Sidney F. Brown, Jr. v. David C. Lundgren, Warden, Federal Correctional Institution
528 F.2d 1050
5th Cir.
1976
Check Treatment

*3 opposed “high,” only in that he was BELL, and Before GODBOLD RO- selling amphetamines, convicted of NEY, Judges.* Circuit drugs, “soft” an offense listed within the “high” category. parole The board re- BELL, Judge: sponds guidelines give the board This case involves the extent to which place discretion to an offender in a sev- may judicially a federal court review the degree erity step higher one lower or release of the United degree than the his offense is listed States Board of on the basis of a within, mitigating on the basis of ag- petition corpus for writ of habeas circumstances, gravating which it asserts against custody the warden who has of present are here. Brown argues that seeking such relief. Appel- arbitrary this was and capricious, in that Brown, Jr., Sidney challenges lant F. a the factors aggravating relied on as cir- decision of the Parole Board that effec- cumstances already have been considered tively eligibility denies him for setting score, the salient factor and mandatory until his release date. The implicitly were by considered the district Board was not Parole named as a re- setting court in sentence. spondent. We only juris- find a narrow petition, dictional base for such a and considering Before the merits of affirm the order of the district court de- contentions, Brown’s we must first as- nying relief because Brown has not al- upon jurisdictional certain what base we leged place facts that him on that base. looking stand in at his claim. Brown Appellant Brown was first considered petitioned the court for a writ district February, 1975, being after corpus on the basis of 28 U.S.C.A. system confined in the federal since July 2241(c), argues and before this § court 6, 1973. The local board denied that the decision of the board is him guidelines basis of its provisions reviewable under the of the for the release of adult offenders set Administrative Procedure Act as well. (1975). forth at 28 C.F.R. 2.20 These § corpus In order for the writ of habeas ranges establish of confine- prisoner, prison- extend to a federal ment within which the board will con- er must be in custody in violation of the sider an as eligible offender Constitution or laws of the United particular The range by is determined 2241(c)(3). States. 28 Be- U.S.C.A. § (1) combination two offense factors — only cause Brown has sued the warden characteristics: havior, severity of offense be- board, and not the our first task must be and offender characteristics: alleged to determine whether Brown has parole prognosis (salient score). factor either a federal constitutional or federal The salient factor score is mechanical- statutory wrong by board suf- ly determined on the basis of nine fac- custody by ficient to make his the ward- tors, prior such as convictions and incar- en unlawful under the terms of the ha- cerations, involvement, prior drug family corpus beas statute. situation, job expectations and the like. Brown was a salient factor score level, there At the constitutional seven, which he challenge. does not the loss of is a clear distinction between privilege once obtained and degree severity statutory of offense ranges privilege,

from “low” never “greatest” steps. in seven the denial of that same by Judge opinion prior resignation Bell from the Court on * This was concurred to his March situation, custody of a In a federal loss threatened While given. however, the absence of there- and “grievous” may be privilege claim does not vitiate procedural some require fore right of the to review habeas see, Morris- g., e. protection, 471, 482, corpus denial of 1972, U.S. Brewer, sey Board, such denial causes his denial if 2593, 33 L.Ed.2d in violation subject to to be “laws only privilege particular, en- if United States.” particular demands procedural revo- board is to the re Thus, while abling statute. clearly quirements of the Administrative Proce are discipline prison cation Act, Process dure then its must com Due the ambit within port required by Fourteenth with those the Act. A Fifth Clause Amendments, have number of other circuits found that expectation mere *4 subject the board is in fact to the in otherwise still while release Act, to as Administrative Procedure insofar as vested so is not lawful to required the board is to if denied loss” “grievous ain result of his prisoner with the for the denial disagree thusWe parole board. the States, Cir., 1974, Ap- King v. United 7 of See Court by the characterization the 1337; Britton, Cir., the 492 F.2d Mower v. 10 of of Columbia District for the peals 1974, “the of 504 F.2d 396. But see Childs v. deprivation aas denial Parole, supra at liberty” United Board of States conditional features valuable (finds 1281-85 statement of reasons con in involved loss to the equivalent And, to the ex process stitutionally required). due mandates that revocation tent that the board establishes States v. United Childs protection. APA, guidelines procedures or under U.S.App.D.C. 1974, Parole, 167 Board by those rules the Board is as controlled 1270, 1278. 268, 511 F.2d statutory law. procedures any as Moretti, Joseph G. See United States Inc., Cir., 1973, any In context where it is asserted 418, Pa 425. 5 478 is re- that constitutional due FTC, Cir., 1966, 5 cific Molasses Co. v. basic, is quired, question threshold 386, 356 F.2d 389-90. loss” of ei- “grievous whether there is a If liberty property ther a interest. asserts the failure of Where loss, the second there is no such then APA or its comply the board to with the chal- particular of whether as a basis for a own or rules lenged procedure comports with funda- corpus, petition writ of habeas be- In mental never reached. fairness is a sim- distinguish comes difficult to from short, denial of we find that the decision ple direct review of the board’s distinguished as the revocation from the terms of the APA itself. The under supra, is not a Morrissey, as in the re- expressly APA itself authorizes do not loss”, therefore by any applicable and we “grievous agency view of action (absent special legal consider whether the action form of deny review) including board method of pre-APA The corpus.2 writ of habeas process.1 context, pertinent part: provides, in In a different Fourth Circuit has 2. 5 U.S.C.A. 703 § reached a different conclusion. In Bradford v. judicial proceeding for review is The form of Weinstein, 1975, 728, Cir., 4 519 F.2d vacated special statutory proceeding rele- review moot, 1975, and remanded for dismissal as subject specified matter in a court to the vant by 347, 423 U.S. 96 46 L.Ed.2d or, inadequacy in the absence or statute reasoning the court declined to follow the ex- action, thereof, any legal applicable form of pressed by decision this court in the en banc declaratory judgments including actions for Parole, Scarpa in Board of v. United States mandatory injunction prohibitory or writs of 278, vacated for considera- competent jur- corpus, or habeas in a court mootness, 1973, tion of isdiction. moot, Cir., 38 L.Ed.2d dismissed as 1973, 501 F.2d 992. review, subject judicial to readily more however, circuit, that habe- law of comply either does not the board where the discretion vest- corpus, because rules. or with its own the APA with is not the Board of ed in considers way in no review Such seeking remedy for a available is lim- decision and of the Board’s merits parole by challenge a denial parts of those consideration ited to a Aderholt, Goldsmith board.3 See applicable to the held to be the APA Cir., 1930, 44 F.2d 166. Because Gold- King v. United example, For Board. smith prior decided to the enactment States, supra, Cir., requirement APA, necessary deem it we a deni- written reasons that has been whether that decision consider on 5 was based U.S.C.A. al of way by the act of Con- modified King did not 555(e) The court only. § gress.4 ap- the APA provisions that all hold judicial limitation on primary and was therefore the Board plied to in 5 APA is contained under the review Reed, Hyser consistent 701(a).5 particular, § U.S.C.A. 225, 236-37, 254, 318 F.2d U.S.App.D.C. applicability limits clause (then Judge) Justice in which Chief “agency extent action APA parole release deci- held that Burger by law.” agency discretion committed “adjudication” not an sion was always con courts have The federal of 5 requirements procedural to be vested sidered requiring not a for- thereby C.A. § *5 deciding discretion in wheth with broad board. hearing by mal the v. See Calabro grant parole. a er to Parole, Cir., Board 5 United States case, prisoner chal In either Clark, Tarlton v. 661; 1975, 660, 525 F.2d of the board or the lenging the decision 384, Thus, Cir., 1971, the 441 F.2d 5 decision was by which that process decision whether to allow of the merits the action of the must show that reached subject to review prisoner to a is as to make his was so unlawful board deci only court where the by a federal of the laws of the custody in violation alleged arbitrary so and sion is must be a suffi There United States. that discre capricious beyond as to be allegedly illegal between the cient nexus Gold with inconsistent not custody is legality This action and tion. ar arbitrary action smith, guendo. assumed A has no corpus which to lie. parole; only he has to release on right comply to have the board statutory right hand, by the other On and its own rules and the APA is reaches that decision which the board found the Board have have number of courts 3. A number of decisions of this court parts subject of the to certain Parole to be reviewed the merits of district court decisions See, Board of United States petitions Pickus v. cor- APA. that have entertained for habeas Parole, 1974, U.S.App.D.C. 507 F.2d by prisoners by 165 pus board or denied Cir., Britton, supra; King 1107; 10 aggrieved by Mower v. other board decisions. States, Cir., supra. Parole, is 7 The Board v. United 5 v. United States Board of Calabro APA, meaning “agency” Cir., 1975, Wise, of the 660; within the 525 v. 5 Sexton sufficiently “aggrieved” Cir., 1974, 1176; is and the Richard- 494 F.2d Gorham v. standing son, 71; to seek review him 5 Buchanan decision, “ag- though Clark, Cir., he is not even Board’s In each 5 446 F.2d 1379. grieved” sense. Because case, de- this court affirmed the lower court’s respondent relief, not a grant of Parole was the Board on nial of relief or reversed a question. case, this do not reach we in the this of the broad discretion vested the basis board, ques- and did consider not 701(a) provides: 5. 5 U.S.C.A. § proper jurisdictional base for such tion of the regard petitions. (a) chapter applies, these according pro- therefore do not We This controlling thereof, our except decisions as visions to the extent that— jurisdiction. review; preclude judicial Statutes (2) agency agen- action is committed to unavailability corpus not does 4. The of habeas cy discretion law. judicial ac- review of the board’s mean that increasing completely unavailable. An tions is subject also to chal- hearing and were departure by A guidelines. board him. lenges by not make his il- does legal. sum, alleged nothing In Brown has custody by make his would case, asserts Brown several in violation of the Constitution warden grounds support of his contention that laws of the States. The order United illegally being he is denied He denying relief is district court being given “very that his argues high” severity was arbitrary offense and Affirmed. capricious in that his offense did not fall examples cate- within for that GODBOLD, Judge (specially that, He even if gory. suggests further concurring). board in some cases If I were free to do I examples, those depart from use of so would follow Childs United the same factors to establish a salient States Board 167 U.S.App.D.C. 268, and sev- factor score to raise the offense F.2d 1270, (1974), arbitrary erity capricious. Weinstein, also Bradford (CA4), F.2d 728 argues Finally, he ulti- vacated and remand- ed for moot, dismissal as mately given by the national board to 96 S.Ct. affirm the denial of the local L.Ed.2d which procedures hold that post board were hoc determinations that relating to he was never allowed to consideration a prisoner contest. are demands of Given the range broad discre just relating board, tion vested in the Brown’s revocation. position This first two contentions are without merit. I took as one of the dissenters in The board’s own allow toit Scarpa v. United States Board of Parole, into cir aggravating take consideration (CA5), 477 F.2d 278 vacated for consider- setting cumstances in of mootness, ation of severity. adjustment fense Such an 79, 38 (1973), *6 L.Ed.2d 44 dismissed as on based the individual circumstances of moot,. 501 (CA5, F.2d 992 1973). As clearly his case falls within the board’s Judge out, Winter pointed writing for equally discretion. This is true the Fourth Bradford, in use of those one factors for more than right-privilege distinction, cen- purpose. We hold that the Judge tral Bell’s conclusion on this discretion, its may, within consider such matter, has now been eradicated. in adjusting matters of of feel, however, I bound, I am al- severity in particular fense cases. See beit tenuously, by the cryptic decision in Norton, D.Conn., Lupo also Wise, Sexton (CA5, F.Supp. 156. 1974), which, in a single sentence and There would be some merit without discussion or citation of authori- Brown’s third he contention had never appears to ty, hold that due pro- opportunity been to contest apply tections do not until after factors asserted board to granted. been has justify “very high” classification. Without Sigler, agree See Grattan reservation I with the shows, majority with respect how The record to the availability ever, review that Brown informed of fact a where held “in custody subsequently used for violation of the Con- higher parole stitution laws of classification at the initial the United States”, hearing and was to contest them and with the holding allowed on the merits of at that time. The such review in context of federal this instance directed arrest and the presen the information in “laws of the United report tence were at the same States”. considered