Conklin Wallace v. Robert Christensen

CYNTHIA HOLCOMB HALL, Circuit Judge, with whom Circuit Judges GOODWIN, J. BLAINE ANDERSON, and KOZINSKI

join, concurring in the judgment:

I agree with the result the majority has reached, and with the majority’s conclusion that we have jurisdiction to review constitutional and statutory challenges to Parole Commission decisions. However, I disagree with the majority’s conclusion that our jurisdiction to review claims that the Commission has violated the Guidelines or its own regulations under the Administrative Procedure Act depends on “whether the Commission’s decision involves the exercise of judgment among a range of possible choices of options, or involves a plain violation of a matter which does not admit of discretion and choice.” Judicial review of allegations that the Commission has violated its own regulations is inappropriate when Congress has specified by statute that Commission decisions granting or denying parole are committed to agency discretion.

I

The Administrative Procedure Act (APA) provides two exceptions to the general rule that administrative actions are subject to judicial review:

§ 701. Application; definitions

(a) [The Administrative Procedure Act] applies, according to the provisions thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

5 U.S.C. § 701 (a). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971), the Supreme Court analyzed these two exceptions as they applied to the Secretary of the Interior’s claim that his decision to run a *1555 highway through a public park was not subject to judicial review.

In this case, there is no indication that Congress sought to prohibit judicial review and there is most certainly no “showing of ‘clear and convincing evidence’ of a ... legislative intent” to restrict access to judicial review. Abbott Laboratories v. Gardner, 387 U.S. 136, 141 [ 87 S.Ct. 1507, 1511 , 18 L.Ed.2d 681 ] (1967).

Similarly, the Secretary’s decision does not fall within the exception for action “committed to agency discretion.” This is a very narrow exception____ The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where “statutes are drawn in such broad terms that in a given case there is no law to apply.” S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945).

401 U.S. at 410 , 91 S.Ct. at 820 . In Heckler v. Chaney, 470 U.S. 821 , 105 S.Ct. 1649 , 84 L.Ed.2d 714 (1985), the Court expounded on the distinction it had drawn in Overton Park.

The above [language from Overton Park ] answers several of the questions raised by the language of § 701(a)____ First, it clearly separates the exception provided by § (a)(1) from the § (a)(2) exception. The former applies when Congress has expressed an intent to preclude judicial review. The latter applies in different circumstances; even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion____ [T]his construction satisfies the principle of statutory construction mentioned earlier, by identifying a separate class of cases to which § 701(a)(2) applies.

105 S.Ct. at 1655 .

In this case we are considering Congress’ statement in the Parole Act, 18 U.S.C. § 4218 (d), that Commission actions granting or denying parole are “committed to agency discretion for purposes of section 701(a)(2) of title 5, United States Code.” This statement is the “clear and convincing evidence” of a legislative intent to prohibit judicial review necessary to preclude such review under section 701(a)(1). See Farkas v. United States, 744 F.2d 37, 39 (6th Cir. 1984). Cf. Briscoe v. Bell, 432 U.S. 404, 409-14 , 97 S.Ct. 2428, 2431-34 , 53 L.Ed.2d 439 (1977) (holding that determination or certification of the Attorney General under section 4(b) of the Voting Rights Act, 42 U.S.C. § 1973b(b), was not subject to judicial review when section 4(b) provided that such actions were “not reviewable in any court”). The legislative intent to prohibit judicial review would be easier to perceive if, in the Parole Act, Congress had referred to section 701(a)(1), rather than section 701(a)(2), but the reference to section 701(a)(2) is sufficient. There is no need to consider the application of section 701(a)(2) because the exception to judicial review in section 701(a)(1) is applicable. See United States v. Erika, Inc., 456 U.S. 201, 211 , 102 S.Ct. 1650, 1655 , 72 L.Ed.2d 12 (1982) (Court concluded that its “task was at an end” once it found legislative intent to preclude judicial review).

Federal courts have jurisdiction to review claims that the Commission’s actions violated the constitution. Cf. Johnson v. Robison, 415 U.S. 361, 366-74 , 94 S.Ct. 1160, 1165-69 , 39 L.Ed.2d 389 (1974) (finding jurisdiction to review constitutionality of veteran’s benefits legislation even though statute prohibited judicial review of certain administrative decisions). Federal courts also have jurisdiction to review allegations that the Commission has violated the Parole Act by failing to consider certain factors, see 18 U.S.C. §§ 4206 , 4207, or setting a presumptive parole date outside of the Guidelines without good cause, see 18 U.S.C. § 4206 (c). These are statutory limits on the Commission’s discretion over which we have jurisdiction. 28 U.S.C. § 1331 ; see Garcia v. Neagle, 660 F.2d 983, 988-89 (4th Cir.1981), cert. denied, 454 U.S. 1153 , 102 S.Ct. 1023 , 71 L.Ed.2d 309 (1982). This is where our jurisdiction ends however. Section 4218(d) is an expression *1556 of legislative intent to preclude judicial review which deprives federal courts of the authority to review Commission decisions for an abuse of discretion under the APA, even when mandatory Guidelines or regulations are at issue.

II

The majority, however, continues past this logical conclusion by stating that:

to recognize, as we must, that the Commission’s substantive decisions to grant or deny parole are unreviewable does not necessarily answer whether the Commission’s interpretation of the Guidelines are also shielded from review____ We must still consider whether and to what extent the removal of our jurisdiction to review the Commission’s decisions to grant or deny parole also precludes our review of the Commission’s decision making processes.

The majority then relies on conflicting statements regarding judicial review in the legislative history of the Parole Act to conclude that Congress intended for courts to review Commission decisions which are governed by a mandatory standard under the Guidelines or other regulations, but not those decisions in which the Guidelines or other regulations permit the Commission “a range of choices.” This analysis is troublesome in several respects.

The inquiry into whether there are regulations which a court may look to in reviewing an agency decision is a component of the section 701(a)(2) determination of whether a matter is committed to agency discretion by law. See Abdelhamid v. Eckert, 774 F.2d 1447 , 1450 (9th Cir.1985); Ness .Investment Corp. v. United States Department of Agriculture, 512 F.2d 706, 714-15 (9th Cir.1975). If there are no statutory or regulatory directives then a court may conclude that the agency action at issue falls into that narrow class of cases in which there is no law to apply. See Abdelhamid, 774 F.2d at 1450. However, the Court’s statement in Heckler v. Chaney, that section 701(a)(1) and section 701(a)(2) provide separate exceptions to judicial review, demonstrates that the majority’s inquiry into the existence and mandatory nature of regulations should not be undertaken when Congress “has expressed an intent to preclude judicial review.” 105 S.Ct. at 1655 . Once Congress has specified that a decision is committed to agency discretion we should not dissect that decision into its smallest components and then review each of the components to determine if it is “committed to agency discretion by law.” See Farkas, 744 F.2d at 38 (Commission’s factual findings are “necessary components of the Commission’s ultimate decision to deny parole and are not subject to [judicial] review”). 1

Holding that we have jurisdiction to review Commission decisions governed by mandatory regulations under the APA even though Congress has specified that *1557 the decision to grant or deny parole is committed to agency discretion creates two practical problems. First, under this approach, Congress will have difficulty specifying areas of agency action which are not subject to judicial review as contemplated by the APA. A statement that a matter is committed to agency discretion will be given effect at the ultimate decision level, but when the decision is broken down into its component parts the result may be that the decision is actually subjected to judicial review for an abuse of discretion. Second, agencies will have a disincentive to adopt regulations guiding their decisions because matters which would not otherwise be subject to judicial review would become reviewable if a court determines that the regulation is mandatory.

Ill

The due process clause of the fifth amendment provides the appropriate means for addressing claims that the Commission has failed to follow the Guidelines or its own regulations.

Under this approach, the first question is whether the Parole Act creates a liberty interest which is subject to due process protection. The Supreme Court has held that mandatory language in a Nebraska parole statute created a liberty interest which was protected under the due process clause of the fourteenth amendment. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 12 , 99 S.Ct. 2100, 2106 , 60 L.Ed.2d 668 (1979). Neither the Supreme Court nor this court has determined whether the language of the federal Parole Act is sufficiently mandatory to create such a liberty interest under the fifth amendment. Compare Solomon v. Elsea, 676 F.2d 282, 284-85 (7th Cir.1982) (finding liberty interest) with Shahid v. Crawford, 599 F.2d 666 , 670 n. 5 (5th Cir.1979) (noting that language of the federal Parole Act is less mandatory than the Nebraska act analyzed in Greenholtz , but avoiding issue of whether the federal Parole Act ever creates a liberty interest by finding that there is no liberty interest before minimum time for parole eligibility has been served).

If the federal Parole Act is found to create a liberty interest, then the question is whether the prisoner has been afforded the “quantum and quality” of process due in this particular situation. See Greenholtz, 442 U.S. at 13 , 99 S.Ct. at 2106 (citing Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893, 903 , 47 L.Ed.2d 18 (1976)). Although the availability of judicial review under both the due process analysis outlined by the Supreme Court in Greenholtz and the majority’s analysis under the APA is determined by the existence of mandatory language, the inquiry into the amount and quality of due process required to protect a liberty interest specified in Greenholtz is a more deferential review of the Commission’s actions than the abuse of discretion review the majority would apply under the APA.

Because Wallace has not claimed that the Commission’s application of the Guidelines violated his due process rights, I find it unnecessary to undertake the due process inquiry in this concurring opinion.

. The majority places undue emphasis on the legislative history in drawing its distinction between mandatory Guidelines or regulations and those which permit the Commission a range of choices. Although legislative history should be considered in determining whether there is clear and convincing evidence of a legislative intent to preclude judicial review, see Block v. Community Nutrition Institute, 467 U.S. 340, 345 , 104 S.Ct. 2450, 2454 , 81 L.Ed.2d 270 (1984), the legislative history should not be used to contradict a statutory directive.

Much of the legislative history discussed thoroughly in the majority opinion demonstrates Congress’ intent to limit judicial review of Commission decisions. See, e.g., H.Conf.Rep. No. 94-838, 94th Cong., 2d Sess. 25, 36, reprinted in 1976 U.S.Code Cong. & Ad.News at 358, 368 (Joint House-Senate Conference Report) [hereinafter Joint Report). The majority places great emphasis on portions of the legislative history which indicate Congress’ concern that judicial review not be completely abrogated, or that Congress believed judicial review would remain the same as before the adoption of the Parole Act. See, Joint Report at 19, 36, reprinted in 1976 U.S.Code Cong. & Ad.News at 341, 368; 122 Cong.Rec. 5164 (1976) (statement of Rep. Drinan); 121 Cong.Rec. 1570 (1975) (statement of Rep. Wiggins). But section 4218(d), as adopted, precludes judicial review of Commission decisions to grant or deny parole. The legislative history, especially the statements of individual congressmen or senators, should not be used to circumvent this statutory directive.