# James Anthony Sweeton v. Robert Brown, Jr.

> Court of Appeals for the Sixth Circuit · July 1, 1994 · 27 F.3d 1162

URL: https://www.frixlaw.com/law-library/cases/9486940

## Case

- **Full name:** James Anthony SWEETON, Et Al., Plaintiffs-Appellees, v. Robert BROWN, Jr., Et Al., Defendants-Appellants
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** July 1, 1994
- **Citations:** 27 F.3d 1162; 1994 U.S. App. LEXIS 16379; 1994 WL 288135
- **Precedential status:** Published
- **Opinion:** Concurrence by Contie
- **Judges:** Merritt, Keith, Kennedy, Martin, Jones, Milburn, Guy, Nelson, Ryan, Boggs, Norris, Suhrheinrich, Siler, Batchelder, Daughtrey, Contie
- **Cited by:** 574 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9486940

## How later opinions describe it (automated extraction)

- holding that a parole board’s failure to follow state procedural standards could constitute a violation of state law but not federal law
- holding that due process does not require that parole authorities follow established procedure
- holding that the statutory right to a parole hearing does not create a liberty interest

## Opinion text

CONTIE, Senior Circuit Judge,
concurring.
Although the approach taken by the majority is not improper, in addition to the reasons stated in the majority opinion, I believe the case may also be dismissed for lack of subject matter jurisdiction.
Federal courts are courts of limited jurisdiction and are empowered to hear only such cases as are within the judicial power of the United States as defined in Article III, § 2 of the Constitution. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 , 102 S.Ct. 2099, 2103 , 72 L.Ed.2d 492 (1982); Cleveland Surgi-Center, Inc. v. Jones, 2 F.3d 686, 691 (6th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 696 , 126 L.Ed.2d 633 (1994). Although a federal court has the power to determine whether it has jurisdiction over the parties and subject matter of a suit, if it is determined that the case does not involve a federal question, it must then be dismissed for lack of subject matter jurisdiction. Insurance Corp. of Ireland, Ltd., 456 U.S. at 702 , 102 S.Ct. at 2104 .
In the present case, Judge Feikens, the original district court judge, did not find in 1978 that the court had jurisdiction over the parties and subject matter of the suit because the state of Michigan had created a federally protected liberty interest in its parole procedures which had been violated, but instead merely denied summary judgment on this issue and remanded for further factfind-ing. A factfinding hearing was never held. When the case was transferred, there was a misunderstanding about its procedural posture, and the court proceeded on the erroneous assumption- that there had been a determination on the merits that the court had jurisdiction over the parties because the Due Process Clause of the Fifth Amendment had been violated. Thus, the consent decree was entered into in 1981 without a clear analysis about whether the federal court had the judicial power to intervene in the state of Michigan’s parole procedures because the Due Process Clause of the Fifth Amendment had been violated.
Although initially the jurisdictional basis for such intervention was. dubious, it became clear in 1983 with the Supreme Court’s decision in Olim v. Wakinekona, 461 U.S. 238 , 103 S.Ct. 1741 , 75 L.Ed.2d 813 (1983) that the district court did not have the judicial authority to intervene, because the state of Michigan’s parole procedures do not create a federally protected liberty interest. The Court in Olim stated that a state creates a protected liberty interest in a proscribed procedure only “by placing substantive limitations on official discretion,” id. at 249 , 103 S.Ct. at 1747 (emphasis added), and “an expectation of receiving [a particular kind of] process is not, without more, a liberty interest protected by the Due Process Clause.” Id. at 250 n. 12, 103 S.Ct. at 1744 n. 12. In other words, a federal court has the judicial authority to intervene in enforcing state procedures only if there is a constitutional violation of a federally protected liberty interest. I do not believe this occurred in the present case for the reasons hereinafter set forth.
Based on the Supreme Court’s statements in Olim , this court held in 1991 that Ohio law did not give Ohio prison inmates a federally protected liberty interest in being released on parole at a time related to their “on or after dates” set by the Ohio Adult Parole Authority. Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authority, 929 F.2d 233, 235 (6th Cir.1991). This court in Inmates stated that state procedural requirements alone cannot establish a federally protected liberty interest, and violation of state regulations requiring a particular kind of parole hearing cannot violate the Due Process Clause absent some independent basis for finding a liberty interest that has been taken away. Id. at 237 . In Inmates, this court examined the Ohio statute on parole and found no mandatory language creating an explicit presumption of entitlement to release on parole as of a particular date even though limitations were placed on the parole *1168 board’s discretion in granting parole. Id. at 236-37 .
Similarly, in the present case, the Michigan statute at issue does not create an explicit entitlement to release on parole as of a particular date, but instead states, “The time of a person’s release on parole granted in compliance with this act shall be discretionary with the parole board.” MCLA § 791.-234(5). There is no mandatory language in the Michigan statute; although the parole board must follow certain procedures in making a decision about parole, the final decision is completely discretionary. As the Supreme Court stated in Olim , if an official can make a decision with unfettered discretion, the fact that regulations require a particular kind of hearing before the administrator can exercise this discretion does not create a federally protected liberty interest. 461 U.S. at 249-50 , 103 S.Ct. at 1747-48 . In Olim , the Court analyzed one of its former decisions, Mea-chum v. Fano, in which it held that there is no federally protected liberty interest in a hearing before a prison transfer, which is a discretionary decision left up to prison officials. Id., 461 U.S. at 248-49 , 103 S.Ct. at 1747-48 . The Court in Meachum, 427 U.S. 215 , 96 S.Ct. 2532 , 49 L.Ed.2d 451 (1976) emphasized that it would be error to interpret the Due Process Clause to create a liberty interest in procedures involving the day-to-day functioning of state prisons and “involve the judiciary in issues and discretionary decisions that are not the business of federal judges.” Id. at 228-29 , 96 S.Ct. at 2540 . I believe that similar policy concerns apply in the present case.
In a more recent opinion, Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 , 109 S.Ct. 1904 , 104 L.Ed.2d 506 (1989), the Supreme Court clarified its holdings in Mea-chum and Olim , stating that state regulations do not give rise to a federally protected liberty interest unless there are “specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow.” Id. at 463, 109 S.Ct. at 1910 (emphasis added). The proper analysis is to “examine closely the language of the relevant statutes and regulations” to discern the existence of “relevant mandatory language that expressly requires the decisionmaker to apply certain substantive predicates,” which then mandate a decision. Id. at 464 , 109 S.Ct. at 1910 .
In the present case, this analysis was never conducted in order to establish subject matter jurisdiction, and no such mandatory language exists. In 1985, a final monitor’s report was submitted and court-supervised monitoring of Michigan’s parole procedures was terminated by stipulated order of the district court. In spite of the statements made in the Supreme Court’s 1983 decision in Olim , which indicated that a federal court does not have the jurisdictional authority to monitor parole procedures in the state of Michigan, the district court in the present case reinstituted monitoring of Michigan’s parole procedures in 1988. Since then, there have been six more years of proceedings involving the federal supervision of the state of Michigan’s parole procedures without an adequate jurisdictional basis for doing so.
Plaintiffs contend that by entering into the consent decree, defendants waived their right to contest subject matter jurisdiction. This argument has no merit. As the Supreme Court stated in Insurance Corporation of Ireland, Ltd.: *1169 456 U.S. at 702 , 102 S.Ct. at 2104 (citations omitted). As the court in United States v. Siviglia, 686 F.2d 832, 835 (10th Cir.1981), cert. denied, 461 U.S. 918 , 103 S.Ct. 1902 , 77 L.Ed.2d 289 (1983) stated, “Lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction or stipulation.... A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking” (emphasis in original). See also Basso v. Utah Power and Light Co., 495 F.2d 906, 909 (10th Cir.1974); Burks v. Texas Co., 211 F.2d 443, 445 (5th Cir.1954).
*1168 Subject-matter jurisdiction ... is an Art. Ill as well as a statutory requirement; it functions as a restriction on federal power, and contributes to the characterization of the federal sovereign. Certain legal consequences directly follow from this. For example, no action of the parties can confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant, principles of estoppel do not apply, and a party does not waive the requirement by failing to challenge jurisdiction early in the proceedings.... “[T]he rule, springing from the nature and limits of the judicial power of the United States is inflexible and without exception, which requires this court, of its own motion, to deny its jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record.”
*1169 To conclude, I concur with the majority opinion that the case should be remanded to the district court with instructions to vacate the consent decree and dissolve the injunctions imposed by it. However, for the aforementioned reasons, I prefer to dismiss the case for lack of subject matter jurisdiction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9486940. Public record. Not legal advice.