1973, sion of Missouri v. 8th Cir. 479 pending appeal. trict court (noting intervening Supreme F.2d 1099 Court independ decisions). 4. Cases which hold the to Act be an grant jurisdiction recognize ent district court Decisions the Second Circuit include Bradley Weinberger, 1973, v. 1st v. Cir. 483 intra-circuit conflict: Toilet Ass’n Goods 410; 1966, 677, Hickel, Gardner, aff’d, 1970, F.2d 2d Brandt v. 9th Cir. 360 F.2d Cir. 53; Udall, 158, 697; 1520, v. Brennan 10th Cir. U.S. L.Ed.2d 87 S.Ct. 1967, 803; Deering Aguayo Richardson, 1973, Milliken, 379 F.2d v. v. 2d Cir. 473 F.2d Inc. Johnston, 1961, 856; 4th Cir. see also, County, In re School Board of Broward Florida, 1973, 5th F.2d 1117. Cir. discretionary discussed, already Park, Inc. To Preserve Overton Citizens determinations of the Board’s character 91 S.Ct. Volpe, U.S. granted. to when shall be 168; Labora- as giving Abbott L.Ed.2d and the notice of consequent Gardner, U.S. v. 1507, tories submissions consideration by Rusk 18 L.Ed.2d might inform, persons interested 367, 82 S.Ct. Cort, 369 U.S. impinge upon, the D.D.C.1960, would not otherwise 809, aff’g, L.Ed.2d framing stand- discretion in Board’s F.Supp. 683. guidelines. ards hold the district We We turn now to the merits of present jurisdiction to had entertain appeal. procedure below complaint under the mandate of Section entry subsequent certain events 10(a) judgment preliminary necessitate adversely person affected . . . “a prop identification of issues that aggrieved by . *4 although erly First, thereof;” the com judicial before us. to is entitled review specifically a plaint ask for dec provision 10(b), did not the of Section effect proceeding then in for the rules that the “form laration of § although invalid, never judicial any appli- it was and review is general including amended, prayer formally for legal action, ac- the cable form of relief, just, proper cou declaratory necessary, judgments or writs and tions for focusing injunction pled prohibitory mandatory the mentioned with above or of upon competent parties’ their basic corpus, in of of the controversy attention or a court habeas validity, jus jurisdiction”;5 requirement of about rules’ and the the adjudication 10(e), the (2) of tified the court’s Section “reviewing district U.S.C. § 54(c), F.R.C.P. court . that issue. See also Rule shall . . Thus, validity question ac- the of the unlawful and unless hold tion, set aside findings in to of the rules which the court and found district conclusions mooted, (D) of has validated since been be . procedure required by . . without observance properly . .” is before court.
law. . issue The mootness issue arises have the Board’s We considered September 19, 1973, the fact that on the argument promulgation parole that its published Board Parole new rules. 38 subject judi selection criteria is not Fed.Reg. 26652, pub The first 31942. subject to cial review—whether or not many pro lication altered of the Board’s parole the Act—because is release on hearing deciding parole cedures for committed to within discretion applications. placed It in the Fed also meaning Act, the the Section 10 of slight change, Register, the cri eral with 5 4203(a). 701(a)(2), U.S.C. 18 U.S.C.' § appear parole which teria for selection reviewing But we are not the regula Rules, supra. in the 1971 Those granting denying parti in a tions, however, applicable were made case, may cular reflect which only part country, one of the unreviewable discre exercise of apply appellees. do not two reviewing tion. the are not We even merits of the the The November rules and standards announcement consists adopted. complex, pur- appellees’ Board com of a which has detailed table plaint range adjudication ports consequent and our to state the which months solely proce require will address themselves an inmate serve depending upon severity may his dures which be for of- rules those (six classifications) justiciability a fense and his mulated. The of such “sa- complaint depends 10, par (four classifications), upon lient factor score” Section according ticularly Act, computed number (e), a to factors subsection sonably reviewing recognition generally requirement be read as a ajiplicable requirements. “competent jurisdiction” can rea- venue one
lili 2(a) agen- publi- Act6 also announced the November defines regulation ap- cy purposes cation. November Act as “each au- thority parently applies may States”, nationwide the United other than regarding replace prior largely specified certain rules None of the exclusions. though parole selection, exclusions embraces Board. More- criteria used any over, appears. no In this court said that such statement including regulation speaks section, event, the definitional the November should hospitably. See, g., operation be received e. one of the areas of Board Soucie David, 1971, original complaint addressed. which the rigid Towing it a more F.2d Chotin that area is Within Corp. Commission, structuring discretion Federal Power of the Board’s replaces. In- it than were the criteria Legislative though surely sup- deed, designed history, sparse, to, and almost ports broad, reading to, nearly uniform de- inclusive will lead cisions, more S.Doe.No.248, Cong., Act. 79th 2d and more decision- Sess. restricted making. circumstances, (1946) 196, 253, these pro- September and November Board’s arguments for None of the Board’s moot, preserve, rather than nouncements impressive. exemption are The fact that original controversy validity over the legislative history makes Act compliance rules without unique no problems the Board or its reference to Section of the Act. significant is not because great promulgated As it the November same is true for a agencies number *5 regulation, unquestionably it the Board asserted covered. that are subject Indeed, Act, not the belief of was drafted was bill not one notwithstanding. particular agencies by the court which dealt with below 38 Fed.Reg. name, regulation par- rather 31942. The reasoned but as a of types agen- appeal ticular in on this of functions which then and contends generally “agency” de cies of engage. Executive Branch an as that term is it is not Act, although (S.Rep.), in the district S.Doc.No.348 at 191 fined in the Thus, types (H.R.Rep.). an of it conceded that it is some such 250 “agency” subject Appel particular exempted, to the Act. were functions not rely agencies. Departments not on that concession and lees do or Executive dispose present presents of the Board’s we shall Such as this case functions exempted.7 contention on its merits. were not by 1738, 551(1) (1970) (H) : functions conferred sections subchapter— purpose 12; chapter 1739, 1743, this For the of of title 1744 authority 41; 1622, 1884, (1) “agency” of the 2 sections 1891- means each of title or States, 1641(b)(2), 1902, not it is within whether or United and former section by agency, subject 50, appendix; but or another title review does not include— (A) Congress; proceedings have often been held Revocation States; Hyser Reed, subject Act, (B) v. the courts of United e. 225, (C) governments U.S.App.D.C. 254, 1963, or of the territories 318 F.2d 115 States; 957, (en banc), denied, possessions 375 U.S. United cert. Compagna, 315, 446, 11 L.Ed.2d Hiatt v. (D) government S.Ct. the District by equal 1949, 42, F.2d aff’d an Columbia; 5th Cir. 1950, 880, ly court, except requirements 340 U.S. 71 S.Ct. divided of section or as to the 639, 192, Board was but whether 95 L.Ed. 552 of title— agency representatives (E) agencies composed was not at issue. an U.S.App.D.C. Hurley Reed, supra, 110 organizations par- parties v. or of 846, 34, them; by disputes F.2d at this court said at determined ties to the agency clearly military an administrative (F) “the Board is commis- courts martial ” although the issue ; that was . sions authority military there. (G) in the exercised occupied territory; in field time of war or or Hys- argu- required.8 history pointment legislative is counsel The Board’s Reed, supra contrary 7, v. n. anything, er seems, if ment 254, bill, Walter-Logan F.2d H.R. at
position. The (1940), Cong. 3d Sess. Bill No. 76th that, major A Board contention is Presi- predecessor the Act which a functionally viewed, at its actions here vetoed, an ex- contained dent Roosevelt exempt from the issue are Department of press exemption for the gen- procedures they are either because have covered that would Justice interpretative policy, eral statements S.Doc.No.145, Cong., 3d 76th Board. relating organi- rules, or rules (1940) how- at Sess. 24-25. practice procedure, zation, all which exemption ever, for either contains no explicitly exempted by are Section 4 Department or the functions issue (a).9 now consider each of those We familiar with here. Its draftsmen categories. Walter-Logan recently ill-fated the then Several have ruled that courts deliberately a different bill and general action cannot statement of argues, Whether, scheme. as the Board policy substantially if it affects exemption of the crim- “the rationale for rights regu persons subject viable”, process remains inal . . . Secretary Lewis-Mota of La lations. bor, Congress is irrelevant to this case since 482; 2d Cir. 469 F.2d approach. abandoned that Texaco, v. Federal Power Commis Inc. sion, 740, 744; argu unpersuasive 3d Cir. find an We Freight exempt Motor National Traffic Ass’n v. ment of the Board is F.Supp. exempt. States, D.D.C.1967, because the Probation United Service exemption 95-97, aff’d, of the latter is warranted 393 U.S. performs 19; cf., functions it as the Public L.Ed.2d Service suggests, Board auxiliary York its status as New Commission State which, courts, Commission, 1967, 126 unlike Federal Power agencies branch, the executive rev’d specifically part grounds, excluded. 391 U.S. on other *6 388; also 20 L.Ed.2d see argues Gagnon The Board also v. Gronouski, Airlines v. Seaboard World Scarpelli, 1973, 411 U.S. 93 S.Ct. D.D.C.1964, F.Supp. 44. As holding 36 L.Ed.2d state, boundary cited that outer cases process require ap- due clause does not general policy exemption derives of the pointment every parole of counsel in enacting congressional purpose in from proceeding indigent per- revocation of an public Section 4—that the interested son, suggests apply that the Act does partici opportunity to should have an 6(a) Board, because Section agency fully pate, in should be 555(b), authorizes U.S.C. § having formed, sub before rules such hearings. agency counsel at But aside impact promulgated. stantial are Gagnon from the fact that involved the application guidelines Constitution which the Board had states, impact statutory adopted prior action, Rules, supra, of a to this regulation administration, 14-16, of federal Sec- at of a kind calculated 6(a) suggest tion ap- does not that the have a on ultimate substantial effect exemption 8. This court has ruled that at least The Board claims under retained also permitted pro- agency personnel provision counsel must be at revocation of Section ceedings. Compare, Ilyser, supra, asserting 553(a) (2), prisoners with Glenn U.S.C. Reed, 1961, U.S.App.D.C. 85, reject personnel. argument are AVe Board regulated as frivolous. Prisoners are a Board employees. group, not its exemption 4(a) 9. The Section terms only requirement, from the notice but Section 4(b) applies only 4(a) applies. if Section also They Additionally, interpre- parole of nine consist decisions. these are factors, general categories interpretative tative broken As the word rules. sub-categories, suggests, legislative history and as down into a total of 32 Although they pro- specific. clear, interpretative fairly often makes rules consist determination, administrative vide no formula construction a stat- help utory provision question they decision- focus the on a cannot of law re- Board-approved S.Doc.No.248, attention on viewable in the maker’s courts. They supra Regulations his field of Treasury criteria. thus narrow 18-19. vision, minimizing interpreting other the influence of the Internal Revenue Code encouraging prime example. reliance factors decisive a The Board's state- might upon significance interpretations factors whose ments are not of a stat- differently meaning. have had Rather, they been articulated ute’s are self imposed 4 been followed.10 controls over the manner and circumstances which the will regulation The November is more for- plenary power. exercise its They have like, greater mula and hence has an even the effect of law and are not reviewable impact pa- on an inmate’s chances for except for Hence, arbitrariness. regulation role. Under that the amount Congress are not the kind un- prison an inmate time serves will exempt statutory dertook to re- depend on elements, five three of which quirements regulate regulation First, firmly controls. process. 18-19; S.Doe.No.248, supra at places it each in one of cate- offense six accord, Snyder, Gibson Wine Co. v. gories severity. relative The determi- Na- given category nation a of- into which Agents tional Ass’n Ins. places particular fense falls a minimum Sys- Governors of the Federal Reserve and maximum on the amount of time tem, 1974, Second, almost all offenders will serve. F.2d 1268. de- inmate’s salient factor score is keeping type according rigid criteria, with the termined ac Congress sought A-I, Fed.Reg. exempt, tion a matter items 31945. Under “relating practice rule, procedure” using computed the only score is means regulation agen criteria, quantitative technical of the form those and the cy proceedings. input specified action and cate of each is well. Com- This too, gory putation purely should not deemed to include score is a me- any goes formality operation. beyond Third, action which chanical the chart substantially rights range affects im- sets a narrow months prisonment required those over whom the authority. exercises that will be given Certainly, given category not include does of offense and a *7 to formalized criteria factor This salient suggest score.11 is to determine whether for relief are claims these determinants C., merely are undesirable, meritorious. Kessler v. F. C. either unfair or 130, they significant 1963, U.S.App.D.C. consequences. have Ranger 679-682; C.,C. v. F. parole Thus, se- the rules which define 240, 244; criteria, old, lection and are sub- new supra. Airlines, Seaboard World agency action, they stantive define a fairly tight framework to circumscribe Judged by standards, the same power. regulations statutorily concerning pa- Board’s broad Board’s example, September promulga- (2) range released, For an inmate should be and dropped Compare, departure tion certain e. factors. whether circumstances warrant from supra Rules, (E, F) Fed.Reg. pro- at 15 at chart. Given that first of these 2.24(e), (f)). likely (§ flexibility, some vides second is to infrequent receive use. factors, other The two not controlled (1) regulation, specified when within hearings in individ- and decisions within hearings not to fall seem role also cases. exemptions 4. ual from Section any rules, interpretative more are no These general opnion in ease did Our this policy, matters statements purport and our decision to invalidate to relating personnel, left or matters effect of invalidat does ing past have are criteria than discretion of the Board determinations applications. parole dispose of used to particular cases. upon the merits Cf. argument these are The Board’s McDonnell, decided June Wolff procedure practice rules of at U.S. above, substantial, but, as is stated more 2983, L.Ed.2d 935. congressional purpose coun- adherence to i*ehearing petition is denied. exemption that this a construction of sels operation which its excludes impact likely on to have considerable regu- If the decisions. ultimate hearings regarding parole
lations parole produce differ-
likely decisions would which alternatives ent from those exemption likely produce, then the be of America UNITED STATES hand, apply. the other On should not 2.15, regulation which as Section such BROCK, Appellant. L. Robert formality merely prescribes order and No. 73-2105. business, is in clearly of Board the transaction Appeals, United States Court practice procedure within District of Columbia Circuit. exemption. Oct. properly de district court challenged rules, that the Board’s cided filed, when suit was existed Moreover, essentially invalid. since guidelines upon the the new for decision granting during adopted
pendency of this suit are invalid for the reason, the
same district court’s order adopted any replacements be
that proceedings the Act
that conform to appropriate
continues ly be and essential However, the district correct. modify judgment
shall be free to specify from its mandate and exclude type that, existing
any under rules of a prop opinion,
the rationale of this could
erly op without notice
portunity to be heard. judgment is affirmed.
ON PETITION FOR REHEARING
PER CURIAM: appellant petition filed
rehearing solely ques- addressed
tion of the retroactive of our de- effect upon past
cision this case Parole