Petitioners Brief — United States Parole Commission v. Geraghty

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Supreme Coury UB |

FILE

No. 78-572 MAY 4 1979

}

In the Supreme Court of the Whitey eotates JR., CLERK |

OCTOBER TERM, 1978

UNITED STATES PAROLE COMMISSION, ET AL.,

PETITIONERS ete

Vv,

JOHN M. GERAGHTY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE PETITIONERS

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

FRANK H. EASTERBROOK

Deputy Solicitor General

KENT L. JONES

Assistant to the Solicitor General

JEROME M. FEIT

ELLIOTT SCHULDER

Attorneys

Department of Justice

Washington, D.C. 20530

Jurisdiction

RUIN

Constitutional provision, statutes, rule and

WOUUEACIOUD ETIWOIVIE ooo. vcccscessiccccleciccserenentccese

Statement

SMEATRTY OF ATIUMONE 2. -cnicncccsncvicenservsicerernse

Argument:

I. This case became moot when respond-

ent was released from prison ...............-

A. The claim of respondent became

moot on June 30, 1977 -................

Because the district court had de-

nied the request to certify the case

as a class action, the entire case

_ became moot when respondent’s

claim became moot .................-...---

The court may not “revive” a

NGG CD re occokta tee iaiicce

No case in this Court has al-

lowed class certification to “‘re-

late back” to overcome mootness

when the initial claim would

not inherently evade review......

The public’s interest in the

resolution of a legal dispute

does not supply the requisite

case or controversy ..................

Argument—Continued

Il.

ITI.

C. The proposed intervention of addi-

tional parties in this Court can-

not create jurisdiction in this

The district court did not err in not

constructing and certifying subclasses

that respondent never suggested ..........

The Parole Commission and Reorgani-

zation Act does not require the Parole

Commission to consider the length of a

prisoner’s sentence in making parole re-

lease determinations ..................-...--------

A. The purpose of the Parole guide-

lines is to achieve consistency and

rationality in the exercise of the

Commission’s broad discretion over

parole determinations ...................-

B. The Parole Commission and Re-

organization Act endorsed the Com-

mission’s use of the parole guide-

lines and did not require the Com-

mission to consider sentence length

in making discretionary parole de-

I kei aseeii eace ata’

1. Congress intended the Commis-

sion to reduce rather than to

perpetuate the effects of sen-

tence disparity ................----..------

2. 18 U.S.C. 4207 does not require

the Commission to give weight

to sentence length -...................

Page

Argument—Continued WA

3. The Constitution’ does not re-

quire the Commission to give

weight to sentence jength, in

discretionary parole determina-

NN ec

IV. Application of the parole release guide-

lines to prisoners who were sentenced

prior to the effective date of the guide-

lines does not violate the ex post facto

I sichcivsasnreteceteaes tet cea acn neaeeerecsas

A. The parole guidelines are not a

change of law that deprives prison-

ers of a preexisting right or im-

poses a greater punishment ..........

B. The parole guidelines do not de-

prive prisoners of the possibility

of more lenient parole decisions...

Conclusion

CITATIONS

Cases:

Abercrombie v. Lums, Inc., 345 F. Supp.

387

Aetna Casualty and Surety Co. v. Cun- ©

ningham, 244 F.2d 478 ..........................

Aetna Life Insurance Co. v. Haworth, 300

FGI SOAR URE Rect Cane ae

Ahrens v. Thomas, 570 F.2d 286 _............

Andrus v. Charlestone Stone Products Co.,

IR I IU ce

Bailey v. Patterson, 369 U.S. 31

Baker v. Carr, 369 U.S. 186 ......................

Banks v. United States, 553 F.2d 37

Page

Cases—Continued Page

Basel v. Knebel, 551 F.2d 3965 ..............---- 33

Bass v. Harbor Light Marina, Inc., 372

F. Supp. 786 .......-----:--c-csesessceessesensneeneeees 47

Battle v. Norton, 365 F. Supp. 925 .......... 87

Baxter v. Palmigiano, 425 U.S. 308 -....... 31, 82

Beazell v. Ohio, 269 U.S. 167 ..........----..---- 78

Becton v. Greene County Board of Educa-

tion, 82 F.R.D. 220 ............--.--sseecseeseeees 42-48

Black v. Central Motor Lines, Inc., 500

PO BE vensatinerececeenstisigerernsseniianqeioiecescnenite 42

Blankenship v. Secretary of HEW, 587

TS FD ac ciiceneaccccsnanensebvnhncialasamissieinagnceneies 33

Board of School Commissioners v. Jacobs,

RS: Rae are 16, 23, 25, 27, 30

Boyd v. Justices of Special Term, 546

Boa iticchaccuhceeneseqetistmentapaninemcinseneings 30, 33

Brest v. Ciccone, 371 F.2d 981 ............-..- 55

Calder v. Bull, 3 U.S. (3 Dal.) 386 -......... 78

Califano v. Sanders, 430 U.S. 99 .........-.--- 13

Coopers & Lybrand vy. Livesay, 437 U.S.

ID wcchicecdachoccssassnnsthesetbicnsnnniensaiuiensiapatenuntiee 40

County of Los Angeles vy. Davis, No. T7-

1668 (Mar. 27, 1979). ............-0ce0c.--c--00 22

Davis v. Romney, 490 F.2d 1360 .............- 46

Delums v. Powell, 566 F.2d 167, cert. de-

nied, No. 77-955 (July 3, 1978) .......... 48

Dobbert v. Florida, 432 U.S. 282 .............. 78, 82

Doctor v. Seaboard Coast Line R.R., 540

BE MI Sceteteciecpsienseecncnletahienaahibenatiniedoe 46

Dothard v. Rawlinson, 433 U.S. 321 -....... 47-48

East Texas Motor Freight System, Inc. v.

Rodriguez, 431 U.S. 396 .......................- 44, 76

Eisen v. Carlisle & Jacquelin, 417 U.S.

III 11. (oncs ialen asdceehsiateieniesiabuiicangacetnvenngineenircbeatie 46

Electrical Fittings Corp. v. Thomas &

ps ek Se ; eee een 38

Cases—Continued Page

Franks v. Bowman Transportation Co.,

Se SP e FUNG sabrsinsicentinodesen 16, 23, 26, 29, 30, 36

Gadsden v. Fripp, 330 F.2d 545 ................ 38

Galvan v. Levine, 490 F.2d 1255 00000002... 39

Garcia v. United States Board of Parole,

SOT Sa: EE seiticindasniniclabeldastibpietssusdnaabianichads 69

Gardner v. Westinghouse Broadcasting

Ss Ge ES UD siaeeithenartnntisnctonachuoromaes 40

Gerstein v. Pugh, 420 U.S. 108 -........... 17, 31, 32,

34, 35, 36

Glover v. Coffing, 177 F.2d 234, cert. de-

Shs WI sicenesconcsnicpiisidsiceancetinceas 42

Greenfield v. Scafati, 277 F. Supp. 644,

eh SP. FO vaisctcnevnthicspncscsmachchentiens 84

Fats WV: Beale; BOS UB. 46 .........cccscccccnneneces 22, 40

Hofheimer v. McIntee, 179 F.2d 789, cert.

GI, RD Ths EF i istcscctnnsees 42

Hormel v. Helvering, 312 U.S. 552 .......... 48

Inmates v. Owens, 561 F.2d 560 ...00........ 30

Jones v. Diamond, 519 F.2d 1090 ............ 33

Kremens v. Bartley, 431 U.S. 119 ........ 16, 22, 25,

26-27, 30

Lasky v. Quinlan, 558 F.2d 1188 -........... 30

Levenson v. Little, 75 F. Supp. 575 .......... 43

Lindsey v. Washington, 301 U.S. 397 ...... 81, 83

Liner v. Jafco, Inc., 375 U.S. 301 2.00000... 21

Mancusi v. Stubbs, 408 U.S. 204 -200000 0. 38

Marcera v. Chinlund, 565 F.2d 253 ......... 33

Marks v. United States, 430 U.S. 188........ 77

McGill v. Parsons, 582 F.2d 484 .............. 33

Monarch Asphalt Sales Co. v. Wilshire Oil

Cig ee We UN hithcertecctetect cece 45

Napier v. Gertrude, 542 F.2d 825, cert.

Genied, 439 U.S. 1066 ............................ 30

North Carolina v. Rice, 404 U.S. 244....21, 22, 26

Cases—Continued Page

Oppenheimer Fund, Inc. v. Sanders, 437

Bt TD ciastncsccstniensnisnaceteanesennstnipaninnatincndlieian 46

O’Shea v. Little-on, 414 U.S. 488......26, 35-36, 76

Pasadena City Board of Education v.

Spangler, 427 U.S. 424 .........-.--.--0--0 26, 27-28

Phillips v. Klassen, 502 F.2d 362, cert.

Gel, GED Ta OD vtencinccrwcisibeichibieniaila 49

Powell v. McCormack, 395 U.S. 486 .-....... 22

Preiser v. Newkirk, 422 U.S. 396 ............ 21, 22

Preiser v. Rodriguez, 411 U.S. 475 .......... 10

Rex v. Owens, 585 F.2d 482 -.......0.......-0-+- 45, 46

Richardson v. Ramirez, 418 U.S. 24 -..... 39, 40, 49

Rifai v. United States Parole Commis-

sion, 686 F.2d 606 ........................ 55, 80, 81, 85

Roach v. Board of Pardons and Paroles,

GOD FG Fe hdanisicencishincaaamnetn 11

Rodriguez v. United States Parole Com-

mission, No. 78-2051 (7th Cir. Mar. 20,

PED | cciisaccichnicndsnecigiuaeeienmsmtnonaidiionasiilin 77

Rogers v. Paul, 382 U.S. 198 .................-- 42, 43

Rooney v. North Dakota, 196 U.S. 319... 83

Roper v. Consurve, Inc., 578 F.2d 1106,

cert. granted, No. 78-904 (Mar. 5,

DUA chin} snticneniintnsopeionsaiieiiilcatnai eaidaaiia a 31

Ruip v. United States, 555 F.2d 1331...... 77, 85

Samuel v. University of Pittsburgh, 538

GID TED” ivscxccuciescudelesmetaasnettepahinchonosteaitednidiies 45

Satterwhite v. City of Greenville, 578

BP eUEE TUNE ccncasctapncthiisecececesunsioneouanaeanatane 18, 46

Scarpa v. U.S. Board of Parole, 477 F.2d

281, vacated as moot, 414 U.S. 809........ 69

Schmoll Fils, Inc. v. The Fernglen, 85 F.

BD, UI cnsncestcntonoicontclapitiemiieineedianisaliman 43

Scott v. Kentucky Parole Board, 429 U.S.

60 casieinanastdiagiicciimaniainiennsisitciiidijiniiataiasili 23

VII

Weinstein v. Bradford, 423 U.S. 147....22,

Cases—Continued Page

Share v. Air Properties G. Inc., 588 F.2d

SNE 39

Shelton v. Pargo, Inc., 582 F.2d 1298 ...... 30

Shepard v. Taylor, 556 F.2d 648............ 77, 85, 86

Sibron v. New York, 393 U.S. 40 -.......... 22

Smith v. Merchants & Farmers Bank of

West Helena, 574 F.2d 982 ...0..000000000... 46

Spangler v. United States, 415 F.2d 1242.. 28

Sosna v. Iowa, 419 U.S. 398.000.0000... 25, 26, 32, 33

Southern Pacific Terminal Co. v. ICC, 219

Nees 32

Starnes v. McGuire, 512 F.2d 918 ............ 41

Steffel v. Thompson, 415 U.S. 452 -........... 22

Susman v. Lincoln American Corp., 587

SS 30

Swisher v. Brady, 438 U.S. 204 2.000000... 33

United Airlines, Inc. v. McDonald, 482

EE Eee 31, 37-38, 39

United States v. Addonizio, No. 78-156,

argued March 27, 1979 ........................ 73

United States v. Alaska S.S. Co., 253 U.S.

ESSE OT EEE 22

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

cert. denied, 421 U.S. 910 200.0... 7

United States v. Braasch, No. 72 CR 979

(N.D. Ill. Oct. 1, 1975), appeal dis-

missed and mandamus denied, 542 F.2d

ge SS 8

United States v. DiRusso, 535 F.2d 673... 58

United States v. Grayson, 438 U.S. 41...... 73

United States v. Munsingwear, Inc., 340

DS 43

Vun Cannon v. Breed, 565 F.2d 1096...... 30

Warden v. Marrero, 417 U.S. 653 -........... 81, 838

28, 35

VIII

Cases—Continued Page

Williams v. Wohlgemuth, 540 F.2d 168.... 33

Wilson v. Zarhadnick, 534 F.2d 55 .......... 47

Windham v. American Brands, Inc., 565

F.2d 59, cert. denied, 435 U.S. 968........ 46

Winokur v. Bell Federal Savings & Loan

Ass’n, 560 F.2d 271, cert. denied, 485

REA WEE have aces antaiantenbalinsdidoestebceisasuie 30

Zeidman v. United States Parole Commis-

sion, No. 78-1590 (7th Cir. Mar. 20,

RI. eckaittaceteacieaascca besten ai caishnenespdecgaan deans 77

Zurak v. Regan, 550 F.2d 86, cert. denied,

433 U.S. 914 sovseuseneseveneseessntsnsensnseenscesstaren 33

Constitution, statutes, rules and regulations:

United States Constitution:

Article I: |

Section 9, Clause 8 .................... 8, 77

Section 10, Clause 1 .................. 77-78

Article III .......... 16, 22, 24, 25, 28, 29, 39, 40

Statutes, regulations and rule:

Administrative Procedure Act, 5 U.S.C.

IIIT tani et alate ais eee ra es 13

Federal Youth Corrections Act, 5005 et

seq.:

BD UA GR eececsivecsscecieeiasens 52, 74

1B UBC. GOCE GED on... ncsecnscccecnceecense 42

Parole Commission and Reorganization

Act, Pub. L. No. 94-238, 90 Stat. 219-

DE siaicksis nciscgsapacuntsces alcool isaiebsontadaciniess 52

BB UG, GREAT oases cenccncerccsvseenss 3,9

OS 8 i Ne ences eee 52

Statutes, regulations and rule—Continued

18 U.S.C. (1970 ed.) 4202 ................

Ue We

18 U.S.C. 4208 (a) (1) ccccccccseccoseccoeeecee

6 USC. Oe) ......................

18 U.S.C. (1970 ed.) 4208 ...............

18 U.S.C. (1970 ed.) 4208(a) ..........

BUse Oe 3...

18 U.S.C. 4205 (a) ........ 14, 34, 52, 53,

18 U.S.C. 4205 (b) cecccseccececceeecseeeeee. 34,

18 U.S.C. 4205 (b) (1) ccocecceeccseeeesee- 14,

18 U.S.C. 4205(b) (2) oo... 10, 14,

BP WR MPN) | Soccececsocsnesosccctonnszice

18 U.S.C. 4206 ....ccecasecece-. 4-5, 19, 61,

18 U:S.C. 4206(a) *>...00.2.,..:0. 11, 60,

16 U.S.C. 208(a) (1)

18 U.S.C. 4206(¢) .............. 59, 60, 62,

6056 KS .......................

BD A GOT Lacslvcicscencstsecanes 5-6, 70,

18 U.S.C. 4207(1)-(5)

BUS A 3

Oe ee en

18 U.S.C. (1970 ed.) 4208

18 U.S.C 4208(m) (1) scccecccccscnedoss-nte:.

18 U.S.C. (1970 ed.) 4208(a) (2)......

18 U.S.C. 4218(e)

18 U.S.C, 4218(d) 0.0... 6, 13, 69,

18 U.S.C. 4251-4255

a re cid taisedasetitan trrarvcniesnnecloencentiiegs

Oe a IIE“ cenclinsissesesicreonipevcnsdonisiocnaceciony,

Be, ME ME Sith tdci snesthaconssiarennsassiccont 53,

18 U.S.C. 4164

18 U.S.C. 365]

PPPS RR RRR RRR ERE EE REE EEE eee Se eeaeeeeeeee

53, 73

53, 88

63, 64

61, 62

67, 86

54, 64

71, 72

Statutes, regulations and rule—Continued Page

BB UB.C. UBDB annccenicceccscesceeeeemnnnnien 40

DE UGC. WSBT ccnesceseceneesstnenneenenenen 9,13

2B UBC. WOGR cncncacecccecsccnsnteeanane 9

BB U.S.C. VOOG cnnnnscnsecccccenncincconsecemsintarwanonenne 9

BBE UBC. BEGG avnnscnnscncenceenticsentoeeesomennnen 8,9

28 CPR. B.D ccna 59

BE CBB. BBO ncctoncnseiecsonprensninassmeeitiadionin 7, 8, 84

28 CPR. BBO) nccincectecenee 58

28 CPR. S.BO CW) snccccccnciccncmens 21, 58-59, 77, 87

28 C.F.R. 2.20(c) ......21, 50, 59, 62-63, 77, 85, 87

28 C.F.R. 2.20(d) .......... 21, 50, 59, 62, 77, 84, 87

28 C.F.R. 3.20(e) 6 21, 59, 62, 77, 85, 87

28 C.F.R. $208) ae 21, 60, 77, 83, 87

28.CF.R: 2.58 °c eee 54

Wed. R. App. BP. SCG) cicccccicscscssnntetnnnn 12

Fed. B.. Civ. Pi 20 acne cccceeccescctesscosenpnnreees 47

yy ee Ss A peer 6-7, 36, 49

Fed. BR. Civ. BP. SR GCpCED ccecicsersuianeae 34

Fed. R. Civ. P. 23(c) (4) ..............-- 17, 18, 45, 47

Fed. ‘R.: Gv. P. 26 eee 37, 42

Fed. R. Civ. P. OGG) Scenes 12

Fed. R. Civ. FP. 2600). cca 12

Fed. BR. Crim. FOO once 8, 73

Fed. BR. Crim. FP. GG 0B) ccccecctcce eens 73

Miscellaneous:

Administrative Conference Recommenda-

tion 72-3: of the United States Board

of Parole (adopted June 9, 1972) 2

Recommendations and Reports of the

Administrative Conference of the

United States (1978) .................-cc-c0-- 56

Miscellaneous—Continued Page

Advisory Committee’s Note on the 1966

Amendment to Rule 23, 28 U.S.C. App.,

reese “oe ..............

Salat ladeiedth ip cinbninininiresunddpines 29

Board of Parole, Biennial Report (1970).. 87, 88

121 Cong. Rec. 15702 (1975) .........0000....... 80

121 Cong. Rec. 15710 (1975) 000. 80

121 Cong. Rec. 28833 (1975)... 65

122 Cong. Rec. 4861 (1976) 2.00.00... 67

122 Cong. Rec. 5163 (1976) -.....0..000000.... 68

K. C. Davis, Discretionary Justice (1969)... 56

Developments in the Law—Class Actions,

89 Harv. L. Rev. 1818 (1976) .............. 26

Diamond & Ziesel, Sentencing Councils:

A Study of Sentence Disparity and its

Reduction, 43 U.

Chi. L. Rev. 109

Rita let daeiiaanbainsacgdasacaskieaedis 66

Federal Judicial Center, Deskbook for

penemcen: TROON) occcoccu. 2... ks... 87

38 Fed. Reg. 31942 (1978) 0.000... 58

M. Frankel, Criminal Sentences: Law

Without Order (1978). ...........2...:.:....... 66

Gottfredson, Hoffman, Sigler & Wilkins,

Making Paroling

Policy Explicit, 21

Crime & Delinquency 34 (1975) ...... 56, 60, 81

Hoffman, Paroling Policy Feedback 10

(NCCD Supp. Rep. No. 8, 19738) ....... 57

Hoffman & DeGostin, Parole Decision-

Making: Structuring Discretion, 38

Federal Probation 7 (December 1974).. 58, 59

Hoffman & Gottfredson, Paroling Policy

Guidelines: A Matter of Equity 10

(NCCD Supp. Rep. No. 9, 1973)

xuI

Miscellaneous—Continued Page

Hearings on H.R. 1598 and identical bills

Before the Subcomm. on Courts, Civil

Liberties, and the Administration of

Justice of the House Comm. on the

Judiciary, 93d Cong., Ist Sess. (1973).. 63

Hearings on Parole Legislation Before

the Subcomm. on National Penitenti-

aries of the Senate Comm. on the Judi-

ciary, 93d Cong., 1st Sess. (19738) ........ 63

A. von Hirsch & K. Hanrahan, Abolish

PORE. CRURIED Sevcenccisasiacctecanculesiabeetenrees 55

H.R. 5727, 94th Cong., 1st Sess. (1975).. 63

H.R. Conf. Rep. No. 94-838, 94th Cong.,

2d Seas. (1976) —.2..200c-s0<--2c:--- 20, 51, 60, 66, 67,

68, 69, 70, 71, 86

H.R. Rep. No. 94-184, 94th Cong,, 1st

EY |, ance eters aren ewe mene oon ee 63

3B Moore’s Federal Practice (2d ed.

DIEGO snceckctied Lebsstctecauesti debs cecetneeeushsddheneels 46

9 Moore’s Federal Practice (2d ed. 1975).. 38

N. Morris, The Future of Imprisonment

CREED cvicerednecovalicnpnipnemani anaes 55

National Adviscry Commission on Crimi-

nal Justice Standards and Goals, 7’ask

Force Report: Corrections (1978) ........ 55

Project, Parole Release Decisionmaking

and the Sentencing Process, 84 Yale

Bi Tee COPD: setkinaincpintinesiata 58

Remarks of Richard A. Chappelle, Chair-

man of the Board of Parole, at the No-

vember 1964 Institutes on Sentencing,

Federal Parole, 37 F.D.R. 207 (1964).. 87

XTi

Miscellaneous—Continued Page

Richardson, Parole and the Law, 2 Na-

tional Probation and Parole Associa-

tion Journal 27 (1956) 20... eee 87

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

OR: CRONE noltta banat oa passim

S. Rep. No. 94-369, 94th Cong., 1st Sess.

Et 1: Gaeer Abaiamme heron) mtene! Itinckiaume lA 64, 65, 80

D. Stanley, Prisoners Among Us: The

Problem of Parole (1976) -....00............. 55

7A C. Wright & A. Miller, Federal Prac-

tice and Procedure, § 1798 (1972) ........ 46

Zeisel & Diamond, Search for Sentencing

Equity: Sentence Review in Massachu-

setts and Connecticut, 1977 A.B.F. Re-

search J. 881

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-572

UNITED STATES PAROLE COMMISSION, ET AL.,

PETITIONERS

Vv.

JOHN M. GERAGHTY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-

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

district court (Pet. App. 77a-93a) is reported at 429

F. Supp. 737.

JURISDICTION

The judgment of the court of appeals (Pet. App.

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

for rehearing was denied on May 8, 1978 (Pet. App.

(1)

76a). On July 28, 1978, Mr. Justice Brennan ex-

tended the time for filing a petition for a writ of

certiorari to September 5, 1978, and on August 24,

1978, he further extended the time for filing a peti-

tion to October 5, 1978. The petition was filed on that

date and was granted on March 5, 1979 (A.33).

The jurisdiction of this Court rests on 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether this case became moot when the in-

dividual plaintiff’s criminal sentence expired after

class action certification had been denied by the dis-

trict court. |

2. Whether the district court abused its discretion

in failing, swa sponte, to identify and certify an ap-

propriate subclass after the court had properly de-

termined that the plaintiff’s claims were not repre-

sentative of the class that had been proposed for

certification.

3. Whether the Parole Commission’s parole release

guidelines or its decision-making practices under the

guidelines violate the Parole Commission and Reorga-

nization Act by failing to give consideration to the

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

terminations.

4. Whether application of the Commission’s parole

release guidelines to prisoners who were sentenced

prior to the effective date of the guidelines is an un-

constitutional ex post facto enhancement of criminal

sentences.

CONSTITUTIONAL PROVISION, STATUTES, RULES

AND REGULATIONS INVOLVED

1. Art. I, §9, cl. 3 of the United States Consti-

tution provides:

No Bill of Attainder or ex post facto Law shall

be passed.

2. The Parole Commission and Reorganization Act,

18 U.S.C. 4201-4218, provides in pertinent part:

A. 18 U.S.C. 4203:

(a) The Commission * * * shall—

(1) promulgate rules and _ regulations

establishing guidelines for the powers enum-

erated in subsection (b) of this section and

such other rules and regulations as are

necessary to carry out a national parole

policy and the purposes of this chapter;

* * * * *

(b) The Commission * * * shall have the

power to—

(1) grant or deny an application or rec-

ommendation to parole any eligible prisoner;

(2) impose reasonable conditions on an

order granting parole;

(3) modify or revoke an order paroling

any eligible prisoner; * * *,

B. 18 U.S.C. 4205:

(a) Whenever confined and serving a definite

term or terms of more than one year, a prisoner

shall be eligible for release on parole after serv-

ing one-third of such term or terms or after serv-

ing ten years of a life sentence or of a sentence

of over thirty years, except to the extent other-

wise provided by law.

(b) Upon entering a judgment of conviction,

the court having jurisdiction to impose sentence,

when in its opinion the ends of justice and best

interest of the public require that the defendant

be sentenced to imprisonment for a term exceed-

ing one year, may (1) designate in the sentence

of imprisonment imposed a minimum term at the

expiration of which the prisoner shall become

eligible for parole, which term may be less than

but shall not be more than one-third of the maxi-

mum sentence imposed by the court, or (2) the

court may fix the maximum sentence of imprison-

ment to be served in which event the court may

specify that the prisoner may be released on

parole at such time as the Commission may de-

termine.

+ + * * *

C. 18 U.S.C. 4206:

(a) If an eligible prisoner has substantially

observed the rules of the institution or institu-

tions to which he has been confined, and if the

Commission, upon consideration of the nature

and circumstances of the offense and the history

and characteristics of the prisoner, determines:

(1) that release would not depreciate the

seriousness of his offense or promote disre-

spect for the law; and

(2) that release would not jeopardize the

public welfare;

subject to the provisions of subsections (b) and

promulgated by the Commission pursuant to sec-

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

* * + * *

lease on parole notwithstanding the guidelines

referred to in subsection (a) of this section if it

determines there is good cause for so doing * * *.

(d) Any prisoner, serving a sentence of five

years or longer, who is not earlier released under

this section 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 years of each con-

secutive term or terms of more than forty-five

years including any life term, whichever is ear-

lier: Provided, however, That the Commission

shall not release such prisoner if it determines

that he has seriously or frequently violated insti-

tution rules and regulations or that there is a

reasonable probability that he will commit any

Federal, State, or local crime.

D. 18 U.S.C. 4207:

In making a determination under this chapter

(relating to release on parole) the Commission

shall consider, if available and relevant:

(1) reports and recommendations which

the staff of the facility in which such prison-

er is confined may make;

( 2) official reports of the prisoner’s prior

criminal record, including a report or record

of earlier probation and parole experiences;

(3) presentence investigation reports;

(4) recommendations regarding the 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 concerning the’

prisoner (including information submitted by the

prisoner) as may be reasonably available.

E. 18 U.S.C. 4218(d) :

Actions of the Commission pursuant to para-

graphs (1), (2), and (3) of section 4203(b)

shall be considered actions committed to agency

discretion for purposes of section 701 (a) (2) of

title 5, United States Code.

_ Fed. R. Civ. P. 23 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, and (4) the rep-

resentative parties will fairly. and adequately

protect the interests of the class.

* * * * *

(c)(1) As soon as practicable after the

commencement 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 subdivision may be condi-

tional, and may be altered or amended be-

fore the decision on the merits.

* * * * *

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

may be divided into subclasses and each sub-

class treated as a class, and the provisions

of this rule shall then be construed and ap-

plied accordingly.

* * * * *

4. The pertinent portions of the guidelines adopted

by the Parole Commission for parole release determi-

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

pendix to the opinion of the court of appeals (Pet.

App. 67a-73a).

STATEMENT

1. Following a jury trial in the United States

District Court for the Northern District of Illinois

respondent was convicted of conspiracy to commit i.

tortion through the use of his position as a vice squad

officer of the Chicago police, 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 declarations

count. The convictions were affirmed on appeal

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

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

Respondent obtained a reduction in his sentence to

30 months’ imprisonment (A. 20; Pet. App. 77a &

n. 2). The district court ordered this reduction, pur-

‘ The conspiracy was alleged to have oc i

curred dur

to 1970. United States v. Braasch, 505 F.2d 139, 141 von iy

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

suant to Fed. R. Crim. P. 35, because it concluded

that application to respondent of the parole release

guidelines (28 C.F.R. 2.20), which had been promul-

gated by the Parole Commission two months before

the initial sentence was imposed, would frustrate the

expectation of the sentencing court. United States v.

Braasch, No. 72 CR 979 (N.D. Ill. Oct. 1, 1975), ap-

peal 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

denied with the following explanation (A. 5-6; Pet.

App. 5a):

Your offense behavior 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. Guidelines establish by the Board for

adult cases which consider the above factors indi-

cate a range of 26-36 months to be served before

release for cases with good institutional program

performance 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.

Respondent’s second application for parole was denied

for similar reasons on July 7, 1976, and he was con-

tinued without further consideration of parole until

* Respondent’s motion for further relief pursuant to 28

U.S.C. 2255 was denied on December 21, 1976. Geraghty Vv.

United States, No. 76 C 4215 (N.D. Ill.) (A. 31).

his release from prison on accumulated good time

credits (Pet. App. 6a).

2. On September 15, 1976, respondent instituted

this civil action in the United States District Court

for the District of Columbia, seeking declaratory and

injunctive relief (A. 1, 3-16; Pet. App. 78a). Re-

spondent alleged that the Parole Commission’s guide-

lines are invalid under the Parole Commission and

Reorganization Act, 18 U.S.C. 4201-4218, and that

they also violate the ex post facto prohibition of the

Constitution by authorizing the Commission to make

deferred sentencing decisions (Pet. App. 83a-84a)."

Respondent moved for certification of the case as a

class action on behalf of “all federal prisoners who

are or who will become eligible for release on parole”

(A. 17). |

On November 12, 1976, the action was transferred

to the Middle District of Pennsylvania, where re-

spondent was then incarcerated (Pet. App. 78a).'

* Respondent alleged that he was scheduled to be dis-

charged from custody on June 30, 1977 (A. 7, 21). He was

released from confinement on that date (A. 32; see page 11,

infra).

‘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 U.S.C. 1406 and 2255 (A. 31; Pet. App. 78a,

79a & n.3). The district court for the Middle District of Penn-

sylvania noted that jurisdiction for the declaratory and injunc-

tive relief sought by petitioner ordinarily would rest on 28

U.S.C. 1831 and 1361. The court held, however, that because

the relief sought is “in effect, a request for a ruling that

[respoudent] is entitled to release on parole’ (Pet. App.

Respondent moved for summary judgment (A. 28).

On February 24, 1977, the district court denied re-

spondent’s request for class certification and dis-

missed the action. The court found class certification

inappropriate because “not all members of the [pro-

posed] class have the same interest” in challenging

the validity of the parole guidelines (Pet. App. 83a).

The court pointed out that some prisoners may find

their actual or expected parole release date advanced

by virtue of the guidelines and thus would not share

respondent’s position that the guidelines improperly

delay release (ibid.).° The court also rejected re-

spondent’s contention that class certification should

be granted merely “to ensure that the legal issues pre-

sented” are not made moot by the expiration of re-

spondent’s criminal sentence (id. at 82a).

80a), habeas corpus is the exclusive remedy (ibid., citing,

e.g., Preiser V. Rodriguez, 411 U.S. 475 (1973) ).

‘The district court also held that class certification was

inappropriate for other claims that would not be shared by

all members of the class. Two issues—the classification of

respondent’s offense as extortion under the guidelines and

respondent’s access to certain of the Commission’s files—were

found by the court to relate solely to the circumstances of

respondent’s individual case (Pet. App. 82a). Similarly, re-

spondent’s argument that the guidelines are inconsistent

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

18 U.S.C. 4205(b)(2)), under which respondent was sen-

tenced, was found not to have applicability to those members

of the proposed class who were sentenced under different

statutes (Pet. App. 83a).

Turning to the merits, the court held that the

parole 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 are consistent with the require-

ments of the Act that the parole decision be made

“pursuant to guidelines promulgated by the Commis-

sion,” 18 U.S.C. 4206(a), and be based on the “ ‘na-

ture and circumstances of the offense and the history

and characteristics of the prisoner’ ” (Pet. App. 87a)

(emphasis in original). Moreover, the court con-

cluded, the adoption of the guidelines did not effect

an ex post facto enhancement of respondent’s sen-

tence because parole involves the administrative im-

plementation 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

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

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

29). On June 30, 1977, while the appeal was pend-

ing in the court of appeals, but before any briefs

had been filed, respondent was released from prison

as a result of accumulated good time credits after

serving a total of 22 months of his sentence. (A.

32). Petitioners then moved to dismiss the case

as moot (A. 30). The court of appeals deferred dis-

position of this motion pending consideration of the

appeal on the merits. On March 9, 1978, more than

eight months after respondent had been released, the

court of appeals reversed the judgment of the dis-

trict court and remanded for further proceedings.°

a. The court acknowledged that respondent’s case

became moot when he was released. Because the dis-

trict court had declined to certify a class action in

this case, there was neither a class nor a litigant

with a live controversy before the court of appeals.

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

been certified by the district court, the mootness of

respondent’s personal claim would not have precluded

adjudication on behalf of the class (Pet. App. 20a-

21a). And, the court went on, if a proper class

could have been certified, and the district court erred

in failing to do so, the case could be remanded for

6On April 28, 1977, after respondent’s notice of appeal

had been filed (and after the 60-day period for filing a notice

of appeal expired (Fed. R. App. P. 4a)), Eliezer Becher, a

federal prisoner who had been denied parole, filed a motion

in the district court to intervene after judgment, pursuant

to Fed. R. Civ. P. 24(a) and (b) (A. 2, 31). The court denied

the motion, reasoning that the filing of respondent’s notice of

appeal had divested the district court of jurisdiction (A. 2,

31). Becher appealed from the denial of his motion to inter-

vene (A. 2); and his appeal was consolidated with this action.

After the appeals were argued, but before the court of

appeals’ decision was rendered, Becher was released on parole.

The court of appeals nonetheless remanded Becher’s motion

to intervene to the district court “for a determination as to

the reasons for his failure to intervene earlier and an exam-

ination of the potential prejudice, if any, which might result

from such intervention” (Pet. App. lla n.21; citations

omitted). Becher has apparently abandoned any interest

in the litigation, however, for he failed to pursue his motion

to intervene in the district court proceedings on remand. See

also note 13, infra.

= certification to preserve jurisdiction (id. at

a).

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 those of other class

members (Pet. App. 29a, 31a-32a). The court held

however, that appropriate subclasses may exist nnd

that the district court erred by not considering, sua

sponte, the certification of such subclasses (id. at

32a). The court accordingly reversed the denial of

class certification and remanded for the “evaluation

of the proper subclasses” (ibid.)."

6. Stating that a remand for consideration of

class certification would produce an improvident dis-

sipation of judicial effort if the district court had

properly disposed of the merits of the case (Pet. App.

* The court held that the district court had jurisdiction j

this case under 18 U.S.C. 4218 (c) and the feng

Procedure Act, 5 U.S.C. 701-706. But because the complaint

challenges not the manner in which the guidelines were

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

provides neither jurisdiction nor any substantive remedy To

the contrary, 18 U.S.C. 4218(d) insulates release decisions

from judicial scrutiny. Moreover, this Court held in Califano

v. Sanders, 430 U.S. 99 (1977), that the APA is not a juris-

dictional statute. We have not challenged the jurisdictional

holdings of the court of appeals, however, because respond-

ent’s allegation of jurisdiction under 28 U.S.C. 1331 is suffi-

cient in this case. See Andrus v. Charlestone Stone Products

Co., 436 U.S. 604, 607-608 n.6 (1978). (Moreover, we agree

with the court of appeals’ holding (Pet. App. 7a-9a) that the

case 1s not properly viewed as one in habeas corpus; th

class does not seek immediate release from prison.) ee

32a-33a), the court of appeals decided “to consider

the merits of [respondent’s] claim” (id. at 33a).

The court noted that the Commission has admitted

that no weight is given to the length of a prisoner’s

sentence either in determining the range of custom-

ary release dates under the guidelines or in making

individual parole determinations (id. at 36a).° The

court concluded that this is impermissible, because

the length of sentence was intended to be a relevant

factor in the parole process under the Parole Com-

mission and Reorganization Act. Moreover, the court

indicated that if the guidelines are applied in a way

that excludes consideration of the “individual facts

of each case” (Pet. App. 34a, 45a), they would fail

to conform to the intent of the Act that each parole

determination be based, in part, on the severity of

the prisoner’s offense (id. at 45a).”

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 have resulted from the previously appli-

cable parole procedures (Pet. App. 58a), then the

guidelines, as applied, would violate the Ex Post

8 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).

® The court also suggested that if the Act permits the Com-

mission to disregard sentence length in the parole decision-

making process, the statute may unconstitutionally infringe

the judicial sentencing function (Pet. App. 46a-50a).

oer

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

vesult in enhanced punishment for prisoners who

were sentenced prior to the guidelines’ effective date

(id. at 65a, 66a).

4, After the petition for a writ of certiorari was

filed, respondent’s counsel filed a motion on Novem-

ber 6, 1978, to substitute or add five additional par-

ties as respondents in this Court, or, in the alterna-

tive, to permit the additional parties to intervene as

members of the putative class. In granting certio-

rari, this Court deferred ruling on this motion until

the hearing of the case on the merits.”

SUMMARY OF ARGUMENT

Respondent was released from prison while the

case was pending on appeal. The court of appeals

recognized that his challenge to the parole guidelines

thus became moot. The court also concluded that the

Counsel for respondent filed a similar motion in the

district court on November 3, 1978. As we noted in our petition

(Pet. 22 n.16), the mandate of the court of appeals was issued

to the district court on May 16, 1978. In accordance with the

directions of the court of appeals, the district court held a

hearing on the class certification issue, but it did not rule

on the certification motion or on the motion to add parties

plaintiff. On March 15, 1979, following this Court’s order

granting certiorari, the district court issued an order staying

all further proceedings in that court.

district court had correctly declined to certify the

class respondent had proposed. The court nonetheless

concluded that the case was not moot. The court

reasoned that certain subclasses of the proposed class

are “certifiable” (even though respondent had not

sought their certification) and that if they are cer-

tified on remand and if “a factually concrete legal

controversy continues to exist, * * * the constitu-

tional power of a court over the case remains”

(Pet. App. 24a; emphasis in original).

This Court consistently has held, however, that “it

is only a ‘properly certified’ class that may succeed

to the adversary position of a named representative

whose claim becomes moot.” Kremens v. Bartley, 431

U.S. 119, 182-1383 (1977), quoting Board of School

Commissioners v. Jacobs, 420 U.S. 128,.130 (1975).

Unless there is a live controversy based on the claim

of either a named litigant or a duly certified class,

the case lacks the concreteness and adversarial na-

ture that Article III requires. A properly certified

class possesses a “ ‘personal stake in the outcome of

the controversy’” and thus satisfies Article III re-

quirements in a case in which the claims of the

named litigants have become moot. Franks v. Bow-

man Transportation Co., 424 U.S. 747, 755 (1976).

But where the class has not been certified and the

claim of the named litigant expires, there is no liti-

gant before the court with a personal stake in the

outcome: the case is moot. And the certification of

a class thereafter is impermissible, because there is

no judicial power to exercise in moot cases.

This is not one of the narrow category of cases

where a class may be certified despite the expiration

of the named plaintiff’s grievance. A certification

under these circumstances is appropriate only when

the 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, 420 U.S. 103, 110 n.11 (1975). In such cases

the plaintiff can continue the suit whether or not a

class is certified. But respondent’s legal claims are

not transient in nature; they can be adjudicated fully

on behalf of a prisoner or a properly certified class

of prisoners in another lawsuit.

Respondent’s counsel has proposed to cure the ju-

risdictional defect in this case by moving for the

addition or intervention of new parties in this Court.

Because the case is moot, however, this Court has

no power to grant the motion to intervene. There

is no pending case or controversy and thus nothing

into which new parties can enter. Intervention can-

not breathe new life into an action that is no longer

justiciable. New litigants with live claims must file

their own actions in a district court.

While agreeing with the district court that the

proposed class—consisting of all federal prisoners

eligible for parole--was too broad, the court of ap-

peals held that the district court abused its discre-

tion under Fed. R. Civ. P. 23(c) (4) by failing, sua

sponte, to consider the creation and certification of

eT en Nomvennn: ener

appropriate subclasses. But Rule 23(c) (4) does not

direct the district court to act on its own initiative

to construct subclasses when the proposed class is

overbroad, and it would be inconsistent with basic

principles of adversary litigation to construe the

Rule to impose such a requirement.

The class proponent has the burden of establishing

the propriety of class action certification, and he does

not satisfy this responsibility “by simply affixing the

class action label to a suit and depositing it with the

clerk.” Satterwhite v. City of Greenville, 578 F.2d

987, 999 (5th Cir. 1978) (en banc). Respondent

essentially did no more than that in this case: he

did not propose the creation of subclasses in either

the district court or the court of appeals. There is

no basis for excusing this failure to propose subclass

certification by imposing an advocate’s duty on the

district court instead. Because the district court did

not err, it is appropriate to dismiss this case even if

this Court accepts the court of appeals’ approach to

mootness.

Ill

The court of appeals ruled that the Parole Com-

mission and Reorganization Act requires the Com-

mission, in formulating guidelines for the exercise

of paroling discretion and in making parole decisions

in individual cases, to give substantial weight to the

sentence imposed by the court. Nothing in the lan-

guage or the history of the Act supports such a re-

quirement.

ie ee Dee Hees

Section 4206, which establishes the criteria to be

considered by the Commission, does not refer to sen-

tence length. The Commission may release a prisoner

who is eligible for parole if “upon consideration of

the nature and circumstances of the offense and the

history and characteristics of the prisoner * * * re-

lease would not depreciate the seriousness of his of-

fense or promote disrespect for the law * * * [or] jeo-

pardize the public welfare.” These broad criteria

form the basis of the guidelines adopted by the Com-

mission. The guidelines reflect these criteria, and

there is no basis for concluding that they are invalid

because they do not also automatically give weight to

the length of the sentence a particular judge imposed.

The legislative history reveals that Congress was

aware of the Commission’s use of guidelines based

on offense severity and offender characteristics. Con-

gress endorsed the Commission’s practice, in order to

reduce the effects of sentencing disparity and to

achieve a fair and consistent application of parole

discretion. Consistency is best achieved by giving

weight to the nature and seriousness of the offense

under uniform standards, rather than through the

perspectives of hundreds of district judges. Remarks

made during the debate on the legislation, and nu-

merous references in the Conference Reports, express

specific approval for the continued use of the guide-

lines that the Commission had adopted prior to en-

actment of the new Act. Moreover, the history of

the Act makes clear that the parole decision in indi-

, vidual cases is committed to the discretion of the

Commission and “that the weight assigned to indi-

vidual factors (in parole decisionmaking) is solely

within the province of the (Commission’s) broad

discretion.” S. Conf. Rep. No. 94-648, 94th Cong.,

2d Sess. 28 (1976); H.R. Conf. Rep. No. 94-838,

94th Cong., 2d Sess. 28 (1976).

The court of appeals stated that the guidelines ap-

pear to restrict the broad discretion that the Com-

mission previously had exercised in its parole deci-

sions and that, by unduly structuring the parole

process, the guidelines deprive prisoners “of the pos-

sibility of a substantially more lenient punishment”

(Pet. App. 58a). The court reasoned that “the pos-

sibility of a substantially more lenient punishment”

was a part of each prisoner’s sentence prior to pro-

mulgation of the guidelines, and that depriving pris-

oners of this possibility would constitute increased

punishment in violation of the Ex Post Facto Clause.

The court’s analysis is flawed in two major re-

spects. First, application of the parole guidelines to

previously sentenced prisoners does not deprive them

of any pre-existing right or impose any additional

punishment. The guidelines do not affect the maxi-

mum or minimum term of imprisonment that a

prisoner may be required to serve. The sentence im-

posed by the court, in combination with statutory

provisions for mandatory release, determines that.

Moreover, both before and after adoption of the

guidelines, prisoners had no right to release on pa-

[ner MnnemnemreeT

role at any particular time; instead, prisoners simply

become “eligible” for parole. The Commission had

and has discretion to grant or deny release to eligi-

ble prisoners. The Commission’s guidelines are an

exercise, rather than a reduction, of its discretion.

They thus re not an ex post facto law.

Moreover, the guidelines do not remove the possi-

bility that a substantially more lenient punishment

may result for individual prisoners. By providing

broad ranges of customary release dates for various

categories of offenders and offenses, the guidelines

do not remove the possibility that a parole decision

will be made for an earlier (or later) release date

whenever the circumstances warrant. 28 C.F.R. 2.20

(b), (¢), (d), (e), (g).

ARGUMENT

THIS CASE BECAME MOOT WHEN RESPONDENT

WAS RELEASED FROM PRISON

A. on Claim Of Respondent Became Moot on June 30,

In every suit invoking the authority of the federal

judiciary, “[t]he exercise of judicial power under

Art. III of the Constitution depends on the ex-

istence of a case or controversy.” Preiser v. Newkirk,

422 U.S. 395, 401 (1975). The absence of judicial

authority “ ‘to review moot cases derives from [this]

requirement of Article III * * *.’” North Carolina

v. Rice, 404 U.S. 244, 246 (1971), quoting Liner v.

Jafco, Inc., 375 U.S. 301, 306 n.8 (1964). See also

Powell v. McCormack, 395 U.S. 486, 496 n.7 (1969) ;

United States v. Alaska S.S. Co., 253 U.S. 118, 116

(1920)."' To be justiciable, a suit “ ‘must be definite

and concrete, touching the legal relations of parties

having adverse legal interests * * *.’”’ North Carolina

v. Rice, supra, 404 U.S. at 246. Courts may not ren-

der advisory opinions on abstract question of law,

Hall v. Beals, 396 U.S. 45, 48 (1969), or decide

moot controversies “that cannot affect the rights of

litigants in the case before them.” North Carolina

v. Rice, supra, 404 U.S. at 246.

Respondent’s challenge to the guidelines of the

United States Parole Commission unquestionably be-

came moot on his release from prison at the end of

his term of imprisonment.’ As this Court stated in

Weinstein v. Bradford, 423 U.S. 147, 148 (1975).

‘it is plain that [a former prisoner] can have no

interest whatever in the procedures followed * * * in

granting parole.” Because respondent “no longer has

any interest affected by [the challenged] policy”

(ibid.), and because “there is no demonstrated prob-

ability” that respondent will again be subject to the

11 See also Sibron v. New York, 393 U.S. 40, 50 n.8 (1968)

(the question of mootness “goes to the very existence of a

controversy for us to adjudicate’).

12 In order to satisfy the requirement of Article III, “ ‘an

actual controversy must be extant at all stages of review, not

merely at the time the complaint is filed.’”. Preiser Vv.

Newkirk, supra, 422 U.S. at 401, quoting Steffel v. Thompson,

415 U.S. 452, 459 n.10 (1974). See also County of Los

Angeles Vv. Davis, No. 77-1553 (Mar. 27, 1979), slip op. 6;

Kremens V. Bartley, 481 U.S. 119, 128 (1977).

oo BS ite enn sO a

23 '

iA.3>

challenged parole procedures (423 at 149), his claim

is moot.'* See also Board of School Commissioners v.

Jacobs, 420 U.S. 128, 129 (1975).

B. Because The District Court Had Denied The Request

To Certify The Case As A Class Action, The Entire

Case Became Moot When Respondent’s Claim Be-

came Moot

The court of appeals concluded that, even though

respondent’s claim became moot before it had ren-

dered a decision, this “does not automatically deprive

[the] court of jurisdiction over the cause of ac-

tion asserted by the class” (Pet. App. 18a). The

court emphasized that, if a class “had been prop-

erly certified” (id. at 19a), the constitutional case

or controversy would have survived the mootness

of the claim of the class representative. See Franks

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

(1976). Although the court conceded that it had be-

fore it “neither a ‘live’ plaintiff nor a properly cer-

tified class” (Pet. App. 21a), it concluded that if

‘For the same reason, the motion to intervene filed by

Eliezer Becher in the district court (see note 6, supra) is

moot. His release on parole prior to the court of appeals’

decision deprived him of any litigable “interest whatever in

the procedures followed by petitioners in granting parole.”

Weinstein V. Bradford, supra, 423 U.S. at 148. Moreover, this

case does not involve any challenge to conditions imposed on

the grant of parole, or other collateral consequences of parole,

that might afford a basis for continuing jurisdiction. See

Scott v. Kentucky Parole Board, 429 U.S. 60, 62 (1976)

(Stevens, J., dissenting). Instead, respondent’s interest in

this case was based only on his concern that the guidelines

improperly restricted his ability to obtain parole.

the class was “certifiable” (id. at 21a n.43), and

if ‘a factually concrete legal controversy continues

to exist, * * * the constitutional power of a court

over the case remains” (id. at 24a; emphasis in

original). The court stated that it was appropriate

to exercise this power in this case because the ques-

tions raised could be “ ‘capable of repetition, yet evad-

ing review’ ”’ for some prisoners with short sentences

(id. at 26a), because respondent’s attorneys have

“undertaken this litigation on a class-oriented basis

[and] [t]here is no indication of any diminution of

vigor in their efforts” (id. at 27a), and because a

contrary holding would “effectively immunize from

review such adverse class determinations” (ibid.).

The decision of the court of appeals is based on

an incorrect interpretation of the decisions of this

Court and the principles underlying the mootness

doctrine.

1. A court may not “revive” a moot case

a. When respondent’s claim became moot in 1977

no class had been certified. After the denial of class

certification respondent was the only party before

the court, and respondent’s claim was the entire case.

When respondent’s claim became moot, the whole

case became moot. And when the whole case became

moot, judicial power under Article III of the Con-

stitution ended. A court consequently had no power

to consider the certification of a class in order to

“revive” the action. Even the certification of a class

is the exercise of jucicial power, and without the

existence of a case or controversy there is no judicial

power to exercise. A court has no greater power to

certify a class in a case without a plaintiff than it

has to certify a class in a case that has never been

filed, or a case (brought solely by an attorney) that

never had a plaintiff. The fact that the case here

was live at one time gives the court no additional

power once the case becomes moot. Once respondent’s

claim became moot, then, the court had no option

except to dismiss the action.

This submission is supported by several decisions

of this Court. On every occasion that the Court has

concluded that the certification of a class action fore-

stalled mootness, it has pointed out that the judicial

power to certify the class was exercised while the

claim of the representative plaintiff still presented a

case or controversy. See Sosna v. Iowa, 419 U.S. 393,

402 (1975); Kremens v. Bartley, 431 U.S. 119, 132-

133 (1977). As the Court summarized the governing

principle, a case becomes moot as soon as the claims

of the named litigants become moot “unless [the

case] was duly certified as a class action” while the

named plaintiffs had a live controversy with the de-

fendants. Board of School Commissioners v. Jacobs,

supra, 420 U.S. at 129.

Consistent with “firmly established requirements”

under Article III of the Constitution, there must be

a “named plaintiff who has * * * a case or contro-

versy 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. Unless there is 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. Jbid.; see

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

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

424, 480 (1976); Franks v. Bowman Transportation

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

414 U.S. 488, 493 (1974). Where the class has not

been certified and the claim of the putative class rep-

resentative becomes moot, the case is moot because

a decision “cannot affect the rights of litigants in

the case before [the court].” North Carolina v. Rice,

supra, 404 U.S. at 246.° And “it is only a ‘properly

certified’ class that may succeed to the adversary

position of a named representative whose claim be-

comes moot.” Kremens v. Bartley, supra, 431 U.S.

at 132-133; emphasis added. Here there is no plain-

tiff with a live, adversary position to which a class

could succeed.*® Thus, as the Court stated in Pasa-

14 “A litigant must be a member of the class which he or she

seeks to represent 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).

See also Development in the Law—Class Actions, 89

Harv. L. Rev. 1818, 1464-1465 n.57 (1976).

‘® Even when a class has been “duly certified,’ the case

becomes moot on the termination of the claims of the named

litigants if subsequent developments require any alteration

in the definition of the class. Kremens v. Bartley, supra, 431

dena City Board of Education v. Spangler, supra,

427 U.S. at 430, a “case would clearly be moot” if

the claims of the named litigants are moot and “there

has been no certification of any * * * class * * *.”

b. The court of appeals reasoned that these deci-

sions “simply point to certifiability, not actual cer-

tification, as the crucial question” for determining

whether the case becomes moot on the expiration of

the named litigants’ claims (Pet. App. 2la n.43;

emphasis in original). But this distinction ignores

both the facts and the reasoning of this Court’s deci-

sions.

For example, in Board of School Commissioners v.

Jacobs, supra, the plaintiffs, seeking to represent a

class of school children, filed their suit as a class

- action. A class of school children surely was “certifi-

able’; more than that, it was actually certified by

the district court. 420 U.S. at 129-180. Both the

district court and the court of appeals treated the

case as a certified class action. But this Court con-

cluded that the certification was defective for tech-

nical reasons. Then, because the class had not been

“duly” (id. at 129) or “properly” (id. at 130) certi-

fied, and the claims of the individual plaintiffs had

become moot, the Court held that the complaint must

be dismissed. The Court did not suggest that the

“certifiability” of the class was relevant or that the

ease could have been revived by recertification in the

U.S. at 132. If classes cannot be substantially altered after

the claims of the representative become moot, surely they

cannot be created from scratch.

district court using proper procedures. It held, to

the contrary, that there was no continuing Article

III case or controversy and that dismissal was the

only open course.

Pasadena also was brought as a class action on

behalf of school children. The district court treated

the case as a class action from the beginning but

never formally certified a class, although certification

unquestionably would have been proper (427 U.S. at

430). As in Jacobs, by the time the case reached

this Court the representative plaintiffs had been

graduated from school. As in Jacobs, the Court con-

cluded that there was no continuing case or contro-

versy between the private plaintiffs and the defend-

ants." Once more, there was no hint that the case

or controversy could be revived by a belated certifi-

cation of the class.”

'7In Pasadena the Court held that mootness was avoided

only by the intervention of the United States as a party

plaintiff. 427 U.S. at 430, 431. The United States intervened

in the case before the claims of the named individuals be-

came moot. See Spangler v. United States, 415 F.2d 1242,

1243 (9th Cir. 1969).

'8In Weinstein Vv. Bradford, supra, the Court held that the

case became moot as soon as the prisoner was released on

parole. A class of prisoners would have been “certifiable,”’ but

the Court did not suggest that such a class should be con-

structed. If the scope of Article III jurisdiction turned on

whether a class was certiflable, Weinstein would not have been

moot, because the case was brought as a class action. Certifi-

cation was denied, and the prisoner did not challenge the

denial on appeal. The Court treated the case as if a class al-

legation had never been made.

Both Jacobs and Pasadena proceeded in the lower

courts as class actions, yet they became moot because

the class had not been “duly” certified. Surel:, there

is no reason to conclude—as the court of appeals held

here—that mootness would have been avoided in

those cases if certification had been denied. It would

be bizarre to hold that a case becomes moot (on the

expiration of the named plaintiff’s claims) if a proper

class was certified with defective procedures, but that

a’ case survives if class certification was denied.

In Franks v. Bowman Transportation Co., supra,

424 U.S. at 755, the Court emphasized the necessity

for “a properly certified class action” to fulfill Arti-

cle III requirements in a case in which the claims of

the named litigants are moot. The Court stated that

there must be a party before the court with a “per-

sonal stake in the outcome of the controversy” to

assure a sharpened and concrete presentation of the

issues. Jbid., quoting Baker v. Carr, 369 U.S. 186,

204 (1962). Where the claim of the putative repre-

sentative has become moot and class certification has

been denied or not yet addressed, there is no cognizable

litigant before the court.” It is the class members

who are cognizable litigants when the class has been

certified. Franks v. Bowman Transportation Co.,

supra, 424 U.S. at 756. Where the class has not been

certified, however, there are no class members before

the court possessing a “personal stake in the out-

18 The denial of class action certification “strip[s the case]

of its character as a class action.” Advisory Committee’s Note

on the 1966 Amendment to Rule 23, 28 U.S.C. App., page 430.

come.” See id. at 754 n.6. That is why it is “only a

‘properly certified’ class that may succeed to the ad-

versary position of a named representative whose

claim becomes moot.” Kremens v. Burtley, supra, 431

U.S. at 133, quoting Board of School Commissioners

v. Jacobs, supra, 420 U.S. at 128. As the Ninth Cir-

cuit stated in Vun Cannon v. Breed, 565 F.2d 1096,

1099 (1977), “in the absence of a properly certified

class, the representative plaintiff whose claim has ©

become moot is himself without a litigable grievance,

and the person or persons on whose behalf he seeks to

continue the litigation has or have not yet achieved

jurisprudential existence. There being no adversary

necessary for the creation of a constitutionally re-

quired case or controversy, jurisdiction is lacking.”

Accord, Shelton v. Pargo, Inc., 582 F.2d 1298, 1304

(4th Cir. 1978).”

20 See also Inmates v. Owens, 561 F.2d 560 (4th Cir. 1977) ;

Lasky Vv. Quinlan, 558 F.2d 1133 (2d 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, 429

U.S. 1049 (1977).

In Winokur v. Bell Federal Savings & Loan Ass’n, 560 F.2d

271 (1977), cert. denied, 435 U.S. 932 (1978), the Seventh

Circuit held that named plaintiffs whose individual claims

were moot could not. appeal the denial of class certification by

the district court. The court held that, because no litigant with

a live controversy existed in the case, the court could not exer-

cise jurisdiction “even to reverse the class action determina-

tion .nd thus instili a live controversy into the action.” 560

F.2d at 276. In Susman v. Lincoln American Corp., 587 F.2d

866 (1978), the Seventh Circuit held that its decision in Wino-

kur does not apply where, because of the payment of the

named representatives’ claims and the dismissal of their ac-

oe ie. «es ee

2. No case in this Court has allowed class certifica-

tion to “relate back” to overcome mootness when

the initial claim would not inherently evade review

In concluding that the “constitutional power of a

court over the case remains” (Pet. App. 24a; empha-

sis in original) even though no class has been certified

and the claims of the named litigants are moot, the

court of appeals relied on Gerstein v. Pugh, 420 U.S.

103 (1975), and United Airlines, Inc. v. McDonald,

432 U.S. 385 (1977). The court’s reliance on those

decisions is unwarranted.”

tion, the district court lacked a “reasonable opportunity to

consider and decide” a class certification motion.”” While the

question is not presented here, it is possible that in a situation

where the class opponent has undertaken a systematic course

of avoiding class litigation by paying the claims of individual

litigants promptly on the filing of their federal actions, the

Susman decision is consistent with Gerstein Vv. Pugh, 420 U.S.

103 (1975).

The decision of the Fifth Circuit in Roper v. Consurve, Inc.,

578 F.2d 1106 (1978), cert. granted, No. 78-904 (Mar. 5,

1979), however, appears inconsistent with Gerstein. In

Roper there was time to rule, and the district court did rule

in denying certification. The court of appeals held in Roper

that payment of the claims of ine class representatives fol-

lowing the denial of class certification never makes a case

moot. 578 F.2d at 1111.

21 Baxter v. Palmigiano, 425 U.S. 308 (1976), also does not

support the judgment below. In Baxter the Court refused to

treat the case as a class action where the certification require-

ment of Rule 23 had not been complied with. The Court held,

however, that another prisoner who had intervened as a

named plaintiff could raise the claims on his own behalf. 425

U.S. at 310 n.1. Nothing in that case suggests that the inter-

vention occurred after the mooting of the plaintiffs’ claims.

The action was commenced in November 1970; the last of the

original plaintiffs was paroled “two years later”; and the

a. In Sosna v. Iowa, supra, the Court held that a

case is not necessarily moot, even though the claims

of the named plaintiffs have expired, if the case was

certified as a class action before the individual claims

became moot. 419 U.S. at 402. The Court also stated

in Sosna that a case may not be moot even though

the class was certified after the named litigants’

claims expired if “the controversy involving the

named plaintiffs is such that it becomes moot as to

them before the district court can reasonably be ex-

pected to rule on a certification motion.” Jd. at 402

n.ll. Where a claim is “by nature temporary,” and

it is unlikely that any individual claim would sur-

vive “long enough for a district judge to certify the

class,” Gerstein v. Pugh, supra, 420 U.S. at 110 n.11,

the claim may be “ ‘capable of repetition, yet evad-

ing review.’” When the grievance is fleeting, the

Court has stated, the class certification may be said

to “ ‘relate back’ to the filing of the complaint” for

purposes of determining jurisdiction. Sosna v. Iowa,

supra, 419 U.S. at 402 n.11.

The “relation back” rule applies only when the

claim is so transient that review is otherwise un-

available. Cases “capable of repetition but evading

review” survive whether or not a class is certified.

See Southern Pacific Terminal Co. v. ICC, 219 U.S.

498 (1911). In such circumstances, because the

named plaintiff’s claim itself may be adjudicated, it

simply makes good sense to allow the class action to

intervenor entered the case in July 1972. See 425 U.S. at 311

n.l.

go forward. See Swisher v. Brady, 438 U.S. 204,

213 n.11 (1978) (challenge to judicial review of

exceptions to master’s proposals in juvenile proceed-

ings); Gerstein v. Pugh, supra (challenge to legality

of pretrial detention) .*

The court of appeals did not hold that this case

falls within this narrow exception as a case “so

transitory that mootness inevitably intervenes before

the District Court can ‘reasonably be expected to rule

on a certification motion.’” Boyd v. Justices of

Special Term, 546 F.2d 526, 527 n.2 (2d Cir. 1976),

quoting Sosna v. lowa, supra, 419 U.S. at 402 n.11.

It could not have done so. Many prisoners serve

lengthy terms of confinement. As the experience

with collateral attacks on convictions shows, there is

often time for numerous challenges to be raised and

adjudicated during a single term of imprisonment.

Respondent was sentenced in January 1974 and was

not released until June 1977. He had ample time to

wage campaigns against the parole rules (and against

22 See also Ahrens Vv. Thomas, 570 F.2d 286, 288-289 (8th

Cir. 1978) (same); Marcera v. Chinlund, 565 F.2d 253 (2d

Cir. 1977) (same); Blankenship v. Secretary of HEW, 587

F.2d 329, 333 (6th Cir. 1978) (right to prompt hearing to

contest denial of benefits); Basel v. Knebel, 551 F.2d 395,

397 n.1 (D.C. Cir. 1977) (challenge to denial of benefits pend-

ing hearing on refusal to renew) ; Zurak v. Regan, 550 F.2d

86, 91-92 (2d Cir.), cert. denied, 433 U.S. 914 (1977) (pro-

cedural rights relating to conditional release of prisoners

eligible for such release after 60 days); Williams v. Wohl-

gemuth, 540 F.2d 168, 167 (3d Cir. 1976) (eligibility for

emergency assistance relief) ; McGill v. Parsons, 532 F.2d 484

(5th Cir. 1976) (pretrial detention) ; Jones v. Diamond, 519

F.2d 1090, 1097-1098 (5th Cir. 1975) (same).

the convictions as well) before his release, and the

district court in fact ruled on both the class certifica-

tion question and the merits of the case before it

became moot.”

But the court of appeals concluded that this Court’s

recognition of an exception to ordinary mootness rules

for transitory actions that are “capable of repetition,

yet evading review” means that the Court also has

rejected the general principle that litigation becomes

moot if the class has not been certified before the

claims of the individual litigants expire. The court

of appeals reasoned (Pet. App. 22a, 24a) that Ger-

stein stands for the proposition that jurisdiction over

*3The court of appeals suggested that this case “shares

many characteristics” with cases that are “capable of repeti-

tion, yet evading review” (Pet. App. 26a). But this suggestion

is unsupportable. Weinstein v. Bradford, supra, unequivocally

establishes that claims relating to the parole release system are

not in this category. There is no basis for concluding here that

persons imprisoned in federal penitentiaries are not likely to

be in “custody long enough for a district judge to certify the

class.”’ Gerstein V. Pugh, supra, 420 U.S. at 111 n.11. Because

only prisoners sentenced to a term exceeding one year are

eligible for parole in the federal system (18 U.S.C. 4205(a),

(b)), it follows that most, if not all, individual claims con-

cerning the parole guidelines will persist long enough to pro-

vide the district court an opportunity to rule on a class certi-

fication motion. (Fed. R. Civ. P. 23(c) (1) directs district

courts to rule on the certification question “[a]s soon as

practicable after the commencement of [the] action.’’)

In this case, almost a full year elapsed between respond-

ent’s second denial of parole and his release from custody.

The district court thus had ample time to rule—and it did

rule—on respondent’s certification request. Moreover, as the

court of appeals concedea (Pet. App. 26a), “some prisoners

will retain their grievances long enough to achieve appellate

review.”

ES SCS: SIE a

the case continues even though the claims of the rep-

resentatives are moot and no class has been certified,

but that courts have discretion to accept or decline

jurisdiction in such eases.

The court of appeals’ reasoning neglects both the

basis of the Gerstein rule and the course of this

Court’s decisions explaining that rule. The adjudica-

tion of individual claims that have expired but are

“capable of repetition, yet evading review” is based

on the “demonstrated probability” (Weinstein v.

Bradford, supra, 423 U.S. at 149) of recurring un-

corrected injury. This probability becomes substan-

tial in a case such as Gerstein where the “individual

could * * * suffer repeated deprivations” if neither

he, nor anyone else, could obtain appellate review of

the claim. 420 U.S. at 110 n.11. The critical fact

in Gerstein was not simply that someone may suffer

injury again. What was critical in Gerstein was that,

if the claim is so inherently transitory that even a

class certification motion cannot reasonably be de-

cided before the claim expires, there is a ‘“demon-

strated probability” that the claim may escape re-

view not only in the first case but in every other case

as well. Although the probability that the claim

would recur for the individual litigant in Gerstein

may not have been demonstrably high, the probability

that the claim would escape review by that individual

should it recur in the future, or by anyone else who

might suffer similar injury in the interim, was very

high indeed. In this situation, the individual litigant

has a “ ‘personal stake in the outcome’” (O’Shea v.

Littleton, 414 U.S. 488, 494 (1974)). That prospect

of repeated, uncorrectable injury supplies the con-

stitutional case or controversy. Once the class action

is certified in such a case, the interests of the class

members support continued jurisdiction over the

case.* See Franks v. Bowman Transportation Co.,

supra, 424 U.S. at 754-756. Gerstein thus states a

“narrow” exception to the principle that the class

must be certified before the individual claims expire;

it does not reverse the rule.* 420 U.S. at 110 n.11.

In the present case, however, it is undisputed that

respondent’s legal claims can be adjudicated fully on

behalf of a properly certified class in another law-

suit. There is thus no basis for a conclusion here

that a substantial probability of recurring, uncorrect-

able injury exists, and Gerstein does not support

respondent.

24 This analysis is not inconsistent with the rule that a

plaintiff whose claims are moot may not represent the class

at certification, see Bailey v. Patterson, supra, 369 U.S. at

32-33. Instead, it recognizes that, in these circumstances, the

individual’s substantial concern that the potentially recurring

conduct would escape review at the behest of himself and all

others if a class is not certified provides him with a suffi-

ciently concrete interest to represent the class of persons

similarly situated at certification.

2° If it did, then Board of School Commissioners v. Jacobs,

supra—which was decided the same day as Gerstein—was in

error. The Court held in Jacobs that a case became moot on

the termination of the named litigants’ claims when “in-

adequate compliance” with the certification procedure of Rule

23 led to the absence of a “duly certified” class.

—w

See

b. The court of appeals also erred in its reliance

on ited Airlines, Inc. v. McDonald, supra. That

ms Ee not discuss or expressly consider any ques-

tion of mootness. Rather, the Court held that a post-

judgment application for intervention by a putative

class member was timely under Fed. R. Civ. P. 24

when it was filed within the period during which the

named plaintiffs could have taken an appeal from the

denial of class certification.

It is true that the Court stated that, on the facts

of McDonald, the “refusal to certify was subject to

appellate review after final judgment at the behest

of the named plaintiffs * * *.” 432 U.S. at 393.%

But the Court was not concerned with named plain-

tiffs whose claims had become moot. Although

“(t]he settlement of an individual claim typically

moots any issues associated with it” (432 USS.

at 400 (Powell, J., dissenting)), the Court did

not regard the “settlement” in McDonald as having

that effect (id. at 398 n.14) :

The characterization of the resolution of the

* * * action as a “settlement” could be slightly

misleading. It is of course true that opposing

counsel agreed upon a disposition that resulted

in dismissal of the complaints. But that agree-

ment came only after the District Judge had

granted motions by some plaintiffs for partial

summary judgment, and there was never any

question about United’s liability in view of [a

previous private action that had established li-

ability]. All that remained to be determined

*° The Court stated that United Airlines had conceded this

much. /bid. But see id. at 400 (Powell, J., dissenting).

was the computation of backpay, and the guiding

principles for that computation had been estab-

lished in [the previous private action]. The

“settlement” ultimately reached merely applied

those principles to the claims in this case.

The Court apparently concluded in McDonald that

what had been labeled as a “settlement” was the

result of and equivalent to a judgment on the merits

in favor of the named plaintiffs. This saved even

the individual claims from mootness.*’

The prevailing party in a case does not lose his

personal stake in a controversy merely because he has

prevailed. See Electrical Fittings Corp. v. Thomas

& Betts Co., 307 U.S. 241 (1939). Many collateral

issues—such as interest, attorneys’ fees, and execu-

tion of the judgment—may remain. The prevailing

party loses his role as an interested adversary only

after he has obtained all the relief he sought and

there are no adverse findings with any collateral sig-

nifiance. 9 Moore’s Federal Practice § 203.06, at 716-

717 (2d ed. 1975); see Aetna Casualty and Surety

Co. v. Cunningham, 224 F.2d 478 (5th Cir. 1955).

27 “A payment of a judgment is not necessarily a bar to

appeal. When a payment of a judgment is made and accepted

under such circumstances as to indicate an intention to finally

compromise and settle a disputed claim, an appeal may be fore-

closed, but, under such circumstances, it is the mutual mani-

festation of an intention to bring the litigation to a definite

conclusion upon a basis acceptable to all parties which bars

a subsequent appeal, not the bare fact of payment of the

judgment.” Gadsden v. Fripp, 330 F.2d 545, 548 (4th Cir.

(1964) (footnote omitted). See also Mancusi v. Stubbs, 408

U.S. 204, 206-207 (1972).

OTUINT. i.

If an otherwise-prevailing party has suffered because

of an adverse class action determination, he has not

obtained all the relief that he sought, and his right to

pursue the appeal may be justified on this basis, as

the Court apparently assumed in McDonald.”

3. The public’s interest in the resolution of a legal

dispute does not supply the requisite case or

controversy

The court of appeals erred in suggesting (Pet.

App. 26a-27a) that several “discretionary elements”

could support an exercise of jurisdiction in this ease.

As the Court stated in Richardson v. Ramirez, 418

U.S. 24, 36 (1974), “purely practical considerations

have never been thought to be controlling by them-

selves on the issue of mootness in this Court.”

For example, although a state court is not subject

to Article III and may choose to adjudicate a moot

controversy “because of its public importance,” the

federal courts are “limited by the case-or-controversy

*8 In Share v. Air Properties G. Inc., 528 F.2d 279, 283 (9th

Cir. 1976), cited by the Court in McDonald (432 U.S. at 393

n.14) for the proposition that a prevailing plaintiff may

appeal the denial of class action certification, the court of

appeals expiained the appellants’ personal stake in the con-

troversy as follows:

It is simply not true * * * that the successful plaintiff

in an individual [damages] action would have no in-

centive to challenge a denial of class status. Presumably,

a reversal of the denial would lead to a greater recovery

and hence lower the proportion of plaintiff’s individual

recovery going to his attorney.

See also Galvan v. Levine, 490 F.2d 1255 (2d Cir. 1973).

requirement of Art. III to adjudication of actual dis-

putes between adverse parties.” Jbid. The court of

appeals’ reference to the fact that “numerous federal

prisoners” are concerned with the resolution of the

legal issues presented in this litigation (Pet. App.

26a) is thus not relevant to the question of justici-

ability in this case.” If the importance of a question

were enough to call for its prompt resolution, there

would be no bar to the issuance of purely advisory

opinions.

The fact that respondent, or at least respondent’s

attorneys, have indicated no “diminution of vigor

in their efforts” (Pet. App. 27a) is similarly irrele-

vant. See Richardson v. Ramirez, supra, 418 U.S.

at 36; Hall v. Beals, 396 U.S. 45, 48 (1969). The

vigor of the attorneys’ representation “cannot alter

the fact”? that respondent’s case is moot. Jbid. In-

deed, if an attorney’s vigor sufficed to create a case

or controversy, there would be no need for plaintiffs,

and the Article III bar on the resolution of “hypo-

thetical or abstract” controversies would be meaning-

*® The court of appeals’ suggestion (Pet. App. 27a) that the

restrictions on interlocutory appeals from class certification

denials (see Coopers & Lybrand v. Livesay, 437 U.S. 463

(1978) and Gardner v. Westinghouse Broadcasting Co., 437

U.S. 478 (1978)) support a finding of jurisdiction in this

case is insubstantial. The rules of appellate jurisdiction can-

not expand the scope of Article III cases or controversies. At

all events, Congress has ample power (if it thinks that the

unavailability of interlocutory appeals is detrimental to plain-

tiffs) to amend 28 U.S.C. 1292 to provide jurisdiction in the

courts of appeals for the review of class action determinations.

less. See Aetna Life Insurance Co. v. Haworth, 300

U.S. 227, 240 (1987).

C. The Proposed Intervention Of Additional Parties In

This Court Cannot Create Jurisdiction In This Case

Respondent’s counsel has filed a motion for five per-

sons to intervene in this Court. If this case were not

already moot, we would not oppose the substitution

or-intervention of any of the proposed intervenors who

otherwise would be proper parties.’ Because the

case is moot. however, this Court has no power to

grant the motion to intervene. In the absence of a

pending case or controversy, there is nothing into

30 Only James Taylor appears to possess claims of the type

initially presented by respondent. Harry Cardillo is scheduled

for mandatory release on July 2, 1979, and thus his claims will

become moot before this Court rules on the intervention mo-

tion. James Rust was released from prison on April 23, 1979;

his claims, like those of respondent, are therefore moot. For'

different reasons, Millard V. Hubbard and David Gillis are

also not proper parties to this suit.

According to information contained in respondent’s motion

in the district court (see note 10, supra), Hubbard was

sentenced by a federal district judge in the Northern Dis-

trict of Illinois in September 1972 to 10 years’ imprisonment.

But Hubbard is not yet serving his federal sentence. Instead,

he is serving a state sentence previously imposed by an Illinois

court. He is thus not currently subject to the federal parole

authority, and it does not appear that he soon will be. His

challenge to the operation of the federal parole system there-

fore lacks ripeness.

Gillis is incarcerated at a federal correctional institution

in North Carolina. Since this case has never been certified

as a nationwide class action (or even as a local class action),

the addition of Gillis to this action would create unnecessary

practical problems. See Starnes v. McGuire, 512 F.2d 918,

929-931 (D.C. Cir. 1974) (en banc).

which new parties can enter. Persons with live claims

must file their own actions.”

A motion to intervene is ancillary to the principal

case. A court has authority under Fed. R. Civ. P. 24

to grant a motion to intervene “in an action” only

when it has jurisdiction over the “action” itself.

Hofheimer v. McIntee, 179 F.2d 789, 792 (7th Cir.),

cert. denied, 340 U.S. 817 (1950):

An existing suit within the court’s jurisdiction

is a prerequisite of an intervention, which is an

ancillary proceeding in an already instituted

suit. * * * [If the main action has] been right-

fully necessarily dismissed, * * * there [is] noth-

ing left in which the movant could intervene.

See also Black v. Central Motor Lines, Zie., 500 F.2d

407 (4th Cir. 1974) ; Glover v. Coffing, 177 F.2d 234

(7th Cir. 1949), cert. denied, 339 U.S. 904.(1950). It

has thus consistently been held that, if the “action”

has become moot before the motion to intervene is

acted upon, the court had no jurisdiction to grant

the motion. “[I]ntervention may not be allowed to

give life to a law suit which does not actually exist

* * * Tor] breathe new life into an action which [is]

no longer justiciable * * *.” * Becton v. Greene Coun-

“ The fact that intervention was sought by another prisoner

before respondent’s claim became moot does not affect this

analysis (see notes 6, 13, supra). That application for inter-

vention was denied by the district court; it became moot prior

to the decision of the court of appeals.

* Rogers V. Paul, 382 U.S. 198 (1965), is consistent with

these decisions. The Court allowed intervention in Rogers of

new parties where the motion was filed before the claims of the

ty Board of Education, 32 F.R.D. 220, 223 (E.D.

N.C. 1963). See also Schmoll Fils, Inc. v. The Fern-

glen, 85 F. Supp. 578 (S.D. N.Y. 1949) ; Levenson v.

Little, 75 F. Supp. 575 (S.D. N.Y. 1948). Because

this case became moot while it was pending in the

court of appeals, the motion to intervene should be

denied. The case should be dismissed outright.

United States v. Munsingwear, Inc., 340 U.S. 36

(1950).

THE DISTRICT COURT DID NOT ERR IN NOT

CONSTRUCTING AND CERTIFYING SUBCLASSES

THAT RESPONDENT NEVER SUGGESTED

The court of appeals’ conclusion that this case is

not moot rests on its conclusion that a class action

was “certifiable.” We have argued above that the

“certifiability” of a class is irrelevant if the case

becomes moot before a class has been certified prop-

erly. Even if the Court disagrees with this argu-

ment, however, it does not follow that a class should

be certified here in order to rescue the case from

mootness. Certification is improper for two reasons.

First, the class action proposed by respondent was

original plaintiffs became moot. The motion may not have

been granted until after the original plaintiffs’ claims be-

came moot, but jurisdiction nonetheless continued in the case

because it had been previously certified as a class action. Jd.

at 199. See Franks v. Bowman Transportation Co., supra. By

contrast, the motions to intervene in this Court were filed

more than 16 months after respondent’s claim became moot,

and the case has not been certified as a class action.

not “certifiable.” Second, even if the construction of

subclasses sometimes is a way to create a “certifi-

able” class, a district court has no obligation to con-

struct and certify subclasses swa sponte. Conse-

quently, the district court properly denied class cer-

tification in this case. Because the denial of certifi-

cation was proper, there is no support for the court

of appeals’ remand for further proceedings.

Respondent sought the certification of a class of

all persons now or in the future eligible for parole.

As the court of appeals concluded (Pet. App. 29a),

‘Certification of such a class would have been im-

proper. The class ‘vould have contained persons

with antagonistic interests. Some prisoners may be

aggrieved by the guidelines, but other prisoners may

find that the guidelines reduce the length of time

they may be expected to serve. And respondent, who

was sentenced after the promulgation of the guide-

lines and resentenced specifically to take the guide-

lines into account, could not represent persons sen-

tenced before (or in ignorance of) the promulgation

of the guidelines. A class cannot be certified when

the interests are antagonistic, or when some portions

of the class have interests not adequately represented

by the named plaintiff. See East Texas Motor Freight

System, Inc. v. Rodriguez, 431 U.S. 395 (1977); Kre-

mens v. Bartley, swpra. These principles are undis-

puted by respondent. It must follow that there was

no “certifiable” class in the case, or at least none

proposed by respondent. Under the court of appeals’

~* approach to jurisdiction, then, the case would be moot

‘unless the district court had an obligation to identify

some certifiable subclass.

A district court has authority under Fed. R. Civ.

P. 23(c) (4) to alleviate difficulties encountered or

anticipated in the management of a class action by

dividing the class into appropriate subclasses. The

creation of such subclasses, as well as the determina-

tion whether any class should be certified, rests in

the discretion of the trial court. Rex v. Owens, 585

F.2d 432, 436 (10th Cir. 1978); Monarch Asphalt

Sales Co. v. Wilshire Oil Co., 511 F.2d 1078, 1077

(10th Cir. 1975). No court had held, prior to the

decision of the court of appeals in this case, that the

district court must identify and construct subclasses

even though the plaintiff has not requested it to do

so.”*

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

to establish the propriety of certifying the class he

88 The court of appeals’ reliance (Pet. App. 30a-3la) on

Samuel v. University of Pittsburgh, 538 F.2d 991 (3d Cir.

1976), is unwarranted. Samuel held that the district Court

erred in concluding that a class action was unmanageable and

that the district court’s decertification of the class was there-

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

action were unmanageable the court should have considered

“the possible usefulness of subclasses” to avoid management

problems. 538 F.2d at 996. The decision does little more than

point out the potential benefits of using subclasses to alleviate

management difficulties; it did not place on the district court

an obligation to create subclasses for the benefit of plaintiffs

who have not sought subclass certification.

has identified in his request for class action certifi-

cation.“ If the proposed class is overbroad or other-

wise inappropriate, the plaintiff must retain the re-

sponsibility of demonstrating the suitability of pro-

ceeding with subclasses. “Counsel for class have

primary responsibility for pressing [a] class action

claim, and 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, 578 F.2d 987, 999 (5th Cir. 1978) (en

banc).

But respondent essentially did no more in this ease.

Respondent never suggested to the district court that

it consider the possibility of subclass certification,

even after petitioners, in opposing the motion to cer-

tify, contended that the proposed class’ was overly

broad (Br. in Opp. to Pet. for Habeas Corpus (filed

Dec. 13, 1976) at 5-6). After the district court de-

nied certification, respondent did not move for re-

“* See, e.g., Rex v. Owens, supra, 585 F.2d at 485; 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 Gir. 1977) (en banc), cert. denied, 435

U.S. 968 (1978); Doctor v. Seaboard Coast Line R.R., 540

F.2d 699, 706 (4th Cir. 1976) ; Davis v. Romney, 490 F.2d

1360 (3d Cir. 1974). See also°8B Moure’s Federal Practice,

{] 23.02-2, at 23-96 (2d ed. 1977); 7A C. Wright & A. Miller

Federal Praciies and Procedure, § 1798, at 244-245 (1972).

*° See also Oppenheimer Fund, Inc. v. Sanders, 487 U.S. 340,

354-359 (1978), and Eisen v. Carlisle & Jacquelin, 417 U.S.

156 (1974) which establish that the plaintiffs (not the de-

fendants or the court) have the principal responsibility for

proposing, managing and bearing the costs of class litigation.

consideration or propose that subclasses be created.

Indeed, even in his brief in the court of appeals re-

spondent did not argue that subclass certification

should have been considered. He argued instead that

the proposed class was not overbroad (Appellant’s

Brief at 23-25), a contention that the court of ap-

peals correctly rejected (Pet. App. 29a). In this

situation, there is no basis to excuse respondent’s

failure to propose subclass certification and to im-

pose that duty on the district court instead.

Rule 23(c) (4) does not direct the district court to

act on its own initiative to construct subclasses when

the proposed class is overbroad.” It is inconsistent

with basic principles of adversary litigation to con-

strue the Rule to impose such an obligation on the

trial court when the plaintiff has failed to suggest

such an alternative.” Placing the burden on the

court rather than on counsel to propose subclass cer-

tification also 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 distriet court. See, e.g., Dothard v. Rawlinson,

%6 Rule 28 differs in this regard from Rule 21, which pro-

vides that the court may add or drop parties “of its own initi-

ative at any stage of the action * * *.” Although the court

is thus expressly authorized to act supra sponte under Rule 21,

major alterations in the structure of the litigation are ordi-

narily left for the parties to propose. See Bass. V. Harbor

Light Marina, Inc., 872 F. Supp. 786, 793 (D. S.C. 1974).

31 Cf, Wilson v. Zarhadnick, 534 F.2d 55, 57 (5th Cir. 1976) :

“The grant, sua sponte, of class action relief when it is neither

requested nor specified, is an obvious error.”

433 U.S. 321, 323 n.1 (1977). Thus, in a similar

context, the court held in Delums v. Powell, 566 F.2d

167, 190-191 (D.C. Cir. 1977), cert. denied, No. 77-

955 (July 3, 1978), that a motion to decertify a class

does not “put anyone on notice” that subclass certifi-

cation was desired as an alternative, and that, since

“no objections were raised to the absence of a sub-

class” at trial, the issue was not preserved for the

appeal.”

The approach of the court of appeals here would

create unmanageable difficulties for district courts.

It would require trial courts to apply their limited

resources in an effort to construct class certification

theories that even plaintiff’s counsel, possessing an

adversarial interest in the litigation, has not imagined

or thought worth raising. By placing this novel bur-

den of advocacy on the district 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 the

efficient use of judicial resources by class action liti-

gants.

** Nothing suggests that an order remanding for considera-

tion of subclass certification is necessary to correct manifest

injustice, see Hormel v. Helvering, 312 U.S. 552, 556-557

(1941), in a case where the plaintiff did not request subclass

certification in the district court or the court of appeals. If

the case is dismissed by the court of appeals and other mem-

bers of the proposed subclass in fact desire to litigate similar

claims, they may initiate a new lawsuit in the district court.

—

Moreover, the court of appeals entertained the un-

realistic assumption that the district courts’ construc-

tion of unproposed subclasses would be beneficial to

class members. “[W]hen a [challenged] action is

one that may be characterized as injurious by only

part of the affected group,” it is frequently prefer-

able simply to deny certification, for the named plain-

tiffs may not represent the entire variety of the af-

fected interests. Phillips v. Klassen, 502 F.2d 362,

366-368 (D.C. Cir.), cert. denied, 419 U.S. 996

(1974). Then plaintiffs whose claims are more typi-

cal of the alleged injuries may begin a separate ac-

tion. Because every subclass must be represented by

a plaintiff at the time of its certification, certifica-

tion of subclasses with divergent interests often will

be impossible with only the original plaintiffs before

the court.” As was stated in Richardson v. Ramirez,

supra; 418 U.S. at 39, a plaintiff “may not represent

a class of which he is not a part.” Nor may he rep-

resent a subclass of which he is not a part. Aber-

crombie v. Lums, Inc., 345 F. Supp. 387 (S.D. Fla.

1972). Thus, when an action is brought by only one

representative plaintiff and it is determined that the

interests of the proposed class fall into opposing

39 The court of appeals suggested that amici curiae might

be appointed “to represent divergent interests of subclasses

(Pet. App, 32a -n.66). This-may be true. But it does not a

plain how the district court can certify the subclass in _

first place if there is no subclass representative before the

court. In order to certify the subclasses under Rule 23, there

must be “representative parties,” and not simply amici curiae,

to protect the interests of each subclass.

camps, an inquiry into subclass certification often

would not be fruitful, even if it had been requested.

The facts of this case illustrate the complexity of

the task the court of appeals has required district

courts to undertake. As the court of appeals recog-

nized (Pet. App. 30a-32a), prisoners serving either

“short” or “long” sentences for the same offense may

have divergent interests in challenging the guidelines.

The interests of prisoners within each of these two

classes may diverge ‘again depending on the category

of their various offenses.“ Moreover, because parole

decisions are made outside the guidelines in some cir-

cumstances, ¢e.g., 28 C.F.R. 2.20(c) and (d), the dif-

fering personal situations of individual prisoners may

result in a further and unpredictable divergence of —

class alignments. There will be still further diver-

gence depending on whether the district judge took

the guidelines into account when sentencing a par-

ticular prisoner. It is all but impossible to determine

whether and to what extentvany individual prisoner

would have fared differently if the guidelines had not

been adopted (see pages 87-88 & n.77, infra). Ac-

cordingly, even if respondent had proposed the crea-

tion of subclasses in this case, it is by no means

evident that denial of certification would have been

an abuse of discretion. Indeed, because respondent

could not have represented the interests of many of

the-possible subclasses, the district court could not

have certified those subclasses at the time class cer-

4° Respondent’s complaint alleged that his offense was rated

too severely under the guidelines (Pet. App. 29a).

tification was proposed. Consequently, class certifi-

cation was properly denied, and the case is moot

even if the court of appeals’ “certifiability” theory

is accepted.

III

THE PAROLE COMMISSION AND REORGANIZA-

TION ACT DOES NOT REQUIRE THE PAROLE

COMMISSION TO CONSIDER THE LENGTH OF A

PRISONER’S SENTENCE IN MAKING PAROLE

RELEASE DETERMINATIONS

The court of appeals ruled that the Parole Com-

mission and Reorganization Act requires that the

Commission’s guidelines for the exercise of paroling

discretion, and its decisions in each case, take into

account the sentence imposed by the court (Pet. App.

45a). For the reasons stated above, the court of

appeals lacked jurisdiction to consider the merits.

But even if the court had jurisdiction, it erred in

reaching this conclusion about the statute. As we

show below, Congress anticipated that the Commis:,

sion would continue its effort to achieve ‘consistency

Moreover, Congress intended. that the’ ight to be

assigned to any factor is to remain “solely within ~*

the province of the ( Commission’ s) broad discretion|”

H.R. Conf. Rep. No. 94-838, 94th Cong., 2d Sess. 28

+ ¢ (1976). The Act thus does not require the Commis-

}

~sion to consider sentence length either in the promul-

gation of guidelines or in the exercise of its discre-

tion in individual parole determinations.”

A. The Purpose Of The Parole Guidelines Is To Achieve

Consistency And Rationality In The Exercise Of The

Commission’s Broad Discretion Over Parole Deter-

minations

The sentence imposed defines the period during

which a prisoner is eligible for parole. Although a

district judge has numerous options available at sen-

tencing,’’ the three options most commonly used are

specified in 18 U.S.C. 4205(a) and (b).“ If a

“The court of appeals did not squarely hold that the

present parole system is invalid. Rather, it directed the dis-

trict court to determine on remand whether the evidence

supports the conclusion that the Commission gives no weight

to sentence length in its parole determination process (Pet.

App. 36a). The Commission admits, however, that no weight

is given under the guidelines to the length of the judicial

sentence, and it has acknowledged this in both courts below

(ibid.). Thus, if the court of appeals had jurisdiction to issue

pronouncements on the merits, its opinion effectively deter-

mines the issue of the validity of the Commission’s parole

procedures, and the hearing on\remand would be a_ mere

formality.

*? A number of these options depend on the mental condi-

tion, age, or drug addiction of the convicted offender. F.g., 18

U.S.C. 4205(c’ (commitment for psychological study), 18

U.S.C. 4216 (offenders 22 to 25 years old at the time of con-

viction), 18 U.S.C. 4251-4255 (narcotic addicts), 18 U.S.C.

5005-5026 (offender less than 22 years old atthe time of con-

viction), 18 U.S.C. 5031-5042 (juvenile delinquents).

*s The provisions of Section 4.05 are a recodification of 18

U.S.C. (1970 ed.) 4202 and 4208 accomplished by the Parole

Commission and Reorganization Act, Pub. L. No. 94-233, 90

Stat. 219-231. Former Sections 4202, 4208 (a) (1), and 4208

prisoner is sentenced under 18 U.S.C. 4205(a) to a

term of imprisonment in excess of one year, he be-

~ comes eligible for parole after serving one-third of

the maximum sentence imposed.*' The court may

sentence the offender under 18 U.S.C. 4205(b) (1)

and designate a minimum term of imprisonment that

establishes parole eligibility at any point between the

beginning of the sentence and one-third of the maxi-

mum. Or the court may impose sentence under 18

U.S.C. 4205(b) (2), in which event the prisoner is

eligible for parole “at such time as the Commission

may determine.” The sentence thus imposed—in con-

junction with the statutory provision requiring dis-

charge on the expiration of the term of © nprison-

ment “less the time deducted for good conduct [under

18 U.S.C. 4161],” 18 U.S.C. 4163 “—establishes the

minimum and maximum period of confinement.

During the period between the prisoner’s first eligi-

bility for parole and his mandatory discharge, the

Commission has substantial discretion. in deciding

(a) (2) are recodified at 18 U.S.C. 4205(a), 4205(b) (1) and

4205 (b) (2). The Act also renamed the Board of Parole as

the Parole Commission.

‘If the sentence is for more than 30 years, the prisoner

' beeomes eligible for parole under 18 U.S.C! \ we igh after

serving 10 years.

*° “Cood time” credits can accumulate to as much as one-

third of the Sentence, but more commonly they amount to ap-

proximately one-quarter of the sentence. Prisoners discharged

on the basis of good time credits under 18 U.S.C. 4163 are

released ‘“‘as if on parole” and come under the supervision

of the Commission until the sentence expires. 18 U.S.C. 4164.

whether to grant parole.’ Under 18 U.S.C. (1970

ed.) 4203(a), which was in effect when respondent

was sentenced, the Commission was entitled to con-

sider the risk of recidivism and any other aspect of

the public welfare in making its decision.*” Under

the present statute, enacted in 1976, the Commission

must consider whether, in view “of the nature and

circumstances of the offense and the history and char-

acteristics of the prisoner, * * * release would * * *

depreciate the serio s of [the] offense or pro-

mote disrespect toeat law.” 18 U.S.C. 4206(a) (1).

regard. Under 18 U.S.C. 4206(d), a prisoner sentenced to

a term of five years or longer is presumptively entitled to

release on parole after he has served two-thirds of his sen-

tence (or 30 years of any sentence in excess of 45 years).

Parole may be withheld thereafter only on a finding by the

Commission that the prisoner has “seriously or frequently

violated institution rules and regulations or that there is a

reasonable probability that he will commit any Federal,

State, or local crime.” Jbid. 4

This provision has no direct relevance to the Commission’s

practice under the guidelines because, to the extent it applies,

it simply displaces the guidelines. 28 C.F.R. 2.53. The pro-

vision has some relevance, however, in understanding Con-

gress’s intent in enacting the other provisions of the Parole

Commission and Reorganization Act. See pages 63-64 & note

58, infra.

718 U.S.C. (1970 ed.) 4203 provided:

If it appears to the Board of Parole * * * that there is

a reasonable probability that ch prisoner will live and

remain at liberty without violat ng the laws, and if in

the opinion of the Board sueh_ release is not incompatible

with the welfare of society, the Board may in its dis-

cretion authorize the release Jf such prisoner on parole.

] {

See also note 46, supra. These standards give the Com-

mission ample if not unlimited discretion; courts have

recognized that under both the new and the old

statute the Commission’s paroling discretion is es-

sentially absolute. E.g., Rifai v. United States Parole

Commission, 586 F.2d 695 (9th Cir. 1978); Brest

v. Ciccone, 371 F.2d 981 (8th Cir. 1967).

Until 1970 the Commission exercised its discretion

case by case, using few published criteria. In response

to widespread criticism that this led to arbitrary and

erratic decisions,“ the Commission, in cooperation

** Both the federal and state parole boards had been criti-

cized severely for the failure to adopt formal standards for

parole decision making. A report of the National Advisory

Commission on Criminal Justice Standards and Goals sum-

marized this shortcoming as follows:

The absence of written criteria by which decisions

are made constitutes a major failing in virtually every

parole jurisdiction. Some agencies issue statements pur-

porting to be criteria, but they usually are so general as

to be meaningless. The sound use of discretion and ulti-

mate accountability rest largely in making visible the

criteria used in forming judgments. Parole Boards must

free themselves from total concern with case-by-case

decision making and attend to articulation of the actual

policies that govern the decision making process.

National Advisory Commission on Criminal Justice Stand-

ards and Goals, Task Force Report: Corrections 418 (1973).

See also N. Morris, The Future of Imprisonment 24-48

(1974) ; D. Stanley, Prisoners Among Us: The Problem of

Parole 50-66 (1976) ; A.’von Hirsch & K. Hanrahan, Abolish

Parole? 7-14 (1978). r

The federal Paroie Board in ‘particular was sharply criti-

cized for its failure to jarticulate an explicit paroling policy:

An outstanding example of completely unstructured

discretionary power that can and should be at least par-

with the Research Centers of the National Council on

Crime and Delinquency, undertook an analysis of its

previous decisions in order to identify the policies and

release criteria implicit in those decisions. These

studies showed that in making parole decisions the

primary concerns were severity of offense, parole

prognosis, and institutional behavior, and that a

fairly accurate prediction of the Commission’s parole

release decisions could be made by knowledge of the

Commission’s evaluations of these three factors.*

As a result of these studies, the Commission began

to experiment with structured release criteria that

took into account the factors that figured most promi-

nently in the Commission’s past decisions—the nature

of the offense and the offender’s personal character-

tially structured is that of the United States Parole

Board. In granting or denying parole, the board makes

no attempt to structure its discretionary power through

rules, pdlicy statements, or guidelines; it does not. struc-

ture through statements of findings and reasons;,it has

no system of precedents * * *.

K.C. Davis, Discretionary Justice 126 (1969). A similar

suggestion for the sdealien of paroling guidelines was made

by the Administrative Conference of the United States. See

Administrative Conference Recommendation 72-3: Procedures

of the United States Board of Parole (adopted June 9, 1972),

2 Recommendations and Reports of the Administrative Con-

ference of the United States 58-62 (1973).

'° See Gottfredson, Hoffman, Sigler & Wilkins, Making

Paroling Policy Explicit, 21 Crime and Delinquency 34, 37

(1975). See also the data discussed in Morris, supra, and

Stanley, supra.

istics.” It ranked offenses by severity and assigned

weights to offender characteristics according to their

statistical value as predictors of recidivism. For each

combination of offense severity and risk of recidivism,

the prisoner and the Parole Commission could find in

a table a range (e.g., 836 to 45 months) that approxi-

mately 80% to 85% of the persons with similar char-

50 Respondent contends (Br. in Opp. at 14-15) that these

studies did not give any role to the length of sentence imposed

by the court because the studies were based on observations

of the Commission’s release decisions in cases involving per-

U.S.C. 5010. ,

The studies focused on Federal Youth Corrections Act sen-

tences because that statute left the Commission almost entirely

free to make decisions, unfettered by minimum sentences or

varying mandatory release dates. See Hoffman, Paroling

Policy Feedback 10 (NCCD Supp. Rep. No. 8, 1973). Youth

cases therefore were ideal for research to determine what

factors the Commission was taking into account. Regular

adult cases might mask the factors: if there was a minimum

time of service before parole eligibility, the Commission would

be forbidden to release a prisoner who might be released

under the Commission’s independent analysis. Similarly, a

disparity in maximum terms might have required the Com-

mission to release a prisoner on good time credits under 18

U.S.C. 4163 who would be retained in prison if the Com-

mission’s weighing of factors prevailed. The indeterminate

nature and uniform length of the Federal Youth Corrections

Act sentences made it possible to isolate the criteria the Com-

mission in fact employed in its parole decisions.

In any event, the question at issue here does not turn on

the origins of the guidelines, but on whether their failure to

consider sentence length contravenes the intent of Congress

in enacting the Parole Commission and Reorganization Act.

. acteristics could expect to serve, with good institu-

tional behavior, before release.”

The research was commenced in 1970, before re-

spondent was sentenced. The use of guidelines based

on the study results was initiated on a trial basis

in one region in 1972 and was significantly revised

and extended throughout the nation in November

1973 (38 Fed. Reg. 31942). The present guidelines

are codified at 28 C.F.R. 2.20. The objective of the

guidelines is to “promote a more consistent exercise

of discretion, and enable fairer and more equitable

decision-making without removing individual case

consideration * * *” (28 °C#.R. 2.20(a)). See also

United States v. DiRusso, 535 F.2d 673, 674 (lst

Cir. 1976). Consistent with this objective, the guide-

lines are not inflexible. For each of six categories of

offense severity, subdivided into four categories of

offender characteristics, the guidelines indicate the

broad, customary range of confinement to be served

by persons with good institutional behavior.“ 28

51 For a history of this development and. a more detailed

description of the system, see Stanley, swpra},Project, Parole

Release Decisionmaking and the Sentencing Process, 84' Yale

L.J. 810 (1975); Hoffman & DeGostin, Parole Decision-

Making: Structuring Discretion, 38 Federal Probation 7-15

(December 1974).

‘2 The 1972 experiment in the Commission’s northeast

region (which includes Pennsylvania, where respondent was

incarcerated) involved a table of factors for the computation

of guideline release ranges similar to those in use today.

53 See Hoffman & tin, supra, 88 Federal Probation at

F\ 9: “By one chet policy range and requiring a writ-

C.F.R. 2.20(b). The guidelines do not establish cus-

tomary ranges of confinement for every conceivable

aioli offense; instead they provide several examples of of-

fenses within each severity level. 28 C.F.R. 2.20(d).

See Garcia v. United States Board of Parole, 557

F.2d 100, 106 & n.6 (7th Cir..1977); Hoffman &

eGostin, Parole Decision-Making: Structuring Dis-

cretion, supra, 38 Federal Probation at 9. Miti-

gating or aggravating circumstances relating to

a particular offense, as well as institutional perform-

ance, may justify a decision outside the guidelines’

ranges.“ 28 C.F.R. 2.20(c), (d), (e). The Com»is-

sion has reserved discretion to depart from the guide-

lines whenever it concludes that the circumstances so

warrant. 28 C.F.R. 2.18, 2.20(c). Moreover, the

Commission has retained authority to revise or

ten explanation for each decision outside this range, the guide-

lines endeavor to structure discretion without removing it,

and thus permit more rational and consistent decisionmaking.

°418 U.S.C. 4206(c) allows the Commission to grant or deny

release on parole notwithstanding the guidelines if it deter-

mines there are good reasons for doing so, provided the Com-

mission gives the ‘prisoner written notification stating the »

reasons and information relied on. Factors suggested by Con-

gress as justifying a parole release determination above the

guidelines were “whether or not the prisoner was involved in

an offense with an unusual degree of sophistication or plan-

ning, or has a lengthy [prison] record, or was part of a large

scale conspiracy er continuing criminal enterprise.’”’ On the

other hand, a decision below the guidelines might be justified

by such factors as “a prisoner’s adverse family or health

situation.” S. Conf. Rep. No. 94-648, supra, at 27; H.R. Conf.

Rep. No. 94-838, supra, at 27.

modify the guidelines when appropriate.” 28 C.F.R.

2.20(g).

B. The Parole Commission and Reorganization Act En-

dorsed The Commission’s Use Of The Parole Guide-

lines And Did Not Require The Commission To

Consider Sentence Length In Making Discretionary

Parole Decisions

In enacting the Parole Commission and Reorganiza-

tion Act in 1976, Congress did not repudiate the

Commission’s choice to exercise its discretion pursuant

to parole guidelines. To the contrary, the Act ex-

pressly directs the Commission to promulgate guide-

lines for the exercise of its power to grant or deny

parole. 18 U.S.C.4203(a)(1), (b). Moreover, in

stating the criteria the Commission is to consider in

making parole release determinations, ‘the Act pro-

vides that such determinations are to be made “pur-

suant to guidelines promulgated by the Commission

***” 18 U.S.C. 4206(a). The Act also provides that

“Tt]he Commission may grant or deny release on

parole notwithstanding the guidelines * * * [only] if

it determines there is good cause for so doing * * *.”

18 U.S.C. 4206(c); see S. Conf. Rep. No. 94-648,

supra, at 27.

55 See also 18 U.S.C. 4203(a) (1). The Commission has rec-

ognized that the use of guidelines might create an unneces-

sarily rigid system to replace the unnecessarily chaotic one

that preceded it. The Commission therefore has reserved the

right to depart from its guidelines in particular cases and to

reexamine the guidelines periodically. See 28 C.F.R. 2.20(g) ;

Gottfredson, Hoffman, Sigler & Wilkins, supra, 21 Crime and

Delinquency at 41; S. Conf. Rep. No. 94-648, supra, at 27;

H.R, Conf. Rep. No. 94-838, supra, at 27.

Congress thus required the Commission to employ

guidelines in the exercise of its discretionary parole

authority. The question in this case is not whether

the adoption and use of parole guidelines is appropri-

ate under the Act; instead it is whether, in provid-.

ing for the use of such guidelines, Congress required

the Commission to consider sentence length as a fac-

tor either in the establishment of the guidelines or

in the application of discretion to depart from the

guidelines for “good cause.” As we will show, neither

the language nor the history of the Act indicates

that Congress intended either requirement.

1. Congress intended the Commission to reduce rather

than to perpetuate tie effects of sentence disparity

a. Nothing in the Act requires the Commission to

consider sentence length in any way. Section 4206,

which establishes the criteria to be applied by the

Commission in making discretionary parole decisions,

does not refer to sentence length. This Section pro-

vides, in quite general terms, that the Commission

may release a prisoner who is eligible for parole if

“upon consideration of the nature and circumstances

of the offense and the history and characteristics of

the prisoner * * * release would not depreciate the

seriousness of his offense or promote disrespect for

the law * * * [or] jeopardize the public welfare.” 18

U.S.C. 4206(a).

These broad criteria form the basis of the guide-

line system. For example, the requirement that the

‘nature and circumstances of the offense” be con-

sidered in parole decisions is reflected in the guide-

lines through (1) the separate rating of offense se-

verity for different categories of offenses and (2) the

specialized rating of offense severity for individual

offenses when “mitigating or aggravating circum-

stances” are present.” 28 C.F.R. 2.20(d). The re-

quirement that the “history and characteristics of the

prisoner” be considered is reflected in the guidelines

by (1) the rating of prisoners into several parole

prognosis categories on the basis of their personal

histories and (2) the retained discretion to depart

from those ratings in individual cases ‘where cir-

cumstances warrant.” 28 C.F.R. 2.20(e). Finally,

the requirement that the Commission consider whether

“release would * * * depreciate the seriousness of

his offense or promote disrespect for the law * * *

[or] jeopardize the public welfare” is reflected in the

broad ranges of customary release dates established

in the guidelines for particular offense categories

and the Commission’s retained discretion to select

an appropriate release date outside the guideline

°° Respondent contended in the court of appeals (Pet. App.

37a) that Section 4206(a) requires the Commission to con-

sider the “nature and circumstances of the offense and the

history and characteristics of the prisoner” on an “individual-

ized” basis. This ¢rgument is inconsistent with the require-

ment of the statute that parole determinations be made “pur-

suant to guidelines” unless there is “good cause” for departing

from the guidelines. 18 U.S.C. 4206(a), (c). In any event,

the guidelines do permit “individualized” consideration of

these factors in all cases where the circumstances warrant.

See 28 C.F.R. 2.20(d), (e). The record reflects that such an

individualized determination was made in this case (A. 6;

Pet. App. 5a).

ranges for “good cause.” 28 C.F.R. 2.20(c). Since

the guidelines properly reflect the parole criteria

established in Section 4206, there is no basis for

concluding that they are invalid because they do not

also provide for consideration of sentence length in

parole decisionmaking.

b. The legislative history of the Act indicates that

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

role guidelines based on offense severity and offender

characteristics *" and that Congress endorsed the Com-

mission’s use of its guidelines to reduce the effects of

sentencing disparity and to achieve a fair and con-

sistent application of its parole authority.

The original version of the Act adopted in the

House of Representatives (H.R. 5727, 94th Cong., 1st

Sess. (1975) ) provided that a prisoner must be re-

leased after serving one-third of his sentence unless

the Commission determines that the prisoner should

not be released because of the prisoner’s recividistic

tendencies, because release would depreciate the seri-

ousness of the crime, or because release would be “‘in-

compatible with the welfare of society.” H.R. Rep.

No. 91-184, 94th Cong., lst Sess. 4-5 (1975). This

presumptive release provision was removed from the

5? In hearings before the appropriate subcommittees of the

House and Senate Judiciary Committees, Maurice H. Sigler,

Chairman of the Parole Board, explained the operation of the

guideline system. See Hearings on Parole Legislation Before

the Subcomm. on National Penitentiaries of the Senate Comm.

on the Judiciary, 95a Cong., 1st Sess. 13-16, 30 (1973) ; Hear-

ings on H.R. 1598 and identical bills Before the Subcomm.

on Courts, Civil Liberties, and the Administration of Justice

of the House Comm. on the Judiciary, 93d Cong., 1st Sess.

127-128 (1973).

Senate version of the bill. The Senate amendment

to the House bill, which was adopted in Conference,

provided that a prisoner was to be eligivle for release

on parole after one-third of his sentence had been

served but that, before granting parole, the Commis-

sion must determine that the prisoner was a proper

candidate for release under the criteria set forth in

Section 4206. S. Rep. No. 94-369, 94th Cong., 1st

Sess. 22, 23 (1975).

As a result of this difference in approach, the

House and Senate versions of this legislation viewed

the role of the guidelines somewhat differently. Un-

der the House bill, the Commission was empowered

to “establish general policies, guidelines, rules, and

regulations * * *, including rules with respect to the

factors to be taken into account in determining

whether or not a prisoner should be released on pa-

role.” On the other hand, the Senate amendment to

the House bill authorized the Commission to “promul-

gate rules and regulations establishing guidelines”

for the power, inter alia, of “granting or denying

parole,” and “such other rules 2nd regulation as are

necessary to carry out a national parole policy * * *.”

S. Rep. No. 94-369, supra, at 2, 3. It was the Senate

version of the guideline provision that was adopted

in Conference.

58 The presumptive entitlement to release that the House

proposed at the completion of one-third of the sentence ulti-

mately was provided, under somewhat altered criteria, at the

two-thirds point. 18 U.S.C. 4206(d) (limited to prisoners

serving a sentence of five years or more). See note 46, supra.

Senator Burdick, a major proponent of the Senate

version of the Act, explained on the Senate floor that

the “rules and regulations” authorized by the legis-

lation “include a set of guidelines adopted by the

Parole Board.” 121 Cong. Ree. 28833 (1975). He

explained the reason why these guidelines should be

incorporated into the statutory scheme (ibid.) :

These guidelines are based on the seriousness

of each criminal offense, and upon those ele-

ments of the offender’s background that are the

best predictors as to whether or not the person

is likely to commit another crime * * *.

The guidelines serve two important purposes:

They carefully structure the vast discretion pres-

ently entrusted to the Federal Parole Authority

and decrease uncertainty as to how much time

the inmate must serve. This structuring of dis-

cretion prevents arbitrary and ill-considered de-

cisionmaking and injects a sense of fair play in

every aspect of the parole process.

Because most release criteria are based upon

data available at the time of conviction, an in-

mate can calculate with great accuracy the time

he is likely to serve.

See also S. Rep. No. 94-369, supra, at 18, 20, 25.

The Conference Committee also expressly approved

the continued use of the guidelines the Commission

had adopted prior to enactment of the new legislation.

[T]he promulgation of guidelines to make parole

less disparate and more understandable has met

with such success that this legislation incorpo-

rates the system into the statute, removes doubt

as to the legality of changes implemented by

administrative reorganization, and makes the

improvements permanent.

S. Conf. Rep. No. 94-648, supra, at 20; H.R. Conf.

Rep. No. 94-838, supra, at 20.° The Conference Re-

ports emphasized that “parole has the practical effect

of balancing differences in sentencing policies and

practices between judges and courts in a system that

is as wide and diverse as the Federal criminal justice

system,” id. at 19, and that it “is important for the

parole process to achieve an aura of fairness by bas-

ing determinations of just punishment on comparable

periods of incarceration for similar offenses commit-

ted under similar circumstances.” * Jd. at 26. See also

5° The court of appeals simply ignored this portion of the

Conference Committee Reports in stating that “the conference

bill did not contain explicit endorsement of the guidelines as

they were currently promulgated” (Pet. App. 43a).

5% The reports continued (S. Conf. Rep. No. 94-648, supra,

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

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 the offender accountable for his own

acts. * * * The use of guidelines * * * will sharpen this

process and improve the likelihood of good decisions.

*° The disparity in criminal sentences has been strongly

criticized. See, e.g., M. Frankel, Criminal Sentences: Law

Without Order (1973). Moreover, attempts by district courts

to reduce sentencing disparity through consultation, sentenc-

ing councils and other devices have not been notably successful.

See, e.g., Diamond & Ziesel, Sentencing Councils: A Study of

Sentence Disparity and its Reduction, 43 U. Chi. L. Rev. 109

(1975). Cf. Zeisel & Diamond, Search for Sentencing Equity:

Sentence Review in Massachusetts and Connecticut, 1977

a er

ne a ee

S. Rep. No. 94-369, supra, at 18. The Conferees em-

phasized that decisions under the guidelines would

“achieve both equity between individual cases and a

uniform measure of justice,” goals that cannot be

achieved unless the Commission applies a uniform

standard of offense seriousness that is independent

of the views of individual sentencing judges. H.R.

Conf. Rep. No. 94-838, supra, at 26. °

The Conferees also stated that, in making parole

release decisions, the Commission should first reach

a judgment on the prospective parolee’s institutional

behavior and then review and consider both the na-

ture and circumstances of the offense and the history

and characteristics of the prisoner. S. Conf. Rep.

No. 94-648, supra, at 25; H.R. Conf. Rep. No. 94-

838, supra, at 25. These are the very factors that

the Commission had employed since 1973 in making

parole decisions under the guidelines. Congress an-

ticipated that the vast majority of parole release

decisions would be based on guidelines incorporating

these factors, and that deviations from the guidelines

would be warranted only on a determination of good

cause. 18 U.S.C. 4206(c); see 122 Cong. Rec. 4861

(1976) (remarks of Sen. Burdick); S. Conf. Rep.

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

A.B.F. Research J. 881. The need of the parole system to off-

set these disparate sentencing policies to achieve a consistent

parole policy was a significant factor in the adoption of the

guidelines method by Congress. See Banks v. United States,

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

94-838, supra, at 23, 27.° Nothing in the legislative

history suggests that a judge’s view of the serious-

ness of an offense always is “good cause” for devia-

tion from the guidelines. To the contrary, Congress

recognized that “[d]eterminations of just punishment

are part of the parole process” and thus approved a

guideline system that gives substantia! weight to the

Commission’s-view of “just punishment.” S. Conf.

Rep. No. 94-648) supra, at 26; H.R. Conf. Rep. No.

94-838, supra, at 26.

The legislative history thus demonstrates that Con-

gress intended the Commission, operating within the

guideline system, to reduce the disparity that is as-

sociated with sentencing by individual judges, who

may give dramatically different sentences to simi-

larly situated offenders. Congress, by approving the

use of guidelines, provided for a fair and more uni-

*! The conferees noted that under the Act, the Commission’s

guidelines “shall provide a fundamental gauge by which

parole determinations are made” and that “[i]f decisions to

go above or below parole guidelines are frequent, the Com-

mission should reevaluate its guidelines.” S. Conf. Rep. No.

94-648, supra, at 26, 27; H.R. Conf. Rep. No. 94-838, supra,

at 26, 27.

As Representative Kastenmeier explained, in describing the

differences between the House and Senate versions and the

compromises reached by the Conference Committee (122

Cong. Rec. 5163 (1976):

The primary disagreement between the House and

Senate was the question of how much discretion should

be retained by the Commission in making release deter-

minations once a prisoner is in fact eligible for parole.

This was resolved by increasing the role of the parole

determination guidelines and by granting the Commission

the option of acting outside the guidelines in extraordi-

nary cases.

Sane Fe he SE a ee ee

form application of the Commission’s paroling discre-

~ tion.” See Banks v. United States, 553 F.2d 37, 40

(8th Cir. 1977). The history of the Act demonstrates

that Congress was aware of how the guidelines op-

erated and intended the Commission to continue to

exercise its broad discretion under the guidelines,

See Garcia v. United States Board of Parole, 557

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

States, supra, 553 F.2d at 40. Congress not only

approved the guidelines but also provided that the

Commission’s exercise of discretion in individual cases

was to be immune from judicial review. 18 U.S.C.

4218(d). The Conference Committee repeatedly em-

phasized that the weighing of factors was absolutely

committed to the Commission’s discretion.” This fully

establishes that the Commission, rather than the

courts, is to decide how much (if any) weight to give

to the sentence actually imposed in a given case. In

the view of Congress and the Commission, it is the

62 “TT]t is the intent of the Conferees that the Parole Com-

mission make certain judgments pursuant to [Section 4206],

and that the substance of these judgments is committed to

the discretion of the Commission.” S. Conf. Rep. No. 94-648,

supra, at 26; H.R. Conf. Rep. No. 94-838, supra, at 25.

“The Conferees are in complete agreement with the Fifth

Circuit holding in Scarpa v. U.S. Board of Parole, 477 F.2d

281 (1973), vacated as moot, 414 U.S. 809, that the weight

assigned to individual factors (in parole decision making) is

solely within the province of the (commission’s) broad dis-

cretion.” Jd. at 28.

“It is the intent of the Conferees that Commission decisions

involving the grant, denial, modification or revocation of

parole shall be considered actions committed to agency dis-

cretion * * *.” Id. at 36.

70 °

nature of the offense itself, and not a particular dis-

trict judge’s evaluation of that offense, that should

be given duminant weight.

2. 18 U.S.C. 4207 does not require the Commission to

give weight to sentence length

Respondent argued in the court of appeals (Pet.

App. 38a) that 18 U.S.C. 4207 requires the Commis-

sion to consider sentence length in individual parole

determinations. This provision directs the Commis-

sion to consider the following specific information

“if available and relevant:” (1) reports and recom-

mendations by the prison staff; (2) the prisoner’s

prior criminal record; (3) presentence investigation

reports; (4) the sentencing judge’s “recommendations

regarding the prisoner’s parole” made at the time of

sentencing,” and (5) reports of physical, mental or

psychiatric examinations of the prisoner. 18 U.S.C.

4207(1)-(5). Obviously, none of these specific pro-

visions requires the Commission to give weight to

sentence length.

*’ The Conference Reports note that “if a judge has not

commented on the sentence or parole of the offender, the Com-

mission is under no duty to solicit such commentary.” S. Conf.

Rep. No. 94-648, supra at 28; H.R. Conf. Rep. No. 94-838,

supra, at 28. It follows that the actual sentence imposed by

the district court is not, by itself, a “recommendation” regard-

ing parole within the meaning of this provision. If, at the

time of sentencing, the court explains its reasons for giving

a particularly harsh or particularly lenient sentence, that in-

formation will be considered by the Commission under 18

U.S.C. 4207 (4).

- rar a anaes aha Mt eT aaa eoe

pep armen + wer

Respondent apparently maintains (Pet. App. 38a),

however, that the Commission must give substantial

weight to sentence length in making parole decisions

because Section 4207 also requires the Commission

to consider such “additional relevant information

concerning the prisoner (including information sub-

mitted by the prisoner) as may be reasonably avail-

able.” It seems unreasonable to assume that, in di-

recting the Commission to consider “additional rele-

vant information,” Congress imposed a requirement

that sentence length be given weight in every case.

It would have been simple enough for Congress to

have specified such a requirement had that been what

Congress intended. But, in any event, the legislative

history makes clear that Congress did not seek to

impose such a requirement. The Conference Reports

state (S. Conf. Rep. No. 94-648, supra, at 28; H.R.

Conf. Rep. No. 94-838, supra, at 28):

The relevance of material before the Commis-

sion is a determination committed to the agency’s

discretion. Moreover, this provision [section

4207] should not be construed as setting out

priorities or assigning weights to the informa-

tion before the Commission in the parole release

process. The Conferees are in complete agree-

ment with the Fifth Circuit holding in Scarpa v.

U.S. Board of Parole, 477 F.2d 281 (1973),

vacated as moot, 414 U.S. 809, that the weight

assigned to individual factors (in parole decision

making) is solely within the province of the

(commission’s) broad discretion.

Because the Commission, in the exekcigdot discretion

that Congress has provided, has détermined that the

length of the judicial ‘sentence is not relevant either

in establishing guidelines or in diseretionary parole

determinations, there is no basis for interpreting

Section 4207 to require the Commission to consider

sentence length as “additional relevant information.”

3. The Constitution does not require the Commission

to give weight to sentence length in discretionary

parole determinations

The court of appeals stated that it had “constitu-

tional doubts” about the.validity of the Act if it does

not require the Commission.to “take account of the

sentence imposed by the court” (Pet. App. 46a) in

its discretionary parole determinations, The court

thought that the Commission’s disregard of sentence

length would erode judicial power, “nullify the dis-

cretion which the trial judges are required to exer-

cise” (id. at 48a-49a), undermine “the constitutional

protections provided by an independent judiciary”

(id. at 50a), and amount to a delegation to the Com-

mission of Congress’ power to “redraft[] the penalty

provisions of the United States criminal code” (id.

at 52a; footnote omitted).

These dire charges are quite unsupported. Noth-

ing that the Commission does changes the sentence

selected by the court or the range of sentences estab-

lished by statute. Congress, courts and the Commis-

sion play independent and distinct roles in the proc-

i a Fa

eh ne

7 e ea

ess of determining how long a prisoner spends in

jail. Congress defines the offenses and sets limits on

sentences that may be imposed by courts. The sen-

tencing court is empowered to select, within these

statutory limits, a maximum and minimum term of

imprisonment. The Commission is free, within these

judicially-set limits, to select the date of release.

Congress has established important restrictions on

the power of courts to prescribe the actual amount

of time any prisoner serves. See pages 52-53, supra.

A court cannot set a parole eligibility date that is

more than one-third of the maximum term it im-

poses. 18 U.S.C. 4205(b) (1). It may not “split” a

sentence between imprisonment and probation un-

less the imprisonment to be served is no more than

six months. 18 U.S.C. 3651. The court may modify

its sentence during the first 120 days after it be-

comes final, but that time cannot be extended. Fed.

R. Crim. P. 35, 45(b).™

The authority to grant parole is vested in the

Parole Commission exclusively. 18 U.S.C. 4203(a)

(1). See United States v. Grayson, 438 U.S. 41, 47

(1978). The Comm n exercises this authority

within the period between the earliest eligibility for

release and the date of mandatory release established

by good time credits. Since parole is not simply a

** This Court has before it the question whether a district

court may revise a lawful sentence on collateral attack when

decisions of the Parole Commission “frustrated the sentencing

judge’s expectations.” United States v. Addonizio, No. 78-

156, argued March 27, 1979.

way of enforcing the court’s sentence, but instead

“originated as a form of clemency,” S. Conf. Rep.

No. 94-648, supra, at 19, there is no reason why

Congress must direct the Parole Commission to “take

account” (Pet. App. 46a) of the sentencing decision

made by the Court. /. decision to afford relief from

a lawfully-imposed sentence thus need not, as a con-

stitutional necessity, give consideration to the initial

assessment of just punishment made by the sentenc-

ing court.”

** The court of appeals also appears to have concluded that

Congress could not delegate to the Commission the power to

determine appropriate terms of incarceration for classes of

violators because that would amount to “redrafting the pen-

alty provisions of the United States criminal code” (Pet. App.

52a). The court’s analysis is based on hyperbole. The Com-

mission’s actions cannot alter the terms of any judicially-

imposed sentence or the penalty provisions of the criminal

laws on which such sentences are based. The guidelines can-

not be applied to detain a prisoner beyond his maximum

release date or to release him before he first becomes eligible

for parole. It is only when the Commission has discretion to

consider parole that its guidelines become applicable.

There is no basis for doubting that Congress may act to pro-

vide for a consistent and fair parole policy to guide the exer-

cise of the Commission’s discretion. Certainly such congres-

sional action is in furtherance of rational purposes. Congress

could even provide that all sentences must be indeterminate,

placing the full power to grant release in the hands of parole

authorities or a form of sentencing commission. (See the Fed-

eral Youth Corrections Act, 18 U.S.C. 5005-5026, which estab-

lishes an indeterminate sentence procedure.) If indeterminate

sentences, which bar courts from any role in selecting a release

date, are not unconstitutional, then the application of the

Commission’s guidelines within judicially-selected ranges can-

not be unconstitutional.

APPLICATION OF THE PAROLE RELEASE GUIDE-

LINES TO PRISONERS WHO WERE SENTENCED

PRIOR TO THE EFFECTIVE DATE OF THE GUIDE-

LINES DOES NOT VIOLATE THE EX POST FACTO

CLAUSE

The court of appeals stated that the guidelines re-

strict the broad discretion that the Commission pre-

viously had exercised in its parole decisions and that,

by unduly structuring the parole process, the guide-

lines deprive prisoners “of the possibility of a sub-

stantially more lenient punishment” (Pet. App. 58a).

The court reasoned that “the possibility of a sub-

stantially more lenient punishment” was a part of

each prisoner’s sentence prior to promulgation of the

guidelines, and that depriving prisoners of this “‘pos-

sibility” would constitute increased punishment in

violation of the Ex Post Facto Clause (id. at 58a-

65a). Although it appeared to the court that the

guidelines act as an “unyielding conduit” to impose

substantial limitations on the Commission’s discretion

to grant parole, and that application of the guidelines

to previously sentenced prisoners therefore violates

the Ex Post Facto Clause, the court directed the dis-

trict court to hold a factual hearing on the issue on

remand.”

66 The court suggested that the guidelines might be constitu-

tional “if in practice the parole authorities found good cause

to deviate from the guidelines in 60% of the cases * * *”

(id. at 64a). The court noted that the Parole Commission

admitted that parole was granted prior to the customary re-

lease date under the guidelines in only 8.7% of the cases

(ibid.).

The court of appeals erred in considering any Ex

Post Facto Clause question. Even if this case is not

moot, and even if the district court had some re-

sponsibility to construct subclasses, no certifiable

subclass could be constructed that presents any ques-

tion about the ex post facto application of the guide-

lines. Respondent was sentenced on January 25, 1974,

two months after the guidelines were promulgated.

Respondent’s sentence was reduced in October 1975

for the sole purpose of taking the effect of the guide-

lines into account (see pages 7-8, supra). Applica-

tion of the guidelines to respondent’s sentence was

fully anticipated by the sentencing judge. Conse-

quently, respondent could not represent any subclass

of prisoners who were sentenced before the adoption

of the guidelines, or any subclass of prisoners for

whom the guidelines produced an unexpected effect.

See East Texas Motor Freight System, Inc. v. Rodri-

guez, supra; Kremens v. Bartley, supra; O’Shea v.

Littleton, 414 U.S. 488, 494 (1974).

If the Court disagrees with this submission, how-

ever, then it must evaluate the court of appeals’

analysis of the ex post facto arguments. That analysis

is flawed in two major respects. First, application

of the parole guidelines to previously sentenced pris-

oners does not deprive them of any preexisting right

or impose any additional punishment. Both before

and after adoption of the guidelines, prisoners had

no right to release on parole at any particular point;

instead, prisoners simply become “eligible” for parole

at the Commission’s discretion. The guidelines do not

affect the date of parole eligibility. They are an exer-

cise, rather than a reduction, of the Commission’s dis-

cretion. They thus do not constitute an ex post facto

law under this Court’s decisions. Second, the guide-

lines do not remove the possibility that a substantially

more lenient punishment may result for individual

prisoners. By providing broad ranges of customary

release dates for various categories of offenders and

offenses, the guidelines do not remove the possibility

that a parole decision wiil be made for an earlier

(or later) release date whenever the circumstances

warrant. 28 C.F.R. 2.20(b), (c), (d), (e), (g).”

A. The Parole Guidelines Are Not A Change Of Law

That Deprives Prisoners Of A Preexisting Right Or

Imposes A Greater Punishment

The Constitution forbids both Congress and the

States from enacting an “ex post facto Law.” Art.

I, § 9, el. 3; Art. I, § 10, cl. 1. This Clause prohibits

enactment of any statute

*? Courts other than the Third Circuit have sustained the

Commission’s practices against challenges based on the Ex

Post Facto Clause. See Zeidman v. United States Parole Com-

mission, No. 78-1590 (7th Cir. Mar. 20, 1979); Rifai v.

United States Parole Commission, supra; Shepard v. Taylor,

556 F.2d 648, 654 (2d Cir. 1977) ; Ruip v. United States, 555

F.2d 1331, 1335-1336 (6th Cir. 1977). But cf. Rodriguez v.

United States Parole Commission, No. 78-2051 (7th Cir.

Mar. 20, 1979), discussed at note 74, infra.

*s Although the Clause applies only to legislative enact-

ments, its terms, enforced through the Due Process Clause,

apply to the actions of the Judicial and Executive Branches

and require fair warning of proscribed conduct and the

penalties attached thereto. Marks v. United States, 430 U.S.

188, 191 (1977). See Rodriguez v. United States Parole

Commission, supra, slip op. 7. We thus concede that ex post

facto principles apply to the Commission’s actions.

which punishes as a crime an act previously

committed, which was innocent when done; which

makes more burdensome the punishment for a

crime, after its commission, or which deprives

one charged with crime of any defense available

according to law at the time when the act was

committed.

Dobbert v. Florida, 432 U.S. 282, 292 (1977), quot-

ing Beazell v. Ohio, 269 U.S. 167, 169-170 (1925).

See Calder v. Bull, 3 U.S. (3 Dal.) 386, 390 (1798).

The Clause does not, however, prohibit every change

of law that “may work to the disadvantage of a

defendant * * *.” Dobbert v. Florida, supra, 432

U.S. at 293. It is intended to secure “substantial

personal rights” from retroactive deprivation and

does not “limit the legislative control of remedies

and modes of procedure which do not affect matters

of substance.” /bid., quoting Beazell v. Ohio, supra,

269 U.S. at 171.

The parole guidelines do not constitute an ex post

facto law under these decisions because they neither

deprive prisoners of any preexisting right nor en-

hance the punishment imposed. The guidelines do

not, of course, affect the maximum term of imprison-

ment that a prisoner may be required to serve. The

statutory range of punishments does that. The guide-

lines do not set the sentence in any case, either. The

judicially-selected term, in combination with “good

time” credits, determines that. 18 U.S.C. 4163. The

guidelines do not affect the minimum term of im-

prisonment that the prisoner must serve; that is de-

termined by the court’s choice among sentencing op-

tions. See 18 U.S.C. 4205(a), (b). The time at

which a prisoner first becomes “eligible” for parole

is thus determined by the sentencing court and the

sentencing statutes and is not affected by the guide-

lines. The guidelines operate only to provide a frame-

work for the Commission’s exercise of its statutory

discretion to grant parole to an “eligible” prisoner.

The court of appeals reasoned, however, that, even

if the guidelines cannot enhance the judicially-im-

posed sentence, they may abridge the prisoner’s pre-

existing right to be considered for parole as soon

as he is eligible (Pet. App. 60a, 62a, 64a).

The court’s reasoning misconceives what it means

to be “eligible” for parole. Eligibility simply means

that the Cemmission has authority to grant parole;

eligibility alone creates no entitlement to or justifi-

able expectation of parole.” Under the statute that

existed prior to the adoption of the guidelines, and

under the new Act as well, the Commission has been

given essentially complete discretion to determine

whether an “eligible” prisoner should be released on

parole. The greater articulation of the components

of this discretion in the new Act did not alter the

fact that the Commission’s determination to grant

or deny parole is “committed to agency discretion.”

18 U.S.C. 4218(d). See also note 62, supra. While

“the 1976 standards may have announced an emphasis

6° Indeed, as we contend in Greenholtz v. Inmates, No. 78-

201, argued Jan. 17, 1979, eligibility for parole does not create

a legitimate claim of entitlement to release. Much of our

reasoning in Greenholtz is applicable to this case as well, and

we have furnished a copy of our brief in Greenholtz to coun-

sel for respondent.

on certain parole release considerations, * * * they

did not abridge the Commission’s authority to em-

phasize others within its discretion.” Rifai v. United

States Parole Commission, supra, 586 F.2d at 699.

Under the new Act as well as the old, “lplarole is

neither a matter of right for the inmate nor a matter

of grace for the state, it is a matter of administra-

tive discretion.” S. Rep. No. 94-369, supra, at 19.’°

Because of this, if the Commission chooses to exer-

cise its discretion to not grant parole to an “eligible”

prisoner—or even to a category of “eligible” prisoners

—these prisoners are not being deprived of their

right to be considered for parole when “eligible.” In-

stead, even though they are “eligible,” the Commis-

sion has exercised its discretion to deny them parole.

Prisoners are not, and never were, entitled to more.

Thus, even if we assume that in some contexts the

See 121 Cong. Rec. 15702 (1975) (“we do not weaken

or change or liberalize the standards applied by the Commis-

sion whether or not the individual is released”) (remarks of

Rep. Kastenmeier, chairman of the responsible subcommit-

tee) ; 121 Cong. Rec. 15710 (1975) (“[T]he standards which

the [Commission] will be applying if this bill is enacted, will

be identical to the standards which the [Commission] relies

on now. They will look at a prospective parolee’s past history

and behavior in the prison and determine: First. Has the

inmate observed the rules of the institution? Second. Will

he be able to remain at liberty without committing further

criminal acts Third. Will his release deprecate the seriousnegs

of the offense so as to undermine soviety’s respect for the

law? Fourth. Will his release be compatible with the wel-

fare of society If, in the opinion of the [Commission], a

prisoner can meet all of these criteria, he will be released.

This is the way the system works now; but, as the system is

currently administered, the [Commission] need not explain

its actions to anyone * * *.”) (remarks of Rep. Gude).

ee ee

guidelines categorically defer parole beyond the “eli-

gibility” date for a particular offender (an assump-

tion that we dispute below), the Commission’s choice

to exercise its discretion in this fashion would not

increase the punishment for the offense nor deprive

the prisoner of any preexisting right." See Rifai v.

United States Parole Commission, supra, 586 F.2d

at 698-699.

Neither Lindsey v. Washington, 301 U.S. 397

(1937), nor Warden v. Marrero, 417 U.S. 653

(1974), on which the court of appeals relied (Pet.

App. 57a-59a), undermines our submission. In Lind-

71 Respondent has suggested (Br. in Op. at 15) that the cus-

tomary release dates under the guidelines “bear no relation

to the ‘customary length of imprisonment’ served prior to

adoption of the guidelines.” None of the sources that describe

the formulation of the guidelines supports respondent’s asser-

tion. Indeed, it has been reported by those involved in the

establishment of the guidelines that the customary parole

practice of various offender categories prior to the adoption of

the guidelines was one of the principal factors used in deter-

mining appropriate customary release dates. See Gottfredson,

Hoffman, Sigler & Wilkins, Making Paroling Policy Explicit,

21 Crime & Delinquency 34, 38-39 (1975) ; Hoffman & Gott-

fredson, Paroling Policy Guidelines: A Matter of Equity 10

(NCCD Supp. No. 9, 1973). Respondent acknowledged in his

complaint (A. 13, para. 42) that the guidelines’ release dates

are derived in large measure from previous parole practice.

In any event, even if the Commission were exercising its

broad discretion in a manner that altered median release

dates, that would not constitute an ex post facto enhancement

of sentences. The prisoner’s eligibility for parole is not altered

by the Commission’s choice to exercise its statutory discretion

in one of two alternative ways. In either situation the pris-

oner is only “eligible” to be paroled in the exercise of the

Commission’s discretion. The discretion has been unaltered.

sey the Court held that the Ex Post Facto Clause

barred application of a statute altering the punish-

ment for a particular crime to conduct occurring

before the amendment was enacted. The amendment

changed the maximum sentence for the crime from

a range of 5 to 15 years to a mandatory sentence of

15 years’ imprisonment. As the Court subsequently

explained in Dobbert v. Florida, supra, 482 U.S. at

300, although Lindsey “received a sentence under the

new law which was within permissible bounds under

the old law,” the defect in the new statute was that

it had “totally eliminated” all discretion for the court

to impose a lighter sentence.

The rationale of Lindsey is not applicable to this

case. The guidelines do not remove the Commission’s

statutory discretion to consider a prisoner for parole

and to release him as soon as he becomes eligible. It

was not the exercise of discretion to impose a severe

penalty that was objectionable in Lindsey; rather, it

was the statutory removal of a preexisting discre-

tion to impose anything else. Dobbert v. Florida,

™ For example, there would have been nothing objection-

able in Lindsey if the statute had not been amended to re-

move the sentencing court’s discretion and the court had

merely concluded, in the exercise of its discretion, that a

particular criminal should receive the maximum term of 15

years, even though the court had previously sentenced simi-

lar offenders to only 5 to 10 years. In the exercise of its

statutory sentencing discretion, the court may revise over

time its assessment of the needs of deterrence and retribu-

tion. It may thus give lesser or greater sentences to different,

though similarly situated, offenders. This is justifiable be-

cause each offender is entitled only to the exercise of the

“ ee ee

supra, 482 U.S. at 300. It makes no sense to say

that the Commission has eliminated its discretion by

exercising it. This is especially so because the Com-

mission has retained authority to revise or modify

its guidelines whenever appropriate. 28 C.F.R. 2.20

(g).

Warden v. Marrero also is consistent with this

conclusion. In that case the Court stated in dicta

that “a repealer of parole eligibility previously avail-

able to imprisoned offenders would clearly present

the serious question under the ex post facto clause

* * * of whether it imposed a ‘greater or more se-

vere punishment than was prescribed by law at the

time of the * * * offense.’” 417 U.S. at 663 (em-

phasis in original), quoting Rooney v. North Dakota,

196 U.S. 319, 325 (1905). For the reasons we have

already discussed, the guidelines do not alter any

prisoner’s statutory “parole eligibility.” A prisoner

who is “eligible” for parole is entitled to be consid-

ered for parole, not to be paroled. If the Commission

determines after applying its guidelines not to parole

a prisoner at his initial eligibility, he has not been

court’s statutory discretion, and not to any particular sen-

tence within the statutory limits.

Similarly, the Parole Commission may revise its discre-

tionary judgments over time—because of either changing

membership or changing assessments of the statutory parole

criteria—concerning the appropriate period of incarceration

before sentenced prisoners of various categories should ordi-

narily be released. The prisoners are entitled to the exercise

of the Commission’s discretion, not to release on parole at any

particular date within the eligibility period.

“deprive[d] * * * of the right to be found qualified.”

Greenfield v. Scafati, 277 F. Supp. 644, 646 (D. Mass.

1967), aff’d, 390 U.S. 713 (1968). He has simply

been found not to be qualified.

B. The Parole Guidelines Do Not Deprive Prisoners Of

The Possibility Of More Lenient Parole Decisions

The guidelines do not categorically defer parole

beyond the initial date of eligibility for any indi-

vidual prisoner or class of prisoners. The guidelines

provide a range of customary release dates for vari-

ous offender and offense categories and do not re-

strict the Commission’s discretion to select any par-

ticular date within those broad ranges. In many

cases (obviously depending on what length of sen-

tence has been imposed), a prisoner’s initial parole

eligibility date will fall within these customary re-

lease ranges. More importantly, however, the Com-

mission may consider a prisoner for release at a date

outside the guideline ranges in any appropriate case.

For example, where there are mitigating circum-

stances relating to a particular offense, the Commis-

sion may rate the prisoner’s offense at a different

severity than the normal guideline rating. 28 C.F.R.

2.20(d). Similarly, where the circumstances war-

*’ The customary release range for a “low” offense severity

and “very good” offender prognosis is 6-10 months. The

greater end of this range exceeds the smaller by approxi-

mately 67%. The customary release range for a “greatest”

offense severity and “poor” offender prognosis is 85-110

months. The greater end of this ra

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