Memorandum — Hijar v. Burrus

—_—_—

j Supreme Court, U.S.

(u) FILED

No. 84-1736 NOX 21 1965

| IOSEPH €. ae re JR.

In the Supreme Court of the Hnited States q

Octopser TERM, 1985

MIGUEL HIJAR, SUPERINTENDENT, FEDERAL PRISON

CAMP AT Boron, CALIFORNIA, PETITIONER

v.

JAMES ROBERT BURRUS

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

SUGGESTING MOOTNESS

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

“BEST AVAILABLE COPY 7 il

TABLE OF AUTHORITIES

Page

Cases: : ;

ee BOE UGE 4 ecccccceccccescee 3

DeFunis v. Odegaard, 416 U.S. 312 ............ 4

Golden v. Zwickler, 394 U.S. 103 .............. 3

Great Western Sugar Co. v. Nelson,

Re gas nc EL, ewes eee 5

Iron Arrow Honor Society v. Heckler,

TY Bubb nuk c wees ¥UbS 66 6ecees be eae

r= 8 Jit % eee 3

Micklus v. Carlson, 632 F.2d 227 .............. 3

Murphy v. Hunt, 455 U.S. 478 ...........0005- 3

North Carolina v. Rice, 404 US 244 .......... 4

SEC v. Medical Committee For Human

CS eS ree 3

Staie ex rel. Otterstetter v. McManus,

309 Minn. 68, 243 N.W. 2d 730 .............. 4

United States vy. Alaska Steamship Co.,

EE ee ee errr ree 5

United States v. Dobson, 585 F.2d 55,

ee, RD koe cc ck cc cccccccecs 4

United States v. Munsingwear, Inc.,

eves eeeeeees 5

United States v. Reed, 620 F.2d 709,

cert. denied, 439 U.S. 899 ........ cece eee ee 4

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Cases—Continued:

Pies v. Sean, Ge Ue GF ovccccncesedéacésen 3

Vun Cannon v. Breed, 565 F.2d 1096 .......... 3

Weinstein v. Bradford, 423 U.S. 147 ......... 3,5

Statutes and regulation:

Interstate Agreement on Detainers,

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CS = MPrrrererrstT rer 3

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Add. CED <ccccccessetsceseeneesnensanene 4

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SD Wa EE ctcceceseucaseeaneeee 2

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Miscellaneous:

Annot., 98 A.L.R. 3d 160 (1980 &

Pree eee 4

In the Supreme Court of the Hnited States

OcToBER TERM, 1985

No. 84-1736

MIGUEL HIJAR, SUPERINTENDENT, FEDERAL PRISON

CAMP AT BORON, CALIFORNIA, PETITIONER

Vv.

JAMES ROBERT BURRUS

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

SUGGESTING MOOTNESS

This case presents the question whether the warden at a

federal prison in California where respondent was incarcer-

ated was properly enjoined from honoring a detainer filed

by the State of Arizona. Respondent brought this action to

prevent the warden from complying with a request by Ariz-

ona under the Interstate Agreement on Detainers (IAD), 18

U.S.C. App. 2, for temporary custody of respondent so that

the State could try him on fraud charges pending there. On

March 7, 1983, the United States District Court for the

Northern District of California entered a permanent injunc-

tion prohibiting the warden from recognizing or giving

effect to the detainer and from transferring respondent to

(1)

2

the custody of Arizona (Pet. App. 22a-24a).' On September

25, 1984, the Ninth Circuit affirmed the judgment and the

permanent injunction (id. at la-20a). The government peti-

tioned for a writ of certiorari, which this Court granted on

October 7, 1985.

While the instant litigation was proceeding, respondent

filed on November 9, 1984, an entirely separate action in the

Central District of California, where he was then incar-

cerated, challenging the calculation of his parole release

date with respect to his federal sentences.? Subsequent to

the time this Court granted review, we learned that

respondent had been ordered released from federal custody

on September 26, 1985, by a magistrate in the Central

District of California in connection with respondent’s

action in that district. The halfway house in Phoenix,

Arizona—where respondent was living—obeyed this order

on September 27. Because, as we also learned when we

investigated the circumstances giving rise to his release,

respondent was in any event scheduled to be paroled on

October 5, 1985,? the Central District case now concerns

‘In doing so, the court apparently concluded that Article III(d) of the

IAD barred respondent's trial in Arizona because the State, having

previously obtained his custody under the IAD, had failed to try

respondent before returning him to the federal penitentiary (see Pet.

App. 23a).

Specifically, respondent’s suit involved whether “split sentences”

(see 18 U.S.C. 3651) should be “aggregated” (see 18 U.S.C. 4161,

4205(a); 28 C.F.R. 2.5) with other consecutive sentences for the purpose

of calculating parole eligibility and good time credit.

3At the time our petition was filed, in the beginning of May 1985, this

case was of course not moot, nor was it clear that it would become moot

before the Court decided it—respondent’s parole date could have been

deferred, or the Court might have rendered a summary decision before

recessing for the summer. Had we known of respondent's anticipated

parole date prior to this Court’s action on the petition, we would of

course have advised the Court of that fact. Still, because of our belief

that the court of appeals had decided an important issue in an incorrect

a ee

3

only an eight-day period of incarceration. The Bureau of

Prisons has concluded that, even were the government to

prevail on the merits in the Central District case, respond-

ent’s re-imprisonment for the eight unserved days prior to

his scheduled parole would be pointless and that respond-

| ent, having now been released, will not be reincarcerated.

| Accordingly, a motion is being filed to dismiss the Central

District case as moot.

Thus, respondent is not now imprisoned and will not be

re-imprisoned unless he commits a new offense or violates

his parole conditions.‘ “Imprisonment” is, however, a

prerequisite for Arizona’s detainer to have effect under the

IAD; if respondent is not incarcerated in a federal prison,

federal prison officials have neither the duty nor the right

under the IAD to “deliver” him for trial in Arizona.> We

manner that would have substantial adverse repercussions in future

litigation, we would have maintained our petition and requested, as we

now do, that the Court vacate the decision of the court of appeals.

‘The possibility that respondent may be reimprisoned by the federal

government because of future misconduct is too attenuated to prevent

mootness. See Lane v. Williams, 455 U.S. 624, 633 n.13 (1982);

Murphy v. Hunt, 455 U.S. 478 (1982); Weinstein v. Bradford, 423 U.S.

147 (1975). See also Jron Arrow Honor Society v. Heckler, 464 U.S. 67,

70-73 (1983); Vitek v. Jones, 436 U.S. 407 (1978); SEC v. Medical

Committee for Human Rights, 404 U.S. 403, 406 (1972); Golden v.

Zwickler, 394 U.S. 103, 108-109 (1969); Vun Cannon v. Breed, 565

F.2d 1096, 1101 (9th Cir. 1977); Allen v. Likins, 517 F.2d 532, 534-535

(8th Cir. 1975); but cf. Micklus v. Carlson, 632 F.2d 227, 232-233 (3d

Cir. 1980).

‘Arizona's detainer was lodged explicitly under the IAD. It is clear

that the IAD has no application to an individual who has been paroled.

Articles III(a) and IV(a) of the IAD, 18 U.S.C. App. 2, at 545-546, have

as a predicate that the detainer be lodged against a “prisoner” who is

. serving a “term of imprisonment” in a penal or correctional institution.

J The IAD speaks throughout of the “prisoner,” his “term of imprison-

ment,” the “State in which the prisoner is incarcerated,” the “place of his

imprisonment,” and “the warden, commissioner of corrections, or other

official having custody of [him].” Further, Articles III(a) and IV(b)

4

understand, moreover, that respondent is residing in

Arizona, and there is nothing in the injunction that is the

subject of the instant case to prevent the State—which is not

a party to this action—from detaining him.* Consequently,

whether the injunction at issue here stands or falls has no

impact upon the parties; this case accordingly presents only

a“ ‘question{] that cannot affect the rights of litigants in the

case before’ ” the Court. DeFunis v. Odegaard, 416 U.S.

312, 316 (1974), quoting North Carolina v. Rice, 404 U.S.

244, 246 (1971). And, since this case does not involve a class

suit, a challenged action of necessarily short duration, or a

reasonable expectation that the controversy will arise for

provide for certification “stating the term of commitment under which

the prisoner is being held, the time already served, the time remaining to

be served on the sentence, the amount of good time earned, the time of

parole eligibility of the prisoner, and any decision{s] of the State parole

agency relating to the prisoner”; Article V(f) states that after the pri-

soner has been turned over to the receiving state, “time being served on

the sentence shall continue to run but good time shall be earned by the

prisoner only if, and to the extent that, the law and practice of the

jurisdiction which imposed the sentence may allow.” See United States

v. Reed, 620 F.2d 709 (9th Cir.), cert. denied, 449 U.S. 880 (1980);

United States v. Dobson, 585 F.2d 55 (3d Cir.), cert. denied, 439 U.S.

899 (1978); State ex rel. Otterstetter v. McManus, 309 Minn. 68, 69-73,

243 N.W. 2d 730, 731-733 (1976); Annot., 98 A.L.R. 3d 160, 185-187

(1980 & Supp. 1985) (“Validity, Construction, and Application of

Interstate Agreement on Detainers”).

*We are advised that the Arizona Court of Appeals has taken the

position that it will not consider the State’s appeal seeking reinstate-

ment of the prosecution against respondent—dismissed by the trial

court (see Pet. App. 37a-38a)—until the instant case is resolved, and the

Arizona prosecutors have decided that they will not detain respondent

until the court of appeals acts. This delay in the state criminal case

proceedings is apparently due to the possibility that this Court would

reach and decide the merits of the IAD issue in the instant case, thereby

settling the merits of the Arizona appéal as well. The fact that non-

parties choose to await its outcome, howevei, cannot keep an otherwise

moot case alive. In any event, if the decision below is vacated by this

Court as moot, that action itself would presumably revive the proceed-

ings in the Arizona courts.

5

these parties again, it is not within the “capable of repetition

yet evading review” doctrine. Weinstein v. Bradford, 423

U.S. 147, 149 (1975). Accordingly, the case is moot. See

United States v. Alaska Steamship Co., 253 U.S. 113, 116

(1920).

The judgment of the court of appeals should therefore be

vacated and the case remanded with directions to vacate the

injunction entered by the district court. See, e.g., Great

Western Sugar Co. v. Nelson, 442 U.S. 92 (1979); United

States v. Munsingwear, Inc., 340 U.S. 36, 39-41 (1950).

Respectfully submitted.

CHARLES FRIED

Solicitor General

NOVEMBER 1985

DOJ-1985-11