stating that “[a] claim that the Commission has acted outside its statutory limits typically involves an issue of statutory construction which we review de novo” and that “[t]he Commission, like other agencies, is thus bound by its own regulations so long as they remain in force”
How later courts described this case
- stating that “[a] claim that the Commission has acted outside its statutory limits typically involves an issue of statutory construction which we review de novo” and that “[t]he Commission, like other agencies, is thus bound by its own regulations so long as they remain in force”
- holding that United States Parole Commission Guidelines are procedural guideposts, not subject to the Ex Post Facto Clause
- Congress specifically intended to exempt from judicial review “substantive decisions to grant or deny parole”
- court has jurisdiction to address Parole Commission decision outside of the parole guidelines but decision within the parole guidelines involves matter of discretion reserved for Commission
Written by the judges who cited it.
The opinion
KOZINSKI, Circuit Judge, with whom Circuit Judge J. BLAINE ANDERSON
joins, concurring in the judgment.
It is only fair to start with the concession that today’s opinion is the product of invited error. By and large the court follows the path suggested by the government in its brief and at oral argument; no one should therefore be heard to complain that the court fails to adequately preserve the Parole Commission’s prerogatives. Yet, the majority opinion is troubling in a number of ways: it perpetuates the myth that laws constraining executive action mean nothing unless they are judicially enforceable; it elevates bits and pieces of legislative history over clear and unambiguous statutory language; and it draws gossamer distinctions that invite litigation. I write not to respond to the majority’s reading of the law; Judge Hall’s concurrence, which I join, does this lucidly and persuasively. My observations concern the majority’s *1558 methodology and the unfortunate implications of its approach.
I.
As the majority recognizes, supra p. 1544, the Parole Act of 1976 commits the decision whether to grant or deny parole to the Parole Commission’s unreviewable discretion. 18 U.S.C. § 4218 (b) (1982). The court nevertheless rejects the “syllogistic” conclusion that this necessarily precludes review of “the process by which the Commission reaches that decision.” Supra p. 1547. The court’s reluctance to accept the logic of the statute is based on its observation that the Act limits “the scope of discretion granted the Commission” and “the Parole Act reveals no congressional design to allow the Commission to transgress these limitations.” Id. The court concludes that judicial review is necessary to keep the agency from going astray. Id. See also supra p. 1551 (“[i]f a court could not consider this issue, the requirement that the Commission show ‘good cause’ to render a decision ‘notwithstanding’ the Guidelines would be meaningless”).
The court’s unspoken but powerful premise is that executive branch officials cannot be trusted to stay within the law and that limitations on their authority are empty words on paper unless they can be judicially enforced. This does not, in my view, comport with reality; nor does it show appropriate deference to officers of a coordinate branch of our government.
Contrary to the court’s assertion, a statutory limitation on executive action is not rendered meaningless because a judge can’t be called upon to enforce it; nor is judicial review the only way to ensure that the law will be followed. An Act of Congress is the law of the land, a law all federal officials are sworn to uphold whether they be in the judicial, legislative or executive branches of government. 28 U.S.C. § 453 (1982) (judicial); 2 U.S.C. §§ 21 , 25 (1982) (legislative); 5 U.S.C. § 3331 (1982) (executive). The first and by far the most important assurance that the law will be followed lies in the diligence and good faith of those administering it. For the overwhelming number of the millions of decisions made by our federal government every year, this is the only assurance. Our system would be gridlocked if executive officials could not be trusted to carry out the law whenever their actions escape judicial review.
Even where Congress chooses not to rely on the acting official’s good faith alone, judicial review is not the only available safeguard. One option is to provide administrative appeals within the executive branch itself. Formal and informal review within the agency can correct errors of law, curb abuses of discretion and ensure that the decision is not the product of a single official’s passion or prejudice. The Parole Act provides for such internal administrative review. It establishes a three-member National Appeals Board to which prisoners such as Wallace may appeal denials, modifications or revocations of parole. 18 U.S.C. §§ 4204 (a)(5), 4215 (1982). Under Parole Commission regulations, appeal may be based on misapplication of the guidelines, mistaken conclusions of fact or failure to follow proper procedures. 1 Moreover, a Regional Commissioner may reopen a case at any time based on new information. 28 C.F.R. § 2.28 (a) (1985). This “in *1559 ternal appeal process is provided to assure fairness in every decision, and to be sure that both law and guidelines are administered fairly across the country.” S.Rep. No. 94-369, 94th Cong., 2d Sess. 15, reprinted in 1976 U.S.Code Cong. & Ad. News 335, 336. 2
Finally, Congress itself can and does monitor the behavior of executive branch officials. This is not an empty threat. Proliferation of congressional committees and subcommittees, aided by burgeoning congressional staff, has led to extensive micromanagement of executive agency practices. A recent study describes this phenomenon as follows:
Congress has expanded the scope of its concern for executive branch activities to include the most minute details of operations. These range from dictating the size and style of agency wall calendars to overruling a Treasury Department decision on a mailbox address for payments of tobacco taxes, to requiring the assignment of an attorney to a government office in Stillwater, Okla.
R. Fitzgerald & G. Lipson, Pork Barrel: The Unexpurgated Grace Commission Story of Congressional Profligacy xxv (Cato Inst.1984); see also id. at 44-49 , 92--98 (citing numerous examples of legislative micromanagement).
Judicial review is, of course, yet another way to assure fidelity to statutory and regulatory standards. But it is not the only way. Congress, it seems to me, should have the option to invoke judicial review, rely on its own oversight or leave matters entirely to executive officials. Here, Congress expressly left to the executive branch the decision to grant or deny parole. As Judge Hall points out, at 1557, by refusing to honor that choice, the court denies Congress the flexibility of placing constraints on executive action while avoiding the cost and delay of judicial review.
II.
As Judge Hall further notes, the majority places far too much reliance on legislative history. Supra pp. 1556-57 n. 1. The fact of the matter is that legislative history can be cited to support almost any proposition, and frequently is. The propensity of judges to look past the statutory language is well known to legislators. It creates strong incentives for manipulating legislative history to achieve through the courts results not achievable during the enactment process. The potential for abuse is great. Judge (now Justice) Scalia has persuasively warned against relying on detailed discussions in legislative reports:
[T]he authoritative, as opposed to the persuasive, weight of the Report depends entirely upon how reasonable it is to assume that [its view] was reflected in the law Congress adopted. I frankly doubt that it is ever reasonable to assume that the details, as opposed to the broad outlines of purpose, set forth in a committee report come to the attention of, much less are approved by, the house which enacts the committee’s bill. And I think it time for courts to become concerned about the fact that routine deference to the detail of committee reports, and the predictable expansion in that detail which routine deference has produced, are converting a system of judicial construction into a system of committee-staff prescription.
Hirschey v. FERC, 777 F.2d 1, 7-8 (D.C. Cir.1985) (Scalia, J., concurring) (emphasis original; footnote omitted). A footnote to this passage 3 vividly demonstrates the dan *1560 ger of according legislative reports controlling weight: Reports are usually written by staff or lobbyists, not legislators; few if any legislators read the reports; they are not voted on by the committee whose views they supposedly represent, much less by the full Senate or House of Representatives; they cannot be amended or modified on the floor by legislators who may disagree with the views expressed therein. Committee reports that contradict statutory language or purport to explicate the meaning or applicability of particular statutory provisions can short-circuit the legislative process, leading to results never approved by Congress or the President. Of course, all this goes doubly for floor statements by individual legislators.
None of the legislative history cited by the court today specifically addresses the effect of 18 U.S.C. § 4218 (d) which, by any fair reading, appears to preclude judicial review of all aspects of the Commission’s decision to grant or deny parole. The most that can be said about these excerpts from the legislative record is that their authors labored under the impression that the Parole Act would not affect judicial review. No one bothers to reconcile this hoped-for result with the language of the law about to be enacted. Taken literally, all this nay-saying would read section 4218(d) right out of existence; if the law is to remain unchanged, why bother passing the section at all? Surely such predictions about how courts are likely to interpret a statute should not become self-fulfilling prophecies. If a legislator is troubled by a particular provision in a bill, he should try to modify or excise it during the enactment process. Courts should not allow individual legislators and their staffs to usurp the uniquely judicial function of statutory interpretation by countenancing unexplicated assertions that the law to be enacted won’t mean much anyway.
III.
Having bypassed clear statutory language in favor of nebulous assertions in the legislative history, the court confronts a dilemma that those who wrote the legislative reports did not have to deal with: how to reconcile the clear mandate of section 4218(d) with the assertions that the Parole *1561 Commission’s decisions are judicially reviewable after all. Seeking to serve two masters, the opinion winds up faithful to neither. On the one hand, the law .plainly is changed by section 4218(d), contrary to what some legislators apparently hoped. On the other hand, the effect of section 4218(d) is blunted, shielding from judicial review some, but not all, aspects of the Parole Commission’s decision. The result reflects its mixed pedigree.
The opinion seeks to draw a distinction between claims that the Commission has acted outside the scope of its discretion, which are reviewable, and claims that the Commission abused its discretion, which are not. See, e.g., supra pp. 1550-51. The distinction is, at best, counterintuitive. In trying to reconcile what are basically irreconcilable positions, the court has come up with a standard that is extremely difficult to apply and will therefore clog the courts with cases brought by prisoners, many having claims that at least colorably fall within the class reserved for judicial review.
The court’s attempt to flesh out this standard doesn’t help much. Thus, the court cautions that “unless a petitioner alleges the Commission acted beyond the scope of discretion granted by Congress, a federal court has no jurisdiction to entertain his claim.” Supra p. 1551. Moreover, “a bare allegation that the Commission has abused its discretion acknowledges that the Commission has exercised a judgment, if improperly, within its discretion.” Id. (emphasis original). This will surely deter prisoners from charging abuse of discretion. They will allege instead that the Commission acted “beyond the scope of [its] discretion.” 4
The majority explains what it means for the Commission to act beyond the scope of its discretion in the following terms:
In determining whether the Commission has “gone outside” the Guidelines, therefore, it is appropriate for the court to inquire whether the Commission has in fact made a “judgment” within its discretion. Specifically, the court’s inquiry is addressed to whether the Commission’s decision involves the exercise of judgment among a range of possible choices or options, or involves a plain violation of a matter which does not admit of discretion and choice.
Supra p. 1552 (citation omitted). This gives litigants and the district courts little useful guidance. There are, it seems to me, few Parole Commission decisions that could not fairly be challenged on either ground.
Take this case, for example. The petitioner here was convicted of extortion, use of an explosive to commit a felony, and possession of an unregistered destructive device. Because the criminal conduct involved an airplane, the Commission classified his offense as “Interference With a Flight Crew.” The regulations provide two levels of offense behavior in this category: “if the conduct or attempted conduct has potential for creating a significant safety risk to an aircraft or passengers, grade as Category Seven.” 28 C.F.R. § 2.20.242 (a). “Otherwise, grade as Category Two.” Id. § 2.20.242(b). The Commission graded the offense as a seven.
Wallace’s case gives rise to two possible objections to the Commission’s action: first, that the Commission incorrectly classified his conduct as “Interference with a Flight Crew;” and second, that (even accepting the “Interference with a Flight Crew” classification) the. Commission should have graded the offense as a two because “the conduct or attempted conduct [did not have] potential for creating a significant safety risk to an aircraft or passengers.” In support of the first contention, Wallace argues that his offense should have been classified as extortion, a crime of which he was actually convicted, and which carries an offense behavior categorization of five. 28 C.F.R. § 2.20.322 (a). Supporting the latter contention is the fact that the *1562 explosives were found early, long before they could pose any realistic danger to the aircraft, passengers or crew and, in any case, were allegedly not even operative.
These two objections to the Parole Commission’s action are quite different from each other. The first is, in effect, that the Commission misapplied its own guidelines, what I would have thought was a question of law, not of discretion. The second challenges judgments as well as findings of fact: the Commission’s determination that Wallace’s conduct endangered passengers, plane and crew. The court resolves both of these questions in a single paragraph:
The Commission found that Wallace’s offense had the potential to cause injury or death and destruction to an aircraft and passengers. The Commission’s determination did not violate a mandatory or non-discretionary standard, but rather, involved a judgment among a range of possible choices and options relating to the severity of Wallace’s offense. Wallace has pointed to no provision in the Guidelines removing discretion from the Commission to classify his offense in this category. We hold that the Commission acted within the scope of discretion granted by Congress and hence our review of the Commission’s classification of Wallace’s offense is complete.
Supra p. 1553 (footnote omitted).
The court does not adequately explain its conclusion. For example, even though Wallace was actually convicted of extortion, the court approves the Commission’s decision to classify his offense as “Interference with Flight Crew.” Was that because in doing so the Commission was acting within the scope of its discretion? Because the Commission did not abuse its discretion? Or because the Commission was right as a matter of law? Would the result have been the same if the Commission had classified the conduct as demand for ransom, 28 C.F.R. § 2.20.222 ; aircraft piracy, id. § .241; assault, id. § .212; burglary or unlawful entry, id. § .311; espionage, id. § .1021; or tax evasion, id. § .501? If review is to mean anything, I would think that somewhere along the line the court will have to consider whether the Commission has totally misclassified the offense. Because the court does not tell us why it is satisfied with the classification here, those of us not participating in the majority opinion remain in the dark even as to the standard by which the conclusion was reached.
Equally unexplicated is the court’s approval of the Commission’s determination that “Wallace’s offense had the potential to cause injury or death and destruction to an aircraft and passengers” because this “involved a judgment among a range of possible choices and options relating to the severity of Wallace’s offense” and was therefore “within the scope of discretion granted by Congresss.” Supra p. 1553. Would the court have reached the same conclusion if the Commission had uttered this finding as to a defendant convicted of an offense wholly unrelated to aircraft such as forgery, 28 C.F.R. § 2.20.331 , or importation of illegal aliens, id. § 2.20.402? Or what if Wallace had merely written a letter or made a crank telephone call threatening the existence of a totally nonexistent bomb? Will all such matters be left to the Commission, and if so, what precisely is the area the court maps out for judicial scrutiny?
The summary fashion in which the court resolves Wallace’s claims masks the difficulty of applying the standard enunciated today even to his case. I fear that courts will have even more trouble in future cases trying to apply the pronouncement of an en banc panel of this court. It seems to me we are inflicting another layer of complexity on district courts and litigants already overburdened with rules, tests, standards of review and a variety of other fine distinctions that are not intuitively obvious. Judges and lawyers will study today’s opinion long and hard seeking guidance of the type that can actually be used in resolving disputes. As always, uncertainty will spawn litigation which will necessitate further guidance from this court. In the end, I fear that those who predicted section 4218(d) will mean nothing may have their way. When all is said and done, we may *1563 find ourselves having run around the block once, only to wind up where we were before section 4218(d) was passed.
. The regulations provide that a prisoner may appeal a parole decision on any of the following grounds:
(1) That the guidelines were incorrectly applied ...;
(2) That a decision outside the guidelines was not supported by the reasons or facts as stated;
(3) That especially mitigating circumstances ... justify a different decision;
(4) That a decision was based on erroneous information ...;
(5) That the Commission did not follow correct procedure ...;
(6) There was significant information in existence but not known at the time of the hearing;
(7) There are compelling reasons why a more lenient decision should be rendered on grounds of compassion.
28 C.F.R. § 2.26 (e)(1985).
. A statutory framework providing a comprehensive system of administrative remedies may itself foreclose judicial review not specifically authorized. See Busk v. Lucas, 462 U.S. 367, 388 , 103 S.Ct. 2404, 2416 , 76 L.Ed.2d 648 (1983) (comprehensive nature of civil service remedies reason for declining to create judicial remedy); Veit v. Heckler, 746 F.2d 508, 510-11 (9th Cir. 1984) (no review of federal personnel actions in view of extensive remedies already available).
. This footnote, 777 F.2d at 7 -8 n. 1, quotes this "illuminating exchange ... between members of the Senate, in the course of floor debate on a tax bill”:
Mr. ARMSTRONG: ... My question, which may take [the chairman of the Committee on Finance] by surprise, is this: Is it *1560 the intention of the chairman that the Internal Revenue Service and the Tax Court and other courts take guidance as to the intention of Congress from the committee report which accompanies this bill?
Mr. DOLE: I would certainly hope so____
Mr. ARMSTRONG: Mr. President, will the Senator tell me whether or not he wrote the committee report?
Mr. DOLE: Did I write the committee report? Mr. ARMSTRONG: Yes.
Mr. DOLE: No; the Senator from Kansas did not write the committee report.
Mr. ARMSTRONG: Did any Senator write the committee report?
Mr. DOLE: I have to check.
Mr. ARMSTRONG: Does the Senator know of any Senator who wrote the committee report?
Mr. DOLE: I might be able to identify one, but I would have to search. I was here all during the time it was written, I might say, and worked carefully with the staff as they worked____
Mr. ARMSTRONG: Mr. President, has the Senator from Kansas, the chairman of the Finance Committee, read the committee report in its entirety?
Mr. DOLE: I am working on it. It is not a bestseller, but I am working on it.
Mr. ARMSTRONG: Mr. President, did members of the Finance Committee vote on the committee report?
Mr. DOLE: No.
Mr. ARMSTRONG: Mr. President, the reason I raise the issue is not perhaps apparent on the surface, and let me just state it: ____ The report itself is not considered by the Committee on Finance. It was not subject to amendment by the Committee on Finance. It is not subject to amendment now by the Senate.
... If there were matter within this report which was disagreed to by the Senator from Colorado or even by a majority of all Senators, there would be no way for us to change the report. I could not offer an amendment tonight to amend the committee report.
... [F]or any jurist, administrator, bureaucrat, tax practitioner, or others who might chance upon the written record of this proceeding, let me just make the point that this is not the law, it was. not voted on, it is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute.
128 Cong.Rec. S8659 (daily ed. July 19, 1982).
. Presumably, however, pro se prisoners will not be thrown out of court merely for invoking the wrong incantation. Haines v. Kerner, 404 U.S. 519, 520 , 92 S.Ct. 594, 595 , 30 L.Ed.2d 652 (1972).