# Petition — United States Parole Commission v. Geraghty > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0024%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 388 ## Text |)" Supreme Court Ua] 78-572 |) Fitep”’ || i No. | OCT & i978 —— in the Supreme Court of the United States OcToBER TERM, 1978 ' ' ad Unirep States ParoLe CoMMISSION, ET AL., Petitioners We 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 V. 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. 2 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. 3 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 (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to see- tion 4203(a)(1), such prisoner shall be released. ¥ ” ~ * * (c) The Commission may grant or deny release 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. * * * * * 6 (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 7 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. 8 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)). 9 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). 10 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 11 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. 12 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). 13 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. 14 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). 15 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 16 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. 17 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 18 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. 19 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 20 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. 21 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. 22 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. 23 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)). 24 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. 29 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). 26 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). 27 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 28 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. 29 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.). 30 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. 31 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 la 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, v. 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. 2a 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. 3a 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). 4a 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. 5a 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). 6a 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). 7a 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. 8a 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] 9a 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 register in their districts. Although it is clear that 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). wl 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). a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0024%3A1. Public record. Not legal advice.