# Appendix — Shoemaker v. Kellogg > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1842%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 516 U.S. 907 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. » - «AE tie otes hones spadniali nc inatzeoin Ss —™ 5) 4 NO. 94-1964 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1994 JOHN W. SHOEMAKER, ET AL., Petitioners, V. GLENN S. KELLOGG; LANI R. SMITH; JOHN STAMPER; LAWRENCE DESSENBERG; ROBERT DONLEY; MICHAEL JONES; MICHAEL KARHOFF; DANIEL SCHREIBER, on behalf of themselves and all others similarly situated, Respondents. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RESPONDENTS’ BRIEF IN OPPOSITION APPENDIX Bee al vz 46 FEDERAL REPORTER, 3d SERIES ing company allegedly negligently commin- gled with lower grade mineral was adequate- ly established fur purposes of applying mar- ket value rule for assessing damages, in view of publication that listed average price of high grade mineral. 3. Shipping 131 Published market quotations of bulk sommodities provide simple proof of market value and damages so as to support applica- tion of market value rule for assessing dam- ages to cargo. 6. Shipping 131 Sales price close in time to discharge date was sufficient to establish market value of downgraded mineral at time it was negli- gently commingled with high graded mineral for purposes of applying market value rule ‘or assessing damages to shipper. A. Carter Mills, IV, John C. Persons, Yiontgomery, Barnett, Brown, Read, Ham- nond & Mintz, New Orleans, LA, for appel- ant. Richard B. Foster, Lemle & Kelleher, New Irleans, LA, for appellee. Appeal from the United States District Jourt for the Eastern District of Louisiana. Before REAVLEY, DUNE and PARKER, Jircult Judges. DUHE, Circuit Judge: Defendant Turner Marine Bulk, a New rleans stevedore, negligently commingled wo lots of ferrochrome that Plaintiff Miner- is U.S. Inc. was importing for resale in the Inited States. Mincrais had purchased 700 relric tons (MT) high grade ferrochrome nd 1000 MT low grade ferrochrome; 250 IT high grade ferrochrome escaped damage, nd the remaining 460 MT high grade and ve 1000 MT low grade ferrochrome were nomingled. None of the combined material 4 within the higher grade, and Plaintiff was weed to downgrade 460 MT high grade . .aterial to low grade for purposes of resale. his appeal concerns only the issue of dam- The district court awarded damages based on wholesale values of the material‘ (Le., wholesale value of 450 MT high grade ferro- chrome minus wholesale value of 460 MT low grade ferrochrome), finding that Plaintiff failed to estabiish the fair market value as the appropriate measure of damages. Hold- ing that Plaintiff adequately established fair market values, we reverse and remand for application of the market-value rule using retail values as specified herein. 1. The Market-Value Rule. {1,2} The market-value rule requires that damages be calculated using market val- ues al the time the cargo is discharged. Such a damage award places the injured cargo owner in the same position it was in before the damage. The market-value rule makes the cargo claimant whole by awarding him the difference between the fair market value of the undamaged cargo and the fair market value of the cargo as damaged on the date of discharge at the port of destination. Cook Indus., Inc. v. Burge UM-308, 622 F.2d 851, 864 (6th Cir.1980). {3} Nothing in Jllinois Central Railroad v. Crail compels use of the wholesale price rather than retail. See Illinois Cent. R.R. v. Crail, 281 U.S. 67, 64-66, 60 S.Ct. 180, 181, 74 L.Ed. 699 (1930) (“The market-value rule} may be discarded and other more accu- rate means [to measure the loss} resorted to, if, for special reasons, it is not exact or otherwise not applicable.”) (awarding whole- sale value of lost shipment). Jdlinvis Central was a shortage-in-delivery case, not a dam- aged-goods case; where cargo is downgraded but not completely destroyed, this Court has held the market-value rule to be both a con- venient and accurate means of measuring damages. Cook Indus., 622 F.2d at 855-66. We hold the rule provides an accurate mea- sure of damages in this case as well. A. Fair Market Value of Undamaged Cargo. (4,6) In June 1990, when the shipment was discharged in New Orleans, the average market price of high grade ferrochrome was $1.16 per pound of contained chromium, ac- cording to Metals Week (a weckly publica- tion), which was found by the district court to be the most reliable evidence of the market KELLUGGE y, SHUb MANIA Cite 00 46 F.3d S03 (6th Clr. 1995) price. Published market quotations of bulk commodities provide simple proof of market value and damages so as to support applica- tion of the market-value rule. See 2 Thomas J. Schoenbaum, Admiralty and Maritime Law § 10-36 (2d ed. 1994); see also Amstar Corp. v. M/V ALEXANDROS T., 472 F.Supp. 1289, 1294 (D.Md.1979), aff'd, G64 F.2d 904 (4th Cir.1981). Further, Mineraia’ retail sales price in August 1990 corroborated Metals Week by establishing $1.16 per pound of chromiurn as the retail price. The marke’ value of high grade ferrochrome at the time of the arrival of the shipment was thus ade- quately established at $1.16 per pound of chromium. : B. Fair Market Value of Cargo as Dam- aged. The 460 MT damaged cargo after com- mingling was indistinguishable from the 1000 MT low grade ferrochrome with which it was mixed. Metals Week did not list a price fur low grade ferrochrome al the time of dis- charge of the shipment, because there was no established market for it at the time. Miner- ais ordered the low grade to test the market for it. Minerais sold the 1460 MT low grade product in varying quantities over several months and the price varied over those few months. The district court declined to rely on a retail price in part because of the declin- ing market and in part because it was un- clear which resale accounted for the 460 MT downgraded material. 16] We hold that the sales price close in time to the discharge date is nevertheless aufficient to establish tne inarket value of the downgraded product at the time of discharge. Some of the low grade material soki at $.99 per pound chromium in June and July 1990 as shown by two invoices (for sales of 160 MT and 400 MT). ‘These contemporancous sales provide sufficient evidence from which to apply the market-value rule. See Slan- dant Oil Co. v. Southern Pac. Co, 268 US. 146, 166, 46 S.Ct. 466, 466-67, 69 Led. 890 (1926) (recognizing “contemporaneous sales of like property in the way of ordinary busi- ness” as one manner of establishing market value); of Holden v. SS. Kendall Fish, 396 F.2d 910, 913 (6th Cir.1968) (requiring that damages be calculated at the time of deliv- ery, because the carrier “ig not and should not be the guarantor of the ups and downs of com... ity prices”). We have no reason to factor in the varying prices of low grade ferrochrome over the ensuing months. Regardless of the fact that Plaintiff intended to introduce only 8 liunited quantity of low grade ferrochrome into the United States market, the sale of 660 MT low grade product for $.99 per pound chromium near the time of delivery provides adequate proof of the fair market value of all of the downgraded product (only 460 MT) at the time of discharge. Il. Conclusion. Applying the general measure of the ship- per'’s recovery, ie, the difference in market values before and after damage to the dam- aged cargo, will accurately compensate Plain- tiff. Plaintiff having provided sufficient evi- dence of fair market values of both high and low grade ferrochrome at the time of deliv- ery, we remand for calculation of damages under the market-value rule using the June 1990 retail values. REVERSED and REMANDED. A-1 Glenn S. KELLOGG; Lani R. Smith; Lawrence Dessenberg; John Stamper; Michael Jones; Robert Donley; Daniel Schreiber; and Michael Karhoff, on be- half of themselves and all others simi- larly situated, Plaintiffs-Appellants, v. John W. SHOEMAKER, et al., Defendants-Appellees. No. 93-1287. United States Court of Appeals, Sixth Circuit. Argued Oct. 13, 1994. Decided Jan. 9, 1996. As Revised on Denial of Rehearing Feb. 28, 1996. Prison inmates challenged constitutional- ity of new Ohio Parole Revocation proce- 504 dures. The United States District Court for the Southern District of Ohio, Sandra S. Beckwith, J., granted summary judgment for Parole Authority afer Authority amended regulation and held that new policy rendered challenges moot. Appeal was taken. The Court of Appeals, Wellford, Circuit Judge, held that: (1) challenge to conatitutionality of Ohio's new parole procedures was not moot where Parole Authority had substituted new procedure on eve of adjudication; (2) Parole Authority had power to address by means of administrative role cases in which parolee had been convicted of another felony while on parole; and (3) new state parole regulations which eliminated parolee’s right to individual hearing where parole was convicted of felony while on parole could not be applied to parol- ees who committed initial crime before new regulations came inw effect. Affirmed in part; reversed and remand- ed in part. 1. Federal Courts 13.16 Challenge to constitutionality of Ohio's new parole procedures was not moot where Parole Authority had substituted new proce- dure on eve of adjudication of challenge to old procedure. 42 U.S.C.A. § 1983; Ohio Admin.Code § 6120:1-1-12. 2. Federal Courts 13.15 Fur purposes of determining whether action is moot, Parole Authority may not abort or delay constitutions! review of parole procedures by substitution of new procedure on eve of adjudication. 3. Pardon and Parole 65.1, 69 Ohio Parole Authority had power to ad- minister all statutes relating to parole, in- cluding the power to determine whether con- vict had violated parole. Ohio KC. §§ 2967.02, 2967.16. 4. Pardon and Parole 86 Uhio statute requiring that parolee be given individual parole revocation hearing when parole officer has begun revocation hearing on his own initiation does not apply when basis for parole revocation is subse- quent conviction. Ohio R.C, § 2067.16. 46 FEDERAL REPORTER, 3d SERIES 6. Pardon and Parole €71, 86 “$0 State Parole Authority can declare thai parolee who has been convicted of subse- quent violation while on parole is in violation of parole either by means of adininistrative rule or through individual hearing. Ohio R.C. § 2967.16. : 6. Pardon and Parole ¢71, 86 . State Parole Authority has power to ad- dress cases in which parolee has been con- victed of another felony while on parole by means of administrative rule, rather than individual hearing, which includes power to find that no mitigating circumstances would overcome subsequent conviction of another | felony committed while on parole so that individual hearing is not necessary. Ohio R.C. § 2967.16. 7. Pardon and Parole 72.1, 86 Parole Authority does not have to have discretion as to whether to revoke parolee’s parole status, but, if it has that discretion, revocation hearing is required. 8. Constitutional Law 272.5 Pardon and Parole 86, 90 Ohio parole procedures which did not - allow individual hearing for parolees once subsequent parole violation conviction is es- tablished and which did not allow parole agency to consider further mitigating factors was constitutional and did not violate parol- ee’s due process rights. U.S.C.A. Const. Amends. 6, 14. 9. Constitutional Law 199 : To establish ex post facto violation, plaintiffs must show that regulation at issue is retroactive in its application and will disad- vantage offender affected by it. US.CA Const. Art. 1, §§ 9, cl. 3, 10, cl. 1. 10. Constitutional Law 199 Focus in determining whether new law violates cx post facto clause ia time that offense was committed. U.S.C.A. Const. Art i, §§ 9, cl. 3, 10, cl. 1. 11. Constitutional Law <—199 Change in law that alters substantial right can be cx post facto even if statute KELLOGG v. SHOEMAKER Cite 00 46 F.3d 503 (6th Cle. 1995) ‘takes geemingly procedural form. U.S.C.A. Const. Art. 1, $§ 9, cl. 3, 10, cl. 1. 12. Constitutional Law ¢203 Pardon and Parole 86 For purposes of determining whether new state parole procedures violated ex post facto clause, fact Uhat change in right to hearing on revocation of parole involved pro- * eedural matter did not change fact that new law affected substantive rights attendant to 1 parole revocation, so that ex post facto viola- tion was possible. U.S.C.A. Const. Art. 1, $§ 9, cl. 3, 10, el. 1. 13. Constitutional Law 203 Pardon and Parole 86 Although new state parole regulations affected parolce’s substantive rights by changing entitlement to individual revocation hearing, regulations were nol ex post facto violation as to inmates whose paroles were revoked after hearing under old regulations or as to those who committed initial crime afler date of enactment. U.S.C.A. Const. Art. 1, §§ 9, cl. 3, 10, cl. 1. 4. Pardon and Parole €86 New state parole regulations which elim- inated parolee’s right to individual hearing where parolee was convicted of felony while on parole could not be applied to parolees who committed initial crime before new regu- lations came into effect but whose parole revocation proceedings would occur after Md new procedures were to take effect. Kenneth R. Spiert (argued and briefed), Public Defender’s office, Ohio Public Defend- er Com'n, Columbus, OH, for plaintiffs-appel- lants. Donald A. Catakdi (briefed) and Charles L. Wille (argued), Office of the Atty. Gen. of Ohio, Columbus, OU, for defendant-appellee. Before: KEITH, WELLEORD, and DAUGHTREY, Circuit Judges. 1. Kellogg's probation had been revoked after he was convicted of new felonies (Atternpted Grand Theft, Possession of Criminal Tools, Urcaking and Entering, and Drug Abuse with prior diug law conviction) while on parole. WELLFORD, Circuit Judge. Glenn S. Kellogg (“Kellogg”), an Ohio pris- on inmate, initiated a 42 U.S.C. § 1983 class action suit in 1990 seeking declaratory and injunctive relief with respect to certain Ohio parole revocation procedures. This case began in federal court in August 1990, when Kellogg ' filed a pro se complaint alleging, under 42 U.S.C. § 1983, that the Ohio Parole Revocation procedures violated his procedural due process rights. The Ohio public defender, who began representing Kellogg, moved to certify a class to challenge certain parole revocation procedures. The district court certified the class tw include “all persons whose parole was, or will be, revoked by the Ohio Adult Parole Authority through a so-called parole-violator recommis- sioned hearing because they have been con- victed of a new felony committed while on parole.” The provisions of Ohio law now under at- tack are the new “emergency” provisions that the Ohio Adult Parole Authority (“agen- cy”) enacted effective September 1, 1992. Originally, the class brought its action against the older repealed provisions, which were discretionary and woukl have required Ohio to provide parolees with a “meaningful” hearing prior to revoking their parole? Un- der these old regulations, a parolee convicted of a subsequent crime in Vhio, while on parole, was conclusively presumed to be in violation of his parole. ‘The parolee under the old regulations, however, was entitled to a hearing to present any relevant mitigating circumstances. Although plaintiff parolees seem to concede they were given a “hearing” under the old regulations, they argued that it did not meet the procedural requirements that Morrissey v. Brewer, 408 US. 471, 92 S.CL 2693, 33 L.d.2d 444 (1972), required. The district court agreed with their argu- ment, holding that the parolees did not re- ceive sufficient notice, were denied the assis- 2. Section 5120:1-1-1%1) provided “In the event a releasce is convicted and sentenced on 8 new felony under Ohio law, it shall be conclu- sively presumed that Administrative Regulation 5120:1-1-12 has been violated.” mrtensani testi tees i iieiienaietcsee vU0 tance of counsel, and were nut permitted to call or to subpocna witnesses. The agency then repealed the old regula- tions and inplemented new ones. The new regulations did away with any type hearing if the defendant was convicted by an Ohio court “for an offense he committed while on any release granted by the Adult Parole Authori- ty....” There would no longer be a hearing to determine mitigating circumstances sur- rounding the revocation. The only process the parolees would receive would be the pa- role authority's verification “that the sen- lence was imposed for an offense that oc- curred while the prisoner was under release status.” The agency revised the parole procedures to eliminate any agency's discretion in decid- ing whether to revoke parole. See Black v. Romano, 471 US. 606, 106 S.Ct. 2264, 86 L..Bd.2d 636 (1986), which had indicated that the hearing procedures required in Morris- sey were applicable only if the parole board exercised discretion in revoking parole. See also Sneed v. Donahue, 993 F.2d 1239 (6th Cir.1994); Harrison v. Parke, 1990 WL 170428 (Gth Cir.). The district court then granted summary judgment in favor of the agency, sustaining its reliance on the amended regulation. The district court held that the new policy ren- dered the plaintiffs’ challenges moot. The district court refused lo amend its Judgment and refused to grant plaintiffs any relief. The dintrict court discussed rejecting the merits of the plaintiffs’ constitutional chal- lenges to the new regulations. Plaintiffs appeal in order to challenge the district court's holding that the change in the parole procedures rendered the plaintiffs’ constitutional challenges moot. Plaintiffs contend that the agency violated its rule- making powers hy adopting the new proce- dures, Vlaintiffs also argue that thia court shoukl reconsider Sneed v. Donahue, which held that a parole board was not required to provide the parolee with a hearing if the board exercised no discretion in revoking parole. Last, they wish to challenge the 3. Wt is apparent that the changes in the parole procedure rendered the plaintiffs’ challenges to 46 FEVEKAL KEPORTER, 3d SERIES MS conatitutionality of the new regulations, arg ing that the change of the parole procedurd in this respect constitutes a violation of Ue ex post facto clause. ve 1. JURISDICTION AND STANDARD , OF REVIEW > We have jurisdiction over this appeal pur suant to 28 U.S.C. § 1291 since there is as appeal from a final order of the district court ' The appropriate standard of review is d, novo because the appeal concerns issues of | law. 4 Il. MOOTNESS There is some confusion as to whether the district court held that the plaintiffs’ constl- tutional challenges to the new procedures were moot. The district court discussed the constitutional merits of the plaintiffs’ argu- ments, but refused to amend the court's judgment dismissing the claims of plaintiffs: Plaintiffs now seek to amend this Court's judgment, arguing that the application of OAC § 6120:1-1-21 to members of the . plaintiff class whose parole had been re voked under the old regulation violates the constitutional prohibition against ez post * facto laws.... As this court ruled in its Opinion and Order entered May 27, 1993, the relevant analysis turns to whether or not plaintiffs’ claims for relief are moot Plaintiffs’ sole claim for injunctive relief sought lo restrain defendants from violat ing plaintiffs’ procedural due process rights in the future through the use of constitutionally infirm PVR hearing or procedures. Plaintiffs no longer have any procedural due process rights lo a mean- ingful hearing in connection with felonies committed after the effective date of the new regulation. Accordingly, the enact ment of OAC § 120:1-1-21 has rendered plaintiffs’ claims for fulure injunctive relief moot. {1} The plaintiffs do not contest the mootness of their challenges to the original procedures.’ Plaintiffs argue, however, that the miginal procechwcs movot. There is no need for this court to issue an injunction when the KELLOGG v. SHURMAKEK vU/ Che 20 46 F.3d S03 (6th Cle, 1993) con- “We note that considerable controversy sur- rounds the mootness doctrine after Honig v. Doe, 484 U.S. 306, 108 S.Ct. 692, 98 L.Kd.2d 686 (19838). mootneas doctrine is fundamentally tied to the case and controversy language of Article lil, and, therefore, the court may only re- view if there is a justiciable issue. Another ‘ew is that the mootness doctrine is more flexible, and may be used to accomplish pru- dential concerns to avoid the squandering of judicial resources after the decisional process ls underway. See Corey C. Watson, Moot- ness and the Constitution, 86 Nw.U.L.Rev. at 143. ’* 12) Under either rationale, the plaintiffs’ challenge to the new procedures are not One rationale holds that the moot. The parole authority may not be al- lowed to abort or delay constitutional review of the parole procedures by substitution of a new procedure on the eve of adjudication. Prudential concerns also require us to hear this case rather than to dismiss it as moot as . to those plaintiffs who are alleged to have - committed offenses and had their paroles revoked prior to September 1, 1992. We conclude that a “case or controversy” exists, and that plaintiffs have raised proper con- cerns about the regulations’ constitutionality as applied to offenses which occurred prior to the date of the amendment. iM. DISCUSSION A. Whether the agency violated its rule- making authority by adopling the new parole revocation procedures? The plaintiffs make two arguments in this respect. First, the plaintiffs argue that pa- role authority only has power to make ad- ministrative rules and not broad legislative policy rules. Second, the plainulfs argue parole board has voluntarily changed its alleged- ly unconstitutional practices. See Cottm v Mansour, 863 F.2d 1241, 1244-45 (oth Cir. 1988), cert. demed, 493 US. 1042, 110 S.Ct. 835, 107 L.Fd.2d 831 (1990) (refusing to enjoin a social service agency's calculation of foud stamp cligi- bility after the agency changed its practice to comply with federal regulations because " hes c was simply no ongoing violation ... to enjom ». See also Corey C. Watson, Comment, Mootness that even if the parole authority has the power to make broad policy rules, the new regulations conflict with Ohio statutes. {3} The plaintiffs’ first argument is una- vailing. The Ohio parole authority is charged with administering all statutes relat- ing to parole, are O.1C. § 2967.02, inchuling determining whether a convict has violated parole. O.R.C. § 2967.16. The parole au- thority has a long history of making regula- tions governing parole revocation. It should be noted that the plaintiffs did not contest the authority’s power to issue the old regula- tions; they only challenged the application of the old regulations, arguing that a hearing to present mitigating circumstances was not a “meaningful hearing.” 14] Second, plaintiffs argue that the new parole revocation procedures are inconsistent with § 2067.16 of the Ohio Code, which re- quires that a parvlee be given an individual parole revocation hearing when a parvle offi- cer has begun the parole revocation hearing on his own initiative. This case, however, does not involve a situation in which the parole officer has begun the parole revoca- tion proceedings on his own initiative, or based on his charge or conduct, which has not resulted in a conviction.£ Instead, this case is governed by a different provision of § 2967.15. 15,6] The legislature has not specifically required an individual hearing when the ba- sis for the parole revocation is a subsequent conviction. The statute provides only: “A convict who has been conditionally pardoned or a prisoner who has been paroled, and who, in the judgment of the adult parole authonty, has violated the condition of his pardon or parole shall be declared a violator.” O.RC. § 2067.16. ‘Thus, the agency can “declare” a parolee to have been convicted of a subse- and the Constitution, 86 Nw UT Rew 143, 147 (1991). Any remedy that a member of the class has for the unconstitutional appheation of the old parole procedures must, in the future, be ob- tained through habces corpus. 4. The parole authority docs conduct an individu- al hearing in these circumstances. 508 quent violation while on a parole to be a “violator” either by administrative ruie or through an individual hearing. The agency has chosen to address these cases by admin- istrative rule, which is logical as those parol- ees who have been convicted of another felo- ny while on parole have already had a trial or hearing to determine whether they actually committed the offense charged.’ The agency has also concluded, by administrative rule, that no mitigating circumstances would over- come a subsequent conviction of another felo- ny committed while on parole; thus, an indi- vidual hearing would be unnecessary. The agency's conclusion is a permissible one, as we have articulated previously in Sneed v. Donahue, 993 F.2d 1239 (6th Cir.1993). We find no merit, therefore, in plaintiffe’ conten- tions in this regard. B. Whether this court should reconsider ite decision in Sneed v. Donahue. Alternatively, plaintiffs ask us to reconsid- er our decision in Sneed v. Donahue, 993 F.2d 1239 (6th Cir.1993), in which we upheld the constitulionality of the Kentucky Parole statutes that eliminated any hearing on pa- role violation if the parolee was convicted of a new felony while on parole. The Kentucky and proposed Ohio parole revocation statutes are identical in that cach statute climinates agency discretion and directs revocation when a parolee has been convicted of a sub- sequent vielation while on parole. {7} We hekl in Sneed that the paroice “had no clearly established right to a parole revocation hearing” once a subsequent parole violation conviction had been established and the law gave the parole agency no authority to consider further mitigating factors. The Supreme Court in Morrissey |v. Brew- er, 408 ULS. 471, 92 S.Ct. 2595, 34 L.Bd.2d 484 (1972) | clearly instructed that the pur- pose of a final revocation hearing is to give the parolee an opportunity lo present facts challenging the determination that he has violated a condition of parole and lo pres- ent all circumstances syrrounding the vio- 5. Even under the old scgulations, the parolce did not receive an individual hearing on cvery issue, because he was conchisively presumed to be a perole violator if he had been convicted of anoth- 46 FEDERAL REPORTER, 3d SERIES lation to the parole authority so that it may exercise its discretion in a fully informed manner. In this case, however, a revoca- tion hearing would serve no such purposes. it is undisputed that Sneed violated a con- dition of his parole and has met all the factual predicates required by Ky.Rev. Stat. § 439.362 before that section can be applied to him. In addition, it would be pointless for him to present mitigating cir- cumstances te the Board since the Board has no discretion in determining whether to revoke his parole status... . Sneed, 993 F.2d at 1243 (emphasis in origi- nal). Our conclusion in Sneed is supported by Black v. Romano, 471 U.S. 606, 612, 106 S.Ct. 2264, 2268, 86 L.Ed.2d 636 (1986), in which the Supreme Court stated that {njeither Gagnon |v. Scurpelli, 411 US. 778, 93 S.Ct. 1766, 36 L.ed.2d 666 (1973) ) nor Morrissey considered a revocation pro- ceeding in which the factfinder was _re- quired by law to order incarceration upon finding that the defendant had violated a condition of probation or parole. /nstlead, those cases involved administrative pro- ceedings in which revocation was al the discretion of the relevant decision maker. Thus, the Court's discussion of the impor- tance of the informed exercise of discretion did not amount to a holding that the fact finder in a revocation proceeding must, as a matter of due process, be granted discre- tion to continue probation or parole. Thus, Black teaches that Morrissey does not require that a parole authority be given dis- cretion regarding when to revoke a parolee’ parole status; rather, it simply requires that when such discretion is given, a revocation hearing is required. Sneed, 993 F.2d at 1243, 1244. 18} As pointed out also in Sneed, two other courts have reached this same result: United States v. Cornog, 46 F.2d 1604 (ith Cir. 1991); Pickens v. Butler, 814 F.2d 237 (bth Cir.), cert. denied, 484 U.S. 924, 108 S.Ct. 284, 98 L.ed.2d 246 (1987). We have no occasion (or authority) to revisit Sneed, ev fclony while on parole. ‘the only issuc si the heaing was whether mitigating circumstances warranted leniency in revoking his parole. KELLOGG v. SHOEMAKER 509 Cite a0 46 F.3d $03 (6th Cir. 1995) and we decline plaintiffs’ invitation to do so. Plaintiffs have, accordingly, shown no due process violation by the amended procedure adopted by defendants in Ohio. This proce- dure would apply to all situations in which a party or parolee was convicted of an offense after September 1, 1992. C. Whether the new parole regulations violate the ex post facto clause of the United States Constitution. {9} As to the ex post facto challenge, we have considered this challenge in two non- binding parole guideline cases: Persky v. Edwards, 1986 WL 16764 at °3 (6th Cir.); Ruip v. United States, 656 F.2d 1331, 1336 (6th Cir.1977). This case, by contrast, in- volves binding regulations that are mandato- ry after September 1, 1992, and eliminates any discretion in the parole agency to consid- er mitigating circumstances. To catablish the claimed ex post facto violation, plaintiffs must establish that the regulation at issue (1) is retroactive in its application, and (2) “must disadvantage the offender affected by it.” Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2461, 96 L.Ed.2d 361 (1987) (quoting Weaver v. Graham, 460 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). See also Dale v. Haeberlin, 878 F.2d 930, 936 (6th Cir.1989), cert. denied, 494 U.S. 1068, 110 S.Ct. 1628, 108 L.Ed.2d 767 (1990). In this case, the agency action in amending the per- tinent regulation has the same effect as legis- lation for the purpose of ex post facto consid- eration. {10} The focus in determining whether a new law violates the ex post facto clause is the time the offense was committed. Weav- er, 460 U.S. at 31, 101 S.Ct. at 966. See also Persky v. Edwands, 1986 WL 16764 (6th Cir.) (quoting Forman v. McCall, 109 F.2d 862, 869 Ghd Cir.1983)) (Ut is a fundamental principle of ex post facto jurisprudence that a court entertaining an ex post facto claim must focus upon the law in effect at the lime of the offense for which a person is being punished.”), Rodriguez v. United States Pa- role Comm'n, 694 F.2d 170, 176 (7th Cir. 1979) (“{A}ithough parole eligibility is deter- mined as of the date of sentencing for some purposes ... the ex post facto clause looks to the punishment annexed at the time the crime was committed.”). {11] Next we look to whether the new regulations are more onerous than the regu- lations in effect at the time this subclass committed their initial crime. The defen- dants, relying on Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 63 L.Ed2d 344 (1977), argue that the change is merely a procedural change, and does not affect the substantive rights of the plaintiff class. See Dobbert, 432 U.S. at 293, 97 S.Ct at 2298 (“Even though it may work to the disadvan- tage of a defendant, a procedural change is not ex post facto.”). Although the distinction between substance and procedure might sometimes be elusive, “a change in the law that alters a substantia! right can be ex pont facto ‘even if the statute takes a seemingly procedural form!” Miller v. Florida, 482 U.S. at 433, 107 S.Ct. at 2453. Although the change here involves a procedural matler— the right to a hearing on revocation of pa- role—it still affects substantive rights attend- ant to parole revocation. Under the old reg- ulations, parole would be revoked for the full amount of time unless the inmate could con- vince the parole authority that mitigating circumstances warranted mercy. Under the new procedures, there is no opportunity to present these mitigaling circumstances. This procedural change affects substantive rights. {12-14} Thus, the new regulations may violate the ex post facto clause for a portion of the plaintiff class wherein described. The plaintiff class in this case has been defined broadly to include: “all persons whose parole was, or will be, revoked hy the Ohio Adult Parole Authority through a so-called parole- violator recommissioned hearing because they have been convicted of a new felony committed while on parole.” Obviously, the new regulations cannot be deemed te be an ex post facto violation as to those inmates whose paroles were revoked after a hearing under the old regulations, because the new parole regulations were not applied to them. Likewise, the statute is not ex post facto as A-4 610 to those who committed their “initial crime” * after the date of enactment (September 1, 1992). The district court's opinion, however, does not take into account those plaintiffs who committed their initial crime before the new regulations came into effect but whose parole revocation proceedings will be gov- erned by the new regulations.’ The new regulations are retronctive only to these members of this class.* To the extent any plaintiff falls into this designated category, he is entitled under the old regulations to a meaningful hearing as described in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2693, 33 L.Ed.2d 484 (1972). We may only provide prospective injunctive relief in this present case to those inmates, if any, who had committed their initial crime prior to September 1, 1992, and whose parole may be revoked under the new regulations. Only these plaintiffs have a claim to Injunc- tive relief. IV. CONCLUSION In summary, we AFFIRM the district court in all respects, except as to those pris- oners, if any, who committed initial offenses prior to September 1, 1992, but whose parole revocation procedures will be governed by the new regulations. Likewise, we RE- MAND the ez post facto claim for the district court to provide prospective injunctive relief as to those limited members of the plaintiff class described in this opinion. C= 6. We use the term “Initial crime” to refer to the crime from which the inmate has been paroled. Mt docs not teler to the subsequent violation while on parole. é 7. The district count concluded that the “defen. dants t:ave mot retroactively applicd (the new regulations) to the subclass of plaintiffs whose parole had been carlicr revoked....” 46 FEDERAL REPORTER, 3d SERIES a David Lee BOYES, Plainiiff-Appellant;! “ff ” Te] SECRETARY OF HEALTH ~~“) AND HUMAN SERVICES, ° "4 Defendant-Appelice. ‘ee No. 93-4012. al United States Court of Appeals, 4 Sixth Circuit. Argued Nov. 18, 1994. val ae Decided Dec. 13, 1994. | ny | my Mentally impaired social security disabil- . ity and supplemental security income (SSI) claimant filed complaint challenging final de * cision of Secretary of Health and Human : Services denying benefits. The United States District Court, Northern District of Ohio, John M. Manos, J., affirmed Secre- tary's decision, and claimant appealed. The Court of Appeals, Suhrheinrich, Circuit Judge, held that: (1) claimant's past relevant . work as roadside rest cleaner was not “sub stantial guinful activity,” given special condi- tions under which he performed his work, and (2) administrative res judicata did not bar claimant from challenging prior determi- nation that his roadside maintenance work constituted substantial gainful activity. Reversed and remanded. 1. Social Security and Public Welfare © 143.40 ' Claimant bears burden of proving his entitlement to social security disability and supplemental security income (SSI) benefits. ~ Sucial Security Act, § 206(g), as amended, 42 U.S.C.A. § 406(y). 8. At oral argument, the Uhio Attorncy General's office stated that there had been no such actions taken. * this decision was originally issucd as an “unpub- lished decision” filed on December 13, 1994 On January 18, 1995, the court designated the op:nion as one recommended for full-text publi- cation. " BOYES v. SECRETARY OF HEALTH AND HUMAN SERVICES bil Cite as 46 F.3d SIO (6th Cle. 1994) 2:Social Security and Public Welfare Qi € 143.76 * Social security disability and supplemen- - lal security income (SSI) claimant's past rele- vant work as roadside rest cleancr was not Peubstantial gainful activity,” given special conditions under which he performed his work; adult services director at workshop purported that claimant's productivity was less than one half that of typical nonimpaired person, and claimant relied on special trans- portation to get to and from work and com- pleted his work duties through constant on- site supervision. Social Security Administra- tion Regulations, 20 C.F.R. §§ 404.162Qe), 404.1673(b, c), 42 US.CAApp.;; 20 C.F.R. » § 416.920(e). 2"Administrative Law and Procedure " "e601 , Social Security and Public Welfare 142.20 ¥ | Administrative res judicata did not bar social security disability and supplemental security income (SSI) claimant from chal- lenging prior determination that his prior ' poadside maintenance work constituted “sub- slantial gainful activity”; record showed that 1 ALJ reopened merits of that decision in re- viewing benefits clair. Marcia W. Margolius (argued and briefed), . Brown & Margolius, Cleveland, OH, for plaintiff-appellant. Kent W. ‘Penhallurick, Asst. U.S. Alty., , Cleveland, OH (argued and briefed), for de- fendant-appcllee. Before: KENNEDY and SUHRHEINRICH, Circuit Judges; and ZATKOFF, District Judge.** SUHRUEINRICH, Circuit Judge. David Boyes appeals the district court’s judgment affirming the Secretary's find de- cision denying Boyes’ application for disabili- ly insurance benefits and supplemental secu- rily income (SSI) under the Social Security Act. For the following reasons, we RE- **The Honorable Lawrence P. Zatkolf, United States District Judge for the Eastern District of VERSE and REMAND for an award of benefits. Boyes received disabled child's insurance benefits because of a mental impairment (full scale 1Q of 69) based on a May 10, 1976 application. In May of 1974, Boyes entered a sheltered workshop, and after the Secre- tary determined in May 1986 that his work as a roadside rest cleaner constituted sub- stantial gainful activity, the benefits were terminated. The termination letter indicated that Boyes’ earnings exceeded the $300 per month level presumed to indicate substantial gainful activity. See 2 CFR. § 404.1574(b\X2Xvi). Boyes never sought re- view of this determination. In January 1989, Boyes filed for SSI, dis- abled child's benefits and disability insurance benefits. He alleged disability since June 1988, based on mental impairment. The Sec- retary denied all three applications on May 8, 1989. Boyes failed to seck review; however, in September 1989, he filed second ayplica- tions for disability insurance benefits and SSI. Boyes alleged that he became unable to work on May 10, 1989 («disability insurance applications), and August 29, 1989 (SSI appli- cation), because of mild mental retardation and health problems, including tracheobron- chitis, hiatal hernia and a hole in his heart. The applications were denied, and Boyes filed a complaint in district court. The dis- trict court affirmed the Secretary's decision. Boyes contends that the district court erred because the evidence was insufficient to show he possessed the residual functional capacity lo engage in employment at a com- petitive level. Accoriding w Boyes, his past relevant work did not constilute substantial gainful activity. Therefore, he asserts his burden of proving an entitlement to benefits has been fulfilled. {1} On review, the Secretary's factual findings are conclusive when supported by Michigan, sitting by designation. NO. 93-4287 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT GLENN S. KELLOGG; LANI R. ) FILED SMITH; JOHN STAMPER; LAWRENCE) FEB 2 8 1995 DESSENBERG; ROBERT DONLEY; ) MICHAEL JONES; MICHAEL KARHOFF; ) DANIEL SCHREIBER, on behalf ) LEONARD GREEN, Clerk of themselves and all others ) similarly simated, ) ) Plaintiffs-Appellants, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT JOHN W. SHOEMAKER, ET AL., ) COURT FOR THE SOUTHERN ) DISTRICT OF OHIO ) Defendants-Appellees. BEFORE: KEITH, WELLFORD, and DAUGHTREY, Circuit Judges. ORDER The parties in this case have called the court’s attention to an inconsistency in the body of our opinion filed January 9, 1995, by filing petitions for rehearing. Upon consideration, we shall revise the opinion by striking therefrom the phrase, “and also a parole violation offense conviction” from the first sentence of "IV. CONCLUSION,” p. 12. We shall also strike this phrase from line three of the Judgment in this case entered January 9, 1995. Both petitions for rehearing are DENIED. No. 93-4287 Page 2 Kellogg v. Shoemaker ENTERED BY ORDER OF THE COURT CLERK iF IN THE UNITED STATES DISTRICT COURT } shored ____ POR THE SOUTHERN DISTRICT OF OHIO poke bar BASTERN DIVISION GLENN 8. KELLOGG, et al., Plaintiffs, vs. Civil Action 2:90-CV-606 JOEN W. SHOEMAKER, et al., Defendants. OPINION AND OCROER | Plaintiffs, inmates whose parcle has been revoked fv the > = . @) Tr ' oO ld n f ’ 4 ct dd fu M4 ry) ' 4 © yy uthority ("APA"), bring this action on behal¢ of tne=selives anc of a class cf plaintiffs fer prospective decl.ratory anc injunctive relief pursuant to 42 U.S.C. §1983, allegirs that Celer.iants denied then procedural due process under the Fourteenth Amenc=ment curing the ccurse of their final parole revecation Pprsceecings. This matter is now before the Court on the parties’ crcess-=actions for summary judgment. The plaintiff class is composed of parolees whose parcle a has been or will be revoked because they have been convicted of a subsequent felcny committed while on parole. Referred to by the APA as Parole Vioclatcr Recommissioned ["PVR"], each inmate was prsoviced a final parole revocation hearing. The regulation governing those hearings, Ohio Administrative Code ["OAC"] §512C:1- ? 1-19(A) (1), provided that the subsequent felony conviction creates a conclusive presumption that the inmate has violated his parole, anc that the scope of the final revocation hearing would be A strictly limited to the issue cf mitigation.’ Plaintiffs clain that their procedural due process rights have been abricged in several respects by the manner in which their FVR hearings were helc. Plaintiffs and defendants have filed motions for summary jucégment. Summary judgement is governed by Rule 56 of the Federal Rules of Civil Procedure, which provides: The judomen sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, tesether with the affidavits, if any, show that there is no genuine issue as to any material facz and that the moving party is *% entitled to judgment as a matter of law. « [Tjhis standard prevides that the mere existence of some alleged fac=zual Cispute between the parties will not defeat an otherwise prssrerly supported section for summary judoment; the resuirezent is there be no cenuine issue of material fact." Andexrssn v. Litexscy ILebkv. Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); Kendall v. The Heever Co., 751 F.2d 171, 174 (6h Cir. The standard to be applied by the Csurt on meticn for - 4a ae —_— Scxcmary judgment mirrors the standard for a directed verdict. TOAC §5120:1-1-19(A) (1) provides: In the event a releasee is convicted and sentenced on a new felony under Ohio law, it shall be conclusively presumed that Administrative Regulation 5120:1-1-12 (previding that all the conditions of parcle include a requirement that the paroclee abide by all federal, state and local laws} has been violated. In such cases, as applicable, the parole revocation hearing will be confined to the Getermination of mitigating ircu=stances. See eee —— Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson, 477 U.S. at 250. The primary difference between the two moticns is procedural; summary judsment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted. Bill ; \ v. NLRB, 461 U.S. 731, 745 n.11 (1983). In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-siced that one party must prevail as a matter of law. Zs. at 251-52. Accordingly, althcush summary judgment should be cauticusly invoked, it is an integral part of the Federal Rules which are designee "to secure the just, speedy and inexsensive Geteraination of every action." Celetex, 477 U.S. at 327 (quoting Rule 1 of the Federal Rules of Civil Procedure). In a meticn for summary judgment the moving party bears tne "Burcen of shewing the absence of a genuine issue as ts any material fact, and for these purpeses, the (evidence submitted] must be viewed in the light most favorable to the opposing party." ickes v. $.H. Kress & Co., 398 U.S. 144, 157 (1970) (footnete cmittec); accors, Agams v. Union Carbide Corp., 737 F.2d 1453, 1455-56 (6th Cir. 1984), cert. denied, 469 U.S. 1062 (1985). Inferences to be drawn from the underlying facts contained in such materials must be considered in the light most favorable to the party cppesing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Watkins v. hwes* ; sller cciati > @30. 0.20 3458, 3356 (6th Gir. 3990). 3 A-10 Acditionally, "unexplained gaps" in materials submitted by the meving party, if pertinent to material issues of fact, justify Genial of a motion for summary judgment. Adickes, 398 U.S. at 157- 60; Smith v. Hudssn, 600 F.2d 60, 65 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979). If the moving party meets its burden and if adequate time for discovery has been provided, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will Bear the burden of proof at trial. Celotex, 477 U.S. at 326. The mere existence of a scintilla of evidence in Suprcrt of the opssesing party’s position will Be insufficient; there must be evicence on which the jury could reasonably find for the cropcsing party. Anderssn, 477 U.S. at 251 (qucting Improvement ¢. v. Munson, 14 WALL. 442, 448 (1872)). As is provided in Fed. R. Csv. BP. SéCe@): When a ncticn fcr summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in thi rule, must set forth specific facts showings that there is a genuine issue for trial. If he does net so respond, summary judgment, if ppropriate, shall be entered against hin. Thus, "a party cannot rest on the allegations contained in his ... (pleadings] in cppeosition to a properly supported motion for Su=mary judgment against him." First National Bank of Arizona v. ervi -, 391 U.S. 253, 259 (footnote omitted). The process due parolees charged with violating A-11 - conditions of their parole has changed over time. The United States Supreme Ccurt first held, in Merrissev v. Brewer, 408 U.s. 471 (1972), that a parolee’s "liberty is valuable and must be seen as within the prcetection of the Fourteenth Amencnzent. Its termination calls for scne orderly process, however infornal." Ie., 408 U.S. at 482. First, the Supreme Court held, a parolee is entitled to prior notice ane a reasonably prompt informal inquiry, concucted by an impartial hearing officer, to determine if there is reascnable Ground to believe that the arrested parolee has violated a parole condition. At this preliminary revecation hearing, the parclee is entitled to present relevant information and to question adverse witnesses unless security censiderations indicate otherwise. The neutral hearing officer must summarize the evidence and state the reascns for his decision. [J¢d., 408 U.S. at 484-87. If probable, or reasonable, cause is found to believe that the parolee has violated one or more conditions of his pazcle, the parolee is then entitled to a final revocaticn proceeding before a neutral and detached hearing body. The parolee nust have been given written notice of the claimed violations and must be advised of the evidence against him. He may be entitled to counsel and must ke afforded an cpportunity to be heard in person and to present witnesses and documentary evidence. He also has the right to confront and examine adverse witnesses unless security considerations militate against this. A written statement of the evidence relied on and reasons for revoking parole must be A-12 previded. Jd., 408 U.S. at 487-90. See also Gacnon v. Scarsel)i, 41. U.S. 778 (1973) (extending the same due process protections to persons charged with viclating conditions of probation]. Thereafter, the United States Court of Appeals for the Six=n Circuit commented that, "The automatic revocation of parole for every parcle viclation, resardless of the mitigating circumstances, clearly runs counter to the dictates of ... Mexrsissev v. Brewer." Presson v. Picsman, 496 F.2d 270, 275 n.1 (1974). The Court held specifically in Moss v. Passerson, 555 F.2d 137 (6th Cir.), cert. denied sub nom. Kette v. Moss, 434 U.S. 873 (1577), that a final revocation proceeding consistent witnr the am owe éiccaces cf smissevy_ v. Brewer must be afforced even parslees -~we convicted of a subsecuent felony. Plainciffs in this case challenge the constitutional sufficiency of the final revocation proceedings afforded to PYRs in Chic under OAC §5120:1-1-19(A) (1). The evidence currently before the Ccur= indicates that hearings held at the correcticnal inszitution before the parole panel pursuant to 0.A.C. §5120:1-1- 19(4)(1) failed to provide to PVRs netice sufficient ts enable thes © marshall witnesses or other information for presentation in mitigaticn. Moreover, PVRs are denied the assistance of counsel ane are not permitted to call or to subpoena witnesses to testify on their behalf at the final hearing. Although documentary evidence submitted in mitigation by the PVR will ordinarily be accepted by the parcle panel, the panel does not take into account stch information in determining whether or not the PVR’s parole A-13 status should be revoked. Finally, the parole panels exercise no discretion in whether or not to revoke the PVR’s parole. In this resard, the prevailing view among state officials is that parole panels have no discretion to take any action other than revocation of parole until after the minimum term of imprisonment on the new felony conviction has been served. Defendants contend, first, that the procedures followed mdezr OAC §5120:1-1-19(A) (1) do not contravene any constitutional dictates because PVRs, who are already in custody on the new conviction, do net in fact qualify as parolees. Accordingly, defendants argue, no acticn taken by parole officials can result in the desrivation of the PVRs’ liberty. This argument is specious. The United States Court cf Appeals for the Sixth Circuit final revceocaticn hearing consistent with Morrissey and Gecnon. =a=wacee! Csirmeiinmacic Voi vy, Rocers, 541 F.2d 633 (6tn Cir. 1$76). Mcrecver, Mecdy v. Daccett, 429 U.S. 78 (1976), made clear that a parclee’s incarceration on an entirely new charge is net co- extensive with the revocation of his parole. Finally, it is indisputable that the actual result of the final parcle revocation hearing is the panel’s revocation of the PVR’s parole. Defendants have now, however, substituted OAC §5120:1-1- 19 (A) (1) with OAC §5120:1-1-21, which provides, in pertinent part: (A) The Adult Parole Authority shall_revcke the release of any releasee who is recommitted to the Department of Rehabilitation and Correction to serve a sentence imposed upon him by any court in Ohio for an offense he committed while on any release sranted by the > A-14 Adult Parole Authority or while serving a perioe of intermediate transitional detention pursuant to Rule 5120-11-12 of the Administrative Code or serving a pericd of parole surervision pursuant to Rule 5120-11-19 of the Acninistrative Code. (B) This revocation shall be accomplished by the issuance of minutes by the Adult Parole Authority after it has been verified that the sentence was imposed for an offense that occurred while the prisoner was under release status (emphasis added). Thus, unlike fermer OAC §5120:1-1-19(A)(1), the currently controlling regulation, OAC §5120-1-1-21, no longer allows the APA any Giscretion es to whether or not to revoke the parole of a PVR. he revocation is effected simply upon verification by the APA that the PVR has been ccnvicted of another criminal offense committed while on parcle, and the declaration of revocaticn by the APA by means of the "issuance of minutes." Remano, 471 U.S. 606 (1985), the United tates Supreme Court distinguished statutcry or resulatory schemes that vestec discretion in a parole authority in the revocation process from these that did not: (NjJeither Gacnon nor Morrissey considered a revocation proceeding in which the factfinder was required by law to order incarceration upon finding that the defendant had violated a condition or probation or parole. Instead, those cases involved administrative proceedings in which yFevocation was at the (citations omitted). Thus, the Court’s discussion of the importance of the informed exercise of discretion gid not amount to a holdinc that the factfincer in a revocation a Aa c ’ — e bas ea iscr ; parole (emphasis added). A-15 ic-, 471 U.S. at 612. As a result, what had been perceived to be an unconditional right to a parole revocation hearing with certain G@ue process safeguards now seems to turn on whether or not Giscreticn is reposed in the factfinder. All of the judicial authority after Black v. Romano has held that, if the decisionmaker retains any discretion in determining whether or not parole should be revoked, the procedural safeguards of Morrissey must be followed. On the other hand, if Giscretion is lacking and the revocation of parole is autczmatic once the fact of a subsequent conviction is established, a parclee is attcordec no further cue process safegquarés and, indeec, no revocaticn hearing. ickens v. yveler~, 814 F.2d 237, 239 (Sth Ciz.), Sexe. Genied, 484 U.S. 924 (1987): Alevras v. Nevber>, 727 F¥.Sups. 852, 653-54 ($.D. W.¥. -1990)3 Wigeke wv. Bithrev, 762 Ceemce, 945 F.24 1504, 1812-13 (13th Cis. 1991). The operative Guesticn here, then, is whether Ohio currently vests any discretion "e parole panel in determining whether or not a PVR’s parole will be revckec. The plaintiff class contends that Ohio law G@ces. Specifically, plaintiffs argue that the parole board may effecztively continue parole simply "({BbJy not verifying the facts or by net issuing the minutes, or by delaying either act, ” Stier for mary cment, at 12. See also United States v. Commces, 945 F.24 1504. However, this argument ignores the specific languase of OAC §5120:1-1-21(A), which requires that the APA "shall . A-16 revoke the release” of any parclee recommitted to the Ohic Department of Rehabilitation and Correction to serve a sentence imposed urcen hia for an offense committed while on parole (emphasis added). Plai fs also contend that, regardless of OAC §5120-1- 1-21, the APA is vested with discretion by virtue of O.R.C. §2967.17, which provides: The acult parcle authority may, in its Giscretion, grant an administrative release:* (A) To a parscle violator serving another felony sentence in a penal institution within cr witheut thi state fcr the purpose of consolidation of the records or where justice a woule be best served; To @ parcle violator at large whose case EFeen inactive far a= least ten years ng the cate of declaration of parole on. An ac=inistrative release shall not be granted except upon ‘th :e concurrence of a majority of the parole boare and approval of the chief? of th acult parole authority and shall not Operate to restcre the rights and privileges forfeited by conviction as provided in section 2961.01 of the Revised Code. Any person gGrantec an administrative release under this section may subsequentl apply for a commutaticn of sentence for the be a of regaining the rights and privileges forfeited by conviction. See State v. Dean, 1986 WL 9071 (Ress Cty. App. 1986) [fan Ohio parclee was administratively released from parole following his sentence to life impriscnzent in another state]. The statute ¢mAdministrative release" is defined as "a termination of jurisdiction over a pazticular sentence by the [APA] for ac=inistrative convenience.” O.R.C. §2967.01(C). 10 A-17 ee ee ee OO - ecces not vest any discretion in the APA or its panels in connection with the revecaticn of a PYR’s parole. Accordingly, OAC §5120:1-1- 21, which does divest all discretion from the APA in this recard, is not inconsistent with this statute. Plaintiffs also take the position that OAC 5120:1-1-21 is ineffective because it is inconsistent with Ohio statutory law. In Ohio, an agency "may not issue rules which are unreasonable or are in clear conflict with statutory enactment covering the same subject matter." 10 Ohio Asp. 3¢€, 108, 110 (1983). Plaintiffs take the position that OAC §5120:1-1-21, which purports to divest the APA of all Giscreticn where the issue of revocation of PVRs is concerned, is inconsistent with ORC §29€7.15, which prevides, in pertinent part: A convict who has been conditionally pardoned or a prisoner who has been paroled, and who, in the jucoment of the adult parole authority, has viclated the ccnditions of his pardon or parcle shall be declared a violator. In such case, the time from the date of the declared violation of his pardon or parole to the date he beccmes available for return tc the institution shail not be counted as a part of time or sentence served. The Ohic APA is charged with administering all statutes relating parcle. O.R.C. §2967.02. Read together, O.R.C. §§2969.02 and .15 reflect the General Assembly’s intent to confer upon the APA the authority to deternine these circumstances under which a person released on parole shoule be declared a violator and returned to the institution frem which he was parcled. The statutes do not require that individual members of the APA or that panels of the APA exercise that discretion in each individual case. Accordingly, 11 A-18 @ regulation such as OAC §§5120:1-1-21, which expressly articulates one circumstance under which the APA will revoke a parclee’s parole, is not, in the judgment of this Court, inconsistent with ORC §2967.15. In short, then, this Court concludes that OAC §§5120:1-1- 21 is a valid exercise of rule-making authority and serves to Givest individual APA panels of discretion in the decision whether or not to revoke a PVR’s parole. Because, under the new administrative regulation, inéivicual parsle panels no longer have discretion with respect to tne revecation of the parole of any PVR, the due pzrscess protections affcrdec parclees by Morrissev v. Brewer ire no longer arrlicable. See Pickens v. Butler, 814 F.2d 237. See also United Ss2tes v. Cormmoec, 945 F.246 1504 (11th Cir. 1991); Black v. Resano, 471 U.S. 606. Defencants contend that, with the passase of the new resulaticn, the issues in this case have been rendered moot. tg | ed fv intiffs disagree. The second amended complaint, filed December 9, 1992, challenges the PVR revocation procedure in place at the time the ccxmplaint was filed, alleging specifically that that procedure viclated the due process rights of the members of the plaintiff class. Plaintiffs seek declaratory relief declaring that the revocation procedure is unconstitutional by virtue of the facts that that procedure fails to give members of the plaintift? class reascnable and adequate notice of the scheduling of the PVR hearing 12 : A-19 and of the PVRs’ rights at the hearing, fails to provide a meaningful opportunity to present evidence and argunent as to mitigation, ane prohibits the exercise of discretion by the mexters cf tne Parole Board in light of mitigating factors. mendged Complaint, at 6. The plaintiffs also seek preliminary and injunctive relief restraining, prohibiting, and enjoining Defendants from approving, implementing, or enforcing PVR revocation procedures which deprive Plaintiffs and all others similarly situated of their Fourteenth Amendment due process rights. at 7. As this Court stated, in its Oczsber 28, 1991 Opinien and Order denying the defendants’ motion to Gismiss, the plaintiff class in this action seeks only Geclaratcry and future injunctive relief enjoining the defencants sa follewing the challenged precedures. The Court specifically class, -Eecause such an attack is properly brought only in the contexc cf a habeas corpus action under 28 U.S.C. §2241. see Preiser v. Rodricuez, 411 U.S. 475 (1973). Because the procecures challenged by the second amended complaint no longer have any force or effect in the State of Ohio, this Court concludes that the issues jcined by the second amended complaint and the answer thereto have, by passage of OAR §5120:1-1-21, been renderec moot. Accordingly, defendants are entitled to judgment as a matter of 13 A-20 law. WHEREUPON plaintiffs’ motion for summary judgment is without merit and it is therefore DENIED. The claims asserted in the seconde amended complaint have been rendered MOOT by the passage of OAR §5120:1-1-21 and, for that reason, the defendants’ motion for summary judoment is meritorious and it is therefore GRANTED. The Clerk is DIRECTED to enter FINAL JUDGMENT for the Gefendants. Safidra $. Beckwith, Judge United States District Court [This determination does not, of course, impact upon the right of any member of the plaintiff class to chalienge, in a petition for a writ of habeas corpus, the constitutionality of his current confinement under former procedures. 14 A-21 —- ~— - — Fr OO Om OC on a AO 450 (Rev. 5/85) Judgment in a Civil Case UNITED STATES DISTRICT COURT Southern District of Ohio £3#5/28 F:0:¢9 ~ CePRe Mt. ee —<—~ ~~ @ Ste we 1? tauu wree on GLENN S. KELLOGG, et al . Ber SEP SHS JUDGMENT IN A CIVIL CASE US. Cs °":S7 SSurr VS Case No. C2-90-606 Judge Beckwith Magistrate Judge King JOHN W. SEOEMAKER, et al Q Jury Vercic:. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. - [x] Decision by Cour:. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED that Plaintiffs’ motion for Summary judgment is DENIED. Defendants’ motion for summary judgment is GRANTED. FINAL JUDGMENT is entered for the defendants. Date: May 28, 1993 Kenneth J. Murphy, Clerk “A PA ¥ “en Phere liert By Peg Lambert /Deputy Clerk A-22 IN THE UNITED STATES DISTRICT COURT a5. F8, POR THE SOUTHERN DISTRICT OF OHIO BASTERN DIVISION GLENN S. KELLOGG, et al., oe par Cas Plaintiffs, vs. Civil Action 2:90-CV-606 JOEN W. SEOEMAKER, et al., Defendants. CPINION © Plaintiffs, a class of inmates whose parole wa» revoked Ey cre Chic Acult Parcle Authority ("APA"), brought this acticn on Eehalt cf themselves and of a class cof plaintiffs, for prospective Ceclaratsry anc injunctive relief pursuant to 42 U.S.C. §1983, aliesing that defendants cenied thez procedural due precess uncer tne Feurvteenti aAsendment during the csurse of plaint:ffs’ revccaticn preceecings. On May 27, 1993, this Ccurt granted S=u=—ary jucesent in favor of defendants. Opinion and Orser ¢f Mav 227. i223. Final judgment was entered on May 28, 1993. This matter is mow before tne Court cn plaintiffs’ motion to alter or amend that judoement, Rule 59(e), Fed. R. Civ. P., and on plaintiffs’ oO Bjections to Magistrate Judge King’s May 24, 1993 Order cenying plaintiffs’ Rule 16(£) metion for sanctions against defendants. Rule 72, Fed. R. Civ. FP. The plaintiff class cnsists of parolees who . were convicted of a subsequent felony while on parole, and whose parole was suSsequently revoked as a pazrcile violator recommissicnec A-23 ee ® ("PVR"). Plaintiffs originally Claimed that their FVR hearings failec te comport with procedural due process. They asked that the Ccur= ceclare that defendants’ PVR procedures violated plaintiffs’ Procecural due process rights, Second Amended Complaint, and enjoin Cefencants from following PVR procedures violative of plaintiffs’ Frocecural due process rights. Id. During the course of this litigation, Ohio Administrative Ccce [("OAC"] §51220:1-1-159(A)(1), the fermer adninistrztive regulation dealing with PVR procedures, was repealed anc OAC §5120:1-1-21 was implemented. After evaluating this new regulation Sy reference tc Black v. Romano, 471 U.S. 606 (1985), this Ccurt concliucec that OAC §5120:1-1-21, which divested the Ohio Aéult Parsle Autherity ("APA"] of all discretion regarding the revocation isc2. See also Sneed v. Denahue, 993 F.2d 1239, 1243 (6th Cir. cl a FYR’s parcsle, is esnstitutiona 1$$93). The Court further held that, because the procecures Challenged in the second amended complaint were no longer in eltec=, the case has keen rendered mcot. ini Ger ¢s Mav 7, i353. Final judement for defendants was entered on May 28, Plaintiffs now seek to amend this Ccurt’s judgzuent, + arguing that the application of OAC §5120:1-1-21 to members cf the Plaincziffé class whose parsle had been revoked under the old resulaticn violates the constitutional prohibition against ex post A-24 sts laws. See Article I Section 10 nit tates In creer to demonstrate a violation of the ex post faces Clause centained in the United States Constitution, plaintiffs must establish that the law at issue 1) is retroactive in applicaticn anc 2) "must cisadvantage the offender affected by it." Millerv. LOric2, 482 U.S. 423, 430 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)); Dale v. Haeberlin. 878 2d 930, 935 (6th Cir. 198S), cers. Senied, 494 U.S. 1058 (1990). The new regulation has net been arplied to remedy any defecc in the revocation procecures feilcwec in th past. Accoréinegly, defencants have not reirzcactively applied CAC §5120:l-1-21 to the subclass cf plaincitcis whese parcle hac been earlier revcked pursuant to fcr OAC §5220:1-1-29(A) (1). Defendants cannet, and Go net, argue that this subclass of plaintiffs will be subjected to OAC §5120:1-i-21. Acccrcingly, Flaintifcs have failec to establish an ex post Z2cts As this Court reled in its Ocinicn anc Order enterec May 27, i$$3, the relevant analysis turns to whether or not plaintités’ Ciaixzs for relief are moct. Plaintiffs’ scle clain for injunctive relief ssusht to restrain defendants from violating plaintiffs’ proececural due process rights in the future through the use of comsticutionally infirm PVR hearings or procedures. Plaintirfs no lencer> have any procedural due process rights to a meaningful Tem Tme Eleventh Amendment prevents this Court from considering Clai=zs under Ohio’s Constitution. See Pennhurst State Schceo! and Ecs>it2) v. Haldeman, 465 U.S. 89 (1984). —_s 3 A-25 hearing in connection with PVR parole revocation proceedings in cennecticn with felonies committed after the effective date of the new regulation. Accordincly, the enactment cf OAC §5120:1-1-2i has rendered plaintiffs’ claims for future injunctive relief moot. Plaintiffs assert that their claims for declaratory relief are not rendered meot by the enactment of OAC §$120:1l-1-21. This Court disagrees. Where the plaintiffs “seex[] a declaratory judement as te [the Parole] Board’s past actions -- without any substantive relief involved -- neither the Declaratory Judgment Act standard ‘26 «68.8.6. $2203) nor Article III’s ‘case’ or ‘contreversy’ requirement is satistiec."™ Jackson yy, tii i56i8 Upp. 822, 827 (N.D. Ill. 1987), +b S66 F.2a@ 8$0 (7th Cir. 1988) (citing sreern_ v. Marscur, 474 U.S. 64 (1985); Aetna Lite Ins. Cs. Vv. Eawerss, 300 U.S. 227, 240"41 (1937)).- To hold otherwise weulc assuixe, &98 F. Nw € 1144, 1148 (6th Cir. 1990). Declaratory relief evaluating the constitutionality of past procedures woulc te the umcticnal equivalent ef a habeas corpus acticn, anc is net available in an acticn under 42 U.S.C. §1983. See Preiser v. Roe