Petition — United States Parole Commission v. Geraghty

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Text

|)" Supreme Court Ua]

78-572 |) Fitep”’ ||

No. | OCT & i978

——

in the Supreme Court of the United States

OcToBER TERM, 1978

Unirep States ParoLe CoMMISSION, ET AL., Petitioners

JOHN M. GERAGHTY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Wanbe H. McCresr, Jr.

Solicitor General

Pur B. HEYMANN

Assistant Attorney General

Kent L. JONES

Assistant to the Solicitor General

JEROME M. Fert

ELLIott SCHULDER

Attorneys

Department of Justice

Washington, D.C. 20530

Pauses or Breon S. Apams Parrrine, Inc., Wasuireron, D. C.

INDEX

Page

CD TEE es. ohikkueee ep eeeeen dso ence 1

PIII oo oon. so uc cnslnd denned sechnckeeacekareus 2

Cpe PUN ona kos occas esa scssssnseeeedss 2

ConstiTuTIONAL Provision, STATUTES AND REGULATIONS .

OGRE 5.4 cnn sn éeca an ceeen 5 5es5sb eee

CONE 5 soo Sev nivcecdc ces ceabaea nu akeeeieanis 6

Reasons For GRANTING THE PETITION ............05 13 |

CUI os c55 co < cp. na kee ee karate ees ree keeeee 31

CITATIONS

CASES:

Aetna Casualty Co. v. Flowers, 330 U.S. 464 ........ 22

Ahrens @. Thomas, STO FBd FBG... wee ccccscscvess 17

Andrus v. Charlestone Stone Products Co., No. 77-380

CEES Gia BOUND cv nadwccdcngtnnucdsacettuensnes 11

Autrey v. Williams and Dunlap, 343 F.2d 730 ........ 21

Bailey v. Patterson, 369 U.S. 31... 1... cece cece en ees 14

Banks v. Multi-Family Management, Inc., 554 F.2d

OOF os dn kt ceteisnduaebousanas che) eee 17-18

Banks v. United States, 553 F.2d 37 ...........02005- 28

Bacter v. Palmigiane, 425 U.S. 308 ........... 20.05. 18

Board of School Commissioners v. Jacobs, 420 U.S.

BED wicn cn cue ceedaceceuhe sho ecuaeecr eee 10, 14

Boyd v. Justices of Special Term, 546 F.2d 526 ..... 15, 17

Califano v. Sanders, 430 U.S. 99 .........ccceeeeeees 11

Continental Can Co. v. Horton, 250 F.2d 637 ........ 21

Coopers & Lybrand v. Livesay, No. 76-1836 (June 21,

BONE) acs ivsnnccsndegessewadseus cone

D. H. Overmyer Co. v. Loflin, 440 F.2d 1213 ......... 21

Davis v. Romney, 490 F.2d 1360 ..............00008- 20

Doctor v. Seaboard Coast Line R.R., 540 F.2d 699 .... 20

Franks v. Bowman Transportation Co., 424 U.S. 747... 15

Garcia v. United States Board of Parole, 557 F.2d 100 28

ii Citations Continued

Page

Inmates v. Owens, 561 F.2d 560 .........cccccceccce 15

Lasky v. Quinlan, 558 F.2d 1133 ............ccccueee 15

Kremens v. Bartley, 481 U.S. 119 .........0..ccccece 14

Kuahula v. Employers Insurance of Wausau, 557 F.2d

Sn Ie e8 SATEEN be, iy seas lee ean 15

Mancusi v. Stubbs, 408 U.S. 204 0.0... ccc ccc ccc eee 22

Monarch Asphalt Sales Co. v. Wilshire Oil Co., 511

a NE os erage cele oe Paid ee Paelg ceca 19

Napier v. Gertrude, 542 F.2d 825, cert. denied, 429 U.S.

WE aan ee china k Oke teeae ek Creer acs 15, 18

O’Shea v. Littleton, 414 U.S. 488 ... 0... cc ccc ccc 15

Pasadena City Board of Education v. Spangler, 427

SM EE eres a eel ete hh hee ts 15

..9 6-6) 93.68 6.0 624 2 2 4.6%

Roach v. Board of Pardons and Paroles, 503 F.2d 1367 10

Rutp v. United States, 555 F.2d 1381 ............... 30

BG MNT, a's Ch PCE caus bis SERGE ae cke 15, 20

Shepard v. Taylor, 556 F.2d G48 .... oo. cc ccc ccccse 30

Smith v. Merchants & Farmers Bank of West Helena,

RIE es wise en ks fe 20

peas G; BO; EO Toon in bon ok oe hoc vivchwcs 14,18

Swisher v. Brady, No. 77-653 (June 28, | a a 17

United Airlines v. McDonald, 482 U.S. 885 .......... 18

United States v. Braasch, appealed dismissed and man-

damus denied, 542 F.2d 442 ...... ccc ccecccccewe 7

United States v. Braasch, 505 F.2d 139, cert. denied,

Me eae eats ce bake a hen bose ek 6

United States v. DiRusso, 535 F.2d 673 .............. 25

United States v. Grayson, No. 76-1572 (June 26,

ME ee rrisibverntee ers oe go oo ie 28, 30

Vun Cannon v. Breed, 565 F.2d 1096 ............... 15, 17

Warden v. Marrero, 417 U.S. 658 ............0005... 29

Williams v. Wohlgemuth, 540 F.2d 163 .............. 17

Windham v. American Brands, Inc., 565 F.2d 59 ..... 20

Winokur v. Bell Federal Savings & Loan Association,

560 F.2d 271, cert. denied, No. 77-1020 (March 20,

1978)

Citations Continued lil

. Page

Constitution, Statutes, REGULATION AND RULES:

United States Constitution:

Article I, Section 9, clause 3 .........ee ee ee eeeee 3

Me TE os oki bas (0 ea RR nes OVS eens 14

Administrative Procedure Act, 5 U.S.C. 701-706 ..... 11

Cee Oe iat ae eee 88

Test feo. NE. ean ee Ty Pe 3, 24

18 TE SB CRAL): i i ween sidcceccectacwvantvs 3, 25

18 VGC. COO) ciiccsccedigs eed secede fiveess 3, 25

BE A I kink cad deen ncn5 snes iaceayes 23

S06 TEC, GRAD 8c cc vc Sdewcuacasavesecpuceses 12

18 U.S.C. 4205(b) (1) 2... cccccccccncccccvccacs 12, 24

18 U.S.C. (1976 ed.) 4205(b)(2) «2... ee cee eee 9, 12, 24

S08 Te Be cig iv ckeaeeash (00 Oc (ce mecereenes 4

TE UB, GIR) oc 5 evens Chase weiiens 4, 9, 24, 25. 26

18 UBC AGE) vin vids ccd ates cenateassves 4, 27

Rie Fee | | rr ye ora erry sree 4, 24, 26

hit Se Serre rr er a er ert tt 5, 26

26 TO, BTID 5 vcdavecvedisewcpalesveweaes 5, 26

18 U.S.C. (1970 ed.) 4208(a)(2) ...... eee ee eeee 9

20 TC Mo kn i caWa ween eed eei ewes 11

BO CE WE, one clea swe ektesgeehebanenseeans 6

Rik fem | eC aT ee ere re ie 6

- 2k 8a re erry ye wre ce to 8,11 —

28 U.S.C. 1861 6... eee eee eee tence eee eee e es 8

OO TE FO boca ckedcieccsesscewenesteeneces 8

GB UWB. BIG oon ics cca vecctoscccverdeseneves 8

iv Citations Continued

Page

2B C.F Be S20 66s. ceccvsctanevacseeee 6, 7, 25

OLS Socaeucen RO ee ets ee A ted: 30

PRANE) .. vig iv essdcobacuwied ae saennaenee 30

Fed. BR. Cie, P. 2s cchisavncuthenneueeeneee 5, 18, 19

rea. BR. Civ. -B. Sate) «0 nce selon 19

Fed. R. Crim. P. 2... ..04kcn¥edeeeeee 6

MISCELLANEOUS:

122 Cong. Ree. H1500 (daily ed. March 3, 1976) ...... 27

122 Cong. S2572 (daily ed. March 2, 1976) ........... 27

D. Stanley, Prisoners Among Us: The Problem of

Parete (19T@) . 2 occ ckcdivecaks ce eee 25

SS Fed. Rag. S1982 . . ob onc Scacuee ene euaee 25, 28

3B J. Moore, Federal Practice § 23.02-2 (2d ed. 1977) 20

Project, Parole Release Decisionmaking and the Sen-

tencing Process, 84 Yale L.J. 810 (1975) ........ 25

7A C. Wright & A. Miller, Federal Practice and Proce-

dures § 1796 (1972) .....44. 22. 20

S. Rep. No. 94-369, 94th Cong., Ist Sess. (1975) ...... 26, 27

S. Conf. Rep. No. 94-648, 94th Cong., 2d Sess. (1976) . 27

H.R. Rep. No. 94-184, 94th Cong., Ist Sess. (1975) .... 26

H.R. Conf. Rep. No. 94-838, 94th Cong., 2d Sess. (1976) 27

iu the Supreme Court of the United States

OcroBER TERM, 1978

No.

UNITED STaTEs PAROLE COMMISSION, ET AL., Petitioners

JOHN M. GERAGHTY

_——_ —-- -—

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

---—-

The Solicitor General, on behalf of the United States

Parole Commission, the Attorney General of the United

States, and the Superintendent of the Federal Prison

at Allenwood, Pennsylvania, petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Third Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, infra,

la-73a) is reported at 579 F.2d 238. The opinion of

the district court (App. D, infra, 77a-93a) is reported

at 429 F. Supp. 737.

JURISDICTION

The judgment of the court of appeals (App. B, infra,

74a-75a) was entered on March 9, 1978. A petition for

rehearing with a suggestion for rehearing en bane was

denied on May 8, 1978 (App. C, infra, 76a). On July

28, 1978, Mr. Justice Brennan extended the time for

filing a petition for a writ of certiorari to and inelud-

ing September 5, 1978, and on August 24, 1978, he fur-

ther extended the time for filing a petition to and in-

cluding October 5, 1978. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1, Whether the court of appeals should have dis-

missed the appeal in this case where the claim of the

individual plaintiff concerning his eligibility for pa-

role had been made moot by the expiration of his erim-

inal sentence and where class action certification had

been denied by the district court.

2. Whether the district court abused its discretion

in failing, sua sponte, to construct and certify an ap-

propriate subclass after the court had properly deter-

mined that the plaintiff’s claims were not representa-

tive of the class that had been proposed for certifica-

tion.

3. Whether the Parole Commission’s parole release

guidelines violate the Parole Commission and Reorga-

nization Act by failing to give consideration to the

length of a prisoner’s sentence in parole release de-

terminations.

4. Whether application of the Commission’s parole

release guidelines to prisoners sentenced prior to the

effective date of the guidelines constitutes an uncon-

stitutional ex post facto enhancement of criminal sen-

tences.

CONSTITUTIONAL PROVISION, STATUTES AND

REGULATIONS INVOLVED

1. Article I, Section 9, clause 3 of the United States

Constitution provides:

No Bill of Attainder or ex post facto Law shall

be passed. 3

2. The Parole Commission and Reorganization Act,

Pub. L. No. 94-233, 90 Stat. 219, 18 U.S.C. 4201 et seq.,

provides in pertinent part:

A. 18 U.S.C. 4203:

(a) The Commission * * * shall—

(1) promulgate rules and regulations estab-

lishing guidelines for the powers enumerated in

subsection (b) of this section and such other rules

and regulations as are necessary to carry out a

national parole policy and the purpose of this

chapter ; : ms i

(b) The Commission * * * shall have the power

to—

(1) grant or deny an application or recom-

mendation to parole any eligible prisoner ;

(2) impose reasonable conditions on an or-

der granting parole;

(3) modify or revoke an order paroling any

eligible prisoner; * * *.

* * * * *

B. 18 U.S.C. 4206: D. 18 US.C. 4207:

In making a determination under this chapter

(relating to release on parole) the Commission

shall consider, if available and relevant:

(a) If an eligible prisoner has substantially ob-

served the rules of the institution or institutions

to which he has been confined, and if the Commis-

sion, upon consideration of the nature and cir-

cumstances of the offense and the history and

characteristics of the prisoner, determines:

_ (1) that release would not depreciate the se-

riousness of his offense or promote disrespect for

the law; and

(2) that release would rot jeopardize the

pubhe welfare;

subject to the provisions of subsections (b) and

promulgated by the Commission pursuant to see-

tion 4203(a)(1), such prisoner shall be released.

¥ ” ~ * *

on parole notwithstanding the guidelines referred

to im subsection (a) of this section if it deter-

mines there is good cause for so doing * * *,

(. 18 U.S.C. 4206(d):

Any prisoner, serving a sentence of five years or

longer, who is not earlier released under this see-

tion or any other applicable provision of law, shall

be released on parole after having served two-

thirds of each consecutive term or terms, or after

serving thirty vears of each consecutive term or

terms of more than forty-five years including any

life term, whichever is earlier: Provided, how-

ever, That the Commission shall not release such

prisoner if it determines that he has seriously or

frequently violated institution rules and regula-

tions or that there is a reasonable probability that

he will commit any Federal, State, or local crime.

(1) reports and recommendations which the

staff of the facility in which such prisoner is

confined may make;

(2) official reports of the prisoner’s prior

eriminal record, including a report or record

of earlier probation and parole experiences ;

(3) presentence investigation reports;

(4) recommendations regarding the pris-

oner’s parole made at the time of sentencing

by the sentencing judge; and

(5) reports of physical, mental, or psychi-

atric examination of the offender.

There shall also be taken into consideration

such additional relevant information concern-

ing the prisoner (including information sub-

mitted by the prisoner) as may be reasonably

available.

3 Rule 23 of the Federal Rules of Civil Procedure

provides in pertinent part:

(a) * * * One or more members of a class may

sue or be sued as representative parties on behalf

of all only if * * * (3) the claims or defenses of

the representative parties are typical of the claims

or defenses of the class * * *.

* * * * a2

(¢c) * * *

(1) As soon as practicable after the commence-

ment of an action brought as a class action, the

court shall determine by order whether it is to be

so maintained. An order under this subsection

may be conditional, and may be altered or amended

before the decision on the merits.

* * * * *

(4) When appropriate * * * (B) a class may

be divided into subelasses and each subelass

treated as a elass, and the provisions of this rule

shall then be construed ard applied accordingly.

* * ” * *

4. The pertinent portions of the Guidelines adopted

by the Parole Commission for parole release deter-

minations, 28 C.F.R. 2.20, are reproduced in the ap-

pendix to the opinion of the court of appeals (App. A,

infra, 67a-73a).

STATEMENT

1. Following a jury trial in the United States Dis-

trict Court for the Northern District of Illinois, re-

spondent, a former Chicago police sergeant, was con-

victed of conspiracy to commit extortion through the

use of his position as a vice squad officer, in violation

of 18 U.S.C. 1951, and of making false declarations

to a grand jury concerning his involvement in the

extortion scheme, in violation of 18 U.S.C. 1623. On

January 25, 1974, he was sentenced to concurrent

terms of four years’ imprisonment on the conspiracy

count and one year’s imprisonment on the false dee-

larations count. The conviction was affirmed on ap-

peal. United States v. Braasch, 505 F.2d 139 (7th

Cir. 1974), cert. denied, 421 U.S. 910 (1975).

Thereafter, respondent applied for and obtained a

reduction in his sentence to 30 months’ imprisonment

pursuant to Rule 35 of the Federal Rules of Crim-

inal Procedure (App. D, infra, 71a). The district court

ordered this reduction on the basis of a finding that

application to respondent of the parole release Guide-

lines (28 C.F.R. § 2.20), which had been promulgated

by the Parole Commission just prior to the date on

which the initial sentence was imposed, would frus-

trate the expectation of the sentencing court. United

States v. Braasch, No. 72 CR 979 (N.D. Ill. 1975),

appeal dismissed and mandamus denied, 542 F.2d 442

(7th Cir. 1976).

Respondent then applied for release on parole. On

January 13, 1976, his application for parole was de-

nied with the following explanation (App. A, infra,

da):

Your offense has been rated as very high severity.

You have a salient factor score of 11. You have

been in custody for a total of 4 months. Guide-

lines established by the Board for adult cases

which consider the above factors indicate a range

of 26-36 months to be served before release for

cases with good institutional program perform-

ance and adjustment. After review of all relevant

factors and information pres nted, it is found

that a decision at this consideration outside the

guidelines does not appear warranted.

Respondent’s second application for parole was de-

nied for similar reasons on July 7, 1976, and he was

continued without further consideration of parole un-

til the expiration of his term of imprisonment (7d. at

6a).

‘The background of the Parole Commission Guidelines and the parole release

process are discussed in our petitions for writs of certiorari in United States

v. Addonizio, No. 78-156, and United States v. Edwards, No, 78-157. Those

cases present the question whether a district court may revise a lawful sen-

tence on the ground that decisions of the Parole Commission frustrate the

sentencing expectations of the sentencing court. We are sending counsel for

respondent copies of our petitions in Addonizio and Edwards.

2. On September 15, 1976, respondent filed this civil

action in the United States District Court for the

District of Columbia, seeking declaratory and injunc-

tive relief (App. D, infra, 78a). The complaint alleged

that the Parole Commission’s Guidelines are invalid

under the Parole Commission and Reorganization Act,

Pub. L. No. 94-233, 90 Stat. 219, 18 U.S.C. 4201 et seq.,

and that the Guidelines violate the ex post facto pro-

hibition of the Constitution by authorizing the Com-

mission to make deferred sentencing decisions (App.

D, infra, 83a-84a). Respondent moved for certification

of the case as a class action on behalf of ‘‘all federal

prisoners who have been or will become eligible for

release on parole’’ (id. at 82a n.$).

On November 12, 1976, the action was transferred

to the Middie District of Pennsylvania, where re-

spondent was then incarcerated (id. at 78a).? Re-

spondent moved for summary judgment and, on Feb-

ruary 24, 1977, the district court ruled that only issues

of law were presented and the case was therefore ‘‘ripe

for disposition’? without an evidentiary hearing

(ibid.).

The court first rejected respondent’s request for

class action certification. Class certification was found

2 The district court in the District of Columbia construed the action as a

petition for a writ of habeas corpus, and thus transferred the case to the

Middle District of Pennsylvania pursuant to 28 US.C. 1406 and 2255. The

district court for the Midd'e District of Pennsylvania noted that jurisdiction

for the declaratory and injunctive relief sought by petitioner would ordinarily

rest upon 28 U.S.C. 1331 and 1361. The court held, however, that since the

relief sought is ‘‘in effect, a request for a ruling that petitioner is entitled

to release on parolo’’ (App. D, infra, 80a), habeas corpus is the exclusive

remedy (ibid., citing, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1973)).

inappropriate because ‘‘not all members of the [pro-

posed] class have the same interest’’ in challenging

the validity of the parole Guidelines (id. at 83a).

Some prisoners may find their actual or expected pa-

role release date advanced by virtue of the Guide-

lines and thus would not share respondent’s claim

that the Guidelines improperly delay release (ibid.).°

The court also rejected respondent’s claim that class

action certification should be granted merely ‘‘to en-

sure that the legal issues presented’’ are not made

moot by the expiration of respondent’s criminal sen-

tence (id. at 82a).

Turning to the mgrits, the court held that the pa-

role Guidelines are consistent with the provisions of

the Parole Commission and Reorganization Act and

that the Guidelines do not offend the Ex Post Facto

Clause of the Constitution. The court noted that the

Guidelines were consistent with the requirements of

the Act that the parole decision be made ‘‘pursuant

to guidelines promulgated by the Commission,’’ 18

U.S.C. 4206(a), and be based on the ‘‘‘ nature and cir-

cumstances of the offense and the history and char-

‘3 The district court also held that class certification was inappropriate as

to other claims that were inapplicable to all members of the class. Two issues

—the classification of respondent’s offense as extortion under the Guidelines

and respondent’s access to certain Commission files—were found by the court

to relate solely to the circumstances of respondent’s individual case (App. D,

infra, 82a). Similarly, respondent’s claim that the guidelines are inconsistent

with the provisions of 18 U.S.C. (1970 ed.) 4208(a)(2) (now 18 U.S.C. (1976

ed.) 4205(b)(2)), under which respondent was sentenced, was found not to

have applicability to those members of the proposed class who were sentenced

under different statutes (id. at 83a).

acteristics of the prisoner’ ” (App. D, infra, 87a) (em-

phasis in original). Moreover, the Guidelines did not

effect an ex post facto enhancement of the respond-

ent’s sentence because parole involves the administra-

tive implementation of the sentence and “‘is not a

form of sentencing or a modification of sentence”

(id. at 85a n.10, citing Roach v. Board of Pardons and

Paroles, 503 F.2d 1367, 1368 (8th Cir. 1974)).

3. a. Respondent filed a timely notice of appeal.

While the appeal was pending, respondent’s term of

imprisonment expired and he was released from prison

(App. A, infra, 6a). The Parole Commission then

moved to dismiss the appeal as moot. The court of

appeals deferred disposition of this motion pending

consideration of the appeal on the merits. On March

9, 1978, over seven months after respondent had been

released, the court of appeals entered its decision

reversing the judgment of the district court arftl re-

manding for further proceedings.

The court acknowledged that respondent’s individ-

ual claim became moot when his sentence expired.

The court noted, however, that if a class action had

been certified by the district court the mootness of re-

spondent’s personal claim would not bar further ad-

judication on behalf of the class (id. at 18a). See

Board of School Commissioners v. Jacobs, 420 U.S.

128 (1975). Since the district court had declined to

certify a class action in this case, there was neither a

class nor an individual with a live controversy in the

court of appeals. But the court concluded that if a

proper class could have been certified and the district

court erred in failing to do so, the case could be re-

manded for class certification to preserve jurisdiction

(App. A, infra, 28a).

With regard to the class certification question, the

court of appeals agreed with the district court that

the proposed class was too broad and that respond-

ent’s interests might conflict with other class members.

The court held, however, that appropriate subclasses

may exist and that the district court erred by not

considering sua sponte the certification of such sub-

classes (id. at 32a). The court accordingly reversed

the denial of class certification and remanded for the

“evaluation of the proper subclasses * * *’’ (ibid.).

b. The court noted that a remand for class action

certification would be an improvident dissipation of

‘‘judicial effort if the district court’? had properly

decided the merits of the ease (id. at 32a-33a).‘ The

court therefore stated that it was necessary and ap-

propriate for it “to consider the merits of [respond-

ent’s] claim’’ at that time (id. at 33a). The court

noted that the Commission has admitted that no

*The court held that the district court had jurisdiction in this case under

18 U.S.C. 4218(c) and the Administrative Procedure Act, 5 U.S.C. 701-706,

Since the complaint challenges not the manner in which the Guidelines were

promulgated but their substantive validity, however, 18 U.S.C. 4218(c) provides

no jurisdiction. Moreover, this Court held in Califano v. Sanders, 430 U.S. 99

(1977), that the APA is not a jurisdictional statute. We do not seek certiorari

to review the ju isdictional holdings of the court of appeals, however, because

respondent’s allegation of jurisdiction under 28 U.S.C. 1331 is sufficient in

this case. See Andrus v. Charlestone Stone Products Co., No. 77-380, decided

May 31, 1978, slip op. 3-4 n.6.

weight is given to the length of a prisoner’s sentence

either in determining a prisoner’s customary release

date under the Guidelines or in making individual

parole determinations (id. at 36a).° The court con-

cluded that the length of sentence was intended to be

a relevant factor in the parole process under the

Parole Commission and Reform Act, and that parole

procedures that fail to take sentence length into ac-

count in exercising paroling discretion are inconsist-

ent with that Act.°

The court further held that if the Guidelines are

applied to prisoners sentenced before their effective

date, and if they deprive any prisoner ‘‘of the possi-

bility of a substantially more lenient punishment” that

would result from the previously applicable parole

procedures (id. at 58a), then the Guidelines, as ap-

plied, would violate the prohibition of the Ex Post

Facto Clause (id. at 64a-65a). The court of appeals

directed the district court to determine on remand

whether the facts reveal that the Commission’s Guide-

lines fail to give consideration to sentence length and

result in enhanced punishment for prisoners that were

sentenced prior to the Guidelines’ effective date (cd.

at 65a, 66a).

5 Of course, the minimum and maximum sentence lengths established by the

sentencing court (18 U.S.C. 4205(b)(1), (2)) determine the period during

which the Commission has paroling discretion. See also 18 U.S.C. 4205(a).

6 The court also suggested that if the Act permits the Commission to dis-

regard sentence length in the parole decisionmaking process, the statute may

unconstitutionally infringe the judicial sentencing function (App. A, infra,

46a-50a).

REASONS FOR GRANTING THE PETITION

The issues presented by this case are of substan-

tial significance to class action litigation and to the

proper administration of the federal parole system.

The holding of the court of appeals that this case is

not moot, even though there is no longer an individual

litigant with a live controversy and even though no

class action had been certified prior to the mooting of

respondent’s claims, departs from decisions of this

Court and is in direct conflict with decisions in other

circuits, Furthermore, the conclusion that the district

court abused its discretion by failing to consider sua

sponte whether a subelass of plaintiffs could be certi-

fied in this case imposes unreasonable duties on the

trial court and is substantially at variance with ac-

cepted principles of class action litigation.

The court of appeals itself recognized (App. A,

infra, 43a n.91, 6la-62a) that its holding that the Pa-

role Commission and Reorganization Act and the Ex

Post Facto Clause require the Commission to give con-

sideration to sentence length in formulation of its

parole release Guidelines and in making individual

parole release determinations is in conflict with the

decisions of other courts of appeals. The uncertainty

created for federal prisoners by these disparate deci-

sions, and the interference that the decision in this

ease creates for the effective management of the fed-

eral parole system, is manifest.

The decision of the court of appeals thus raise

issues of substantial importance that should be re-

solved by this Court.

1. This Court has, on several occasions, elaborated

the extent to which jurisdiction may continue for

elass action litigation when the claims of all indi-

vidual litigants have become moot. In these decisions,

the Court has held that the case as a whole becomes

moot upon the termination of the claims of the named

litigants ‘‘unless [the case] was duly certified as a

class action’? while the controversy remained live.

Board of School Commissioners V. Jacobs, 420 U.S.

128, 129 (1975); Sosna v. lowa, 419 U.S. 393, 402

(1975). See Kremens v. Bartley, 431 U.S. 119, 1382-133

(1977).’ Consistent with “‘firmly established require-

ments’? under Article III of the Constitution, there

must be a ‘‘named plaintiff who has * * * a case or

controversy at the time the complaint is filed, and at

the time the class action is certified by the District

Court pursuant to Rule 23 * * *.” Sosna v. Iowa,

supra, 419 U.S. at 402.° Absent a live controversy

based on the claim of either a named litigant or a

‘duly certified’’ class, the case lacks the concreteness

and adversarial nature that is requisite to the main-

tenance of jurisdiction by federal courts. Ibid.; see

7 Even where a class has been ‘‘duly certified,’’ the case becomes moot upon

the termination of the claims of the named litigants if the issue raised in the

case is not ‘‘ ‘capable of repetition, yet evading review,’ ’’ Kremens v. Bart-

ley, supra, 431 U.S. at 133; Board of School Commissioners v. Jacobs, supra,

420 U.S. at 129, or if the class that was certified by the district court requires

alteration due to subsequent developments in the case, Kremens v. Bartley,

supra, 431 U.S, at 132.

8‘*A litigant must be a member of the class which he or she seeks to repre-

sent at the time the class action is certified by the district court.’’ 419 U.S. at

403, citing, e.g., Bailey v. Patterson, 369 U.S. 31 (1962).

also 419 U.S. at 412 (White, J., dissenting) ; Pasadena

City Board of Education v. Spangler, 427 U.S. 424

430 (1976); Franks v. Bowman Transportation Co.,

424 U.S. 747, 755 (1976) ; O’Shea v. Littleton, 414 U g,

488, 493 (1974). es

In applying the principles of these decisions, the

courts of appeals have ordinarily held that ‘‘in the

| absence of a properly certified class, the representa-

tive plaintiff whose claim has become moot is himself

without a litigable grievance, and the person or per-

sons on whose behalf he seeks to continue the litiga-

tion has or have not yet achieved jurisprudential

existence. There being no adversary necessary for

the creation of the constitutionally required case or

controversy, jurisdiction is lacking.’? Van Cannon v.

Breed, 565 F.2d 1096, 1099 (9th Cir. 1977) (citation

omitted). See Inmates v. Owens, 561 F.2d 560 (4th Cir.

1977) ; Lasky v. Quinlan, 558 F.2d 1133 (2d Cir. 1977) ;

Kuahula v. Employers Insurance of Wausau, 557 Pod

1334 (9th Cir. 1977) ; Boyd v. Justices of Special Term

546 F.2d 526 (2d Cir. 1976) ; Napier v. Gertrude, 542

F.2d 825 (10th Cir. 1976), cert. denied

, cert. denied, 429 U.S.

(1977). sys

The court of appeals held in this ease, however, that

if the class certification was improperly denied by the

district court, the case is not moot even though the

claim of the named litigant has expired (App. A, infra

20a-21a).° This decision is in direct conflict with the

: pid pamagged suggested in dicta in Satterwhite v. City of Greenville

. 75- ug. 23, 1978) (en banc), slip op. 6540-6541 )

g. 28, 1978) (e , -6! that the court of

appeals may retain jurisdiction in some circumstances where the denial of class

decision of the Seventh Circuit in Winokur v. Bell

Federal Savings & Loan Association, 560 F.2d 271

(1977), cert. denied, No. 77-1020 (March 20, 1978). In

Winokur, the named plaintiffs, whose individual

claims were moot, sought to appeal the district court ’s

denial of class certification. The court of appeals held

that since no live controversy then existed, the court

could not exercise jurisdiction ‘‘even to reverse the

class action determination and thus instill a live con-

troversy into the action.’’ 560 F.2d at 276.

The court of appeals suggested, however, that its

contrary decision in this case * was consistent with a

narrow exception to the mootness doctrine recognized

by this Court in Sosna v. Lowa, supra, and applied in

Gerstein v. Pugh, 420 U.S. 103 (1975). We submit

that this conclusion misconstrues the pertinent deci-

sions of this Court. In Sosna, the Court held that the

ease becomes moot if the claims of the named plain-

tiffs expire before class certification. 419 U.S. at 402.

The Court stated, however, that ‘‘[t]here may be cases

in which the controversy involving the named plaintiffs

is such that it becomes moot as to them before the dis-

trict court can reasonably be expected to rule on a cer-

certification was improper even though the individual claims of the named

litigants had expired. In the same decision, however, the court noted that

under Sosna v. Iowa, supra, ‘‘ [i]t does not suffice [for jurisdiction] that such

a certification would have been accorded but for some error * * *.’’ Slip op.

6539 (emphasis in original).

10 The court recognized that its decision was in conflict with decisions in

other circuits. See App. A, infra, 25a 0.49.

tification motion.’’ Id. at 402 n.11. Where a claim is

“by nature temporary,’’ and it is unlikely that any

individual claim would survive ‘long enough for a

district judge to certify the class,’”’ Gerstein v. Pugh

supra, 420 U.S. at 110 n.11, the claim is one init

of repetition, yet evading review,’’ and thus falls

within the conventional exception to the mootness

doctrine. Ibid. In these circumstances, the Court ob-

served in Sosna that the class certification may be

said to ‘‘ ‘relate back’ to the filing of the complaint’’

for purposes of determining jurisdiction. 419 U.S. at

402 n.11. He

The ‘‘relation back’’ exception has been applied

only in circumstances where the controversy is inher-

ently temporary in nature and capable of evading

judicial review even at the trial court level. See Ger-

stein v. Pugh, supra (challenge to legality of pretrial

detention) ; Ahrens v. Thomas, 570 F.2d 286, 288-289

(8th Cir. 1978) (same) ; Williams v. W ohlgemuth, 540

F.2d 163, 167 (3d Cir. 1976) (eligibility for a.

gency assistance relief). See also Swisher v. Brady

No. 77-653 (June 28, 1978), slip op. 8-9 n.11. This

case fails to come within this exception to the moot-

ness doctrine because it does not involve a contro-

versy ‘‘so transitory that mootness inevitably inter-

venes before the District Court can ‘reasonably be

expected to rule on a certification motion.’ ”’ Boyd Vv

Justices of Special Term, supra, 546 F.2d at 527 n.2.

See Swisher v. Brady, supra; Vun Cannon v. Breed

supra, 965 F.2d at 1100-1101; Banks v. Multi-Family

Management, Inc., 554 F.2d 127, 128 (4th Cir. 1977) ;

Napier v. Gertrude, supra, 542 F.2d at 828." There

is no basis for concluding here that persons impris-

oned in federal penitentiaries are not likely to be in

‘‘eustody long enough for a district judge to certify

a class.” Gerstein v. Pugh, supra, 420 U.S. at 111,

n.11."* Indeed, almost a full year elapsed between re-

spondent’s second deniat of parole and his reiease

from custody, and the district court thus had ample

time to rule—and it did rule—on respondent’s certi-

fication request. Moreover, as the court of appeals

conceded (App. A, infra, 26a), ‘‘some prisoners will

retain their grievances long enough to achieve appel-

late review.”’

The court of appeals has misapplied the decisions

of this Court and created a conflict with other cir-

cuits. Review of the decision in this case is warranted

11 The court below erred in relying (App. A, infra, 23a) upon Bazter v.

Palmigiano, 425 U.S. 308 (1976), and United Airlines Vv. McDonald, 432 U.S.

385 (1977). In Barter, the Court refused to treat the case as a class action

where the certification requirement of Rule 23, Fed. R. Civ. P., had not been

complied with and the named plaintiffs’ claims had become moot upon their

releaso from prison. Instead, the Court held that another prisoner who had

intervened as a named plaintiff could raise the claims in his own behalf, 425

U.S. at 310 n.1. In McDonald, no question of mootness was involved. The sole

question before the Court was whether a post-judgment application for inter-

vention was timely. 432 U.8. at 391.

12 Nor, as the court below suggested (App. A, infra, 27a), do the restric-

tions on interlocutory appeals from class certification denials (see Coopers ¢

Lybrand vy. Livesay, No. 76-1836 (June 21, 1978); Gardner v. Westinghouse,

No, 77-650 (June 21, 1978) provide a proper basis for applying the ‘‘relation

back’? exception. While this may afford a basis in policy for granting review

if the question is simply one of the exercise of discretion by the appellate

court, it cannot confer jurisdiction where there is no cognizable case or con-

troversy. See Sosna v. Iowa, supra, 419 U.S. at 401 n.9.

to settle this important question of federal jurisdic-

tion.

2. While agreeing with the district court that the

proposed class—consisting of all federal prisoners eli-

gible for parole—was too broad, the court of appeals

ruled that the district court abused its discretion

under Rule 23 of-the Federal Rules of Civil Pro-

cedure by failing, sua sponte, to consider the creation

of subclasses in this case.’ This holding creates se-

rious difficulties for trial management of class action

litigation and conflicts with principles concerning

such litigation accepted by other courts of appeals.

The district court has authority under Rule 23(c)

(4) of the Federal Rules of Civil Procedure to alle-

viate difficulties encountered or anticipated in the

management of a class action by dividing the class

into appropriate subclasses. The creation of such sub-

classes rests in the discretion of the trial court. Mon-

arch Asphalt Sales Co. v. Wilshire Oil Co., 511 F.2d

1073, 1077 (10th Cir. 1975). No court has held, prior

to the decision of the court of appeals in this ease,

that where the proposed class is overbroad, the dis-

trict court abuses its discretion by failing to consider

and construct subclasses even though the plaintiff has

not requested it to do so."

‘8 This ruling was crucial to the court’s disposition of the case, since the

court’s ‘‘relation back’’ theory could justify revivification of an otherwise

moot case only if the original refusal to certify a class action was erroneous,

” The court of appeals’ reliance (App. A, infra, 30a-3la) upon Samuel v.

University of Pittsburgh, 538 F.2d 991 (3d Cir. 1976), is misplaced. In that

case it was held that the district court had erred in concluding that a class

As a general principle, it is the plaintiff’s burden

to establish the propriety of his request for class

action certification. See, eg., Smith v. Merchants &

Farmers Bank of West Helena, 574 F.2d 982, 983

(8th Cir. 1978); Windham v. American Brands, Inc.,

565 F.2d 59, 64 n.6 (4th Cir. 1977); Doctor v. Sea-

board Coast Line R.R., 540 F.2d 699, 706 (4th Cir.

1976); Davis v. Romney, 490 F.2d 1360 (8d Cir.

1974). See also 3B J. Moore, Federal Practice { 23.02-

2, at 23-96 (2d ed. 1977); TA C. Wright & A. Miller,

Federal Practice and Procedures § 1798, at 244-245

(1972). If the proposed class is overbroad vor otherwise

inappropriate, the plaintiff must retain the responsi-

bility of demonstrating the suitability of proceeding

with subclasses. ‘‘Counsel for the class have the pri-

mary responsibility for pressing a class action claim.

They do not satisfy their responsibilities by simply

affixing the class action label to a suit and depositing

it with the clerk.” Satterwhite v. City of Greenville,

supra, slip op. 6544.

It is thus inconsistent with ordinary principles of

class action litigation to require trial judges to pro-

action was unmanageable and that the district court’s decertification of the

class was therefore improper. The court added, in dicta, that even if the class

action were unmanageable ‘‘the possible usefulness of subclasses’’ to avoid

management problems should have been considered. 438 F.2d at 996. The deci-

sion does little more than point out the potential benefits of using subclasses to

alleviate management difficulties; it did not adopt a rule placing an obligation

on the district court to create appropriate subclasses on behalf of plaintiffs

who have not sought subclass certification.

pose new theories or definitions of a class where the

plaintiff has failed, whether due to lack of interest or

otherwise, to suggest such an alternative. Moreover,

placing the burden on the court, rather than on coun-

sel, to propose subclass certification is contrary to the

accepted principle that grounds for reversal may not

ordinarily be urged on appeal that were available, but

not raised, in the district court. See, e.g., D. HW. Over-

myer Co. Vv. Loflin, 440 F.2d 1213, 1215 (5th Cir.

1971); Autrey v. Williams and Dunlap, 343 F.2d 730,

750 (5th Cir. 1965); Continental Can Co. v. Horton,

250 F.2d 637, 645 (8th Cir. 1957)."

The rule adopted by the court of appeals will create

unmanageable difficulties for the district courts. It

will require trial courts to apply their limited re-

sources in an effort to construct class certification the-

ories that even plaintiff’s counsel, possessing an ad-

versarial interest in the litigation, has not imagined

or thought worth raising. By placing this novel

burden of advocacy on the trial court, the decision

releases counsel from their ordinary and appropriate

responsibility. It exposes the court to reversal and

a renewal of proceedings with regard to matters that

were not contested before it, and thus discourages

15 There is nothing to suggest that an order remanding for consideration of

subclass certification would be necessary to correct manifest injustice, seo

Hormel v. Helvering, 312 U.S. 552, 556-557 (1941), in a case where the plain-

tiff did not request subclass certification until the case reached the court of

appeals, If the case is dismissed by the court of appeals and other members

of the proposed subclass in fact desire to litigate similar claims, they may

initiate a new lawsuit in the district court.

efficient use of judicial resources by class action liti-

gants.”*

3. The court of appeals ruled that the Parole Com-

mission and Reorganization Act requires the Commis-

sion, in formulating guidelines for the exercise of

paroling discretion and in making parole decisions in

individual eases, to take into account the sentence im-

posed by the court. This ruling, if correct, would re-

quire a wholesale revision of the present approach of

the Commission to parole decisions—an approach ap-

proved by other courts of appeals and, we believe,

specifically authorized by Congress in the Act—under

which no weight is ordinarily given to sentence length

in exercising paroling diseretion. Although, for the

reasons stated above, it is our view that the court

‘© We note that the mandate of the court of appeals was issued to the

district court on May 16, 1978, and that the Commission did not seek to stay

issuance of the mandate while authorization for filing a petition for certiorari

was being obtained. Following the decision to seek review in this Court,

however, the Commission immediately moved in the district court, on August

18, 1978, for a stay of any further proceedings pending disposition of its

petition for certiorari in this Court. The district court reserved decision on

that motion. Thereafter, on August 22, 1978, the district court conducted an

evidentiary hearing on the class certification issue. At the conclusion of that

hearing, however, the court reserved decision on this issue.

There is no reason to delay decision on the issues presented here pending

the outcome of the district court procecdings. This Court has frequently

recognized that issuance of the mandate by the court of appeals and action

taken in compliance with the terms of the mandate do not defeat the juris-

diction of this Court. E.¢., Mancusi v. Stubbs, 408 U.S. 204, 205-207 (1972);

Aetna Casualty Co. v. Flowers, 330 U.S. 464, 467 (1947). A timely petition

for a writ of certiorari operates to suspend the finality of any judgment until

this Court disposes of the case. If this Court grants certiorari and reverses

the judgment of the court of appeals, that action nullifies the mandate of the

court of appeals and, by the same token, any order of the district court that

may be entered pursuant thereto.

lacked jurisdictiion to reach the merits in this ease,

we deem it important to demonstrate the incorrect-

ness of the ecourt’s decision and the significant adverse

consequences it entails for the effective management

of the federal parole system.

a. We note preliminarily that the court of appeals

did trot itself-hold the present parole system invalid.

Rather, it di¥écted the district court to determine on

remand whether the evidence supports the conclusion

that the Guidelines give no weight to sentence length.

The Commission admits, however, that no weight is

given under the Guidelines to the length of the sen-

tence, and it has acknowledged this in both courts

below (App. A, infra, 36a). Thus, assuming the court

of appeals had jurisdiction to decide the matter, its

decision effectively determines the issue of the validity

of the Guidelines, and the remand hearing on the

merits would be a mere formality.

b. The sentence imposed upon a convicted offender

defines the period during which he is eligible for re-

lease on parole. Thus, the sentence, in conjunction

with statutory provisions for ‘‘good time’’ credits,

sets the minimum required and maximum permissible

period of confinement.” The statute also provides that

17 Seetion 4205 establishes the minimum period of confinement before a

convict may be released on parole, which is one-third of the total sentence (or

ten years for any offender sentenced to a term in excess of 30 years), except

that the sentencing court may provide either for immediate parole eligibility

(Section 4205(b)(2)) or for parole eligibility after service of some specified

period less than one-third of the sentence (Section 4205(b) (1)).

prisoners sentenced to a term of five years or longer

are presumptively entitled to parole release after they

have served two-thirds of their sentence (18 U.S.C.

4206(d)).**

During the period between the prisoner’s first eligi-

bility for parole and the two-thirds point, the Com-

mission has substantial discretion to decide whether

to grant release on parole, including the power to de-

cline to give weight to the sentence imposed. Under

18 U.S.C. (1970 ed.) 4203, which was in effect when

respondent was sentenced, the Commission was en-

titled to consider any aspect of the public welfare in

making its parole decision. Under the present statute,

the Commission must consider whether release ‘‘would

* * * depreciate the seriousness of [the] offense or

promote disrespect for the law * * * [or] jeopardize

the public welfare * * *’’ (18 U.S.C. 4206(a)).

Until 1970 the Commission exercised its discretion

on a case-by-case basis, using no published criteria or

guidelines. In response to widespread criticism that

this led to arbitrary and erratic decisions, the Com-

mission began to experiment with structured release

criteria that were predicated upon the nature of the

18 Section 4206(d) permits parole to be withheld beyond the two-thirds point

only where there is a history of frequent or serious violation of institutional

rules or where the Commission concludes that there is a reasonable probability

that the prisoner, if released, would commit new criminal offenses.

offense and the offender’s personal characteristics.”

These offense and offender characteristics were as-

signed weights and converted into numerical values;

after computing the numerical values, the prisoner

and the Parole Commission could turn to a table to

find a range (e.g., 36 to 45 months) that most (but not

all) of the persons with similar characteristics could

expect to serve, with good institutional behavior, be-

fore release. The program was commenced in 1970,

before respondent was sentenced, and it was revised

in November 1973 (38 Fed. Reg. 31942). The present

guidelines, codified at 28 C.F.R. 2.20, are the culmina-

tion of the Commission’s ‘‘effort to introduce more

consistency in parole decision-making” (United States

v. DiRusso, 535 F.2d 673, 674 (1st Cir. 1976) ).

The Parole Commission and Reorganization Act,

enacted in 1976, did not repudiate the Commission’s

choice to exercise its discretion pursuant to parole

release guidelines. To the contrary, the Act specifically

directs the Commission to make its parole determina-

tions ‘‘pursuant to guidelines promulgated by the

Commission * * *.’? 18 U.S.C. 4206(a); see 18 U.S.C.

4203(a)(1), (b). While the Act directs the Commis-

sion to consider the seriousness of the offense, the

need to preserve respect for the law, and the public

welfare in making its parole determinations, 18 U.S.C.

19 For a history of this development and a description of the system, see D.

Stanley, Prisoners Among Us: The Problem of Parole (1976); Project, Parole

Release Decisionmaking and the Sentencing Process, 84 Yale L.J. 810 (1975).

4206(a),*° the Act makes no mention of any obligation

of the Commission to give consideration to the length

of the prisoner’s sentence in the exercise of its dis-

cretion.”

Congress was aware of the Commission’s use of pa-

role guideiines based on offense severity and offender

characteristics when it enacted the Parole Commission

and Reorganization Act. The legislative history of the

Act reflects approval of the Commission’s use of these

guidelines to reduce the effects of sentencing disparity.

The Conference Committee noted that

parole has the practical effect of balancing dif-

ferences in sentencing policies and practices be-

tween judges and courts in a system that is as

wide and diverse as the Federal criminal justice

system. In performing this function, the parole

authority must have in mind some notion of the

appropriate range of time for an offense which

will satisfy the legitimate needs of society to hold

20 The Commission is also to consider the parole recommendation of the

sentencing judge ‘‘made at the time of sentencing,’’ 18 U.S.C. 4207(4), and

other specified reports and recommendations. 18 U.S.C. 4207.

#1 In the original version of the Act approved by the House of Representa-

tives (H.R. 5727), the statute provided that a prisoner was to be released

after serving one-third of his sentence unless the Commission established that

the prisoner was not acceptable for release on the basis of specified criteria.

H.R, Rep. No. 94-184, 94th Cong., Ist Sess. 4-5 (1975). That provision was

eliminated in the version of the Act that was adopted by the Senate. The

Senate amendment, which was adopted in Conference, provided that a prisoner

was to be eligible for release on parole after one-third of his sentence had

been served but that, before granting parole, the Commission must determine

that the prisoner was a proper candidate for release. S. Rep. No. 94-369, 94th

Cong., Ist Sess. 22, 23 (1975); see note 22, infra. The presumptive entitlement

to release that the House proposed at the ecmpletion of one-third of the sen-

tence was provided instead at the two-thirds point under the Act. 18 U.S.C.

4206(d) (limited to prisoners serving a sentence of five years or more).

hd * * *

the offender aceountable for his own acts.

The use of guidelines * * * will sharpen this

process and improve the likelihood of good de-

cisions.

S. Conf. Rep. No. 94-648, 94th Cong., 2d Sess. 19

(1976); H.R. Conf. Rep. No. 94-838, 94th Cong., 2d

Sess. 19 (1976). See also S. Rep. No. 94-369, 94th

Cong., Ist Sess. 16 (1975). More specifically, the Con-

ference Report states that

[t]he organization of parole decision-making

along regional lines, the use of hearing examiners

to prepare recommendations for action, and, most

importantly, the promulgation of guidelines to

make parole less disparate and more understand-

able has met with such success that this legisla-

tion incorporates the system into the statute, re-

moves doubt as to the legality of changes imple-

mented by administrative reorganization, and

makes the improvements permanent.

S. Conf. Rep. No. 94-648, supra at 20 (emphasis sup-

plied); H.R. Conf. Rep. No. 94-838, supra, at 20.

The conferees thus anticipated that parole release

decisions would be based on the Guidelines and that

deviations from the Guidelines would be warranted

only upon a determination that there is ‘‘good cause

for so doing.’’ 18 U.S.C. 4206(¢); see 122 Cong. Ree.

$2572 (daily ed. March 2, 1976) (Sen. Burdick); S.

Conf. Rep. No. 94-648, supra, at 23, 27; H.R. Conf.

Rep. No. 94-838, supra, at 23, 27.”

22,As Congressman Kastenmeier explained, in describing the differences

between the House and Senate versions of the legislation and the compromises

reached by the conference committee (122 Cong. Rec. H1500 (daily ed. March

3, 1976)): a

The primary disagreement between the House and Senate was the ques-

tion of how ‘awk “Uesretion should be retained by the Commission in

The holding of the court of appeals in this case is

thus based on an incorrect understanding of the ob-

jectives ot Congress in enacting the Parole Commis-

sion and Reorganization Act. The Commission is not

usurping the judicial sentencing function by exercis-

ing its separate parole authority * in the precise man-

ner that Congress intended. Two other courts of ‘ap-

peals have reviewed the same legislative history and

concluded that the Commission’s Guidelines are con-

sistent with the Act. Garcia v. United States Board of

Parole, 557 F.2d 100, 107 (7th Cir. 1977); Banks v.

United States, 553 F.2d 37, 40 (8th Cir. 1977). The

conflict created by the decision in this ease has resulted

in uncertainty for prisoners as to their parole oppor-

tunities and impeded the normal functioning of the

Commission’s decisionmaking process.

e. The court of appeals also erred in concluding

Bthat the parole Guidelines may violate the Ex Post

Facto Clause of the Constitution (App. A, infra,

95a-65a ).** The’ court stated that the Guidelines appear

making release determinations once a prisoner is in fact eligible for

parole. This was resolved by increasing the role of the parole determina-

tion guidelines and by granting the Commission the option of acting out-

side the guidelines in extraordinary cases.

23 See United States v. Grayson, No. 76-1572 (June 26, 1978), slip op. 6.

24It should be noted that respondent was sentenced on January 25, 1974,

two months after the guidelines were formally promulgated (38 Fed. Reg.

31942 (November 19, 1973)), and that respondent’s sentence was reduced in

October 1975 when the sentencing court became aware of the guidelines (see

pp. 6-7, supra). In these circumstances, even if a class action had been certified

by the district court, it is questionable whether respondent would be a suit-

able representative for any claim based upon the alleged ex post facto effect

of the Guidelines.

to narrow the broad discretion that the Commission

had previously exercised in its parole decisions and

that, by unduly structuring the parole process, the

Guidelines deprive prisoners ‘‘of the possibility of a

substantially more lenient punishment” (7d. at 58a).

The court reasoned that the ‘‘ possibility of a substan-

tially more lenient punishment’? was a part of each

prisoner’s sentence prior to promulgation of the

Guidelines,” and that depriving prisoners of this

‘“‘nossibility”’ would constitute increased punishment in

violation of the Ex Post Facto Clause (7d. at 58a-65a).

While it appeared to the cov rt that the Guidelines act

as an ‘“‘unyielding conduit’’ to impose substantial limi-

tations on the Commission’s discretion to grant pa-

role, and that application of the Guidelines to pre-

viously sentenced prisoners therefore violates the Ex

Post Facto Clause, the court directed the district to

hold a factual hearing on the issue on remand.”

There is no justification for a factual hearing on

remand. By providing a range of months within which

release may ordinarily be expected, the Guidelines do

25'The court of appeals relied, in part, on Warden v. Aarrero, 417 U.S. 653

(1974), for this aspect of its analysis. In Warden, the Court held that a

prisoner sentenced under a statute barring parole does not become eligible

for parole when the prohibition against parole is repealed by subsequent

legislation. The Court concluded that parole ineligibility was part of the

sentence imposed under the original statute. Id. at 658-664, This precedent

does not support the use to which it was put by the court of appeals.

26 The court suggested that the Guidelines might be constitutional Bic in

practice the parole authorities found good cause to deviate from the guide-

lines in 60% of the cases * * *’’ (id. at 64a). The court noted, however,

that the Parole Commission admitted that parole was granted prior to the

customary release date under the Guidelines in only 8.7% of the cases (ibid.).

not require the Commission to follow any fixed formula

in reaching dispositions in particular cases. The Com-

mission remains free to assign a severity rating dif-

ferent from that listed in the guidelines where miti-

gating or aggravating circumstances are present. 28

C.F.R. 2.20(d). The Commission may also make deci-

sions outside the guidelines where the circumstances

warrant. /d. at 2.20(¢). To the extent there was a

“possibility of a substantially more lenient punish-

ment”’ prior to adoption of the Guidelines, that possi-

bility remains. More fundamentally, however, pursuant

to the traditional allocation of responsibilities between

the sentencing judge and the parole authorities (see

United States v. Grayson, No. 76-1572 (June 26, 1978),

slip op. 6), parole officials have always retained the

broadest discretion over parole release déterminations

(see pp. 23-28, supra). The Guidelines do no more than

provide structure to that continuing exercise of dis-

cretion and thus do not alter any justified expectation

of parole eligibility.

Other courts of appeals have rejected the claim that

the Guidelines constitute an ex post facto law. In

Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977),

the court held that application of the Guidelines to

previously sentenced prisoners is permissible because

the Parole Commission has been given ‘‘absolute dis-

cretion’’ in parole matters and the Guidelines merely

‘fassist [the Commission] in attaining a more uniform

exercise of its discretion” (id. at 1335, 1336). Simi-

larly, in Shepard v. Taylor, 556 F.2d 648 (2d Cir.

1977), the Second Circuit stated that ‘‘the guidelines

do not constitute impermissible ex post facto laws

when applied to an adult offender since, in such an

instance, they merely clarify the exercise of admin-

istrative discretion without altering any existing con-

siderations for parole release.’’ 7d. at 654. The deci-

sion in this case has thus created a conflict among the

cireuits and placed in doubt the validity of Guidelines

that are central to the parole process.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Wape H. McCres, Jr.

Solicitor General

Puitie 6b, HEYMANN

Assistant Attorney General

Kent L. JONES a

Assistant to the Solicitor General

JEROME M. FEIT

ELLiort SCHULDER

Attorneys

OctToBER 1978

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

For tHE THIRD CIRCUIT

Nos. 77-1679 and 77-1858

JOHN M. GERAGHTY, indiv. and on

behalf of a class,

UNITED STATES PAROLE COMMISSION

and

ATTORNEY GENERAL OF UNITED STATES

and

SUPERINTENDENT FEDERAL PRISON

Allenwood, Pa.

John M. Geraghty, appellant in 77-1679

Eliezer Becher, appellant in 77-1858

On APPEAL F’ROM THE UNITED STATES District Court

FOR THE MiIpDLE District oF PENNSYLVANIA

C.A. No. 76-1467

Argued October 21, 1977

Before: ADAMS and GarrH, Circuit Judges, and

Lacey, District Judge.*

* United States District Judge for the District of New Jersey, sitting by

designation.

OPINION OF THE COURT

(Filed March 9, 1978)

Apams, Circuit Judge.

This appeal, in an action challenging the parole

guidelines promulgated by the United States Parole

Commission, raises two issues of broad import. First,

it requires us to examine the conditions under which a

class action, which the trial court refused to certify,

may be submitted to an appellate court despite the

fact that the named plaintiff no longer retains a ‘‘live’’

personal grievance. Second, it presents the question of

the validity, under both statutory and constitutional

standards, of the guidelines that govern federal grants

of parole.

I. THe Facts

A. The Guidelines

Beginning in 1910, certain prisoners incarcerated for

conviction of federal crimes have been eligible for re-

lease on parole.’ To facilitate such arrangement, the

United States, in 1948, established a Parole Board

(the Board), under the Department of Justice, to

rule on applications for parole. While originally the

Board’s decisions were not based on formally articu-

lated policies and procedures, in 1973 the Board pub-

lished a series of regulations governing parole deci-

1The Act of June 25, 1910, ch. 387 $1, 36 Stat. 319, was the first legis-

lation that established authority to grant parole to federal prisoners.

sions, including ‘‘guidelines’’ to establish ‘customary

release dates’’ for given classes of offenders.’

In 1976, Congress enacted the Parole Commission

and Reorganization Act (the PCRA).’ The PCRA re-

constituted the Parole Board as the United States

Parole Commission (the Commission), an independent

federal agency. Under the PCRA, the Commission is

responsible for promulgating ‘‘guidelines” for the exer-

cise of statutory discretion concerning the granting

of parole.* In making a decision regarding an individ-

ual inmate, the Commission is directed to examine

“the nature and circumstances of the offense and the

history and characteristics of the prisoner,’’ and then

to determine whether release would ‘‘depreciate the

seriousness of his offense,’’ ‘‘promote disrespect for

the law’’ or ‘‘jeopardize the public welfare.’’ Inmates

are to be released ‘‘pursuant to the guidelines”’ if the

determination by the Commission, in light of the stat-

utory criteria, is favorable.’

The ‘‘guidelines’’ currently utilized are substan-

tially the same ones that channeled the Board’s dis-

cretion before the enactment of the PCRA. Under

them, offenses are assigned a ‘“‘severity” rating, and

238 Fed. Reg. 26652-57 (Sept. 24, 1973). For an extensive analysis of the

guidelines and associated issues of policy and law, see Note, Parole Release

Decisionmaking and the Sentencing Process. 84 Yale L.J. 810 (1975) [here-

inafter cited as Yale Note].

318 U.S.C, § 4201-4218 (1976).

418 U.S.C. § 4203(a) (1976).

518 U.S.C. § 4206 (1976).

are placed into one of six categories, ranging from

“low” to ‘‘greatest.’’ Each inmate is assigned a ‘‘pa-

role prognosis score’’ of between 0 and 11, using

“salient factors” such as the age at which the inmate

was first convicted, his employment background, his

drug history, his previous parole revocations, and his

prior convictions. The ‘‘guidelines’’ include a grid in

which a combination of salient factor score and of-

fense severity rating identifies a ‘‘customary’’ time

span to be served.°

B. The Named Plaintiff

John M. Geraghty, a Chicago policeman, was con-

victed in 1973 of conspiracy to commit extortion and

*The current guidelines, codified at 28 C.F.R. § 2.20, are reproduced as

Appendix I, infra. Previous cases in this Circuit concerning the guidelines

have dealt primarily with the availability of 28 U.S.C. § 2255 as a vehicle for

trial judges to resentence prisoners where the expectations of the sentencing

judge have been frustrated by the applications of the guidelines, Addonizio

v. United States, Nos, 77-1542, 77-1621, 77-2373 (3d Cir. Feb. 16, 1978);

United States v. Somers, 552 F.2d 108 (3d Cir. 1977); United States ».

Salerno, 538 F.2d 1005 (8d Cir.) aff’d per curiam sur petition for rehearing

542 F.2d 628 (3d Cir. 1976); cf. United States v. Solly, 559 F.2d 230 (3d

Cir. 1977) (reversing denial of Rule 35 motion where parole guidelines oper-

ated to frustrate sentencing judge’s expectation). The availability of § 2255

has been a subject of some disagreement among the circuits. Compare e.g.

United States v. Kent, 563 F.2d 239 (5th Cir. 1977) ; United States v. McBride,

560 F.2d 7 (lst Cir. 1977); Andrino v. United States Board of Parole, 550

F.2d 519 (9th Cir. 1977) with e.g. Kortness v. United States, 514 F.2d 167

(8th Cir. 1975); United States v. Slutsky, 514 F.2d 1222 (2d Cir. 1975).

Recently, in United States v. Musto, No. 77-1239 (slip op. 1978), this Court

held that § 2255 was unavailable as a jurisdictional base for an attempt by one

aiready confined to alter a sentence imposed by a judge who had knowledge

of the parole guidelines. But Musto would not appear to alter the holding in

Zannino v. Arnold, 531 F.2d 687, 690 (3d Cir. 1976), that judicial review of a

parole board decision is available under 28 U.S.C. 2241 ‘‘to insure that the

Board has followed criteria appropriate, rational and consistent with the sta-

tute and that its decision is not arbitrary and capricious nor based on imper-

missible considerations.’’ See id. at 689 n.5.

of making false declarations to the grand jury. The

extortion charge was based on Geraghty’s use of his

position as a Chicago Vice Squad Sergeant to shake

down local dispensers of alcoholic beverages; the false

declaration charge arose out of denials of involvement

in this activity. After attempts to overturn his sen-

tence proved unsuccessful,’ Geraghty applied for pa-

role. Despite the good institutional adjustment one

might expect from a former policeman, parole was

denied Geraghty on the ground that:

Your offense has been rated as very high severity.

You have a salient factor score of 11. You have

been in custody for a total of 4 months. Guide-

lines established by the Board for adult cases

which consider the above factors indicate a range

of 26-36 months to be served before release for

eases with good institutional program perform-

ance and adjustment. After review of all relevant

factors and information presented, it is found

that a decision at this consideration outside the

guidelines does not appear warranted.

As finally amended, Geraghty’s sentence was 30

months. Thus, under the ‘‘customary release date,’’ he

7 Geraghty’s conviction was affirmed in United States v. Braasch, 505 F.2d

139 (7th Cir. 1974) cert. denied sub nom. Geraghy v. United States, 421 U.S.

910 (1975). His sentence was subsequently reduced by the trial court from

4 years to 30 months, under Rule 35, F.R. Crim. F. The reduction was based

on a finding that the guidelines would cause Geraghty to be imprisoned sub-

stantially longer than the district court intended. United States v. Braasch,

No. 72 C.R. 979 (N.D. Ill. Oct. 1, 1975), mandamus denied 542 F.2d 442 (7th

Cir. 1976).

could not be granted parole before the end of his

sentence as reduced by ‘‘good time” credits.

Geraghty applied for parole a second time, but that

request was also denied in June, 1976. The second

statement of reas\ns given by the Commission was

substantially identisal with the first.’ Asserting that

he was being denied Qarole by reason of a mechanical

application of the guidelines, Geraghty then brought

the present suit as a class action challenging the va-

lidity of the guidelines, ‘and questioning the proce-

dures by which the guidelines were applied to his

case.”

Judge R. Dixon Herman, of\the District Court for

the Middle District of Pennsylvania, declined to cer-

tify the class action, and granted summary judgment

against Geraghty on all of the claims he had asserted.

After an appeal from both rulings was docketed, but

before oral argument was heard by ws, Geraghty’s

sentence expired and he was released.

II. JuRiIspIcTioONAL PRoBLEMS

Before proceeding to the merits of Geraghty’s con-

tentions, we must consider a number of sigrNficant

procedural objections.

8A verbatim reproduction of this statement was upheld by a panel of this

Circuit as a sufficient articulation of reasons to satisfy the demands of 4

process. Hill v. Atty. Gen., 550 F.2d 991 (1977) accord Garcia v. United States,

557 F.2d 100 (7th Cir. 1977).

® Although the action was originally filed in the District Court for the

District of Columbia, the matter was transferred to the Middle District of

Pennsylvania, where Geraghty was then confined. Geraghty v. United States

Parole Commission, Civ. No. 76-1729 (D. D.C. 1976).

A. Jurisdictional Basis of Suit

Initially, the question of the jurisdictional under-

pinning of the suit before us must be resolved. In his

complaint, Geraghty claimed jurisdiction under (1)

28 U.S.C. § 2241 (the habeas corpus statute), (2) 5

U.S.C. §§ 700-706 (the Administrative Procedure

Act), and (3) 28 U.S.C. § 1331 (federal question ju-

risdiction). The trial court held that under Preiser v.

Rodriguez,” habeas corpus is the only remedial base

available to the plaintiff. To the contrary, however,

we conclude that it is appropriate to treat this action

as one for declaratory judgment under 5 U.S.C.

§§ 700-706 (1970) and 18 U.S.C. § 4218(¢) (1976).

In Preiser, state prisoners brought suit seeking an

injunction restoring ‘‘good time” credits that they

claimed were unconstitutionally taken from them. The

Supreme Court held that since the prisoners were

challenging the fact or duration of their imprison-

ments, § 1983 was unavailable, and their sole federal

remedy was by habeas corpus. The Preiser opinion

rested on two grounds. First, the Court noted that the

interest in federal-state comity weighed against the

advisability of allowing state prisoners to bypass the

exhaustion requirement“ of the state habeas corpus

statute.” Second, the Court stated that the more spe-

cific provisions of the habeas corpus act should be

10411 U.S. 475 (1973).

11 28 U.S.C. § 2254(b) (1970).

12411 U.S. at 490-92.

read to modify the general cause of action granted by

§ 1983.*°

Neither of these considerations is applicable here.

The courts face no barriers resulting from federal-

state relations in adjudicating issues such as the ones

before us, since the present controversy involves the

application of a federal statute by federal authorities.

And, unlike a habeas corpus action challenging state

confinements, no exhaustion has been statutorily man-

dated. Indeed, in contrast to the situation, in Preiser,

Congress expressly contemplated declaratory actions

to challenge the provisions of the federal parole guide-

lines. 18 U.S.C. § 4218(¢) (1976) declares that Parole

Commission actions, except for individual parole de-

cisions, are to be reviewable under the Administrative

Procedure Act. The legisiative history of § 4218(c)

states, inter alia:

This section brings the Commission rule-making

process within the coverage of the Administrative

Procedure Act judicial review procedures. In this

regard, the Conferees recognize the principles

established in Pickus v. United States, 507 F.2d

1107 (1974).*°

13 411 U.S. at 489-90.

1418 U.S.C. § 4218 became effective May 15, 1976. The suit in this case was

filed in September of 1976.

15 House Conf. Rep. No. 94-838 94th Cong. 2nd Sess. 36 reprinted 1976

U.S. Code, Cong. & Ad. News 351, 368. [hereinafter cited as Conference

Report]

Pickus v. Parole Moard,” entailed a challenge by pris-

oners to parole guidelines brought as an action for

declaratory judgment under the APA. It appears that

Congress in citing Pickus clearly evinced an intent

to allow suits like the one before us to proceed by way

of an action for declaratory judgment.”

Moreover, even under the strictures of Preiser, it-

self, the present action would not be inexorably chan-

neled into the form of a habeas corpus proceeding.

While the relief requested for Geraghty included ‘‘en-

largement from custody’’ pending review of his parole

status, such request is now moot. In comparison, the

class relief sought was (a) a declaration that the pa-

role guidelines are invalid, and (b) an injunction

against further actions denying parole to other fed-

eral prisoners on the basis of the guidelines. This re-

lief falls within the Supreme Court’s holding in Wolff

v. McDonnell, 418 U.S. 539, 554-55 (1974), that

Preiser does not bar either a declaratory judgment or

a prospective injunction against enforcement of un-

constitutional regulations relating to revocation of

good time credits. The class does not demand that its

members be released on parole, but only that the Pa-

role Board not utilize the guidelines in evaluating fu-

ture parole applications.

16 507 F.2d 1107 (D.C. Cir. 1974).

17 This expression of intent by Congress renders inapplicable the Supreme

Court’s decision in Califano v. Sanders, 45 USLW 4209 (1977). Califano held

that as a matter of statutory constructic 1, the APA does not confer jurisdic-

tion on federal courts, absent other statutory authorization.

10a

Therefore we conclude that this suit may proceed as

an action for declaratory judgment.”

B. Mootness

We are next faced with a challenge to this Court’s

jurisdiction on the basis of mootness. After the appeal

was filed, but prior to oral argument, Geraghty was re-

leased from confinement. Since, at trial, Judge Her-

man declined to certify this case as a class action, the

government contends that the matter is now moot be-

cause of Geraghty’s release. The argument proceeds

that Geraghty, as the named plaintiff, has no further

stake in the operation of the parole guidelines, and no

class, in fact, has been certified to assert an interest in

the guidelines.”

Geraghty makes two responses to the claim of moot-

ness. First, he declares that challenges to the parole

guidelines represent a situation where a legal] injury is

‘‘eapable of repetition yet evading review.” Prisoners

18 Bijeol v. Benson, 513 F.2d 965, 967 (7th Cir. 1975) and Biliteri v. U.S.

Parole Bd., 541 F.2d 938, 947-48 (2d Cir. 1976), may appear to be at odds

with our decision. The Court in Bijeol, however, did not have before it the

provisions of 13 U.S.C. 2418. And in Biliteri the plaintiff requested neither

declaratory nor prospective injunctive relief, and did not challenge the pro

priety of the guidelines.

This Court’s holding in Marerro v. Warden, 483 F.2d 656, 659-60 (3d Cir

1973), rev’d on other grounds 417 U.S. 653 (1974), that habeas corpus may

be used to attack a denial of parole does not urdermine our result, for we in

no way intimated in Marerro that habeas corpus was the sole route available.

Cf. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973) (habeas and § 1983 are

alternative remedies with respect to prison conditions).

18 See Board of School Commissioners of Indianapolis v. Jacobs, 420 U.S.

128 (1975); Weinstein v. Bradford, 423 U.S. 147 (1975); Pasadena Bd. of

Educ. v. Spangler, 427 U.S. 424, 430 (1976).

lia

will often be released before their cases are finally re-

solved in the appellate courts. Therefore, he avers, the

case before us comes within a traditional exception to

the mootness doctrine.*” Second, Geraghty maintains

that his case is encompassed by the principle that a

class action is not moot simply because the claims of

the named plaintiff are rendered academic. He urges

that the failure of Judge Herman to grant class action

status was an abuse of discretion and that subsequently

granted class status should be permitted to ‘‘relate

back’’ to the time when Geraghty had a live claim.”

Resolution of the justiciability of this case in light

of the mootness objection is best undertaken in the con-

text of a somewhat extended discussion of this evolv-

ing doctrine.”

20 See, e.g. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974);

United States v. New York Telephone Co., 46 U.S.L.W. 4033, 4035 n.6 (1977) ;

United States v. Frumento, 552 F.2d 534 (3d Cir. 1977) (en banc).

21 See, e.g. Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975); Williams v.

Wohlgemuth, 540 F.2d 163, 167 (3d Cir. 197t,.

The plaintiff also presses the application of Eiiezer Becher to intervene as

a named plaintiff. Becher, like Geraghty, has been an inmate of Lewisburg

who had been denied parole. Unlike Geraghty, however, Becher had not been

released at the time his motion to intervene was argued before this Court.

Becher’s motion was originally presented after the appeal to this Court had

been docketed, and the district court divested of jurisdiction. His request to

intervene was therefore denied. Since we conclude that the case must be

remanded to the district court for other determinations, it is also appropriate

that Becher’s motion to intervene be remanded for a determination as to the

reasons for his failure to intervene earlier, and an examination of the potential

prejudice, if any, which might result from such intervention. See Pennsylvania

v. Rizzo, 530 F.2d 501 (3d Cir.) cert. denied 426 U.S. 921 (1976). Cf. United

Air Limes v. McDonald, 45 USLW 4760 (1977).

22The development of the principles governing mootness and their inter-

action with the emergence of class actions has been the subject of a consider-

able number of recent scholarly discussions. See H. Newberg, Newberg on Class

12a

1. Contours of Mootness Doctrine

The principle that a court may not decide a moot

ease arose primarily from rules of equity and com-

mon law, as well as from traditional notions of the

functions of courts.” It was only in the last decade

that the attitude of the Supreme Court toward the

adjudication of moot cases became definitively inter-

twined with the mandate of Article III, which pro-

vides that the power of the judiciary is limited to

cases or controversies.”

Still more recently, however, the Supreme Court

has made clear that elements of the ‘“mootness” doc-

trine find their roots not only in constitutional dic-

tates, but also in more flexible considerations of pol-

22, (Cont’d.)

Actions $$ 1085-1092 (1977); Kane, Standing, Mootness and Federal Rule 24—

Balancing Perspectives, 26 Buffalo L. Rev. 83 (1976); Developments in the

Law—Class Actions, 89 Harv. L. Rev. 1163-71 (1976); Comment, Continuation

and Representation of Class Actions Following Dismissal of the Class Repre-

sentative, 1974 Duke L.J. 573; The Mootness Doctrine in the Supreme Court,

88 Harv. L. Rev. 373 (1974) ; Note, Mootness on Appeal in the Supreme Court,

83 Harv. L. Rev. 1672 (1970); Note, A Search for Principles of Mootness in

the Federal Courts, Part One, the Continuing Impact Doctrine, 54 Texas L.

Rev. 1289 (1976) ; Part Two, Class Actions id. 1310.

28 See Note, The Mootness Doctrine, supra note 22, 373 and 274-75 nn9-11

(1974); Note, Mootness on Appeal, supra note 22, at 1672, 1673-74 n.12 (and

authorities cited therein).

24U.8. Const. Art. III $2. The first mootness holding explicitly couched

in terms of Art. III jurisdictional limitations was Sibron v. New York, 392

U.S. 40, 57 (1968), although the Court had referred to Art. III limitations in

Liner v. Jafeo, 375 U.S. 301, 306 n.3 (1964) and Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227, 240 (1937). See Note, Mootness Doctrine, supra note

22, at 375, Note, Mootness on Appeal, supra note 22 at 1673-74; cf. G. Gunther,

Constitutional Law 1578-80 (9th Ed. 1975) (evidencing skepticism about recent

assertion of constitutional origins of mootness doctrine).

13a

icy.” The first step in our mootness analysis, there-

fore, must be to attempt to etch the outlines of the

constitutional elements of this doctrine.

The constitutional command that matters submitted

to the judiciary for resolution must be within the cate-

gory of ‘‘case or controversy’’

limits the business of the federal courts to ques-

tions presented in an adversary context, and in a

form historically viewed as capable of resolution

through the judicial process. And in part those

words define the role assigned to the judiciary in

a tripartite allocation of power to assure that the

federal courts will not intrude into areas com-

mitted to the other branches of government.”

As we understand the constitutional requirements, a

case presented for adjudication must be an actual,

concrete dispute over legal rights; the controversy

may not be a hypothetical one.” In addition, at the

commencement of suit, the dispute must concern some

25 Franks v. Bowman. Transportation Co., 424 U.S. 747, 755-57 and n.8

(1976) (for a unanimous court on this point); Aremens v. Bartley, 45

U.S.L.W. 4451, 4453, 4454 (1977). See Kane, supra note 22, at 84-88, 94.

26 Flast v. Cohen, 392 U.S. 83, 94-95 (1968), quoted in Franks v. Bowman

Transportation Co., 424 U.S. 747, 755 (1976). See e.g. Note, Mootness Doctrine,

supra note 22 at 376-377.

27 The judgment of a federal court must resolve ‘‘a rea) and substantial

controversy admitting of specific relief through a decree of a conclusive char-

acter as distinguished from an opinion advising what the law would be upon

a hypothetical state of facts.’’ Preiser v. Newkirk, 422 U.S. 395, 401 (1975),

quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971), quoting Aetna Life

Ins. Co. v. Haworth, 300 U.S, 227, 241 (1937).

l4a

individual plaintiff who is injured by the wrong in

question.”

However, once 2 suit meeting these conditions has

been instituted, the limitations of Article III do not

absolutely require that an individual who is personally

harmed by the wrongs continue to have a live dis-

pute. Rather, the issues with regard to jurisdiction

are:

(1) Whether a legal controversy exists sufficient

to establish that the case is not hypothetical.

(2) Whether the controversy affects an individ-

ual in a concrete case sufficient to provide the

factual predicate for the reasoned adjudica-

tion which is the province of the judiciary.

(3) In addition, the court must answer the more

policy-oriented question whether the parties

before it have, at the time for decision, suffi-

cient functional adversity to sharpen the is-

sues for judicial resolution.

The existence of a plaintiff with standing at the out-

set of the litigation insures the initial fulfillment of

these three conditions; but the elimination of the in-

dividual grievance may bring such fulfillment into

question. Once suit has been commenced, it nonethe-

less remains open to the court to determine that a case

or controversy persists despite the disappearance of

28 See, e.g. Warth v. Seldin, 422 U.S. 490, 498-501 (1975).

15a

the named plaintiff as a ‘“‘live’’ litigant.” Moreover,

since the third consideration is not an absolute Article

III requirement, in evaluating the degree of func-

tional adversity, the court may ascribe weight to rea-

sons of policy.”

We reach these conclusions on the basis not only of

the Supreme Court’s explications of the mootness doc-

trine, but in reliance on cases in which the Supreme

Court has actually exercised jurisdiction.

2. Actions Surviving Loss of Claim by the Named

Plaintiff

(a) Repetitious Evasion of Review

The first genre of disputes in which the Supreme

Court has not required a continuing live stake was

described by our Court in United States v. Frumento

as the ‘‘most traditional of exceptions to the moot-

ness doctrine.’’“ This group of cases has utilized the

rubric ‘‘ecapable of repetition vet evading review’’ to

characterize controversies whose effect on plaintiffs is,

29 See Kane, supra note 22 at 84-85, 94-96 (two part test exists: actual

injury and controversy and discretionary determination), Note, Mootness

Doctrine, supra note 22 at 389, 394-95 (discretion should look to impact of a

decision on the merits on the necessity for future litigation. The amenability

of a fact pattern to definitive resolution would imply that future litigation

might be minimized by taking jurisdiction).

30 See Note, Developments in the Law—Class Actions, 89 Harv. L. Rev.

1318, 1364-66, (1977) (Supreme Court has moved from the focus on continuing

controversy with named plaintiff to an inquiry into the status of legal issues

in dispute between the class and the class adversary) ; Note, Mootness Doctrine,

supra note 22 at 388-395 (non-mootness may be predicated upon existence of

injury to class).

$1 552 F.2d 534 (3d Cir. 1977) (en banc).

l6a

by their very nature, of limited duration. In such

instances it is unlikely that any person will retain a

live stake in the outcome of the case by the time it

has made its way through the appellate process. None-

theless, the actions complained of are likely to be re-

peated, and therefore present the possibility of a re-

curring but a judicially irremediable wrong unless ju-

risdiction is retained.”

In many of these cases, the party who originally

brought suit can present a plausible argument that he

or she will be subject to a recurrence of the conduct

at issue, and accordingly continues to have a per-

sonal stake in the controversy. To this extent, the

plaintiff retains a ‘‘live’’ interest. Such hypothesis,

however, in many cases would clearly fail to meet the

standards imposed on litigants at the outset of a case

to show ‘‘standing,’’” and in others seem to be keyed

32 F.g. Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911) (regulatory order

effective for two years); Roe v. Wade, 410 U.S. 113 (1973) (gestation period

as limit to impact of abortion law); Sosna v. Iowa, 419 U.S. 393 (1976) (one

year residency requirement for divorces); Dunn v. Blumstein, 405 U.S. 330

(1972) (one year residency period for eligibility to vote); Nebraska Press

Assn. v. Stuart, 427 U.S. 539 (1976) (‘‘gag order’’ limited to duration of

trial) ; Super Tire Engineering Corp. v. McCorkle, 416 U.S. 115, 125-27 (1974)

(welfare benefits to striking worker-); United States v. New York Telephone

Co., 46 USLW 4033, 4035 n.6 (Dec. 1977) (‘‘pen register’’ order of limited

duration). Gerstein v. Pugh, 420 U.S. 103 (1975) (pretrial detention). See

Note, Mootness Doctrine, supra note 22 at 383-388, Singleton v. Wulff, 428

U.S. 106, 117 (1976) (dictum).

Cf. Preiser v. Newkirk, 422 U.8. 395 (1975) (challenge to prison disci-

plinary procedure moot where punishment of named plaintiff under procedure

had ceased, no class action had been alleged, and plaintiff could have no

‘‘reasonable expectation of repetition’’ of the procedure in question).

33 Compare e.g. United States v. New York Telephone Co., 46 U.S.L.W.

4033 (1977); Nebraska Press Assn. v. Stewart, 427 U.S. 539 (1976); Super

17a

to the notion that the conduct at issue may be repeated

with respect to someone within the class represented,

although not with respect to the particular named

plaintiff.”

If the disputed action will, with reasonable prob-

ability, recur in the near future and the issues may be

resolved without reference to nuances of particular

fact situations, the constitutional prerequisites of a

legal controversy and a concrete factual predicate may

be satisfied despite the lack of a named plaintiff be- -

fore the court who retains his original interest in the

conflict. The pote:tial for repetition with respect to

such plaintiff may itself be one indication of the satis-

faction of the further prudential criterion of func-

tional adversity, but the unfairness of an evasion of

review may also be relevant to the exercise of discre-

tion. Repetition is not, however, the sole possible in-

dication of either constitutional or discretionary jus-

ticiability.

(b) Class Actions

In the related area of the mootness of class actions,

the Supreme Court has consistently held that once a

33. (Cont 'd.)

Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974) with Warth v. Seldin,

422 U.S. 490 (1975); Simon v. Eastern Ky. Welfare Rights Ass., 426 U.S.

26 (1976).

84 See Roe v. Wade, 410 U.S. 113 (1973) (other pregnant women Cenied

abortion, even after plaintiff’s term of pregnancy); Sosna v. Jowa, 419 U.S.

393, 399-403 (1975) (1 year residency requirement for divorce, applicable to

other potential divorcees); Dunn v. Blumstein, 405 U.S. 330 (1972) (1 year

voter residency requirement applicable to others who move into the voting

district).

18a

class action is certified, the mooting of a claim set

forth by the named plaintiff does not automatically

deprive a court of jurisdiction over the cause of ac-

tion asserted by the class. A justiciable legal contro-

versy may continue to exist between the class as an

entity and the defendant, thus satisfying Article ITI.

Originally, this holding was articulated in the con-

text of class actions dealing with claims that were also

capable of repetition but evading review.”

But the Supreme Court has, in other situations, sus-

tained the justiciability of what may be referred to

as ‘‘headless’’ class actions; that is class actions in

which the named plaintiff retains no ‘‘live’’ claim. In

Richardson v. Ramirez,” the Court adjudicated the

complaint of a class composed of California ex-pris-

oners, despite the fact that three named plaintiffs

already had obtained the relief they sought. The ac-

tion challenged the denial of voting rights to ex-felons

under California law. By the time the case reached

the appellate court, however, the three named ex-

felons had already been registered to vote by the

named defendants, three county clerks charged with

enforcing election statutes. Nonetheless, the California

Supreme Court issued a declaratory judgment.

On review, the Supreme Court noted that inasmuch

as the opinion of the California tribunal was binding

35 Gerstein v. Pugh, 420 U.S. 103 (1975); Sosna v. Iowa, 419 U.S. 393

(1975); Roe v. Wade, 410 U.S. 113 (1973); Dunn v. Blumstein, 405 U.S.

830 (1972).

36 418 U.S, 24 (1974).

oe ee ANT ee Oa

19a

on all county clerks, the underlying isse evaded re-

view by being ‘‘incapable of repetition.’’*’ In addi-

tion, since the Court interpreted the case as an action

against a class composed of all county clerks, it iden-

tified a “live’’ controversy between the non-consenting

elerks and felons who, in the future, might wish to

the named plaintiffs could not have commenced suit

simply by claiming that they wished to move to the

other counties and register to vote, once suit was

appropriately instituted, the Supreme Court took no-

tice of an on-going controversy with unnamed class

members.

More recently, in Franks v. Bowman Transporta-

tion Co.,” an action under Title VII of the Civil

Rights Act of 1964, the Supreme Court acknowledged

the viability of a headless class action, where the lone

named plaintiff had lost his eligibility for relief as a

result of subsequent misconduct. Inasmuch as the

plaintiff class had been properly certified, the Court

held that a continuing legal controversy was clear,

and the case was not constitutionally moot. The Court

also attributed the earlier linkage of headless class ac-

tions to situations capable of repetition but evading

review to “policy rules’ rather than to the constitu-

87 418 U.S, at 35.

88 See Warth v. Seldin, 422 U.S, 490, 514-517 (1975).

89 424 U.S. 747 (1976).

20a

tional element of justiciability.“° Identifying a situa-

tion repetitiously evading review was only one method

of establishing sufficient ‘‘functional adversity,’’ the

Court held. In Bowman the class certification com-

bined with the factors that the class members were

easily identifiable, clearly entitled to a remedy. and

had demonstrated competence and tenacity in their

litigation subsequent to the disqualification of the class

representative, satisfied the requirements of the moot-

ness doctrine."

From the Ramirez and Bowman cases, plus the

elass-oriented ‘‘repetition’’ cases, we draw the con-

clusion that a continuing conflict between a clearly-

defined class and a defendant remains an Article III

ease or controversy even after the named plaintiff

loses his personal stake in the outcome. And, if the

evidence indicates a possibility of evasion of review,

or a clear continuing functional adversity, the dis-

eretionary component of the mootness doctrine is also

satisfied.

Thus, in the case before us, if Geraghty’s suit had

been properly certified as a class action before he had

40424 U.S, at 756 n.8. See 424 U.S. at 781 (opinion of Powell, J. joined

by Rehnquist, J. concurring on this point).

41424 U.S. at 756-57. In contrast, in #. Texas Motor Freight Systems,

Inc. v. Rodriguez, 45 U.8S.L.W. 4524 (1977), where the plaintiff had never

been a part of the class which he sought to ropresent, it was held that the

class was improperly certified on appeal. Cf. Kremens v. Bartley, 45 U.S.L.W.

4451 (1977), where the Supreme Court held that changes in law so frag-

mented the interest of the plaintiff class that it could no longer clearly identify

a common interest.

2la

been released\from prison, it would have been juris-

dictionally appropriate to continue to entertain the

suit even after his release. Obviously, a large number

of prisoners remain subject to the parole guidelines,

and insofar as the guidelines result in their being

denied parole, such prisoners clearly are adversely

affected. In adjudicating this matter, a court there-

fore would not be concerned merely with an abstract

or hypothetical conflict. And a proper class certifica-

tion would bring into focus the ‘‘functional adver-

sity” necessary for adjudication,

3. The Impact of Denial of Class Certification

In this case the trial court refused class certifica-

tion. The question, then, is whether such refusal com-

bined with Geraghty’s release prevents our review of

this matter, on the ground that we have before us

neither a ‘‘live’’ plaintiff nor a properly certified

class.

The Parole Commission earnestly contends that

under Board of School Commissioners of Indianapolis

v. Jacobs,” in the absence of a properly certified class

the mooting of a named plaintiff automatically re-

moves the suit from the category of a justiciable case

or controversy. Reading Jacobs in this fashion, how-

ever, is incompatible with the Supreme Court’s hold-

ings in both prior and subsequent cases.“

42 420 U.S. 128 (1975).

43 The statements in Sosna, Franks, Gerstein, and East Texas that justi-

ciability remains ‘‘given a properly certified class’? may simply point to

certifiability, not actual certification, as the crucial question. See Satterwhite

22a

In Gerstein v. Pugh, the short duration of chal-

lenged pretrial custody precluded a class from being

certified before the named plaintiffs were released.

Nevertheless, the district court certified a class of pre-

trial detainees, and entertained the action. Noting that

the challenged procedures would continue to apply to

a succession of pretrial detainees, the Supreme Court

held that the class certification preserved justiciability

even though the certification might have been entered

after the named plaintiffs lost a ‘‘live’’ interest in

the suit.*°

43. (Cont’d.)

v. City of Greenville, 557 F.2d 414, 417-421 (5th Cir. 1977) rehearing en bane

granted; Frost v. Weinberger, 515 F.2d 57, 64 (2d Cir. 1975) (Friendly, J)

(Sosna’s insistence on continuing existence of individual claim until certifica-

tion is ‘‘drained’’ by ‘‘relation back’’ doctrine). Similarly, Weinstein v.

Bradford, 423 U.S. 127 (1975), which dismissed a parole challenge as moot,

is inapposite here since the Weinstein plaintiffs did not appeal the denial of

class certification. Cf. Scott v. Kentucky Parole Board, 429 U.S. 60 (1976)

(individual action, no attempt to certify class).

44420 U.S. 103 (1975).

‘>The stated rationale, that the later certification ‘‘related back’’ to the

time that the plaintiffs had claims is at best a legal fiction. See Gardner v.

Westinghouse, (Seitz, J. concurring) No. -76-1410 (3d Cir. 1977) slip op. at

18-19, cert. granted — U.S. —; Frost v. Weinberger, 515 F.2d 57, 64 (2d

Cir. 1975).

The Gerstein decision had been presaged by Kelly v. Wyman, 294 F, Supp.

887, 890 (S.D. N.Y. 1968) aff’d sub nom. Goldberg v. Kelly, 397 U.S. 254,

256 n.2 (1970). There the district court refused to dismiss a challenge to

welfare regulations before class certification despite an allegation that most

if not all of the named plaintiffs had been reinstated to welfare, on the ground

that ‘‘plaintiffs claim to represent a class.’’ The Supreme Court affirmed the

class relief, noting that some of the then-named plaintiffs were still embroiled

in disputes with the welfare department. It was not clear, however, whether

those plaintiffs had been named at the time of the original decision or had

subsequently intervened. See Goosby v. Osser, 409 U.S. 512 (1973) (adjudi-

cating class action of prisoners confined to pretrial detention, despite the fact

23a

The Supreme Court in Baxter v. Palmigiano* ad-

judicated a controversy concerning prison regula-

tions, although the case had not been properly certi-

fied as a class action and the named plaintiffs had

died or had been released prior to the oral argument

on appeal. The Supreme Court held that the subse-

quent intervention of another prisoner brought a justi-

ciable case before the Court. This was so despite the

fact that it was not clear that when the intervention

had occurred, the district court still had a ‘‘live’’ in-

dividual plaintiff before it.

Most recently, in United Airlines v. McDonald,” the

Supreme Court reviewed a refusal to allow putative

class members in an employment discrimination suit

to intervene in order to appeal a denial of class certi-

fication. By the time the motion for intervention was

presented, the original named plaintiffs had already

been awarded relief and as to them the case was

moot. Again, intervention was permitted at a time

45. (Cont’d.)

that apparently there was no indication whether they had been released prior

to class certification); Conover v. Montemuro, 477 F.2d 1073 (3d Cir. 1973)

(en banc) (allowing class action on behalf of juvenile detainees, despite the

fact that named detainees had been released after short time).

Since Gerstein a number of courts have allowed certification on a ‘‘relating

back’’ theory. E.g. Williams v. Wohlgenmuth, 540 F.2d 163 (3d Cir. 1976) ;

Basel v. Knebel, 551 F.2d 395, 397 (D.C. Cir. 1977); Zurak v. Regan, 550

F.2d 86 cert. denied — U.S. — (2d Cir. 1977).

46 425 U.S. 308, 311 n.1 (1976).

4745 U.S.L.W. 4760 (1977). Cf. Haas v. Pittsburgh National Bank, 526

F.2d 1083 (3d Cir. 1975) (allowing substitute plaintiff to intervene for named

plaintiff who never had standing, but allowing filing of original class action

to toll statute of limitations).

24a

when the named plaintiffs no longer retained ‘‘live”

claims.

In light of Gerstein, handed down on the same day

as Jacobs, and of Barter and McDonald, both decided

after Jacobs, the Jacobs case should not be viewed

as standing for the proposition that the federal courts

are constitutionally barred from continuing to adjudi-

eate disputes when the named plaintiff no longer re-

tains his claim. So long as a factually concrete legal

controversy continues to exist, it would appear that

the constitutional power of a court over the case re-

mains. Consequently, the holding of Jacobs is per-

haps best understood as a specific instance that must

be seen in the context »f the over-arching set of prin-

ciples adumbrated by the authorities cited above.

In Jacobs, the Supreme Court reviewed a First

Amendment challenge by a group of students to reg-

ulations limiting publication of a newspaper. Since

the students had graduated, and the periodical in

question had ceased publication, the inability to de-

limit accurately the plaintiff class deprived the Court

of the assurance of justiciability. In addition, the

failure of counsel to seek a proper class certification

east serious doubt on the continued adequacy of the

adversarial clash.“

48 As other courts have noted, the failure to certify the class in Jacobs

was not assigned as error Napier v. Certrude, 542 F.2d 825, 827 (10th Cir.

1976) cert. denied — U.S. — (1977); Gardner v. Westinghouse, No. 76-1410

(3d Cir. 1977) slip op. at 18 n.5 (Seitz, J. concurring) cert. granted — U.S.

25a

An appropriately defined and certified class assures

the courts that the case involves a concrete legal con-

troversy, proper factual predicate, and functional ad-

versity. The lack of certification, however, does not

inevitably require dismissal, if the elements of justi-

ciability are otherwise established.” Thus, in Gerstein,

Baxter, and McDonald no doubt could validly have

been raised concerning the continuation of the under-

lying legal controversies. Counsel in Gerstein and Mc-

Donald, could not have been charged with responsi-

bility for the failure of certification, and in both

Baater and McDonald the continuation of the adver-

sarial difference was assured by the intervention of

live plaintiffs. In those situations, a concrete dispute

continued and representation was adequate. Conse-

quently, the cases were not dismissed.

49 Wo acknowledge that the courts of appeals are divided on the question

of whether under the recent Supreme Court decisions, the denial of class action

status is appealable by a named plaintiff whose claim has become moot. Banks

v. Multi Family Management, 554 F.2d 127 (4th Cir. 1977) (Refusal to certify

since development of mootness was not ‘‘inherent in tie nature of the claims,’’

and the named defendant had already agreed to relief sought); Satterwhite

v. City of Greenville, 557 F.2d 414 (5th Cir. 1977) rehearing granted en bane

(refusal to certify class is appealable if improper if at te time that the class

should have been certified, and the named plaintiff still had a live claim at

that time); Kuahulu v. Employers Insurance of Wausau, 557 F.2d 1334 (9th

Cir. 1977) (survival of action is governed by ‘‘idiosyneracies of each case;’’

action in question did not survive, but the Court suggests a number of situa-

tions in which it might); Winokur v. Bell Federal Savings and Loan, 560 F.2d

371 (7th Cir. 1977) (damages claimed were tendered to individuals, non-

plausiblo claim of repetition, no review allowed of failure to certify class.

Dictum that issue of class certification cannot survive mooting of individual

claim); Napier v. Gertrude, 542 F.2d 825 (10th Cir. 1976) (review available

where failure to certify is ‘‘correctable on appeal,’’ correctability is a fune-

tion of particular situations, mainly available in situations otherwise evading

review).

26a

In the matter before us, there is neither a conten-

tion by the government nor evidence in the record

which raises any question but that a legal controversy

exists. “he fate of numerous federal prisoners con-

tinues to turn in large part on the application of the

guidelines in question. Such a situation in our view

satisfies the ‘‘case or controversy” components of the

mootness doctrine. Further, under the circumstances

of this case, the more discretionary elements of the

restrictions against entertaining moot cases do not

mandate dismissal. Four aspects of the case lead to

this conclusion.

First, Geraghty’s action, while not wholly congru-

ent, shares many. characteristics with the cases de-

nominated “capable of repetition, yet evading review.”’

This is so since federal prisoners are eligible for pa-

role if their sentences exceed one year.” Accordingly,

while some prisoners will retain their grievances long

enough to achieve appellate review, a number of pris-

oners with short sentences, like Geraghty, will inevi-

tably be discharged before they have an opportunity

to litigate fully the legality of the rules which deny

them parole. This alone is a factor weighing heavily

in favor of justiciability.” And since it is the prison-

ers with unusually short sentences to whom the parole

5018 U.S.C. $4205 (1976).

5' See Zurak v. Regan, 550 F.2d 86 (2d Cir. 1977) (prisoners whose com-

plaints on parole procedure would often—but not always—evade review were

allowed to ‘‘relate back’’ certification to a time before the named plaintiff ’s

release). Cf. United States v. Frumento, 552 F.2d 334 (3d Cir. 1977) (en

banc) (compulsion to testify before grand jury).

27a

guidelines deny the benefit of the trial judge’s leni-

ency,” the limited probability of review for a prisoner

with a short sentence is particularly pertinent.

Second, as we have noted, this case involves denial

of a class action certification. As Chief Judge Seitz

observed in Gardner v. Westinghouse,” if mooting of

a named plaintiff’s claim bars review of a denial of

class certification our rule against interlocutory ap-

peals of class certification orders will, in a significant

number of cases, effectively immunize from review such

adverse class determinations. This is hardly a salu-

tary result for, although class certification had been

improperly denied, a constitutionally justiciable con-

troversy nevertheless continues to exist.

Third, the attorneys for Geraghty, while not pos-

sessed of a legally continuing relationship with mem-

bers of the plaintiff class,* have nonetheless under-

taken this litigation on a class-oriented basis. There

is no indication of any diminution of vigor in their

efforts despite the release of Geraghty. Indeed, as al-

ready observed, they represent another individual

plaintiff who now seeks to intervene in the matter.

Consequently, there is a prima facie case of functional

adversity, a central element which the mootness doc-

trine seeks to preserve.

52 The government’s brief in this action (p. 12) suggests that only prisoners

with short sentences have an interest in attacking the guidelines’ failure to

take account of sentence length.

53Slip op. No. 76-1410 (3d Cir. 1977) (Seitz, C.J. coneurring), cert.

granted — U.S. —.

54 Cf. Gerstein v. Pugh, 420 U.S. 103, 110, 111 n.11 (1975) (public defender

had continuous relationship with class of pretrial detainees).

28a

Finally, the major issues in the case in no way ap-

pear to be tied to the nuances of individual fact pat-

terns. The discharge of Geraghty does not alter either

the interests of the members of the putative class *

or the practice of the Parole Commission in applying

its guidelines.”

Hence, if class certification is appropriate in this

case, the mootness of Geraghty’s claim should not bar

adjudication.

C. Trial Court’s Refusal to Certify Class Action

Status

Class certification was denied by the district court

as neither “necessary nor appropriate.’’” It was not

necessary, Judge Herman held, because the possibility

of avoiding mootness is not expressly comprehended

in the criteria of Rule 23. We agree with the trial

court that a possibility of avoiding mootness on ap-

peal would not, of itself, be a sufficient basis for con-

ferring class action status on a suit otherwise barred

by Rule 23. Rule 23, however, allows litigants to bring

class actions so long as they meet its standards. The

plaintiff here need not have proved that certification

was ‘‘necessary,’’ as the trial judge seemed to indi-

eate, but only that there was compliance with the

prerequisites of Rule 23.

55 Cf. Kremens v. Bartley, 431 U.S. 119 (1977).

5¢ See Note, Mootness Doctrine, supra note 22 at 394. Cf. De Funis v.

Odegard, 416 U.S. 312 (1975).

STA, 46,

29a

Judge Herman stated that the class action was not

‘‘appropriate’’ on a number of grounds. First, he cor-

rectly held that two of the issues raised—namely, the

classification of Geraghty’s offense under the guide-

lines and Geraghty’s access to certain Commission files

—had no class-wide applicability. Second, the trial

judge held that since the challenge to the guidelines

based on the conflict with the statute under which

Geraghty was sentenced,” ‘‘is inapplicable to all mem-

bers of the proposed class,’’ class certification as to

all prisoners was inappropriate. Finally, the court

noted that while the guidelines had the effect of

lengthening Geraghtys’ incarceration, they would also

have the effect of shortening the length of confine-

ment of individuals who had been sentenced to terms

greater than three times the period recommended by

the guidelines. Thus, the court concluded, Geraghty’s

claims were not typical of the class he purported to

represent.”

The trial judge is correct in his observation that not

all of the grounds of action alleged in the complaint

are applicable to the class of ‘‘all federal prisoners

who have been or will become eligible for release on

parole.’’ * The conclusion that this implies that a class

5818 U.S.C. § 4208(a)(2) (1970).

5® Judge Herman also held that the district court’s habeas corpus juris-

diction did not extend to members of the class located outside of the Middle

District of Pennsylvania. Since we hold that jurisdiction lies to consider this

action as one for declaratory judgment, we need not reach this question.

60 Complaint, § 5(a)(A2).

30a

action is inappropriate, however, does not properly

acknowledge the powers and duties of the trial court

under section (c)(4) of Rule 23.° Under section (c)

(4), the trial judge has the power to certify certain

issues as subject to class adjudication, and to limit

overbroad classes by the use of sub-classes. Indeed,

this authority may be exercised sua sponte.”

Failure to exercise such power in a proper case has

been held to be an abuse of discretion. In Samuel v.

University of Pitt.burgh,” for example, we concluded

that the trial court’s decision to decertify a class be-

cause of the administrative difficulty of computing

damages was an abuse of discretion. If managerial

difficulties were present, we held, ‘‘some investiga-

tion into the possible usefuiness of subclasses, as sug-

61 Section 23(c)(4) reads: ‘‘When appropriate (A) an action may be

brought or maintained as a class action with respect to particular issues, or

(B) a class may be divided into subclasses and each subclass treated as a

class, and the provisions of this rule shall then be construed and applied

accordingly.’’

62 See, e.g. Brown v. United States, 508 F.2d 618, 627 (3rd Cir. 1975)

(affirming limitation of class in part) cert. denied 422 U.S. 1027 (1975);

Swarb v. Lennox, 314 F. Supp. 1091, 1098-99 (1970 E.D. Pa.) (three-judge

court, limiting class sua sponte) aff’d in part, 405 U.S. 191 (1972); C. Wright

g A. Miller, Federal Practice ¢ Procedure § 1759 p. 575-76 (‘*. . . if the

plaintiff ’s definition of the class is found to be unacceptable, the court may

construc the complaint or redefine the class to bring it within the scope of

Rule 23’’); Id. at § 1790; Bisen v. Carlisle ¢ Jacquelin, 417 U.S. 156, 179-186

(Douglas, J. concurring and dissenting); AAMCO Automatic Transmissions,

Inc. v. Tayloe, 407 F. Supp. 430 (E.D. Pa. 1976) (redefining class). Note,

Developments in the Law, supra note 22 at 1479-93 (discussing possibilities of

sub-classing and class redefinition).

63 538 F.2d 991 (3d Cir. 1976).

3la

gested by Rule 24(c)(4)(B), should have been under-

taken before decertification was ordered.’’™

Consequently, the district court need not have re-

fused class certification in toto because certain claims

were inapplicable to the entire class. Rather, with

respect to those claims, it could have certified the

class as to the prisoners to whom the claims applied.

It was completely open to the trial judge to refuse

certification with respect to the claims personal to

Geraghty (access to files and offense severity classifi-

cation), but then to certify claims relating to 18

U.S.C. 4208(a) (1970) only as to prisoners sentenced

under that statute, and to certify the broader statu-

tory and constitutional claims as to the entire prisoner

class. A forbearance to consider these options consti-

tuted a failure properly to exercise discretion.

Similarly, the refusal to certify entirely because of

potential inconsistencies between Geraghty’s interest

and those of other members of the putative class was

improper in this case. First, it is not clear that a di-

vergence in interest exists. It is true that prisoners

who have been released under the guidelines have no

legal interest in challenging the guidelines. Since, how-

64538 F.2d at 996. See Bogosian v. Gulf Oil Corp., 561 F.2d 434, 453 (3d

Cir. 1977) cert. denied US. (‘‘even essuming that the court were correct

in its conclusion that the lease claim is not appropriate for class determina-

tion, it nevertheless should have considered certification of the trademark claim

under Rule 24(c)(4)(a)’’); Wright ¢ Miller, supra note 62 at § 1790, p. 185-

87. (‘Rule 23(c)(4) imposes a duty on the court and gives it ample power

.. . it is not bound by the plaintiff’s complaint and should not dismiss the

action simply because it misdefines the class or issues when the court can

correct the situation under 23 (c)(4)’’). Newberg, Class Actions, supra note

22 at §1120h (if conflicting interests can be protected by sub-classification,

conflict should not preclude class action).

ever, invalidation of the guidelines would not nullify

their paroles, they have no interest adverse to the

plaintiffs.

On the other hand, it could be argued that prison-

ers whose parole dates have been scheduled, under

the guidelines, for the future have an interest in

maintaining the assurance provided by their presump-

tive parole dates. However, for prisoners like Ge-

raghty, whose ‘‘customary release dates” fall beyond

the length of time for which they are imprisoned, the

guidelines are of no possible benefit. Within this last

subclass, at least, there is no incompatibility of in-

terest. By not considering the use of Rule 24(c) (4)

to establish a subclass, the court did not exercise an

informed discretion and therefore its action cannot

be sustained.”

Accordingly, we reverse the denial of class certifica-

tion. However, since it is appropriate that the district

court make the initial evaluation of the proper sub-

classes, the case should be remanded on this point.

III. THE VALIDITY OF THE GUIDELINES

A remand for resolution of the class certification

dispute would improvidently dissipate judicial effort

65 Cf. Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 253 (3d Cir. 1975)

(subclassification ‘‘is required where the class includes subclasses with diver-

gent interests, or where certain representatives adequately represent only one

group and other representatives represent another group.’’) cert. denied 421

U.S. 1011 (1975).

66 In addition to determining the proper boundaries of the subclasses in

this case, the district court must ascertain whether the other prerequisites of

class certification have been met. It may also wish to seek amici curiae to

represent divergent interests of subclasses.

33a

if the district court were correct in its determination

that Geraghty’s substantive contentions are devoid of

merit. Thus, it is fitting, and indeed necessary, for us

to consider the merits.of Geraghty’s claim regarding

the guidelines.

Geraghty offers three major challenges to the va-

lidity of the guidelines: (1) the guidelines’ ‘‘fixed

and mechanical’ approach violates both the PCRA

and the Constitution; (2) the guidelines transgress

both statutory and constitutional commands insofar

as they fail to take account of the sentences imposed

by the district courts; and (3) as applied to prisoners

sentenced before their adoption, the guidelines con-

stitute impermissible ex post facto legislation.”

A. The PCRA and the Guidelines

The first two contentions require analysis of the

statutory scheme of the PCRA. Since this is true, and

since the government maintains that the PCRA spe-

cifically ratified the practices in question, we shall

analyze the propriety of the alleged “fixed’’ and “me-

chanicai’’ nature of the guidelines together with their

alleged disregard of judicially imposed sentences.

67 While the ez post facto contention was not pressed strongly on appeal,

it formed a central element of the complaint and the district court’s opinion.

Moreover, challenges on appeal to the ‘‘retroactive’’ effect of PCRA (plain-

tiff’s brief p. 57) seem to be rooted in the ez post facto prohibition.

Geraghty also alleges that the guidelines conflict with the Congressional

intent underlying 18 U.S.C. ¢ 4208(a) (2) (1970). If we determine that the

guidelines are consistent with the Congressional intent in adopting the PCRA,

this objection is substantially undercut, for the PCRA reenacts and recodifies

the provisions of §4208(8)(2) as 18 U.S.C,/$ 4205(b) (1976). Insofar as

this is a change in the law, it can be analyzed under the discussion of the

ez post facto objections. \

34a

1. The Characteristics of The Guidelines

Before beginning our exploration of the PCRA, we

outline the features of the guidelines to which Ge-

raghty objects. According to Geraghty, the guidelines

find their origin in decisions by the Parole Board to

categorize a series of 51 ‘‘offenses’’ into six severity

levels,—low, low moderate, moderate, high, very high,

and greatest—without regard to the actual sentences

imposed for each offense.” For the various severity

levels, the median length of time served by prisoners

in each of three ‘‘prognosis categories’? became the

three ‘‘customary release dates’’ for that level. While

admitting that in fixing severity levels it essentially

followed the procedure which Geraghty outlined, the

Commission denies that the median: incarceration

formed the basis of the ‘‘customary release date.”’

Geraghty’s proof is sufficient to raise a material issue

of fact as to the method by which the ‘‘customary

release date’’ is calculated by the Commission.

Geraghty alleges that, after the Commission has set

its grid of ‘‘customary release dates,’’ such release

dates predetermine the time when prisoners will be

paroled without regard to the individual facts of each

ease. This assertion is given substance by the Com-

—

68 The ‘‘offenses’’ do not necessarily involve violations of different statutes.

For example, income tax evasion (less than $10,000) is a different ‘‘ offense’’

from income tax evasion ($10,000-50,000). Likewise, possession with intent to

distribute ‘‘soft drugs’’ falls into categories ranging from low moderate to

very high, depending on the amount of drugs possessed.

69 These categories are identified by reference to ‘‘salient factor scores,’’

which attempt to predict the probability of recidivism.

35a

mission’s admission that only 8.7% of the parolees in

1975 were released before the ‘‘customary release

date,”’ and by the apparent practice of referring only

to the guidelines in denials of parole.’ The Commis-

sion responds that under its regulations all ‘‘relevant.

evidence’’ is taken into account,” that decisions out-

side of the guidelines are permitted where circum-

stances warrant,” and that in fact guidelines repre-

sent “objective standards by which the ad hoc judg-

ment of an individual’s offense severity is meas-

ured.” * However, the Commission presented no affi-

davits as to the actual working of parole decision-

making. And on this subject, there appears to be a

genuine difference regarding material facts.

Equally important, Geraghty notes that the sen-

tence actually imposed by the trial judge is not a

factor in determining the customary release date, and

avers that under current procedures the sentence is

not given any weight in the individual parole-determi-

nation process. He observes that current regulations

have removed the prescribed sentence from the con-

70The statement of reasons which was given to Geraghty, for example,

was duplicated in Garcia v. United States Bd. of Parole, 557 F.2d 100 (7th

Cir. 1977); Hill v. Attorney General, 550 F.2d 901 (3d Cir. 1977) and

Fronczak v. Warden, 553 F.2d 1219 (10th Cir, 1977). The Second Circuit

has manifested disapprovel of ‘‘mechanical’’ application of the guidelines by

the Parole Board. United States v. Jackson, 550 F.2d 830, 832 (2d Cir, 1977);

United States v. Crue, 544 F.2d 1162, 1164-65 n.6 (2d Cir. 1976); United

States v. Torun, 537 F.2d 661, 664 (2d Cir. 1976).

7128 C.F.R. § 2.19(b).

7228 C.F.R. § 2.20(c).

78 Government’s answer { 37. A38.

36a

siderations which must be taken into account. Signif-

eantly, the Commission, in its trial brief, admitted

that no weight is given to the length of the sentence

imposed by the trial judge.”

Since this case comes before us from a dismissal by

summary judgment, and since Geraghty has provided

factual support for his characterization of the guide-

lines, we must take his account as correct for purposes

of this appeal.”

2. The Legislation

Although in 1973, the Parole Board had promul-

gated guidelines substantially similar to those cur-

rently being questioned, the first legislative authoriza-

tion for such guidelines was contained in the PCRA

of 1976. As part of a legislative overhaul of the pa-

role system, the 1976 Act granted the newly-estab-

lished Parole Commission the power and the duty to:

promulgate rules and regulations establishing

guidelines for the power [to grant or deny pa-

role].

18 U.S.C. § 4203(a)(1) (1976).

74 Defendant’s brief in opposition to petition for habeas corpus. (Filed

Dec. 13, 1976) p. 19 n.8. The Board had previously asserted that to take

sentence length into account in the guidelines would impede the guidelines’

purpose of eliminating sentence disparity. 40 Fed. Reg. 41350 (1975). Cf.

United States v. Soily, 559 F.2d 230, 233 (3d Cir. 1977) (neither sentence

length nor trial judge’s assessment of culpability has ‘‘apparent effect’’ on

release decision).

75 However, since the Parole Commission has presented contradictory mate-

rial, and since a large part,of Geraghty’s proof is inferential, the case cannot

be resolved by summary judgment in Geraghty’s favor on the basis of the

present record.

37a

These guidelines are to be used in making parole

decisions in accordance with statutory criteria:

(a) If an eligible prisoner has substantially ob-

served the rules of the institution or institutions

to which he has been confined, and if the Commis-

sion, upon consideration of the nature and cir-

cumstances of the offense and the history and

characteristics of the prisoner, determines:

(1) that release would not depreciate the

seriousness of his offense or promote disre-

spect for the law; and

(2) that release would not jeopardize the

public welfare; subject to the provisions of

subsections (b) and (c) of this section and

pursuant to guidelines promulgated by the

Commission pursuant to section 4203(a)(1),

such prisoner shall be released.

18 U.S.C. § 4206 (1976).

Geraghty points to the statutory mandate that the

parole decision be based on the “nature and circum-

tances of the offense and the history and characteris-

tics of the prisoner.’’ He maintains that under the

guidelines, as they are utilized by the Commission,

prisoners are denied individualized consideration of

the ‘‘nature and circumstance :’’ of their offenses, a

consideration directed by the statute.

The Commission replies that nothing in the statute

explicitly constrains its discretion in this regard. It

38a

declares that in the first instance, the ‘‘nature and

circumstances’’ are evaluated in the course of assign-

ing a ‘‘severity rating’’ and, in any event, the provi-

sion in its regulations for decisions outside the guide-

lines satisfies any further statutory requirements.

Moreover, the Commission observes that while the

statute explicitly requires consideration of a number

of factors,” the length of the sentence imposed is not

among them. Geraghty answers that since the control

by the trial judge over the sentencing process is an

integral feature of the criminal justice system as cur-

rently structured, the sentence actually imposed is

‘additional relevant information’’ whose considera-

tion by the Commission must necessarily have been

coniemplated by Congress.

The text of the statute, in our opinion, seems ¢a-

pable of supporting either interpretation advanced.

We therefore turn to other lines of analysis.

7¢6In making a determination under this chapter (relating to release on

parole) the Commission shall consider, if available and relevant:

(1) reports and recommendations which the staff of the facility in

which such prisoner is confined may make;

(2) official reports of the prisoner’s prior criminal record, including

a report or record of earlier probation and parole experiences;

(3) presentence investigation reports;

(4) recommendations regarding the prisoner’s parole made at the time

of sentencing by the sentencing judge; and

(5) reports of physical, mental, or psychiatric examination of the

offender.

There shall also be taken into consideration such additional relevant informa-

tion concerning the prisoner (including information submitted by the prisoner)

as may be reasonably available.

18 U.S.C, § 4207 (1976).

39a

3. The Legislative History

Geraghty contends that, before the guidelines came

into effect, the length of sentence imposed by the trial

judge—rather than the Parole Commission’s evalua-

tion of the ‘‘severity’’ of the offense—constituted the

primary means of establishing the length of imprison-

ment necessary to vindicate society’s interest in inear-

ceration.”” Whether or not this is accurate, under H.R.

5727, the direct ancestor of the PCRA,” the sentence

imposed by the trial judge was of controlling signifi-

eance. Under H.R. 5727, a federal prisoner with good

institutional behavior was to have been released upon

completion of one-third of his sentence, unless the

Commission affirmatively found release to be undesir-

77 The primary basis for this assertion is a study of the North Carolina

parole system which found sentence length to be a primary determinant of

length of imprisonment. This is not persuasive evidence of the characteristics

of the Federal Parole System. Nonetheless, one study found that the belief

was widespread among federal judges prior to the guidelines that the Parole

Board’s decisions were or should be based on judgments as to rehabilitation,

rather than evaluations of severity. Yale Note, supra note 2 at 882-83 n.361,

890 n.388; see Addonizio v. United States, Nos. 77-1542, 77-1621, 77-2373 (3d

Cir. Feb. 16, 1978). And the Commission has presented no evidence which

convinces us that the primacy accorded to its severity judgment is reflective

of practice prior to the guidelines.

78 The PCRA was reported from the House Judiciary Committee on May

13, 1975 as HR 5727, atcompanied by H. Rept. 94-184. It was considered and

passed by the House on May 21, 1975.

The Senate J liciary Committee reported an amended version of H.R.

5727 on Sept. 11, 1975, accompanied by Sen. Rept. 94-369. The amended

version was passed by the Senate on Sept. 16, 1975.

A House-Senate conference committee reported a compromise bill on Feb.

23, 1976, and Feb, 24, 1976, respectively. The amended bil] passed the Senate

on March 2, 1976, and the House on March 3, 1976. See 1976. U.S. Code of

Cong. & Admin. News 335.

a”

40a

able under the statutory criteria.” The virtue of hav-

ing a ‘‘definite parole date at one-third of the sen-

tence’ *’ was the aspect of the bill which prompted

the greatest comment in floor debate,” and no remarks

by any Congressman indicate that the Commission was

to be responsible for re-evaluating the adequacy of

sentences.

There is no implication in the legislative history of

the House Bill that the approach of the guidelines in

establishing classes of offenders based on the Parole

Commission’s views of the severity rating of “‘of-

fenses” in general was to have been ratified by the

legislation. Indeed, comments during the floor debates

manifest hostility to such an approach.”

‘

79 § 4205 (House version)

‘«(a), A prisoner shall be released on parole if his record shows that

he has substantially observed the rules of the institution in which he is

confined on the date of his eligibility for parole, unless it is decermined

by an examining panel (as provided in section 4207(a)) that he should

not be released on such date for one or more of the following reusons:

(1) there is a reasonable probability that such prisoner will not live and

remain at liberty without violating any criminal law.

(2) there is a reasonable probability that such release would be incom-

patible with the welfare or society; or

(3) the prisoner’s release on such date would so depreciate the seriousness

of his crime as to undermine respect for law.

80Comments of Congressman Rodino, 121 Cong. Ree. H. 4510 (daily ed.

May 21, 1975).

81 See e.g. Comments of Congressman Kastenmeir id. at Hi. 4511; Com-

ments of Congressman Railsback id. at H. 4511; Comments of Congressman

Danielson id. at H! 4512; Comments of Congressman Badiilo id. at HY. 4516;

Comments of Congressman Coghlin id. at H. 4516.

82 Comments of Congressman Drinan at id. H. 4513 (‘‘the committee

clearly expressed its objection to a checklist or prototype denial statement’) ;

Comments of Congressman Gude at id. at H. 4518 (Bill would produeco ‘‘ far

}

‘

4la

In contrast, the Senate version of the legislation an-

ticipated the adoption of guidelines identical with

those then in existence under the Parole Board."

These would guide the Commission in deciding whether

the prerequisites for parole exist: ‘‘a reasonable

probability that such person will remain at liberty,

without violating the law,” and “release is not incom-

patible with the welfare of society.’’** The decision

was to be made substantially on the basis of “a report

by the proper institutional officer,’’ and the Commis-

sion’s investigation.”

Further, in contrast to the House Bill, the Senate

Bill specifically envisioned the new Commission’s re-

sponsibility as encompassing revision of inappropri-

82. (Cont’d.)

greater scrutiny and understanding of each prisoner’s record, both before and

during incarceration’’), Rep, Gude was ‘‘ greatly disturbed’’ by the apparently

mechanical interaction of the ‘‘severity rating’’ and ‘‘salient factor score.’’

83 Remarks of Senator Burdick, 121 Cong. Ree. S. 15953 (daily ed. Sept.

16, 1975) (‘‘the rules and regulations repeatedly cited in the legislation

include a set of guidelines adopted by the Parole Board.’’); Sen. Rept. No.

94-369, 94th Cong., Ist Sess. 25 [hereinafter, Senate Report], 1976 U.S. Code

Cong. & Adm. News 346 (describing operation of system contemplated by

statute ‘‘in relation to the present guidelines system’’).

Even the Senate version, however, recognized the danger of allowing too

little discretion in the parole decision which ‘fails to take into account aggra-

vating or mitigating circumstances of an offense, as well as the personal and

family considerations which are the strongest predictors of whether or not the

individual will return to a life of crime, or will be able to live a law-abiding

life-style foliowing release from incarceration.’’ (remarks of Senator Burdick,

supra at 8. 15954). Senator Burdick considered that the Senate Bill ‘‘incor-

porated these factors’? id.

84 § 4206(a). (Senate version)

85 § 4206(b). (Senate version)

Z, \

Coen

42a

ate judicially imposed sentences. The introduction to

the Senate Report described parole as ‘‘an extension

of the sentencing process.” * The Report also referred

to the ‘‘benefits” of the guidelines in ‘‘reducing the

opportunity for sentencing disparity’? and ensuring

that ‘‘offenders sentenced for similar crime under sim-

ilar circumstances will be required to serve compara-

ble periods of incarceration” regardless of the statute

under which they are sentenced.” Such a function

would, of course, not be possible if the length of sen-

tence imposed itself entered into the parole decision.

In the words of Congressman Kastenmeir, a spon-

sor of the House version, the bill which ultimately

emerged from the Conference ‘‘required considerable

compromise on the part of conferees on both sides.’’™

The controlling effect of the sentence length was elim-

inated, but on the other hand characterization of pa-

role as an ‘‘extension of the sentencing process’’ was

deleted from the statement of purposes otherwise

identical with the Senate version.” The Bill is de-

scribed as ‘“‘having the practical effect of balancing

differences in sentencing policies between judges and

courts,’’ rather than having the purpose of eliminat-

ing sentencing disparities.”

86 Senate Report at p. 15, 1976 U.S. Code, Cong. & Adm. News 337.

87 Id. at 18-19 and 340,

88 122 Cong. Rec. H. 1499 (daily ed. March 3, 1976).

89 Conference Report at 19-20, 1976 U.S, Code, Cong. & Adm. News 351-52.

90 Id. at 19, 352 (emphasis supplied).

43a

Unlike the Senate version, the legislative history of

the conference bill did not contain explicit endorse-

ment of the guidelines as they were currently promul-

gated,” and the Commission was directed to be ‘‘cog-

nizant of past criticism of parole decision making”’’.”

Moreover, a provision for judicial review of the guide-

lines themselves was adopted from the House version.

In describing the parole eligibility criteria, the

Conference Report stated:

[I]t is the intent of the conferees that the Parole

Commission review and consider both the nature

and circumstances of the offense and the history

and characteristics of the prisoner ... the Parole

Commission, in making each parole determina-

tion shall recognize and make a determination as

to the relative severity of the prospective parol-

ee’s offense... .”

The parole decision makers, apparently in each case,

must weigh the concepts of general and special

deterrence, retribution and punishment, all of

%1 We understand the conferees’ statement, that the statute ‘‘ removes

doubt as to the legality of changes implemented by administrative reorganiza-

tion, and makes the improvements permanent’’ id. at 20, 353, to refer to an

endorsement of the use of guidelines in the context of a decentralized hearing

examiner structure, not as an adoption of the substance of the guidelines, or

their then-current use. In this regard, we respectfully disagree with the state-

ments in Banks v. United States, 553 F.2d 37 (8th Cir. 1977) that the Com-

mittee approved the then-current guidelines and that a primary purpose of the

PORA was to reduce sentence disparity. Cf. Garcia v. United States Bd. of

Parole, 557 F.2d 100 (7th Cir. 1977) (holding Parole Commission authorized

by PORA to take account of offense severity in guidelines, but declining to

rule on whether guidelines are consistent with PCRA).

%2 Conference Report at 26, 1976 U.S. Code Cong. & Adm. News 359.

987d. at 25, 358.

44a

which are matters of judgment... and come up

with determinations of what is meant by “would

not depreciate the seriousness of the offense or

promote disrespect for the law’’ that, to the ex-

tent possible, are not inconsistent with findings

of other parole decisions.”

As an example of this process, the conferees postu-

late a situation in which a public official is convicted

of fraud and sentenced to three years imprisonment.

In such a ease, states the Report, “his release on pa-

role after one year might satisfy the depreciate the

seriousness criterion, but the Commission could justify

denying release on grounds that such release would

promote disrespect for the law.’’”

If Geraghty’s description of the effect given the

parole guidelines by the Commission is accurate, the

Commission in effect is following the views of the

Senate version of the PCRA, rather than the policies

of the Conference Committee.

According to Geraghty’s description, the Commis-

sion attempts to eliminate sentence disparity by com-

pletely ignoring the length of sentence imposed by the

trial judge.” This policy would fail to acknowledge

4 Id. at 26, 358.

95 Id.

% See Complaint; note 74 supra; Cf. United States v. Randle, 408 F.

Supp. 5 (N.D. Ill. 1975). (‘‘In effect, the Parole Board has substituted its

guidelines for the judgment of the sentencing judge as to the appropriate

sentence for a particular defendant.’’)

45a

that under the Conference version, a leveling of sen-

tence disparity is a by-product of other policies, rather

than a goal. In its hypothetical the Conference Com-

mittee apparently saw the length of sentence as being

a relevant factor. To fail to take account of the length

of sentence imposed is thus at odds with the contem-

plated effect of the legislation. The fact that the pre-

PCRA guidelines ignored sentence length is not dis-

positive since the accompanying regulations at that

time explicitly mandated that length of sentence be

taken into account in ecensidering deviation from the

guidelines.”

Similarly, Geraghty alleges that the guidelines were

derived by a grouping of offenses into severity levels

by the Commission and by subsequently averaging the

time customarily served by prisoners in each ‘‘level,’’

and that these levels are given controlling effect by

the Commission to the exclusion of other factors. Such

a process seems significantly different from the, con-

templation of the conferees that in structurmg ‘‘each

parole determination [the Commission] shall make a

determination as to the relative severity of the pro-

spective parolees offense.’’” Nor is it consistent with

the procedure conteraplated in the Committee’s hypo-

thetical. And the refusal to incorporate the previous

individualized determination by the trial judge would

exacerbate this difficulty.

97 40 Fed. Reg. 2331, August 1975.

8 Conference Report at 25, 1976 U.S. Code Cong. & Adm. News 358.

(emphasis added).

46a

Thus, if Geraghty’s recapitulation of the function

and genesis of the guidelines is supported by the evi-

dence, there are important divergences between the

Parole Commission’s actions and the intent of Con-

gress in enacting the statutory mandate.

4. The Question of Constitutionality

The differences between Congressional intent and

the alleged operation of the guidelines also must be

viewed against the backdrop of the disparities be-

tween the precedures Geraghty describes and the

structure of the balance of the criminal justice sys-

tem. To the extent that the Parole Commission makes

individual judgments about the relative culpability of

prisoners and the length of imprisonment proper to

vindicate the needs of society yet fails to take account

of the sentence imposed by the court, the Commission

embarks, alone, on a task which is the traditional

province of the judiciary. Insofar as the Commission

attempts to make general rules as to the appropriate

punishment for crimes which effectively bind parole

decisions in all cases, it undertakes functions which

are usually discharged by the legislature. Yet the Com-

mission lacks the institutional safeguards of either the

courts or the Congress: it has neither judicial inde-

pendence and allegiance to the ideal of dispassionate

and reasoned decisions nor legislative responsiveness

to the popular will.

Such tensions and the accompanying constitutional

doubts that they raise need not be resolved or cast a

47a

shadow on the validity of the PCRA, of course, unless

Congress has clearly authorized the assumption by

the Commission of judicial and legislative functions.”

In light of the legislative history discussed above, we

find no such clear authorization in the PCRA.

(a) Tensions with the Judiciary

Federal criminal statutes generally provide a range

of penalties from which the sentencing court must

choose. In making such choices the federal courts draw

on the perception that ‘‘For the determination of sen-

tences, justice generally requires consideration of

more than the particular act by which the crime was

committed, and that there be taken into account the

characteristics and propensities of the individual.’’ '”

The Supreme Court has recognized that ‘‘[t]he belief

no longer prevails that every offense in a like legal

category calls for an identical punishment without re-

gard to the past life and habits of a particular of-

fender.” *”

District courts may exercise their discretion in indi-

vidual cases largely untrammeled by appellate re-

9® See National Cable Television Assn., Inc. v. United States, 415 U.S.

336 (1974).

100 Woodson v. North Carolina, 428 U.S. 281, 304 (1976) (plurality opinion

of Justices Stevens, Stewart and Powell) (quoting Pennsylvania ex rel. Sullivan

v. Ashe, 302 U.S. 51, 55 (1937) as characterizing ‘*prevailing practice.’’).

‘Bee also Gregg v. Georgia, 428 U.S. 153, 189 (1976) (plurality opinion of

Justices Stevens, Stewart and Powell).

101 Williams v. New York, 337 U.S. 241, 247 (1949); see Chaffin v.

Stynchcombe, 412 U.S. 17, 21-22 (1973).

48a

view.’” They are not free, however, to eschew the task

they are called upon to perform by adopting rules to

fix given punishments on given classes of offenders.

Such a position by the sentencing judge would. con-

stitute an abuse of discretion calling for a vacation of

the sentence imposed.”

If the PCRA provided for the guidelines to func-

tion as Geraghty alleges, a federal defendant would

find himself in the anomalous situation of being sen-

tenced by a judge who is forbidden to utilize fixed

penalties, but having parole granted by a Commission

that is required to use such penalties and which, at

the same time, refuses to take account of the decision

of the sentencing court. The rigid categories called

for by the parole guidelines would frequently nullify

the discretion which the trial judges are required to

102 Dorszynski v. United States, 418 U.S. 424 (1974); Gore v. United

States, 357 U.S. 386, 393 (1958); United States v. Bazzano, No. 76-2584

slip op. at 18-19 (3d Cir. 1977) (Adams, J. concurring).

103 See e.g. United States v. Negron, 548 F.2d 1085, 1087 (2d Cir. 1977);

cert. denied — U.S. —, United States v. Foss, 501 F.2d 522 (1st Cir. 1974) ;

United States v. Schwartz, 500 F.2d 350 (2d Cir. 1974); Woolsey v. United

States, 478 F.2d 139 (8th Cir. 1973) (en banc); United States v. Hartford,

489 F.2d 652 (5th Cir. 1974); United States v. Charles, 460 F.2d 1093 (6th

Cir. 1972); United States v. Baker, 487 F.2d 360 (2d Cir. 1973); United

States v. Daniels, 446 F.2d 967 (6th Cir. 1971); United States v. McCoy,

429 F.2d 739 (D.C. Cir. 1970); Cf. United States v. Thompson, 483 F.2d 527

(3d Cir. 1973) cert. denied 41° U.S. 911 (1974) (disqualifying judge because

of ‘‘fixed view’’ that draft offenders must serve 30 months); United States

v. Townsend, 478 F.2d 1072 (3d Cir. 1972) (semble). While this rule has been

attributed to ‘‘enlightened policy rather than constitutional imperative “

Woodson, 428 U.S. 280, 303-305 (1976), it has been argued that in situations

where grave constitutional interests are at stake, ‘‘structural due process’’

requires individualized decision making. See Tribe, Structural Due Process,

10 Harv. Civ. Rts.-Civ. Lib. L. Rev. 269 (1975); Crawford v. Cushman, 531

F.2d 1114, 1125 (2d Cir. 1976).

~~ vel

49a

exercise; in evaluating each case on its individual

merits. }

It may well be that Congress itself could foreclose

all sentencing options.** But, absent a clear statement

of such a purpose, we should be wary of attributing to

Congress the intent to allow the Parole Commission

to undertake such a wide-ranging overhaul of the

criminal sentencing process.

This is particularly so in view of the fact that the

Commission has disclaimed any intention of giving

rehabilitation a major role in its parole decisions.’”

Parole has traditionally been conceived of as ‘‘an es-

tablished variation on imprisonmext of convicted

criminals [whose] purpose is to help individuals re-

integrate into society as constructive individuals as

soon as they ure able.’’** For such a purpose, the

Commission, which can observe the prisoner during

incarceration, has a significant advantage over the

court in determining eligibility for parole under a

standard which is distinct from the traditional role

of the judiciary.” When, however, the parole author-

10¢ See Marshall v. United States, 414 U.S. 417 (1974) (upholding statute

which denies drug rehabilitation sentence to two-time felons).

105 C.F.R. 41329-30 (Sept. 5, 1975).

106 Morrisey v. Brewer, 408 U.S. 471, 477 (1972). See Gagnon v. Scappareli,

411 U.S. 778, 785 (1973) (‘‘the rehabilitative rather than punitive focus of

the parole/probation system’’); Zerbst v. Kidwell, 304 U.S. 359, 363 (1938)

(‘fa means of restoring offenders who are good social risks to society’’).

107 Cf. United States v. Murray, 275 U.S. 347 (1927) (‘‘The parole statute

provides a board to be invested with full opportunity to watch the conduct of

penitentiary convicts.’’)

50a

ity focuses consideration entirely on factors of deter-

rence, incapacitation and retribution, it takes into

account almost exclusively the very factors that are

available to the sentencing judge. The Commission

then begins to perform functions which are within

the traditional province of the judiciary.” At least

where the prior determination of the judicial branch

are given no weight, therefore, serious questions are

raised whether the constitutional protections provided

by an independent judiciary are being undermined.™

Since Congress has manifested no clear intention to

raise such questions, we do not interpret the PCRA

as authorizing such disregard of judicial sentences."

108 See, Ex Parte United States, 242 U.S. 27, 41 (1916) (‘‘ indisputably,

under our constitutional system, the right to try offenses against the criminal

laws and upom conviction to impose the punishment provided by law is judi-

cial’’); Yale Note supra note 2, at 892-893; ef. Wong Wing v. United States,

163 U.S. 228 (1896) (penalty of ‘‘hard labor’’ is an infamous punishment

and therefore cannot be administratively imposed). North Carolina v, Russell,

427 U.S. 328 (1976) (criminal trial before non-law trained judge is constitu-

tional if trial de novo is available).

In view of this alteration in functions, prior cases upholding the federal

parole statute against challenges based on alleged usurpation of judicial func-

tions would not seem dispositive. E.g. Sims v. Rives, 84 F.2d 871, 879 (D.C,

Cir, 1936); see Commonwealth ex rel. Banks v, Cain, 345 Pa. 581, 28 A.2d

897, 148 A.L.R. 1973 (1942); Annotation, 143 A.L.R. 1726 (1942). Cf. Dreyer

v. Illinois, 187 U.S. 71, 78-84 (1992) (Illinois indet..minate sentence act did

not violate due process by vesting parole power in executive).

109 See United States v. Brown, 381 U.S. 437, 441-447 (1965) (separation

of powers is at the root of Bill of Attainder clause, and ‘‘the legislative

branch is not so well suited as politically independent judges and juries to the

task of ruling upon the blameworthiness of and levying appropriate punish-

ment upon specific persons’’).

110Cf. Duncan v. Kahanamoku, 327 U.S. 304 (1946) (since Congress ‘‘ did

not explicitly declare’’ civil courts supplanted under martial law statute,

Court rejected such authority in light of ‘‘ principles and practices developed

during the birth and growth of our political institutions.’’); Soloway v.

I iit cits a

5la

(b) Delegation of Legislative Functions

The determination of the proper range of punish-

ment which may be levied in regard to a class of

crimes, like the determination of what actions are

criminal, is within the ambit of the legislative pre-

rogative."” ‘‘Because of the seriousness of criminal

penalties,”’ they should in general attach only after the

body responsible for forming our laws in the first in-

110. (Cont’d.)

Weger, 389 F. Supp. 409, 411 (W.D. Pa. 1974) (‘blind adherence’? to guide-

lines ‘‘may well be’’ intrusion into court’s sentencing role in excess of statu-

torily conferred powers of Parole Board); Kastenmeir & Eglit, Parole Release

Decision-Making; Rehabilitation, Expertise and the Demise of Muthology, 22

Am. U. L. Rev. 477, 494, 495, 508, 522 (1973) (questioning assumption by

Parole Board of judicial role of evaluating severity of offense in absence of

legislative authorization). See generally Gewirtz, The Courts, Congress, and

Executive Policy Making; Notes on Three Doctrines, 1976, Law and Cont.

Prob. 46. But cf. Wiley v. United States Bad. of Parole, 380 F. Supp. 1194,

1196-97 (M.D. Pa. 1974) (upholding guidelines against challenge that they

umounted to ‘‘resentences’’); Manos v. United States Board of Parole, 399

F. Supp. 1103, 1105 (M.D. Pa. 1975) (guidelines are **constitutional’’),

Garcia v. United States Bd. of Parole, 409 F. Supp. 1230, 1238-39 (N.D. filed

1976) revd on other grounds, 557 F.2d 100 (1972) (holding guidelines are not

‘‘usurpation’’ of sentencing function),

111 See United States v. Bass, 404 U.S. 336, 348 (1971) (‘* Because of the

seriousness of penalties, and because criminal punishment usually represents

the moral condemnation of the community, legislatures and not courts should

define criminal activity’’); Bell v. United States, 349 U.S. 81, 89 (1955)

(‘The punishment appropriate for the diverse federal offenses is a matter for

the discretion of Congress’’); Ex Parte Grossman, 267 U.S. 87 (1925) (‘* The

legislative authority of the Union must first make an act a crime, affix a

punishment to it’’ before it may be punished); Ex Parte United States, 242

U.S, 27, 42 (1916) (‘‘indisputab'e also is that the authority to define and fix

the punishment of a crime is legislative’’); United States v. Wiltberger, 18

U.S. [5 Wheat] 35, 43 (1820) (‘‘the plain principle that the power of punish-

ment is vested in the legislative not in the judicial department. It is the

legislature not the court which is to define a crime and ordain its punish-

ment’’); Schick v. Reed, 419 U.S. 256, 274-76 (1974) (‘‘ Prescribing punish-

ment is a prerogative reserved for the lawmaking branch of government, the

legislature’’) (Marshall, J. dissenting).

52a

stance has established that such penalties are appro-

priate.? Criminal sanctions serve an amalgam of so-

cial goals, and their severity is beg ydetermined by a

body which can respond to the batance of such goals

as prescribed by the popular will.’

If the parole guidelines function as automatically as

Geraghty alleges that they do, the Commission is ef-

fectively redrafting the penalty provisions of the

United States criminal code."* The severity levels of

the guidelines neither ‘‘fill in the details’’ of an other-

wise complete statutory scheme,” nor perform a new

112 United States v. Bass, 404 U.S. 346, 348 (1971). Cf. Gutknecht v. Umted

States, 396 U.S. 295 (1970) (draft board is not authorized to punitively

induct registrant who turned in registration card).

Unlike the case of Schick v. Reed, 419 U.S, 256 (1974), in which the Court

upheld the imposition of conditions in connection with a presidential pardon,

the parole board’s authority does not find its roots in the pardoning powers

of Article II, but in specific legislative delegation. In 1927, seventeen years

after the enactment of the federal parole statute, the Supreme Court under-

took to survey the various forms of reduction of sentence available to prisoners.

United States v. Murray, 275 U.S. 347 (1927) (construing probation act). It

_ discerned ‘‘three different methods of mitigation:’’ the judicial probation

authority granted by statute; ‘‘clemency by the President under the Constitu-

tion;’’ and ‘‘the power of parole by a Board of Parole abating judicial

punishment.’’

113 See Yale Note supra note 2 at 888.

114 In 41 Fed. Reg. 37316 (3 Sept. 1976), for example, the offense severity

for immigration law violators was augmented as a result of the ‘‘Commission’s

concern with the increasing numbers of immigration law violators in recent

years.’’ Such a judgment appears to be one that is appropriate in the first

instance for the Congress.

115Jt is clear that the ‘‘severity levels’’ in the parole guidelines do not

correspond to the maximum punishments provided by Congress. Wnile uttering

a counterfeit note carries a statutory maximum of 15 years (18 U.S.C. § 472

(1970) ), if the currency passed does not exceed $1,000, the Commission classes

the offense as ‘‘low moderate.’’ In contrast, mailing an anonymous threat to

property, a violation whose statutory penalty is 2 years in jail (18 U.S.C, § 876

53a

administrative function necessitated by novel regula-

tory legislation.

Whether or not federal criminal penalties should be

redrafted ** it is of dubious constitutional propriety

to delegate so crucial a legislative function to a non-

representative body with no standards other than a

direction that the results ‘‘not depreciate the serious-

ness of the offense’’ and “be consistent with the public

welfare.’’ Accordingly, we decline. to read such a dele-

gation into the PCRA.’™”

115. (Cont’d.)

(1970)), is classified as ‘‘moderate’’ severity, requiring a longer sentence to

be served before parole.

Illegally selling alcohol in the vicinity of Indian schools (18 U.S.C. § 1154

(1970) and violation of the Mann Act (18 U.S.C. § 2421 et seq. (1970)) are

classified as ‘‘low moderate’’ and ‘‘high’’ severity crimes respectively, despite

the fact that they carry identical 5 year penalties. Misprision of a felony,

(18 U.S.C. § 4 (1970)) and extortion by a United States employee (18 U.S.C.

§ 872 (1970)) are each punishable by a maximum of 3 years imprisonment,

yet the former is rated as a ‘‘moderately’’ severe crime, and the latter is

determined to be of ‘‘very high’’ severity. Both carry lighter sentences

than the Selective Service violations (50 App. U.S.C. § 462 (repealed) (5 year

penalty)) which the Commission treats as ‘‘low-moderate’’ severity.

116 Cf. Senate Bill 1437, 95th Cong. 1st Sess. (1977), Reported S. Rept.

95-605, i123 Cong. Rec. S 19037 (daily ed. Nov. 15, 1977) (providing for

comprehensive code of criminal penalties and sentence review). Since 8S. 1437

would also largely eliminate parole, many of the difficulties raised by the

Parole Commission’s modus operandi would, if S, 1437 is enacted, become truly

moot.

117 See National Cable Television Assn. v. United States, 415 U.S. 336

(1974) (statute should not be construed to delegate taxing power without

appropriate standards); Arizona v. California, 373 U.S. 546, 626 (1963)

(Harlan, J., dissenting) (statute should not be read to delegate power to

allocate water without appropriate standards); L. Tribe, American Constitu-

tional Law $ 15-17, 284-291 (1978); Gewirtz, supra note 110, Wright, Book

Review, Beyond Discretionary Justice, 81 Yale L.J. 575, 580, 582-87 (1972)

(Wright, J.); Freedman, Review, Delegation of Power and Institutional

Competence, 43 U. Chi. L. Rev. 307 (1976).

54a

This is not, of course, to say that no guidelines of

any sort may issue under the PCRA, for some guide-

lines were clearly intended. Indeed such guidelines

may constitute a laudable means of avoiding arbitrary

decision-making. Issues of separation of powers in-

volve subtle inquiries, sensitive to the precise dimen-

sions of the power being exercised. Thus, if the guide-

lines function as the Commission contends, guiding but

not controlling discretion, a different issue would be

presented. They would then partake less of the char-

acter of fixed penalties than if Geraghty is correct,

and would perform functions less like those of legis-

lation. And guidelines which use the actual sentence

imposed as a starting point would be akin to the exer-

cise of sentencing discretion which the Congress may

validly deiegate to the courts. Such questions, how-

ever, may be disposed of only on a full record setting

forth the actual functioning of the guidelines.

B. Ex Post Facto Effect of the Guidelines

At the time he was sentenced in the late summer

of 1973, Geraghty was eligible for parole as soon as

he was incarcerated." The grant or denial of parole,

according to the then-current statute, was to result

from a determination by the Board whether: (a)

there is reasonable probability that the prisoner will

live and remain at liberty without violating the laws;

118 Since Geraghty was sentenced under 18 U.S.C. § 4208(a)(2) (1970),

he became eligiblo for parole immediately upon incarceration.

55a

and (b) such release in the opinion of the Board is

not incompatible with the welfare of society.’”

At the time of his first parole hearing, guidelines

adopted by the Commission subsequent to Geraghty’s

sentence established a “customary time to be served

before release’’ of 26-36 months for prisoners who had

committed crimes as ‘‘severe’’ as the one for which

Geraghty was convicted. And, claims Geraghty, less

than one prisoner in ten is paroled before his ‘‘custo-

mary release date.” ** Consequently, Geraghty chal-

lenges the application of the parole guidelines to him,

and others similarly situated, as constitutionally for-

bidden ex post facto laws.

1. Outlines of Ex Post Facto Prohibition

By the time of the American Revolution, Black-

stone had classed ex post facto laws with those of

Caligula: ‘‘all punishment [for violating them] must

be cruel and unjust.” In response to similar senti-

mets, *s well as recent experience with oppressive

ex pos ,acto laws,” the framers of the Constitution

considered the necessity of guarding against such ex-

cesses strongly enough to include within the Constitu-

tion two prohibitions against ex post facto laws.”

11918 U.S.C, § 4203 (1970).

120 Defendants Answer to Complaint § 48. A39.

121 1 W, Blackstone, Commentaries *46,

122 See Crosskey, The True Meaning of the Constitutional Prohibition of

Ex Post Facto Laws, 14 U. Chi. L. Rev. 539 (1947); Note, Ex Post Facto

Limitations on Legislative Power, 73 Mich. 1491, 1500-01 (1975).

123 Art. I $9 and $10. For an excellent recent analysis of the ez post facto

clause, see Tribe, supra note 117, 474-484 $§ 10-1-10-3.

56a

‘These ‘‘bulwarks in favor of the personal security

of the subject’’ were early read to be exclusively limi-

tations on the exercise of the power to punish

crimes.’ According to the celebrated case of Calder v.

Bull, the interdiction included laws ‘‘aggravating a

erime or mak[ing] it greater than it was, when com-

mitted’’ and laws ‘‘chang[ing] the punishment, and

inflict[ing] a greater punishment than the law an-

nexed to the crime, when committed.’’**

But within the criminal sphere, the Supreme Court

opted for a broad reading of the proscriptions: the

definition of Calder was not exclusive, but merely

indicative. Any law

passed after the commission of an offense which

... ‘in relation to that offense or its consequences

alters the position of a party to his disadvantage’

is an er post facto law.”

Such alteration has been held to include not only lia-

bility for greater penalties, but aggravation of the

conditions of the punishment imposed.’ The test is

124 Calder v. Bull, 3 U.S. (3 Dallas) 385, 390 (1798) (opinion of Chase, J.).

See United States Trust v. New Jersey, 45 U.S.L.W. 4418, 4422 n.13 (1977).

125 Calder v. Bull, 3 U.S. [3 Dall

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