# Petitioners Brief — United States Parole Commission v. Geraghty > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0024%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1980 - **Citation:** 445 U.S. 388 ## Text Supreme Coury UB | FILE t No. 78-572 MAY 4 1979 } In the Supreme Court of the Whitey eotates JR., CLERK | od 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 A 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 B. _ became moot when respondent’s claim became moot .................-...--- 5, 2. 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 .................. 21 23 24 31 39 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 41 43 51 52 60 61 70 It 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 72 75 77 84 29 IV 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 VI 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 Ix 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)...... Pe 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 52 63, 64 61, 62 54 67, 86 54, 64 71, 72 52 52 13 52 x 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 xI 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) 2 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. 3 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- A 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 (c) of this section, and pursuant to guidelines 5 promulgated by the Commission pursuant to sec- tion 4203(a) (1), such prisoner shall be released. * * + * * (c) The Commission may grant or deny re- 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 6 (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) * * * (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- 7 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). 8 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). 9 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. 10 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). 11 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 12 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. 13 = 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 14 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 15 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 I 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. 16 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. 17 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. II 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 18 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 19 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 20 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). IV 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 21 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 I 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 22 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. 24 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 25 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, 26 419 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 27 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. 28 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. 29 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. 30 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 31 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 82 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. 33 ~n 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). 34 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 35 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. 36 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 37 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). 38 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. 39 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). 40 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. 41 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). 42 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 43 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). II 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. 44 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’ 45 ~* 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. 46 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. 47 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.” 48 433 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. — 49 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. f 50 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). - 51 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- 52 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 \ 53 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. 54 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). *© Since 1976 this discretion has been slightly altered in one 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. | ] { 55 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- 56 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. ae 57 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- sons sentenced under the Federal Youth Corrections Act, 18 © 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. 58 . 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- f 59 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. 7 60 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. 61 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- 62 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). 63 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 senten [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0024%3A5. Public record. Not legal advice.