Gregory A. Lucas v. Benny O. Hodges, Administrator, Lorton Reformatory

STARR, Circuit Judge,

concurring in part and dissenting in part:

I concur in the majority’s careful opinion in principal part, but I respectfully dissent from the analysis of the due process claim in Part III.

The basis for my disagreement can be simply and briefly stated. For the Due Process Clause to be triggered, Mr. Lucas must demonstrate that the corrections authorities’ treatment of him under the administrative rubric of “Special Handling” implicates a “liberty” interest. The question to be resolved in this case is whether, absent a state statute or regulation implementing a statutory directive, a liberty interest can arise from a prison administrator’s adoption of a procedure to guide the actions of corrections authorities within the .institution. While the majority appropriately refrains from deciding whether the administrative procedures relied upon here in fact create such an interest, it nonetheless holds that such procedures can create “liberty” protected by the Constitution.

In my view, constitutionally protected liberty interests are not so ephemeral that they may be created or obliterated in the unfettered discretion of a prison administrator or warden. Rather, there must be some root in the corpus of state or federal law for the interest to be created in the first instance. In this case, it is conceded that no federal or District of Columbia statutes create any interest or expectancy on the part of inmates in remaining in the general prison population and avoiding the administrative category of “Special Handling.” Moreover, nothing in the published regulations of the District of Columbia filling in the interstices of statutory law confers upon inmates any interest in avoiding this status. Rather, the classification of “Special Handling” is an administrative device developed by prison officials charged with the difficult and dangerous task of administering the daily operations of the District of Columbia correctional institutions.

The source of Mr. Lucas’ claimed interest is thus to be found in the internal management documents of the two institutions where he had been, until recently, incarcerated. With all respect to the majority, that foundation is, in my judgment, simply insufficient to support a constitutionally protected liberty interest. The incongruity of divining liberty interests in such documents is apparent, since these appointed officials are not required by law or regulation to develop such directives for administrative convenience, but may in their complete discretion decide whether to do so. Nor could it seriously be maintained that the abrogation of the liberty interest claimed here would have required anything beyond a written revocation of the administrative *1508 procedure, without notice or opportunity to comment by the prison’s resident population.

An internal management document would thus, as a matter of theory, manifestly seem a weak reed on which to build a constitutionally protected liberty interest. Such an approach, however, is not only conceptually weak, it is also inconsistent with the Supreme Court’s pronouncements in the area. The majority canvasses a substantial body of lower court case law dealing with the issue whether liberty interests under state law may be found in policies or procedures that do not rise to the level of statutes and implementing regulations. These cases, however, almost uniformly rely upon the line of Supreme Court precedent dealing with property interests. Although the liberty and property interest analyses are parallel in that both require courts to examine state law in determining whether a protectable interest has been created, the Court has made it clear that the sources of state-created property interests are not completely congruent with those that may give rise to liberty interests. In Jago v. Van Curen, 454 U.S. 14 , 102 S.Ct. 31 , 70 L.Ed.2d 13 (1981), for example, the Court held that an Ohio Adult Parole Authority decision to grant a prisoner early parole did not give rise to a liberty interest. Id. at 21 , 102 S.Ct. at 35 . In doing so, it rejected the Court of Appeals’ reasoning that the Parole Authority decision represented a “mutually explicit understanding,” thereby creating a liberty interest. Id. at 18-20 , 102 S.Ct. at 34-35 . The Court of Appeals, indeed, had expressly relied on the Supreme Court’s statements in Board of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972), that “property denotes a broad range of interests that are secured by ‘existing rules or understandings.’ ” Perry, 408 U.S. at 601 , 92 S.Ct. at 2699 . The Court, in holding that no liberty interest existed, reasoned that principles which may be helpful in determining whether a property interest exists do not always “lend themselves to determining the existence of ... liberty interests.” Jago, supra, 454 U.S. at 18 , 102 S.Ct. at 34 .

More recently, the Court’s holding in Hewitt v. Helms, 459 U.S. 460, 471 , 103 S.Ct. 864, 871 , 74 L.Ed.2d 675 (1983) seems to me by its terms to conclude that more than a “careful procedural structure” is required to create an interest protected by the Due Process Clause. Rather, the Court in that case looked to state statutes and their implementing regulations in determining that the state “has gone beyond simple procedural guidelines.” Id. at 871. Hewitt’s emphasis upon state law, rather than procedural guidelines as the source of liberty interests, is entirely consistent with the Court’s prior holdings. Thus, in Montanye v. Haymes, 427 U.S. 236, 242 , 96 S.Ct. 2543, 2547 , 49 L.Ed.2d 466 (1976), the Court concluded that to create a cognizable liberty interest, there must be “some right or justifiable expectation rooted in state law ____” So too, in Meachum v. Fano, 427 U.S. 215, 226 , 96 S.Ct. 2532, 2539 , 49 L.Ed.2d 451 (1976), the Court observed that in the seminal case of Wolff v. McDonnell, 418 U.S. 539, 558 , 94 S.Ct. 2963, 2975 , 41 L.Ed.2d 935 (1974), “[t]he liberty interest protected in Wolff had its roots in state law ____” And, true to the later readings of its holding, the Court in Wolff concluded that a liberty interest could arise “even when the liberty itself is a statutory creation of the State.” 418 U.S. at 558 , 94 S.Ct. at 2976 .

With all deference, I cannot treat the teachings of Hewitt and Jago , building as they do upon the language in Wolff Montanye and Meachum , as amounting only to atmospherics, particularly where such grave doctrinal difficulties flow from a rule of law that would create apparitional rights not from state or federal law but from a mere internal administrative procedure which could disappear in the twinkling of an administrator’s eye and the stroke of a revocatory pen.

I therefore respectfully dissent as to the majority’s holding with respect to the reach of the Due Process Clause.