Petition for Writ of Certiorari — Scalise v. Thornburgh

89 - 1478 - Supreme Court, US.

No. FILED

IN THE JOSEPH F. SPANIOL, JR,

Supreme Court of the Uni ates

OCTOBER TERM, 1989

JEROME SCALISE and ARTHUR RACHEL,

Petitioners,

RICHARD THORNBURGH and PHILIP T. WHITE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ANNE M. BURKE

Counsel of Record

2650 West 5lst Street

Chicago, Illinois 60632

(8312) 782-7295

EDWARD M. GENSON

MARC W. MARTIN

GENSON, STEINBACK & GILLESPIE

53 West Jackson Boulevard, Suite 1420

Chicago, Illinois 60604

(312) 726-9015

Attorneys for Petitioner Scalise

SIDNEY Z. KARASIK

Counsel of Record

100 West Monroe Street, Suite 911

Chicago, Illinois 60603

(312) 782-7295

Attorney for Petitioner Rachel

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTION PRESENTED

I. Does the Attorney General have a mandatory duty

to make regulations implementing a treaty concerning the

transfer of citizens imprisoned in foreign countries where

the treaty’s enabling statute states that the Attorney

General is authorized to make regulations and the perti-

nent legislative history demonstrates that the Attorney

General was expected to enact regulations?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ...................

TABLE OF AUTHORITIES .................

NE A ke oig 6 cs sin nie ciwdoawen Caneel

EEE SUIT IED oc ecscccastvedeiuspees

STATEMENT OF THE CASE ...............

REASONS FOR GRANTING THE PETITION:

I

THE SEVENTH CIRCUIT’S HOLDING THAT

THE ATTORNEY GENERAL DOES NOT HAVE

A DUTY TO ENACT REGULATIONS IMPLE-

MENTING THE TREATY REGARDING IN-

TERNATIONAL PRISON TRANSFERS CON-

TRAVENES THE TREATY, THE POLICIES

AND LEGISLATIVE INTENT UNDERLYING

18 U.S.C. §4102(4) AND IS IN CONFLICT

WITH OTHER DECISIONS ON MATTERS OF

STATUTORY CONSTRUCTION ............

CRY ves encssacncersdupevausewaene

APPENDICES

A—Opinion and Judgment of the United States

Court of Appeals for the Seventh Circuit,

ee a rrr rrr

B—Opinion of the United States District Court for

the Northern District of Illinois, June 3, 1988. .

11

A-1

B-1

ill

TABLE OF AUTHORITIES

Cases PAGE

Abrams v. Hills, 547 F.2d 1066 (9th Cir. 1976),

vacated, 455 U.S. 1010 (1982) .............. 10

Catron v. Marron, 19 N.M. 200, 142 P. 380 (1914). 10

Chase v. United States, 261 F.2d 833 (8th Cir.

19im, Gd, 266 US. 1 (1921) ............. 10

Estate of Smith v. Heckler, 747 F.2d 583 (10th Cir.

ee ey cob ve vveeeees 10

Hotel Casey Co. v. Ross, 343 Pa. 573, 28 A.2d 737

es ee cee ees eves 10

Jarecki v. G. D. Searle & Co., 367 U.S. 303 (1961) . 10

Miller v. Federal Mine Safety and Health Review

Commission, 687 F.2d 194 (7th Cir. 1982) .. 9

Mills v. United States, 713 F.2d 1249 (7th Cir.

ee ee 9

National Association of Greeting Card Publishers

v. United States Postal Service, 462 U.S. 810

ers cb dnaeesaseseseececes 9

Scalise v. Meese, 687 F. Supp. 1239 (N.D. IIl.

ee ened eheseecverercesse 5

Scalise v. Thornburgh, 891 F.2d 640 (7th Cir.

EEE 6, 7,9, 11

U.S. Sugar Equalization Board v. P. De Ronde &

Ca, @ we eo. Gre Cir. 1925) ............ 10

United States v. Menasche, 348 U.S. 528 (1955)... 10

iv

United States v. Rogers, 461 U.S. 677 (1983) .. 8

Walsh v. Farrington, 105 Vt. 269, 165 A. 914, 915

CRE 4éu¥400400e caravan eee 10

Statutes & Legislative History

S UA © Oe ceedivendcasebss tee 6

De Cw De vos bck vensceouneneeaeeeee passim

MB UBS. GTR oon v0seevaseecdassneueee 2

138 Cong. Roe. BG, GER... ccccccrececusweuns 9

H. Rep. No. 95-720, 95th Cong., Ist Sess. reprinted

im 1977 U.S. Code Cong. & Admin. News 3146. 7, 8,9

Miscellaneous

Pisani & Simon, The United States Treaties on

Transfer of Prisoners: A Survey, 17 PAC. L.

J. S23, SB (19GB)... cccesnscveu mene 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

JEROME SCALISE and ARTHUR RACHEL,

Petitioners,

VS.

RICHARD THORNBURGH and PHILIP T. WHITE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PRAYER

Petitioners Jerome Scalise (“Scalise”) and Arthur Rachel

(“Rachel”) respectfully pray that a writ of certiorari issue

to review the judgment and order of the United States

Court of Appeals for the Seventh Circuit.

ee

a

OPINIONS BELOW

The opinion of the Seventh Circuit Court of Appeals

reversing the district court’s order granting summary

judgment in the petitioners’ favor is reported at 891 F.2d

640 and is attached hereto in Appendix A. The opinion

of the district court, granting summary judgment, is

reported at 687 F. Supp. 1239 and is attached hereto in

Appendix B.

JURISDICTION

On December 19, 1990, the United States Court of Ap-

peals for the Seventh Circuit reversed the district ccurt’s

order granting summary judgment for the petitioners.

This petition is filed within ninety days from the entry

of that judgment. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254.

STATUTE INVOLVED

18 U.S.C. § 4102 provides in pertinent part:

The Attorney General is authorized—

(1) to act on behalf of the United States as the

authority referred to in the treaty;

(2) to receive custody of offenders under a sentence

of imprisonment, on parole, or on probation who are

citizens or nationals of the United States transferred

EEE nn es |

= =

from foreign countries and as appropriate confine

them in penal or correctional institutions, or assign

them to the parole or probation authorities for super-

vision;

. * * *

(4) to make regulations for the proper implementa-

tion of such treaties in accordance with this chapter

and to make regulations to implement this chapter.

STATEMENT OF THE CASE

In 1980, Petitioners Jerome Scalise and Arthur Rachel,

citizens of the United States, traveled to London, England.

While there, they allegedly committed an armed robbery

of a jewelry store. It was alleged that they escaped with

approximately $3.6 million in jewels, including the famous

Marlborough Diamond. Scalise and Rachel were arrested

and convicted in the Old Bailey for violations of the 1968

Theft Act of the United Kingdom and § 18(1) of the

United Kingdom’s Firearm’s Act of 1968. The British

judge imposed prison sentences of fifteen years on both

Scalise and Rachel. Scalise and Rachel commenced ser-

vice of their prison terms on August 6, 1984, and have

been imprisoned across seas ever since.

On July 1, 1985, the United States, the United Kingdom

and several other countries entered into a treaty known

as the Convention on the Transfer of Sentenced Persons

(“the Convention’’). This treaty went into effect on August

1, 1985, and allows prisoners convicted abroad to serve

their sentences in their home country. Treaties regarding

international prisoner transfers serve salutary purposes.

<lllio

As recognized in the recitation of the Convention’s

purpose:

Considering that such cooperation should further the

ends of justice and the social rehabilitation of sen-

tenced persons; Considering that these objectives re-

quire that foreigners who are deprived of their liber-

ty as a result of their commission of a criminal

offence should be given the opportunity to serve their

sentences within their own society; and Considering

that this aim can best be achieved by having them

—— to their own countries. Have agreed as

ollows: ...

Another important purpose of the prison transfer treaty

is that transfers serve to ameliorate the grave hardships

placed upon families of prisoners abroad. See Pisani &

Simon, The United States Treaties on Transfer of

Prisoners: A Survey, 17 PAC. L. J. 823, 829 (1986). The

difficulties and hardships engendered when a loved one

is incarcerated in a far-away land are self-evident and ob-

viously provided an impetus for the present lawsuit.

The authority for impiementation of the Convention is

vested in the Attorney General under the Transfer of Of-

fenders To and From Foreign Countries Act. 18 U.S.C.

§ 4100 et seg. The pertinent portion of this act provides:

The Attorney General is authorized—

_(1) to act on behalf of the United States as the

authority referred to in the treaty;

(2) to receive custody of offenders under a sentence

of imprisonment, on parole, or on probation who are

citizens or nationals of the United States transferred

from foreign countries and as appropriate confine

them in penal or correctional institutions, or assign

them to the parole or probation authorities for super-

vision;

* * *

a

(4) to make regulations for the proper implementa-

tion of such treaties in accordance with this chapter

and to make regulations to implement this chapter.

18 U.S.C. § 4102.

After enactment of the Convention, Scalise petitioned

British and American authorities for a transfer. England

agreed to transfer Scalise conditioned upon the United

States’ agreement. The Justice Department, acting on the

Attorney General’s behalf, refused to agree to the trans-

fer, explaining in a letter to Scalise’s counsel as follows:

The principal factors we took into consideration in

making the decision not to request Mr. Scalise’s

transfer were: the relative seriousness of his offense;

his extensive criminal record; the manner of his re-

turn to the United Kingdom; his “A” security clas-

sification in the United Kingdom, the highest security

category; and, the likelihood that a transfer would

not further his rehabilitation.

Letter from Phillip T. White, Director of the Criminal

Division of the Office of International Affairs of the Jus-

tice Department.

Thereafter, Scalise and Rachel filed a lawsuit in the

Northern District of Illinois. The suit sought an order of

mandamus against the Attorney General, demanding that

he enact the regulations contemplated by 18 U.S.C. § 4102(4).

The plaintiffs also sought an order, decreeing that the

government, in refusing the transfer, had violated their

right to due process.

Scalise and Rachel moved for summary judgment in the

district court. The court granted the motion, finding that

the Attorney General had a mandatory duty to promul-

gate regulations under 18 U.S.C. § 4102(4). Scalise v.

Meese, 687 F. Supp. 1239 (N.D. Ill. 1988) (App. B). Ac-

a

= =

cordingly, the court issued a writ of mandamus, compelling

the Attorney General to enact such regulations. The court

also ruled that it could review the transfer denial under

the Administrative Procedure Act, 5 U.S.C. § 701 et seq.,

and concluded that the denial constituted an abuse of dis-

cretion. The court further found that the plaintiffs had

a liberty interest in the transfer process and deemed the

letter denying the transfer request inadequate and in vio-

lation of the right to procedural due process.

The Attorney General appealed. The Seventh Circuit

reversed, finding that § 4102(4) did not vest a mandatory

duty in the Attorney General. Scalise v. Thornburgh, 891

F.2d 640 (7th Cir. 1989) (App. A). The Seventh Circuit

also ruled that the district court lacked jurisdiction to

review the Attorney General’s denial of the transfer re-

quest. The court deduced that since the Attorney General

had not promulgated guidelines, it had no meaningful stan-

dard against which to judge the agency’s exercise of dis-

cretion, necessary for judicial review under the Admin-

istrative Procedure Act. The court also said that the plain-

tiffs did not have a liberty interest at stake. In this con-

text, the court claimed that particularized standards guid-

ing prison transfer decisions must be shown in order to

create a liberty interest. The court reasoned that no liber-

ty interest was present since the Attorney General was

not required to (and did not) promulgate guidelines.

Scalise and Rachel now petition this Honorable Court

to issue a writ of certiorari.

a,

REASONS FOR GRANTING THE PETITION

I.

THE SEVENTH CIRCUIT’S HOLDING THAT THE AT-

TORNEY GENERAL DOES NOT HAVE A DUTY TO

ENACT REGULATIONS IMPLEMENTING THE TREATY

REGARDING INTERNATIONAL PRISON TRANSFERS

CONTRAVENES THE TREATY, THE POLICIES AND

LEGISLATIVE INTENT UNDERLYING 18 U.S.C. § 4102(4)

AND IS IN CONFLICT WITH OTHER DECISIONS ON

MATTERS OF STATUTORY CONSTRUCTION.

All points raised in this case turn on whether the At-

torney General has a duty to enact regulations implement-

ing the treaty allowing for the transfer of prisoners be-

tween the United States and foreign countries. The per-

tinent statute provides that “(t]he Attorney General is

authorized . . . to make regulations for the proper im-

plementation of such treaties in accordance with this

chapter and to make regulations to implement this

chapter.” 18 U.S.C. § 4102(4).1 The Seventh Circuit ruled

that this language did not require the Attorney General

to enact regulations. Scalise v. Thornburgh, 891 F.2d 640,

644 (7th Cir. 1989). The court reasoned that “(tlhe

language does not provide that the Attorney General

‘shall’ issue regulations, it merely states that he is

authorized to do so.” Id.

1 This statute was passed in 1977, prior to the effective date of

the Convention. There is no dispute that the act was designed

to govern future treaties. See H. Rep. No. 95-720, 95th Cong., 1st

Sess. reprinted in 1977 U.S. Code Cong. & Admin. News 3146,

3146.

noes

~

In terms of statutory construction, resolution of whether

a word suggests a mandatory or permissive duty does not

necessarily depend upon the word itself. This Honorable

Court has instructed that a word’s normal mandatory or

permissive meaning ‘‘can be defeated by indications of

legislative intent to the contrary or by obvious inferences

from the structure or purpose of the statute.” United

States v. Rogers, 461 U.S. 677, 706 (1983). Applying the

Rogers test here, it is plain that the Attorney General

has a mandatory duty to create regulations implementing

the Convention. Accordingly, the decision of the Seventh

Circuit is clearly erroneous and should be reviewed and

reversed.

The legislative history of § 4102 demonstrates that the

Attorney General was expected to implement regulations.

The Committee Report of the House Judiciary Commit-

tee provides:

Standards for Attorney General Consent

Under existing treaties and this legislation the At-

torney General must agree to the receipt or transfer

of an offender. The committee was concerned that

the Attorney General exercise his discretion on this

point-with care. In most cases, and possibly almost

all cases, he should agree to any receipt or transfer,

if the offender requests or voluntarily consents to

such transfer. However they (sic) may be an unusual

situation, involving possibly a dangerous offender, |

where the Attorney General should not agree tw the !

return of the offender, and his immediate eligibility

for parole, to United States. Similarly, there may be

an unusual situation, involving an individual in Amer- |

ican persons(sic), who for matters of future law en-

forcement, continuing investigation, or other national

interests, should not be sent to his home country. The

committee therefore expects the Attorney General to

promptly establish regulations and to provide stan-

- oS

dards and guidelines which will govern the exercise

of his discretion as to his consent to receive or trans-

fer offenders.

H. Rep. No. 95-720, 95th Cong., 1st Sess., reprinted in

U.S. Code Cong. & Admin. News 3146, 3155 (emphasis

added).

The Seventh Circuit blithely dismissed this clear state-

ment indicating that the Attorney General has a manda-

tory duty to implement guidelines, stating that ‘a]n ex-

pression of an ‘expectation’ by one committee of the

House . . . does not establish congressional intent.”’

Scalise, 891 F.2d at 645 [A8]. The lower court’s dismissal

of legislative history renders this case in patent conflict with

prior decisions that have deemed committee reports strong

evidence of congressional intent. See Mills v. United

States, 713 F.2d 1249, 1252 (7th Cir. 1983); Miller v.

Federal Mine Safety and Health Review Commission, 687

F.2d 194, 195 (7th Cir. 1982). Accord National Associa-

tion of Greeting Card Publishers v. United States Postal

Service, 462 U.S. 810, 822 (1983) (relying upon house

report).?

2 The following statement of Representative Brown—not cited by

the Seventh Circuit—provides even more support for the proposi-

tion that the Attorney General is obligated to make regulations:

Certain questions have been raised about the treaty’s poten-

tial for releasing serious offenders back on the streets... .

It should be noted that, under this treaty the Attorney Gen-

eral must agree to the receipt or transfer of any offender. It

has also been recommended that in certain situations, involv-

ing a dangerous offender, that the Attorney General should

not agree to the return of that offender. The Committee on

the Judiciary expects that the Attorney General will prompt-

ly establish regulations and provide standards and guidelines

which will govern the exercise of his discretion to receive or

transfer offenders.

123 Cong. Rec. 35, 022 (emphasis added).

—10—

In light of the foregoing legislative history, there is no

escaping the conclusion that the Attorney General is re-

quired to enact guidelines implementing the Convention.

Section 4102’s use of the term “is authorized” does not

emasculate or lessen the mandatory nature of this duty.

The Seventh Circuit’s holding to the contrary is clearly

erroneous. And, in addition to the conflict manifested in

the lower court’s dismissal of the committee report, the

decision below is in conflict with other decisions inter-

preting the word “authorized”. Indeed, several other cir-

cuits have found that the term “authorized” creates a

duty to act. See Estate of Smith v. Heckler, 747 F.2d 583

(10th Cir. 1984); Abrams v. Hills, 547 F.2d 1066 (9th Cir.

1976), vacated, 455 U.S. 1010 (1982); U.S. Sugar Equaliza-

tion Board v. P. De Ronde & Co., 7 F.2d 981 (8rd Cir.

1925); Chase v. United States, 261 F.2d 833 (8th Cir. 1919),

affd, 256 U.S. 1 (1921). Likewise, several state courts

have held that the term ‘‘authorized” can impose a man-

datory duty to act. See Catron v. Marron, 19 N.M. 200,

142 P. 380 (1914); Hotel Casey Co. v. Ross, 343 Pa. 573,

23 A.2d 737 (1942); Walsh v. Farrington, 105 Vt. 269, 165

A. 914, 915 (1933).

The Seventh Circuit’s interpretation of § 4102 violated

another cardinal rule of statutory construction embraced

by this Honorable Court. It has often been said that a

statute must be interpreted so as to give effect to all of

its terms and should not be interpreted so as to render

some of its terms useless. See Jarecki v. G. D. Searle &

Co., 367 U.S. 303, 307-08 (1961); United States v. Menasche,

348 U.S. 528, 538-39 (1955). By holding that the Attorney

General need not promulgate regulations, the language of

§ 4102 plainly is rendered meaningless and ineffective.

In sum, the district court was wholly correct in issuing

a mandamus directing the Attorney General to promulgate

regulations. Looking to the legislative history, the statu-

iat

tory language and the policies involved, it is plain that

§ 4102(4) imposes a mandatory duty upon the Attorney

General to create regulations regarding internatic al prison

transfers. Furthermore, the Seventh Circuit’s decision re-

versing the district court is erroneous and in conflict with

other decisions, and directives from this Court.? Thus, this

petition should be granted to remedy the injustice here. -

CONCLUSION

WHEREFORE, Petitioners Jerome Scalise and Arthur

Rachel respectfully pray that this Honorable Court grant

this petition and issue a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Seventh Circuit.

Respectfully submitted,

ANNE M. BURKE

Counsel of Record

EDWARD M. GENSON

MARC W. MARTIN

GENSON, STEINBACK & GILLESPIE

Attorneys for Petitioner Scalise

SIDNEY Z. KARASIK

Counsel of Record

Attorney for Petitioner Rachel

3 From a finding that the Attorney General has a duty to promul-

gate guidelines (and failed to do so) it follows, under the lower

court’s opinion, that a mandamus should issue given that the At-

torney General would be in dereliction of a plainly defined and

peremptory duty. Scalise, 891 F.2d at 647-48 [A13-14]. In addition,

it also follows that the petitioners have a viable liberty interest

at stake since the Attorney General’s discretion would be limited

by the regulations. Jd. at 649 [A16-17].

APPENDICES

A-1

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 88-2497

JEROME J. SCALISE, et al.,

Plaintiffs-Appellees,

U.

RICHARD THORNBURGH, et al.,*

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 87 C 7898—Brian Barnett Duff, Judge.

ARGUED FEBRUARY 21, 1989—DeEcIDED DECEMBER 19, 1989

Before Woop, JR., COFFEY, and KANNE, Circuit Judges.

KANNE, Circuit Judge. In this appeal, the Attorney

General contests the district court’s conclusion that

§ 4102(4) of the Transfer of Offenders To and From

Foreign Countries Act, P.L. No. 95-144, 91 Stat. 1212,

18 U.S.C. §§ 4100 et seg. (1977) (“the Act”), requires him

to issue substantive regulations governing his exercise of

discretion in international prisoner transfer decisions. By

virtue of this initial determination, the district court deemed

it proper to exercise ‘“‘“mandamus jurisdiction” under 28

* Richard Thornburgh, Attorney General, is substituted for

Edward Meese, III, former Attorney General, pursuant to Fed.

R. App. P. 43(cX1).

A-2

U.S.C. § 1361 compelling the Attorney General to pro-

mulgate such regulations. This initial determination also

served to underpin the district court’s exercise of jurisdic-

tion under § 701(aX2) of the Administrative Procedure Act,

60 Stat. 237, 5 U.S.C. §§ 701 et seg. (1946), in review-

ing the Attorney General’s decision not to promulgate

such regulations. Finally, the district court concluded that

§ 4102(4) of the Act raised a liberty interest under the

due process clause that was violated in these proceedings

by the Attorney General’s denial of plaintiffs’ transfer re-

quest. In that we conclude that the Attorney General is

not required under § 4102(4) to issue substantive regula-

tions governing his discretion in international prisoner

transfer decisions, we reverse the district court’s: grant

of summary judgment and remand for proceedings consis-

tent with this opinion.

I. FACTUAL BACKGROUND

Plaintiffs below, Jerome Scalise and Arthur Rachel, are

United States citizens. In 1980, they committed an armed

robbery of a jewelry store in London, escaping with jewels

worth $3.6 million, including the famous Marlborough dia-

mond. Scalise and Rachel were arrested and subsequently

convicted in the United Kingdom of robbery and posses-

sion of a firearm with intent to commit an indictable of-

fense in violation of the United Kingdom’s 1968 Theft Act

and Firearms Act of 1968.1 Each was sentenced to 15 years

in prison in the United Kingdom with the sentences to

commence on August 6, 1984. Plaintiffs, however, do not

wish to remain in England during their terms of incar-

ceration.

On July 1, 1985, the United States and the United King-

dom ratified the Convention on the Transfer of Sentenced

Persons (‘‘the Convention’’). This treaty provides for the

transfer of foreign prisoners from the country of their in-

1 Prior to their capture, however, Scalise and Rachel successful-

ly arranged for the jewels to be mailed to the United States. To

the best of this court’s knowledge, these jewels have not yet been

recovered by the British authorities.

a Se

A-3

carceration to their home countries. Under the Tiansfer

of Offenders To and From Foreign Countries Act, the At-

torney General is granted the authority to implement the

Convention.? Specifically, under § 4102(4) of the Act, “(t]he

Attorney General is authorized . . . to make regulations

for the proper implementation of such treaties in accor-

dance with this chapter and to make regulations to imple-

ment this chapter. .. .”

After the Convention went into effect, Scalise and Rachel

sought transfer to the United States under its terms. The

Attorney Generai refused to approve their request. In a

letter to plaintiff's counsel, the Department of Justice, act-

ing on behalf of the Attorney General, explained:

The principal factors we took into consideration in

making the decision not to request Mr. Scalise’s

transfer were: the relative seriousness of his offense;

his extensive criminal record; the manner of his re-

turn to the United Kingdom; his ‘“‘A”’ security clas-

sification in the United Kingdom, the highest security

category; and, the likelihood that a transfer would

not further his rehabilitation.

On September 11, 1988, Scalise and Rachel filed this

action in federal district court seeking a writ of mandamus

or, alternatively, a mandatory injunction to compel the

Attorney General to seek their transfer and to issue sub-

stantive guidelines for his administration of the Conven-

tion. In a subsequent motion for summary judgment, Sca-

lise and Rachel alleged that the Attorney General had

breached a mandatory duty under § 4102(4) of the Act

2 Even though the Act was passed prior to the effective date

of the Convention, all parties to this case agree that the provi-

sions of the Act govern the Convention. See 18 U.S.C. § 1401(k)

(“treaty” means a treaty under which an offender sentenced in ’

the courts of one country may be transferred to the country of

which he is a citizen or national for the purpose of serving the

sentence); H. Rep. No. 95-720, 95th Cong., lst Sess., reprinted in

1977 U.S. Code Cong. & Admin. News 3146, 3146 (“the purpose

of the act is to provide the implementation procedures for offender

transfer treaties with Mexico and Canada as well as for similar

future treaties’’).

A-4

to publish regulations establishing standards for his review

of prisoner transfer requests under international treaties.

Scalise and Rachel further alleged that they had a liberty

interest entitling them to due process in consideration of

their transfer request and that the failure of the Attorney

General to provide them with a hearing prior to denial

of this request violated their fifth amendment rights.

The Attorney General argued that 18 U.S.C. § 4102(4)

does not impose a mandatory duty to promulgate substan-

tive regulations governing his exercise of discretion in

prisoner transfer requests. The Attorney General argued

further that the refusal to seek plaintiffs’ transfers was

reasonable in light of their lengthy criminal records involv-

ing violent crimes and their failure to cooperate in ongoing

law-enforcement efforts to recover the stolen jewels. Final-

ly, the Attorney General argued that the plaintiffs had

no liberty interests in the transfer process entitling them

to a hearing prior to denial of their requests for transfer.

The district court held that § 4102(4), viewed in light

of its legislative history, does impose a mandatory duty

upon the Attorney General to promulgate substantive reg-

ulations governing his exercise of discretion in consider-

ing prisoner transfer requests. Relying on this initial de-

termination, the district court concluded that mandamus

to compel the Attorney General to issue such regulations

was appropriate under 18 U.S.C. § 1361. The district court

also concluded that the Attorney General’s denial of plain-

tiffs’ transfer requests was subject to judicial review under

the Administrative Procedure Act, 5 U.S.C. § 701 et seq.

(“APA”), and that the denial in this case constituted an

abuse of discretion. Finally, with regard to plaintiffs’ pro-

cedural due process claims, the district court stated that

a liberty interest arises whenever a statute or regulation

places limits on the discretion of administrative officials

with regard to transfer decisions. Relying on its earlier

conclusion that § 4102(4) of the Act required the Attorney

General to issue regulatory standards governing his re-

view in prisoner transfer requests, the trial court held

that Scalise and Rachel had a liberty interest in the trans-

fer process which could be denied only through procedures

A-5

mandated by the due process clause. Concluding that the

Attorney General’s letter denying plaintiffs’ transfer re-

quests was an inadequate basis for review of that decision,

the court held that due process required that they be

given a more specific explanation of his decision and an

opportunity to rebut.

II. DISCUSSION

In this appeal, the Attorney General contests each of

the district court’s findings. Most significant, however, is

the appeal of the district court’s initial determination that

§ 4102(4) of the Act compels the Attorney General to issue

substantive regulations governing the exercise of his dis-

cretion in international prisoner transfer decisions. The

Attorney General asserts that § 4102(4) does not impose

such a mandatory obligation. Based on this position, the

ttorney General claims that the district court’s exercise

of mandamus jurisdiction under 28 U.S.C. § 1361 was not

warranted under this court’s precedent. The Attorney

General further argues that § 701(a(2) of the APA pre-

cludes judicial review of his decision in that his determina-

tion is committed to agency discretion by law. Finally,

3 Although this argument was not raised at the district court

level, we conclude that the Attorney General may raise this

jurisdictional issue in this appeal. The Attorney General’s argu-

ment under APA § 701(a) (2) is “jurisdictional” in both its con-

tent and its potential impact. As such, our consideration of this

argument is in line with the “jurisdictional question’”’ exception

to the general rule that an issue not raised in the trial court can-

not be raised for the first time on appeal. See Boyers v. Texaco

Refining & Mktg., Inc., 848 F.2d 809, 811-12 (7th Cir. 1988); John-

son v. Artim Transp. System, Inc., 826 F.2d 538, 548 (7th Cir.

1987), cert. denied, ___ U.S. ___, 108 S. Ct. 1998 (1988), reh’g

denied, ___ U.S. ___, 108 S. Ct. 2919 (1988); Stern v. United

States Gypsum, Inc., 547 F.2d 1329, 1333 (7th Cir.), cert. denied,

434 U.S. 975, 98 S. Ct. 533 (1977); see also Hormel v. Helvering,

312 U.S. 552, 556-57, 61 S. Ct. 719, 721 (1940) (There may be ex-

ceptional circumstances that will prompt a reviewing or appellate

court to consider questions of law which were neither pressed or

passed upon by the court below).

a

A-6

the Attorney General argues that the district court erred

in finding that plaintiffs had a liberty interest entitling

them to due process in consideration of their transfer re-

quests.

Mandatory Duty to Issue Regulations

Under § 4102(4)

In determining whether § 4102(4) imposes a mandatory

obligation to issue substantive regulations governing the

Attorney General’s exercise of discretion, our task is one

of determining the congressional intent. United States v.

Markgraf, 736 F.2d 1179 (7th Cir. 1984), cert. dismissed,

469 U.S. 1199, 105 S. Ct. 1154 (1985). In making this

determination, we have stated that courts should con-

sider “the language of the statute; the legislative his-

tory; and the interpretation given by the administrative

agency charged with enforcing the statute.” Jd. at 1182

(citations omitted). Accordingly, we will proceed in that

order.

Section 4102(4) of the Act, provides that “(t]he Attorney

General is authorized . . . to make regulations for the

proper implementation of such treaties in accordance with

this chapter and to make regulations to implement this

chapter.” (emphasis added). We find no merit in the argu-

ment that this language by itself imposes a mandatory

duty to issue regulations. The language does not provide

that the Attorney General “shall” issue regulations, it

merely states that he is authorized to do so.* Thus, if a

4 We do not intend to sound pedantic in pointing out this distinc-

tion. Congress unquestionably knows how to and is capable of im-

posing mandatory obligations on Executive branch officials to issue

regulations. See, e.g., The Clean Air Amendments of 1970, 42

U.S.C. §§ 7403 et seg., Pub. L. No. 91-604, § 109, 84 Stat. 1676,

1679 (1970):

(aX1) The Administrator—

(A) within 30 days after the date of enactment of the

Clean Air Amendments of 1970, shall publish proposed

regulations . . . .” (emphasis added).

A-7

mandatory duty is to be found in this section, it must

arise from the legislative history.®

The district court’s determination that the Attorney

General is mandated to issue regulations was based pri-

marily on the language of the Committee Report of the

House Judiciary Committee, H. Rep. No. 95-720, 95th

Cong., Ist Sess., reprinted in 1977 U.S. Code Cong. and

Admin. News 3146, 3155.6 This Committee Report expresses

an “expectation” that the Attorney General will issue sub-

5 Under Seventh Circuit precedent, it is proper for a court to

look beyond the express language of a statute in order to give

force to congressional intent only in those situations where the

statutory language is ambiguous, or where a literal interpretation

of the statutory language would thwart the overall purpose of the

statutory scheme. United States v. Stewart, 865 F.2d 115, 116 (7th

Cir. 1988) (quoting United States v. Tex-Tow, Inc., 589 F.2d 1310,

1313 (7th Cir. 1978)). Just as we conclude that this statutory lan-

guage does not impose a mandatory obligation to issue regulations,

we also believe that the context in which this language is stated

does not clearly imply that it is permissive. Thus, the “ambiguous”

nature of the statutory language permits us to examine the legis-

lative history to determine congressional intent.

6 This Report provides in part:

Under existing treaties and this legislation, the Attorney Gen-

eral must agree to the receipt or transfer of an offender. The

committee was concerned that the Attorney General exercise

his discretion on this consent with care. In most cases, and

possibly almost all cases, he should agree to any receipt or

transfer, if the offender requests or voluntarily consents to

such transfer. However, they [sic] may be an unusual situa-

tion, involving possibly a dangerous offender, where the At-

torney General should not agree to the return of the offender,

and his immediate eligibility for parole, to the United States.

Similarly, there may be an unusual situation, involving an in-

dividual in American persons [sic], who for matters of future

law enforcement, continuing investigation, or other national in-

terests, should not be sent to his home country. The committee

therefore expects the Attorney General to promptly establish

regulations and to provide standards and guidelines which will

govern the exercise of his discretion as to his consent to

receive or transfer offenders.

|

A-8

stantive regulations. An expression of an “expectation”’

by one committee of the House, however, does not estab-

lish congressional intent. As the Supreme Court stated

in Pierce v. Underwood, ____ US. , , 108 S. Ct.

2541, 2551 (1988), “it is the function of the courts and not

the Legislature, much less a Committee of one House of

the Legislature, to say what an enacted statute means.”

See also International Brotherhood of Electrical Workers

Local Union No. 474 v. NLRB, 814 F.2d 697, 712 (D.C.

Cir. 1987) (quoting Abourezk v. Reagan, 785 F.2d 1043,

1054 n. 11 (D.C. Cir. 1986), affd 484 U.S. 1, 108 S. Ct.

252 (1987).7 While we recognize that statements made in

committee reports are generally regarded as indicia of leg-

islative purpose, see, e.g., Mills v. United States, 713 F.2d

1249 (7th Cir. 1983), cert. denied, 464 U.S. 1069, 104 S.

Ct. 974 (1984); Miller v. Federal Mine Safety and Health

Review Comm’n, 687 F.2d 194 (7th Cir. 1982), the unique

nature of international prisoner transfer decisions and the

absence of any indication of an obligation in both the Sen-

ate Report and the statutorily enacted language leads us

to reject this “expectation” as expressed in the House

Committee Report as dispositive.

7 Our reluctance to adopt as dispositive this language from the

House Committee Report is premised not only on the lack of sup-

port which this “expectation” receives in either the Senate Report,

see S. Rep. No. 95-435, 95th Cong., Ist Sess., or the statutory lan-

guage as it was finally enacted, but also from the contradictory

nature of the legislative history itself. The uncertain nature of the

legislative history is evidenced by the statements of Rep. Eilberg,

the sponsor of the bill, during floor debates on the date of passage

in the House. Responding to concerns expressed by Rep. Kazen,

Rep. Eilberg emphasized the discretion to be accorded the Attor-

ney General under the provisions of this Act:

[A prisoner] is not automatically entitled to be exchanged to

the United States after conviction and sentence. It would re-

quire the discretionary consent of [the foreign government] and

the discretionary consent of our our [sic] Government, as ex-

ercised here by the Attorney General. . . . The Attorney Gen-

eral would exercise his discretion as he deems reasonable. (em-

phasis added).

A-9

The Act simply authorizes the Attorney General to is-

sue regulations; it does not, however, provide substantive

guidelines by which the Attorney General should exercise

his discretion. Nor does the Act provide guidance in the

issuance of such regulations should the Attorney General

choose to issue regulations.® This fact is important in our

survey of congressional intent in that this discretion which

Congress has bestowed upon the Attorney General in car-

rying out his duties under the Act is reasonable in light

of the unique nature of prisoner transfer decisions. This

court has recognized in Shango v. Jurich, 681 F.2d 1091

(7th Cir. 1982), that prisoner transfer decisions are unique

in that they turn on an assessment of a variety of con-

siderations. As we stated, “interprison transfers obviously

are not ‘mindless events;’ rather ‘[tlransfers between in-

stitutions . . . are made for a variety of reasons and often

involve no more than informed predictions as to what would

best serve institutional security or the safety and welfare

of the inmate.’ ”’ Jd. at 1102 (quoting Meachum v. Fano,

427 U.S. 215, 226, 96 S. Ct. 2532, 2540 (1976)). Although

our decision in Shango revolved around intrastate transfer

decisions made by state prison officials, we believe that

in interprison transfer decisions, whether they be inter-

national or intrastate, the decisionmaking autnority neces-

sarily considers many of the same penological considera-

tions. In this regard, we are not unmindful of the fact

that a salutary purpose of the Convention is to further

the social rehabilitation of international prisoners by pro-

viding for their transfer to their home countries. Contrary

to plaintiffs’ arguments in this appeal, however, we do

not believe that our construction of § 4102(4) necessarily

frustrates this purpose. Moreover, we are reluctant to put

the cart before the horse in ruling that the achievement

8 The Attorney General has published regulations governing the

procedural mechanics of prisoner transfers in accordance with the

discretion granted to him in § 4102(4) of the Act. See 28 C.F.R.

§§ 527.40 et seg., 28 C.F.R. § 0.64-2 plus Appendix, and 28 C.F.R.

§ 0.96b.

A-10

of this purpose should override the assessment of the

necessary penal considerations which entered into the At-

torney General’s decision in this case.

The record indicates that such a discretionary assess-

ment of various considerations was undertaken by the At-

torney General in denying plaintiffs’ requests. In a letter

to Plaintiff's counsel, the Department of Justice, acting

on behalf of the Attorney General, recited the principal

factors it took into consideration in deciding not to re

quest Mr. Scalise’s transfer. The Attorney General high-

lighted the relative seriousness of his offense; his extensive

criminal record; the manner of his return to the United

Kingdom; his “A” security classification in the United

Kingdom, the highest security category; and, the likelihood

that a transfer would not further his rehabilitation. (Ap-

pellant’s Separate App. p. 41). While these considerations

may not appease those most intimately concerned, it is

not our job to second guess the Attorney General’s weigh-

ing of these considerations in his decision-making process.

As we recognized in Shango, “{sjuch discretionary deci-

sions are the business of penologists and ‘are not the busi-

ness of federal judges.’ ”’ Jd. at 1102 (quoting Meachum,

427 U.S. at 229, 96 S. Ct. at 2540).

In reaching our conclusion, we note that our construc-

tion of § 4102(4) is consistent with constructions given to

other similar statutes by both this court and the United

States Supreme Court. In Heckler v. Chaney, 470 U.S.

821, 105 S. Ct. 1649 (1985), the Court was asked to review

a decision on the part of the Food and Drug Administra-

tion (““FDA”’) not to take enforcement actions to prevent

alleged violations of the Federal Food, Drug, and Cos-

metic Act, 52 Stat. 1040, as amended, 21 U.S.C. §§ 301

et seq. (“FDCA’’). Section 372 of the FDCA, the specific

enforcement provision in question, provided that “the Sec-

retary is authorized to conduct examinations and inves-

tigations for the purposes of this Act ... .”” (empha-

sis added). Although the specific issue presented to the

Court was the reviewability of the FDA’s decision under

A-11

§ 701(aX2), it is noteworthy that the Court’s ultimate con-

clusion that the FDA decision was not reviewable was

premised on the underlying determination that the language

of § 372 was permissive and not mandatory in nature.

Likewise, in Arnow v. United States Nuclear Regula-

tory Comm’n, 868 F.2d 223 (7th Cir.), cert. denied sub

nom., Citizens of Illinois v. United States Nuclear Regu-

latory Comm’n, ___. U.S. ___, 110 S. Ct. 61 (1989), this

court interpreted language similar to that contained in

§ 4102(4) of the Act as permissive and not mandatory.

The dispute in Arnow arose under the Nuclear Regulatory

Commission’s interpretation of their obligation to issue

orders under the Atomic Energy Act, 42 U.S.C. §§ 2011

et seq. (“AEA’’). Section 2201(c), the specific provision of

the AEA in question, “authorizes” the NRC to “make

such studies and investigations . . . as the Commission

may deem necessary or proper to assist it in [the]...

enforcement of this chapter.’’ Again, while the specific

issue presented to this court dealt with the reviewability

of the Commission’s final decision denying petitioner’s re-

quest for an issuance of an order, it is instructive that

the language of § 2201(c) was construed as bestowing dis-

cretion upon the NRC in its enforcement of the AEA’s

provisions.°

Finally, in Markgraf, this court was asked to rule on

the nature of the Secretary of Agriculture’s duties under

the Agricultural Act of 1961, 7 U.S.C. § 1981la (1982). This

section provides that, “the Secretary may permit .. . the

deferral of principal and interest on any outstanding loan

. . . and may forego foreclosure of any such loan... .”

Plaintiffs sought to compel the Secretary of Agriculture

to implement § 1981a. Plaintiffs also sought to compel the

Secretary to promulgate regulations providing procedural

® In dicta, this court further implied that the language in 42

U.S.C. § 2201(p) which provides that the NRC is ‘authorized

. to make, promulgate, issue, rescind, and amend such rules

and regulations as may be necessary to carry out the purposes

of this Chapter’”’ was permissive in nature.

A-12

and substantive guidelines governing the Secretary’s deci-

sions whether or not to grant relief in individual cases.

This court held that the Secretary does have a mandatory

duty to “implement” this Act. This conclusion, we held,

was supported both by inferences drawn from the statu-

tory language and the legislative history underlying the

Act’s passage. Of greater importance for the present cir-

cumstances, however, was our conclusion that the Secre-

tary was not under any obligation to promulgate substan-

tive regulations governing his exercise of discretion under

§ 198la. This latter determination was premised in part

on the fact that, although the House version of § 198la

expressly provided for “regulations prescribed by the Sec-

retary”, the final version of the bill as enacted by Con-

gress did not make reference to such “regulations”. We

stated that ‘[t]his deletion of the express requirement of

regulations, although not conclusive, indicates that Con-

gress did not intend to mandate that the Secretary act

through regulations.” Markgraf, 736 F.2d at 1185. Ap-

plying this same reasoning to the issue presented to the

court today, we conclude that Congress did not intend

§ 4102(4) to impose a mandatory obligation on the Attor-

ney General to issue substantive regulations in the exer-

cise of his discretion in prisoner transfer decisions.

As pointed out earlier, a final factor to be considered

in determining congressional intent is the interpretation

given to the statute by the agency charged with enforc-

ing the statutory provision. As we stated in Markgraf,

“fit is a well-established maxim that courts will give sub-

stantial deference to an agency’s interpretation of a stat-

ute that it is charged with enforcing.” /d. at 1183. There

can be no question as to how this consideration cuts under

the present circumstances. The Attorney General’s funda-

mental premise underlying all issues in this appeal is that

§ 4102(4) does not impose a mandatory obligation to issue

substantive regulations governing his exercise of discre-

tion in prisoner transfer decisions.

In sum, based on the statutory language, the lack of

any dispositive evidence in the legislative history, the

A-13

unique nature of prisoner transfer decisions, and the

deference owed to the Attorney General’s interpretation

of this statutory provision, we conclude that § 4102(4) does

not impose a mandatory obligation on the Attorney Gen-

eral to issue substantive regulations. Having so deter-

mined, we proceed to review the propriety of the district

court’s issuance of the writ of mandamus, the district

court’s review of the Attorney General’s denial of plain-

tiffs’ transfer requests, and the conclusion that § 4102(4)

creates a liberty interest that was violated by the Attor-

ney General under these facts.

Writ of Mandamus

Relying on the authority apparently granted by 28 U.S.C.

§ 1361, the district court below issued a writ of mandamus

ordering the Attorney General to promulgate regulations

to govern requests from American citizens incarcerated

abroad for transfer to American prisons. The Attorney

General argues that this action on the part of the district

court was without foundation under the terms of 18 U.S.C.

§ 4102(4). By virtue of our conclusion that § 4102(4) does

not impose a mandatory obligation on the Attorney Gen-

eral, we agree with the Attorney General and hold that

the issuance of a writ of mandamus under this section

was not warranted.

Under 28 U.S.C. § 1361, the “district courts shall have

original jurisdiction of any action in the nature of manda-

mus to compel an officer or employee of the United States

or any agency thereof to perform a duty owed to the

plaintiff.” This grant of jurisdiction, however, has been

substantially limited in scope under the decisions of this

court. Specifically, this circuit has recognized that man-

damus is an “extraordinary remedy” and, as such, may

be invoked only when there is:

(1) a clear right in the plaintiff to the relief sought;

(2) a plainly defined and peremptory duty on the

part of the defendant to do the act in question;

(3) no other adequate remedy available.

A-14

Burnett v. Bowen, 830 F.2d 731, 739 (7th Cir. 1987) (quot-

ing Homewood Professional Healthcare Center, Ltd. v.

Heckler, 764 F.2d 1242, 1251 (7th Cir. 1985)); see also Save

the Dunes Council v. Alexander, 584 F.2d 158, 162 (7th

Cir. 1978) (It is manifest that the judiciary cannot com-

pel through a writ of mandamus a federal official to per-

form any function unless the official is clearly directed by

law to perform such a duty). The statutory provision at

issue in this appeal, 18 U.S.C. § 4102(4), does not satisfy

these jurisdictional prerequisites.

Under this section, the Attorney General does not have

a “plainly defined and peremptory duty” to issue substan-

tive regulations governing his exercise of discretion. As

we concluded above, § 4102(4) does not impose such an

obligation, but rather leaves this to the discretion of the

Attorney General. In the absence of such an obligation

under § 4102(4), the district court’s exercise of mandamus

jurisdiction under § 1361 was not warranted under this

court’s precedent and the writ should be vacated.

Review of Attorney General’s Discretion

Under § 701(a)(2)

The Administrative Procedure Act provides generally

for judicial review of final agency action when a person

has suffered legal wrong as a result of an agency action.

5 U.S.C. § 702. Under § 701(aX2), however, judicial review

is not to be had if the “‘agency action is committed to

agency discretion by law.” The Attorney General’s claim

that the district court was without jurisdiction to review

his denial of plaintiffs’ transfer requests is based on this

statutory exception and the interpretation given to § 701(aX2)

by both this court and the United States Supreme Court.

In Webster v. Doe, 486 U.S. 592, 108 S. Ct. 2047 (1988),

the Court stated, with regard to § 701(aX2), that “review

is not to be had if the statute is drawn so that a court

would have no meaningful standard against which to judge

the agency’s exercise of discretion.” Jd. at ___., 108 S.

Ct. at 2052 (quoting Heckler, 470 U.S. at 830, 105 S. Ct.

at 1655). This interpretation of the language of § 701(aX2)

A-15

was expressly relied upon by this court in Arnow, wherein

we held that we did not have jurisdiction to review a deci-

sion of the Nuclear Regulatory Commission denying a re-

quest from Illinois citizens for the issuance of an order.

868 F.2d at 234; see also Singh v. Moyer, 867 F.2d 1035,

1037-38 (7th Cir. 1989) (In determining whether there is a

meaningful standard for purposes of review under § 701(aX2),

this court looks to: the statutory language, the statutory

structure, the legislative history, and the nature of the

agency action). The same principle that governed our de-

termination in those cases governs our decision here.

In ali of these cases, judicial review of the agency deci-

sion was precluded by virtue of the fact that the review-

ing court would have no law to apply under the statute

in question by which to review the action undertaken by

the agency. The language of § 4102(4) is substantially

similar to those discussed in Webster, Heckler and Arnow.

Section 4102(4) provides that “(t]he Attorney General is

authorized . . . to make regulations for the proper imple-

mentation of such treaties ... .”’ This language, by itself,

certainly does not provide the reviewing courts with any

guidance. Furthermore, no other provisions of the Act

provide for any standards by which the Attorney General

could measure his conduct in exercising his authority un-

der § 4102(4). In the absence of any standards upon which

this court could review the Attorney General’s discretion-

ary authority, and in light of our earlier determination

that § 4102(4) does not impose a mandatory obligation to

issue such substantive regulations, we conclude that Con-

gress has provided no “meaningful standard”’ for review-

ing the Attorney General’s conduct and, as such, has com-

mitted these determinations to the Attorney General’s

discretion. Accordingly, we hold that the district court did

not have jurisdiction under § 701(aX2) to review the At-

torney General’s denial of plaintiffs’ requests.

Liberty Interest

The district court’s determination that the provisions

of the Act create a liberty interest under the due proc-

|

A-16

ess clause of the fifth amendment in favor of those pris-

oners seeking an international transfer was premised, in

large part, on the Supreme Court’s reasoning in Olim v.

Wakinekona, 461 U.S. 238, 103 S. Ct. 1741 (1983). In

Olim, an interstate prisoner transfer case, the Court

stated that a liberty interest would be implicated in

prisoner transfer decisions where the statute or adminis-

trative regulation places substantive limitations on the

discretion of the administrative officials. Jd. at 249, 103

S. Ct. at 1747; see also Meachum, 427 U.S. at 228, 96

S. Ct at 2540; Montanye v. Haymes, 427 U.S. 236, 243,

96 S. Ct. 2548, 2547 (1976).!° Applying this rationale to

its earlier conclusion that § 4102(4) does impose a man-

datory obligation on the Attorney General to issue sub-

stantive regulations governing his exercise of discretion,

the district court concluded that plaintiffs’ due process

rights were implicated and that the Attorney General’s

actions in this case did not protect the due process rights

to which the plaintiffs were allegedly entitled.

As the Court stated in Olim, however, before a pro-

tected liberty interest can be said to have been created,

“an inmate must show ‘that particularized standards or

criteria guide the State’s decisionmakers.’”’ 461 U.S. at

249, 103 S. Ct. at 1747 (quoting Connecticut Board of Par-

dons v. Dumschat, 452 U.S. 458, 467, 101 S. Ct. 2460,

2465 (1981) (Brennan, J., concurring); see also Campbell

v. Miller, 787 F.2d 217, 223 (7th Cir.), cert. denied, 479

U.S. 1019, 107 S. Ct. 673 (1988). This standard has most

recently been reiterated by the Court in Kentucky Dep’t

of Corrections v. Thompson, ___. U.S. ___, 109 S. Ct.

1904 (1989). In Thompson, the Court held that prisoners

10 Like the district court below, we have found no authority on

the liberty interests, if any, of American citizens imprisoned in

foreign countries who seek international prison transfers. We be-

lieve, however, that there is no reason to treat these prisoners

seeking international prison transfers differently from American

prisoners who claim a due process right to be, or not to be, trans-

ferred interstate from prison to prison.

A-17

could not establish a liberty interest in receiving certain

visitors without first showing that the regulations in ques-

tion contained “specific directives to the decisionmaker

that if the regulations’ substantive predicates are present,

a particular outcome must follow. .. .” Jd. at ___, 109

S. Ct. at 1910. We have already concluded that the Attor-

ney General is not obiigated under § 4102(4) of the Act to

issue substantive regulations governing his exercise of dis-

cretion. Further, under the standard set forth in Thomp-

son, plaintiffs cannot point to any language in the Act

that would support an assertion that their transfer was

required upon the satisfaction of certain “substantive

predicates.” As such, plaintiffs have failed to show the

“‘particularized standards or criteria” necessary to estab-

lish the existence of a liberty interest in this context. Ac-

cordingly, we reverse the district court’s determination

that § 4102(4) raises a liberty interest in prisoners seek-

ing international prison transfers."

For the foregoing reasons, the decision of the district

court granting plaintiffs’ motion for summary judgment

is reversed and remanded for proceedings consistent with

this opinion.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

't We need not address the propriety of the Attorney General’s

actions under a due process analysis since we find that § 4102(4)

does not raise a due process right.

A-18

JUDGMENT—ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

December 19, 1989.

Before

Hon. HARLINGTON Woop, JR., Circuit Judge

Hon. JOHN L. Correy, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

JEROME J. SCALISE and ARTHUR RACHEL,

Plaintiffs-Appellees,

No. 88-2497 VS.

RICHARD THORNBERG, et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 87 C 7898—Brian Barnett Duff, Judge.

This cause was heard on the record from the United

States District Court for the Northern District of [linois,

Eastern Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND AD-

JUDGED by this Court that the judgment of the said

District Court in this cause appealed from be, and the

same is hereby, REVERSED and REMANDED, with

costs, in accordance with the opinion of this court filed

this date.

B-1

APPENDIX B

[687 F.Supp. 1239]

Joseph Jerome SCALISE, et

al., Plaintiffs,

Ve

Edwin MEESE III, Attorney General of

the United States, et al., Defendants.

No. 87 C 7898.

United States District Court,

N.D. Illinois, E.D.

June 3, 1988.

* * * *

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

Plaintiffs Joseph Scalise and Arthur Rachel are in a jail

in a land far, far away. They want to come home. The

Attorney General of the United States has the power to

grant their wish, but he refuses to exercise it. Plaintiffs

seek a writ of mandamus ordering the Attorney General

to establish regulations which would govern the grant or

denial of their request, as well as an order finding the

Attorney General’s refusal a violation of their due proc-

ess rights. They have moved for summary judgment on

their complaint. This court has jurisdiction under both the

general federal subject matter jurisdiction statute, 28

U.S.C. § 1331, and the federal mandamus statute, 28

a

B-2

U.S.C. § 1361.1 For the reasons set forth below, plain-

tiffs’ motion will be granted and the writ of mandamus

will issue.

BACKGROUND

Five years ago, plaintiffs, citizens of the United States,

went to London, England for a trip. While they were

there, they armed themselves with a firearm and robbed

a jewelry store. They escaped with around $3.6 million

dollars in jewels, including the famous Marlborough Dia-

mond.

They did not remain free long. The British authorities

soon caught up with them, though not with the stolen

jewels. Plaintiffs were tried and convicted in the Old

Bailey for violations of the 1968 Theft Act of the United

Kingdom and § 18(1) of the United Kingdom’s Firearm’s

Act of 1968. The British judge sentenced them to fifteen

years in prison, with their terms of imprisonment com-

mencing August 6, 1984.

Under British law, plaintiffs will be eligible for release

in July, 1998, although they will apparently be eligible

for ‘parole license’’, a term with which this court is not

familiar, in July of this year.

In any case, plaintiffs do not wish to remain in England.

Beginning shortly after their incarceration, they began in-

quiring into the possibility of their being transferred to

1 28 U.S.C. § 1361 provides:

The district court shail have original jurisdiction over any ac-

tion in the nature of mandamus to compel an officer or em-

ployee of the United States, or any agency thereof, to per-

form a duty owed to plaintiff.

B-3

the United States to serve out their sentences. On July

1, 1985, the United States and the United Kingdom, in

conjunction with a number of other countries, ratified the

Convention on the Transfer of Sentenced Persons (‘‘the

Convention’’). This treaty, which went into effect August

1 of that year, provides for the transfer of foreign pris-

oners from the country of their incarceration to their

home countries.

In the United States, authority for the implementation

of the Convention is vested with the Attorney General

under the Transfer of Offenders To and From Foreign

Countries Act (“the Act”), P.L. No. 95-144, 91 Stat. 1212,

18 U.S.C. § 4100 et seq.2 The Act provides, in pertinent

part:

Section 4102. Authority of the Attorney General

The Attorney General is authorized—

(1) to act on behalf of the United States as the au-

thority referred to in the treaty;

(2) to receive custody of offenders under a sentence

of imprisonment, on parole, or on probation who are

citizens or nationals of the United States transferred

from foreign countries and as appropriate confine

them in penal or correctional institutions, or assign

them to the parole or probation authorities for

supervision;

2 Although the Act was passed and went into effect in 1977, all

parties to this case agree that the Act governs the Convention.

See 18 U.S.C. § 4101 (‘(k) ‘treaty’ means a treaty under which

a foreign offender sentenced in the courts of one country may be

transferred to the country of which he is a citizen or national for

the purposes of serving the sentence.”’); H.Rep. No. 95-720, 95th

Cong., lst Sess., reprinted in 1977 U.S.Code Cong. & Admin.News

3146, 3146 (“The purpose of [the Act] is to provide the implemen-

tation procedures for offender transfer treaties with Mexico and

Canada as well as for similar future treaties.’’) (Emphasis added).

B-4

(4) to make regulations for the proper implementa-

tion of such treaties in accordance with this chapter

and to make regulations to implement this chapter

After the Convention went into effect, plaintiffs wrote

letters to both the British and the American authorities

requesting transfer to American prisons. The British au-

thorities told them that England would agree to their

transfer, provided that the United States did likewise. The

Justice Department, acting on behalf of the Attorney

General, however, declined their request. In a letter from

Phillip T. White, Director of the Criminal Division of the

Office of International Affairs of the Justice Department,

to Anne M. Burke, attorney for Plaintiff Joseph Scalise,

the Justice Department explained its decision:

This is in reply to your letter of August 29, 1986.

The principal factors we took into consideration in

making the decision not to request Mr. Scalise’s

transfer were: the relative seriousness of his offense;

his extensive criminal record; the manner of his

return to the United Kingdom; his “A” security clas-

sification in the United Kingdom, the highest security

category; and, the likelihood that a transfer would

not further his rehabilitation.

Plaintiffs contend that the Attorney General has violated

the Act and the Due Process Clause by failing to pro-

mulgate regulations and guidelines governing requests for

transfer under the Convention, and by refusing to give

them a hearing on their requests.

The Attorney General, in turn, contends that the Act

does not require him to promulgate regulations or guide-

lines, and that he may deal with such requests on an ad

hoc basis pursuant to internal (and undisclosed) criteria.

B-5

He insists that his decision in this case was well within

the permissible discretion granted to him by the Act. The

Attorney General also argues that the Convention and the

Act create no legitimate expectations for American pris-

oners incarcerated abroad and, accordingly, that his

refusal to provide plaintiffs a bearing on their requests

cannot violate the Due Process Clause.

What the Attorney General does not do, however, is

to provide this court with any evidentiary material to op-

pose plaintiffs’ summary judgment motion. The Attorney

General states: that plaintiffs mailed the stolen jewels to

American before they were caught and that the British

authorities are continuing their investigation to locate the

jewels; that plaintiffs have extensive criminal histories;

that they have demonstrated no remorse for their con-

duct; that they would be immediately eligible for parole

if they were transferred to this country; and that they

would be a threat to their communities. Yet, he presents

not a single shred of evidence to support these factual

assertions. Such unsupported assertions are inadequate in

a motion for summary judgment, and therefore will not

be considered by this court in its resolution of the motion.3

DISCUSSION

Plaintiffs’ complaint and motion for summary judgment

can best be divided into three parts. The first part seeks

a writ of mandamus ordering the Attorney General to pro-

mulgate regulations and guidelines as allegedly required

by the Act. The second asks this court to review and

reverse the Attorney General’s administrative decision to

3 The court notes that the Attorney General did not indicate that

it needed more time before responding to plaintiffs’ motion.

B-6

deny their transfer requests. The third seeks a declara-

tion that the Attorney General has violated their due

process rights, and an order granting them an adminis-

trative hearing on their request.

The Writ of Mandamus

For a court to grant a writ of mandamus, or to grant

relief in the nature of the writ,4 against an executive

agency is an extraordinary step.

In this circuit, it it well-established that mandamus

jurisdiction may only be invoked when the following

three elements are present:

“(1) a clear right in the plaintiff to the relief sought;

(2) a plainly defined and peremptory duty on the

part of the defendant to do the act in question;

(3) no other adequate remedy available.”

Homewood Professional Care Center, Ltd. v. Heckler, 764

F.2d 1242, 1251 (7th Cir. 1985) (quoting Americana

Healthcare Corp. v. Schweiker, 688 F.2d 1072, 1084 (7th

4 Section 10 of the Administrative Procedure Act, 5 U.S.C. § 706

provides in part:

To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law, in-

terpret constiiutional and statutory provisions, and determine

the meaning or applicability of the terms of an agency action.

The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably

delayed... .

Like the traditional writ of mandamus, this provision may be

invoked to compel agency action when the requirements for the

common law writ have been satisfied. See Conservation Law Foun-

dation of New England, Inc. v. Clark, 590 F.Supp. 1467 (D.C.

Mass. 1984).

B-7

Cir.), cert. denied, 459 U.S. 1202, 103 S.Ct. 1187, 75

L.Ed.2d 434 (1982)); Beckless v. Heckler, 622 F.Supp. 715,

720 (D.C.II1.1985). These elements are addressed in turn.

1. Plaintiffs’ Rights

Although the Attorney General asserts that plaintiff is

not entitled to mandamus because the Act does not im-

pose a duty on the Attorney General to promulgate regu-

lations, the Attorney General does not argue that, if such

a duty exists, plaintiffs lack the right to enforce it. This

court agrees with the Attorney General’s implied conces-

sion that the Act gives plaintiff a private right to enforce

the terms of both the Act and the Convention. See, e.g.,

Letter of Submittal from Secretary of State to President,

Recommending Transmittal of the Convention to the Sen-

ate, April 30, 1984 at 3 (‘‘The purpose of the Convention

is to facilitate the transfer of foreign prisoners to their

home countries by establishing procedures that can be in-

itiated by prisoners who prefer to serve their sentences

there.””) (emphasis added), adopted in Letter of Transmit-

tal from President to Senate Recommending Ratification,

May 7, 1984; Id. at 6 (“({The Convention] is fully consis-

tent with the provisions of Public Law 95-144, 18 U.S.C.

sec. 4100 et seg., enacted by Congress to implement

treaties relating to the transfer of offenders to or from

foreign countries. No new legislation would be required.’’);

H.Rep. No. 95-720, 95th Cong., 1st Sess., reprinted in

1977 U.S.Code Cong. & Admin.News 3146, 3155 (Congress

intends that the Attorney General will, in most cases, con-

sent to the receipt of Americans from abroad pursuant

to the Act “if the offender requests . . . such transfer’’);

see also Pfeiffer v. United States Bureau of Prisons, 615

F.2d 873, 876 (9th Cir.1980) (“({The] sole purpose of the

treaty on the Execution of Penal Sentences [between the

B-8

United States and Mexico] is to permit persons convicted

in foreign countries to serve their incarcerations in the

country of which they are citizens.’’). Thus, if the Act im-

poses a duty on the Attorney General to promulgate reg-

ulations, plaintiffs are entitled to compel him to abide by

it.

2. The Attorney General’s Duty

In determining whether the Act imposes on the At-

torney General “a plainly defined and peremptory duty”

to promulgate regulations and guidelines for the transfer

of prisoners, this court’s only function is to give effect

to Congress’ intent. United States v. Markgraf, 736 F.2d

1179, 1182 (7th Cir.1984), cert. denied, 469 U.S. 1199, 105

S.Ct. 1154, 84 L.Ed.2d 308 (1985). The Seventh Circuit

has explained how the court must approach its task:

In determining [Congress’] intent, courts customarily

look to several factors: the language of the statute;

the legislative history; and the interpretation given

by the administrative agency charged with enforcing

the statute.

Id. at 1182.

As set forth above, the statute provides that the At-

torney General “is authorized . . . to make regulations

for the proper implementation of such treaties in accor-

dance with this chapter and to make regulations to im-

plement this chapter.” 18 U.S.C. § 4102. Whether this

language mandates the promulgation of such regulations,

or merely permits it, is not clear. Cf. Abrams v. Hill,

547 F.2d 1062 (9th Cir.1976) (just because statute states

that government officer ‘is authorized” to take certain

actions does not necessarily mean that the officer has dis-

cretion to refuse to act), cited with approval, United States

B-9

v. Markgraf, 736 F.2d 1179 (7th Cir.1984) (statute stating

that Secretary of Agriculture “may permit’’ the deferral

of certain loans did not give Secretary the authority to

refuse to implement the statute, but gave him the discre-

tion to deny deferral to some borrowers). Thus, this court

must look to the Act’s legislative history.

Doing so clarifies the picture. The House Report

adopted as the official legislative history of the Act pro-

vides, in pertinent part, as follows:

Section 4102. Authority of the Attorney General.

This section designates the Attorney General as the

“authority” referred to in the treaties and gives him

the necessary authority to implement the treaties

with regard to receiving American offenders from a

foreign country who are serving a sentence of impris-

onment, or who are on probation or parole. It also

authorizes the Attorney General to transfer Federal

offenders who are serving a sentence of imprison-

ment, or who are on probation or parole, to the coun-

try of which they are citizens or nationals.

Standards for Attorney

General Consent

Under existing treaties and this legislation, the At-

torney General must agree to the receipt or transfer

of an offender. The committee was concerned that

the Attorney General exercise his discretion on this

concern with care. In most cases, and possibly almost

all cases, he should agree to any receipt or transfer,

if the offender requests or voluntarily consents to

such transfer. However, they [sic] may be an unusual

situation, involving possibly a dangerous offender,

where the Attorney General should not agree to the

return of the offender, and his immediate eligibility

for parole, to the United States. Similarly, there may

be an unusual situation, involving an individual in

B-10

American persons [sic], who for matters of future law

enforcement, continuing investigation, or other na-

tional interests, should not be sent to his home coun-

try. The committee therefore expects the Attorney

General to promptly establish regulations and to pro-

vide standards and guidelines which will govern the

exercise of his consent as to his consent to receive

or transfer offenders.

H.Rep. No. 95-720, 95th Cong., lst Sess., reprinted in

1977 U.S.Code Cong. & Admin.News 3146, 3155 (emphasis

added).

The Attorney General’s position—his interpretation of

the statute he is “charged with enforcing’’—that the Act

permits him to deal with transfer requests on an ad hoc

basis is thus totally unfounded. Congress clearly intended

that the Attorney General would grant such requests in

almost all cases, and would promulgate regulations and

guidelines to deal with those “unusual situation[s]” in

which denial of such requests might be warranted. Fur-

thermore, the Attorney General reproduced for this court

a portion of the very provision of the Act’s legislative

history which clarifies that, although he retains discretion

as to the content of such regulations, he does not with

respect to his duty to promulgate them. Thus, there can

be no doubt that the Attorney General is aware of his

duty and has consciously chosen not to fulfill it.

Accordingly, this court finds a plain and peremptory

duty on the part of the Attorney General to promulgate

regulatioris, a duty sufficiently clear to invoke this court’s

mandamus jurisdiction. Estate of Smith v. Heckler, 747

F.2d 583 (10th Cir.1984) (mandamus was proper remedy

to compel Secretary of Health and Human Resources to

promulgate regulations where statute imposed a clear duty

on her to do so); see also Flynn v. Schultz, 748 F.2d 1186,

—

B-11

1194 (7th Cir.1984), cert. denied, 474 U.S. 830, 106 S.Ct.

94, 88 L.Ed.2d 77 (1985).5

3. Adequacy of Alternative Remedies

The final element plaintiffs must satisfy to obtain man-

damus relief is the requirement that there exist no ade-

quate alternative remedies. The Attorney General does

not argue that such alternative remedies are available,

and this court can find none.

To be sure, plaintiffs can and, as discussed below, do

challenge as an abuse of discretion the Attorney General’s

determination that they are not entitled to transfer. Thus,

one could argue, plaintiffs have an alternative route avail-

able to them in challenging the Attorney General’s decision.

Yet, this court’s finding below that the Attorney

General has indeed abused his discretion does not, and

cannot “ ‘afford{ ] [plaintiffs] full relief as to the very sub-

ject matter in question.’ ”’ Holmes v. United States Board

of Parole, 541 F.2d 1243 (7th Cir.1976) (emphasis added)

(quoting Carter v. Seamans, 411 F.2d 767, 773 (5th

Cir.1969)). The proper course for this court to follow in

reversing the Attorney General’s decision is to remand

the case to the Attorney General for further action in ac-

cordance with this court’s ruling. Flynn v. Schultz, 748

5 “Mandamus may be used to compel the performance of a minis-

terial duty when the obligation to perform it is plainly defined.

Further, ‘it also is employed to compel action, when refused, in

matters involving judgment or discretion, but not to direct the

exercise of discretion in a particular way nor to direct the retrac-

tion of the reversal of action already taken in the exercise of

either.’”’ Flynn v. Schultz, 748 F.2d at 1194 (quoting Interstate

Commerce Commission v. Humboldt Steamship, 224 U.S. 474, 484,

32 S.Ct. 556, 559, 56 L.Ed. 849 (1952)) (other citations omitted).

B-12

F.2d 1186, 1194 (7th Cir.1984), cert. denied, 474 U.S. 830,

106 S.Ct. 94, 88 L.Ed.2d 77 (1985). Thus, unless this court

also compels the Attorney General to promulgate regula-

tions and guidelines to govern plaintiffs’ requests, plain-

tiffs will again be forced to seek transfer to this country

without the benefit of the generally-applicable regulations

and rules which Congress clearly contemplated would

guide the Attorney General in this and similar cases.

Accordingly, this court will issue a writ of mandamus

ordering the Attorney General to promulgate regulations

and guidelines to govern requests from American citizens

and nationals incarcerated abroad for transfer to American

prisons pursuant to the Convention and similar treaties.

Review of the Attorney General’s Decision

The Administrative Procedure Act (“the APA’’) gives

the federal courts the power to review final agency ac-

tion unless federal “statutes preclude judicial review” or

“agency action is committed to agency discretion by law.”

5 U.S.C. § 701 et seg. The Attorney General “‘is an ‘agen-

cy’ subject to review jurisdiction under the APA.”

Dellums v. Smith, 573 F.Supp. 1489, 1498 (N.D.Cal.1983),

rev'd on other grounds, 797 F.2d 817 (9th Cir.1986). Fur-

ther, the Attorney General does not contest, and this

court finds, that the Act neither specifically precludes

judicial review of the Attorney General’s decisions regard-

ing prisoner transfer requests, nor commits these deci-

sions to his sole and unreviewable discretion.

On the contrary, Congress made quite clear that the

Attorney General’s discretion with regard to prisoner

transfer decisions should be carefully circumscribed. The

Attorney General must grant such requests in all but the

most “unusual situations,”’ and must define by regulation

a

B-13

what those situations will involve. Implicit in this grant

of authority is the recognition that, if the Attorney Gen-

eral abuses his discretion, courts will have the power to

review, and if necessary reverse him. See Turner v.

United States Parole Commission, 810 F.2d 612 (7th

Cir.1987); Alvarez v. Longboy, 697 F.2d 1333 (9th Cir.

1983).

Thus, the APA review provisions govern plaintiffs’ ap-

peal of the Attorney General’s decision to deny their re-

quests for transfer. Section 10(e) of the APA, 5 U.S.C.

§ 706, informs this court’s review:

[T]he reviewing court shall decide all relevant ques-

tions of law, interpret constitutional and statutory

provisions, and determine the meaning and applicabili-

. > the terms of agency action. The reviewing court

shall—

(2) hold unlawful and set aside agency action, find- -

ings and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law... .

Because the Attorney General acted withcut the guidance

of regulations specifically required by the Act, his denial

of plaintiffs’ requests constitutes an abuse of discretion,

and requires reversal, as a matter of law. See Industrial

Holographics, Inc. v. Donovan, 722 F.2d 1362, 1367 & n.

9 (7th Cir.1983) (failure to promulgate and adhere to regu-

lations can amount to arbitrary and capricious conduct be-

cause of the “danger of arbitrary action in the absence

of articulated standards”); cf: White v. Roughton, 530 F.2d

750, 754 (7th Cir.1976) (failure of township supervisor to

promulgate rules and regulations governing welfare eligi-

bility violated due process because it placed “virtually

unfettered discretion in [the supervisor] and his staff’’).

B-14

However, even if the Act did not specifically require that

the Attorney General adopt regulations in carrying out

his duties under the Act, this court would still be forced

to reverse his decision here.

In denying plaintiffs’ requests, the Attorney General

necessarily determined that their request fell within Con-

gress’ contemplation of “unusual situation{s]” in which

denial of transfer might be appropriate. The Attorney

General points to several factors he employed in reaching

this conclusion:

(1) the relative seriousness of the offense for which

plaintiffs are incarcerated;

(2) plaintiffs’ ‘“‘extensive” criminal history;

(3) the fact that plaintiffs will be immediately eligi-

ble for parole if transferred to an American prison;

and

(4) the unlikelihood that transfer would facilitate

plaintiffs’ rehabilitation.

Yet, as noted earlier, the Attorney General has not pro-

vided this court with any evidentiary material supporting

these “findings”, or indicated how they compare with

other transfer request cases. The only cases available to

this court for comparison are those few published opinions

in which prisoners have been granted transfer back to

America and then attacked, through habeas corpus, the

legality of their incarceration here. While those cases are

unlikely to constitute a representative sample of the At-

torney General’s decisions on transfer requests, this court

notes that many of them involved crimes more serious

than those for which plaintiffs are currently incarcerated.®

6 A letter from the American Consul, Embassy of the United

States in London, to plaintiff Scalise, dated June 28, 1985, though

(Footnote continued on following page)

B-15

See, e.g., Tavarez v. U.S. Attorney General, 668 F.2d 805

(Sth Cir.1982) (manslaughter); Boyden v. Bell, 631 F.2d

120 (9th Cir.1980) (smuggling heroin); Kanasola v. Civilet-

ti, 630 F.2d 472 (6th Cir.1980) (murder); Wilden v. Fields,

510 F.Supp. 1295 (D.Wis.1981) (murder).

This is not to say that there are no circumstances in

which an American convicted of armed robbery abroad

can be denied transfer back to the United States. But

in the absence of clearly articulated reasons and factual

support for a denial, such a deviation from past practice

compels this court to find the Attorney General’s deci-

sion arbitrary and capricious, and an abuse of discretion

in this case. See West Chicago, Illinois v. United States

Regulatory Commission, 701 F.2d 632, 648 (7th Cir.1983)

(where agency proceeds through informal adjudication, it

must clearly state and support its reasons for its decision).

Because, as noted above, this court finds it appropriate

to remand this case to the Attorney General for further

proceedings consistent with this ruling, a few comments

are appropriate on the Attorney General’s application of

the factors noted above to plaintiffs’ requests.

To the extent that the Attorney General relied on the

above factors to determine the danger that plaintiffs might

pose to the American public if transfer were granted, he

acted appropriately. Although Congress specified only the

8 continued

obviously not binding on the Attorney General, provides an in-

teresting view of at least one American official regarding the sorts

of “unusual situation{s]”’ in which an American’s transfer request

might be denied:

[GJeneral policy for both the British and Americans is not to

withhold consent for transfer except for extenuating circum-

stances; for example, a mass murderer. (Emphasis added).

B-16

seriousness of the crime for which the prisoner is incar-

cerated, and his eligibility for parole, as factors which

could bring a case within the “unusual situations” in which

transfer might be denied, see H.Rep. No. 95-720, 95th

Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. &

Admin.News 3146, 3155, this court cannot say that the

Attorney General abused his discretion in looking to other

factors—i.e. plaintiffs’ past criminal record—to determine

plaintiffs’ future threat.

In his arguments to this court, however, the Attorney

General indicated that he also employed the above fac-

tors in reaching a determination that granting the transfer

requests would contradict the Convention’s salutory pur-

pose of improving bilateral relations between transferring

nations. Gov. Mem. at 5 (“(TJhe transfer and possible

parole of the plaintiffs would harm rather than enhance

foreign relations between our countries.’’); see also H.Rep.

No. 95-720, 95th Cong., Ist Sess., reprinted in 1977

U.S.Code Cong. & Admin.News 3146, 3148-49 (setting

forth the three primary benefits of the Act: (1) increased

probability or rehabilitation of offender; (2) improved bi-

lateral relations between the transferring countries; (3)

humanitarianism). This argument turns the Act and the

Convention on their heads. Granting requests can improve

bilateral relations; it cannot impair them. The host coun-

try always retains the right to decline a request for

transfer and keep the prisoner in its own jails. Thus, to

the extent the Attorney General rejected plaintiffs’ re-

quest because he felt granting it would somehow impair

relations between the United States and the United King-

dom, he clearly overstepped his discretion under the Act.

This Court also finds problems in the Attorney General’s

reference to the negligible rehabilitory benefits of bring-

ing plaintiffs back to this country. The legislative histories

B-17

of the Act and the Convention clearly indicate that Con-

gress and the President preswmed that permitting an

American incarcerated abroad to serve out his sentence

in America would enhance the chance of rehabilitation.

See, e.g., H.Rep. No. 95-720, 95th Cong., Ist Sess., re-

printed in 1977 U.S.Code Cong. & Admin.News 3146,

3149 (“Offender rehabilitation, which is one of the primary

objectives of U.S. penal policy, is facilitated as a result

of execution of penal sentences in an offenders home coun-

try.’’) (emphasis added). Nothing in these histories in any

way suggests that the Attorney General may determine,

on a case-by-case basis, whether he believes that transfer

would serve such a function. Thus, the Attorney General

also abused his discretion when he unilaterally made the

determination that transfer would not facilitate rehabilita-

tion, and then used this finding as a reason to deny plain-

tiffs’ requests.

Procedural Due Process

The Constitution “prohibits the federal government from

depriving a person of life, liberty, or property without due

process of law.’’ Campbell v. Miller, 787 F.2d 217, 222

(7th Cir.1986), cert. denied, ___. U.S. ___., 107 S.Ct. 673,

93 L.Ed.2d 724 (1987). Liberty interests can be found in

the Constitution itself, in statutes, or in administrative

regulations. However, once it is determined that such a

protected interest exists, the Constitution alone prescribes

the procedures the government must follow in the course

of depriving a person of it. Cleveland Board of Educa-

tion v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.

2d 494 (1985).

This court could find no authority, and the parties sup-

plied none, on the liberty interests, if any, of American

B-18

citizens incarcerated abroad who seek transfer to the

United States. Nevertheless, there appears no reason why

they should be treated differently from Americans im-

prisoned in American jails who claim the right to be, or

not to be, transferred from one prison to another. Cf.

Haig v. Agee, 453 U.S. 280, 101 S.Ct. 2766, 69 L.Ed.2d

640 (1981) (American living in West Germany could chal-

lenge, under Due Process Clause, federal government’s

procedures in revoking his passport). And in those cases

the law is quite clear: Where a statute or administrative

regulation places limits on the discretion of administrative

officials with regard to transfer decisions, a liberty in-

terest arises and the Due Process Clause comes into play.

Mitchell v. Hicks, 614 F.2d 1016 (5th Cir.1980); see Olim

v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d

813 (1983) (prisoner had no due process right to remain

in Hawaii where state placed no substantive limits on au-

thority of state officials to transfer him to California or

any other state).

This court has already discussed at length the limits the

Act places on the Attorney General’s discretion with

regard to transfer requests. Americans incarcerated

abroad thus have a legitimate expectation that their re-

quests will be granted, subject only to exceptions which

the Attorney General is authorized to prescribe. Thus, this

court finds that the Act creates a liberty interest in these

American citizens which the Attorney General can only

deny through the procedures mandated by the Due Proc-

ess Clause.

Of course, just what these procedures encompass is not

an easy question. Not only is a pre-deprivation hearing

impossible to guarantee, but a post-deprivation one may

be as well. At a minimum, however, the Attorney General

ee

B-19

should provide a prisoner whose request has been denied

with both a specific explanation and elaboration of the

grounds for his decision, and an opportunity to rebut

them, see Campbell v. Miller, 787 F.2d at 224 (“The Su-

preme Court has repeatedly stated that procedural due

process is a non-Euclidean concept critically related to

time, place and circumstances.”’), either in writing or,

where the prisoner desires, in person through a represen-

tative of his choosing.

In this case, the Attorney General responded to plain-

tiffs’ requests with the single-paragraph letter reproduced

above. This response leaves this court without meaningful

basis for reviewing his decision. More importantly, how-

ever, it leaves plaintiffs, in prisons thousands of miles

away, at a loss to understand why the government has

condemned them to serve out their sentences in foreign

jails when, as far as they can tell, Americans who have

committed far more egregious crimes have been afforded

the opportunity to serve their penance in their homeland.

Such action on the part of the Attorney General falls short

of even the limited procedural requirements to which plain-

tiffs are entitled.

Summary

This court has determined that the Attorney General

has violated its duty under the Act to promulgate regula-

tions setting forth standards and guidelines to govern the

requests of Americans incarcerated abroad to be transfer-

red to an American prison. This court has also found that

the Attorney General acted arbitrarily and capriciously,

and abused his discretion, in denying the request of the

plaintiffs in this case. Finally, this court has concluded

that the Attorney General deprived plaintiffs of due proc-

B-20

ess of law in denying their requests under the Act without

a sufficient explanation and elaboration of his decision and

without affording them an opportunity to rebut.

CONCLUSION

Accordingly, this court orders the Attorney General to

promulgate regulations pursuant to its authority under the

Act within a reasonable time. This court further orders

the Attorney General, after the establishment of these

regulations, to determine the eligibility of plaintiffs for

transfer to America, to inform the plaintiffs of his deci-

sion, and, if negative, to afford the plaintiffs an oppor-

tunity to respond to this decision either in writing or, if

plaintiffs choose, through personal representatives in this

country.