Reply Brief — United States Parole Commission v. Shepard

Suoreme Court, U. 3 |

—~ FILED

JAN 10 1977

No. 76-752

| mice RODAK, JR, CLERK }

Iu the Supreme Court of the United States

OCTOBER TERM, 1976

UNITED STATES PAROLE COMMISSION, APPELLANT

Vv.

LYMAN T. SHEPARD

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY MEMORANDUM FOR THE APPELLANT

ROBERT H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-752

UNITED STATES PAROLE COMMISSION, APPELLAN1

v.

LYMAN T. SHEPARD

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY MEMORANDUM FOR THE APPELLANT

Appellee does not take issue with our argument that

the court of appeals’ decision in this case is inconsistent

with Moody v. Daggett, No. 74-6632, decided November

15, 1976. Rather, he makes several arguments designed

to avoid the consequences of that inconsistency. We

respond below to these arguments.

1. Appellee contends (Mot. to Dismiss 5) that this case

is moot because he has been paroled from his state sen-

tence. it is not moot. The court of appeals remanded this

case to the district court with instructions to conduct

a hearing to determine whether the Parole Commis-

sion’s delay in holding appropriate proceedings pre-

judiced appellee; if the district court finds prejudice,

it is to quash the parole violator warrant (J.S. App.

19a). The effect of such a decision would be that the

Commission may not revoke appellee's parole because

of the intervening New York crime of second degree

(1)

2

robbery. That controversy—-whether the Commission

has forfeited its right to revoke appellee’s parole—-is

live, and whether appellee remains in state custody is

irrelevant to its disposition.

In our view this case would become moot only if the

Parole Commission were to decide not to revoke

appellee’s parole despite his intervening state crime.

See Weinstein v. Bradford, 423 U.S. 147; Preiser v.

Newkirk, 422 U.S. 395. If appellee were released, the

controversy concerning the propriety of his continued

confinement because of his intervening state crime would

come to an end. But appellee has not yet been re-

leased from federal custody, and his federal sentence

does not expire until July 1978.!

2. Appellee argues (Mot. to Dismiss 4-5) that the court

of appeals did not hold an Act of Congress unconstitutional

but simply ordered the Parole Commission to provide

procedures not otherwise required by an Act of Congress.

The court of appeals had a different view of its action,

'The Parole Commission has scheduled a hearing for January

11, 1977, at which a panel of examiners will take evidence and

make a recommendation concerning the revocation of appellee's

parole on account of the intervening offense. This recommenda-

tion then will be reviewed by the regional office of the Parole

Commission. If the Commission should decide not to revoke ap-

pellee’s parole, this case would become moot. There is no rea-

son, however, for the Court to defer consideration of this

case while the Commission makes its decision. If the Commission

disposes of this case in a way that makes it moot, we will

inform the Court promptly. It then would be appropriate to vacate

the judgment of the court of appeals and to remand the

case to the district court with instructions to dismiss the

complaint (see Weinstein v. Bradford, supra, 423 U.S. at

149), not, as appellee suggests. to dismiss the appeal. On the

other hand, if the Court were to defer the decision on probable

jurisdiction, the chance of obtaining a decision in this case

during the present term would be virtually eliminated unless the

Court were to treat the case summarily.

ed

—

3

however. It wrote that the Parole Commission and

Reorganization Act, Pub. L. 94-233, 90 Stat. 219 er seq..

amending 18 U.S.C. 4201 et seq., “suffers from consti-

tutional infirmity” (J.S. App. 15a). The court of appeals

therefore devised, and required the Parole Commission

to follow, procedures that it believed would rectify the

“constitutional infirmity” of the statute.? This is, there-

fore, the type of case in which review lies by appeal

pursuant to 28 U.S.C. 1252.

3. Appellee suggests (Mot. to Dismiss 5-8) that this

case should be remanded for further proceedings to de-

termine whether he was prejudiced because of any

delay in holding the hearings the court of appeals believes

are required. There is no purpose in such a remand. As

we have argued in the jurisdictional statement, this

case is governed by Moody, and a remand of the sort

suggested by appellee would be an exercise in futility.

Appendices A and C to appellee’s Motion to Dismiss

make it clear that appellee never told the Parole Com-

mission that he desired to present mitigating evidence

or that important facts might become unavailable during

a lapse of time. Even if such a demonstration now were

relevant (and, in light of Moody, we believe that it would

not be), nothing appellee could now establish would

excuse his failure to present these claims to the Parole

Commission at an earlier date and to offer it an oppor-

tunity to evaluate the evidence to determine whether,

The legislative history of the Parole Commission and Reorgani-

zation Act indicates that Congress considered and rejected sugges-

tions that the Parole Commission should be required to provide

procedures more elaborate than those specified in the Act. See.

e.g.. S. Conf. Rep. No. 94-648, 94th Cong., 2d Sess. 35 (1976).

Congress was delineating the procedures that it wanted the Parole

Commission to follow, not setting minima to which courts could

add at their option.

4

if true, it would be material to decisions concerning

appellee’s parole.’

For these reasons, in addition to the reasons in the

jurisdictional statement, it is respectfully submitted that

the judgment of the court of appeals should be reversed.

RoBERT H. Bork,

Solicitor General.

JANUARY 1977.

‘Here, as in Moody, although appellee makes general claims

that evidence may have been lost. he does not say. even in this

Court. what this evidence is. why it is no longer available. or why

it would affect the Parole Commission's decisions.

DOJ-1977-01