United States District Court, Eastern District of Illinois
April 2, 1975
DELBERT X. BEARD, A/K/A AUGUST SERIO, PLAINTIFF,
STEVE JOHNSTON AND UNITED STATES PAROLE BOARD, DEFENDANTS. PAUL PANCZKO, PLAINTIFF, V. MAURICE SIGLER, CHAIRMAN, UNITED STATES BOARD OF PAROLE AND STEVE D. JOHNSTON, PAROLE EXECUTIVE, DEFENDANTS. RAY NELSON BRUINSMA, PLAINTIFF, V. MAURICE SIGLER, CHAIRMAN, UNITED STATES BOARD OF PAROLE AND STEVE D. JOHNSTON, PAROLE EXECUTIVE, DEFENDANTS. ALBERT F. NUSSBAUM, PLAINTIFF, V. U.S. BOARD OF PAROLE AND MAURICE H. SIGLER, CHAIRMAN, DEFENDANTS. EDWARD JOSEPH X. CHAPMAN, PLAINTIFF, V. UNITED STATES PAROLE BOARD, DEFENDANT. JAMES HAROLD PARKER, PLAINTIFF, V. UNITED STATES BOARD OF PAROLE, DEFENDANT. CLARENCE JONES, PLAINTIFF, V. UNITED STATES BOARD OF PAROLE, DEFENDANT. EDWARD JOHNSON, JR., PLAINTIFF, V. UNITED STATES BOARD OF PAROLE, DEFENDANT.
The opinion of the court was delivered by: Foreman, District Judge:
MEMORANDUM AND ORDER
Each of the Plaintiffs has filed an action seeking a written
statement of the reasons for the denial of his parole
application. Since the cases raised a common legal question, they
were consolidated pursuant to Rule 42, Federal Rules of Civil
Procedure, for consideration in a single order.
Plaintiffs first claim that written reasons for the denial of
parole are required by the Administrative Procedure Act, 5 U.S.C. § 551
et seq. The Court of Appeals for this Circuit recently held
that the Administrative Procedure Act requires that federal
prisoners be given "a brief written statement of the grounds for
denial" of their parole applications, King v. United States,
492 F.2d 1337 (7th Cir. 1974). However, with the exception of
Plaintiff Parker, who has already been given reasons for his
denial of parole, all of the plaintiffs were denied parole prior
to the King decision. Therefore, unless King is applicable
retroactively it can not serve as a basis of relief for
The Seventh Circuit failed to indicate in its opinion whether
King was to be applied retroactively. The Tenth Circuit recently
considered this issue, however, and held that its decision that
the Administrative Procedure Act requires written reasons for
denial of parole was not retroactive, Mower v. Britton,
504 F.2d 396 (10th Cir. 1974). In Mower the Court stated:
"In view of the large number of parole applications
made annually to a Board of limited staff and the
any indication of bad faith in the interpretation and
administration of the applicable law and regulations,
however, our decision will not be applied
I find this reasoning applicable to the instant case and,
therefore, hold that King is not retroactive. See also Wolff v.
McDonnell, 418 U.S. 539
, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Plaintiffs, therefore, are not entitled to relief pursuant to the
Administrative Procedure Act.
Plaintiffs also claim that written reasons for the denial of
parole are required by the due process clause of the Fifth
Amendment. The District of Columbia Circuit Court recently held
in a class action filed on behalf of all federal prisoners
eligible for parole that such written reasons are required by due
process, Childs v. United States Board of Parole, 511 F.2d 1270
(D.C.Cir., decided December 19, 1974). Since the plaintiffs are
all members of the class in Childs this Court is bound by that
decision unless and until plaintiffs decide to challenge the
adequacy of their representation in that case, Hansberry v. Lee,
311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Supreme Tribe of
Ben-Hur v. Cauble, 255 U.S. 356, 367, 41 S.Ct. 338, 65 L.Ed. 673
The Childs case holds that all federal prisoners denied parole
subsequent to December 31, 1973, must be provided a written
statement of the reasons for the denial. All of the plaintiffs
who have not received reasons were denied parole prior to
December 31, 1973. Accordingly, plaintiffs are not entitled to
relief based on their due process argument.
In addition to written reasons for the denial of his parole
application, Plaintiff Nussbaum seeks adjudication of his right
to appeal his denial of parole. Nussbaum's own pleadings show
that the Board of Parole has instituted an experimental procedure
whereby federal prisoners whose parole hearings were held at an
institution located in the Northeast Region may appeal the denial
of their parole applications. Plaintiff's parole hearing was not
held at an institution located in the Northeast Region, but he
still claims he is entitled to appeal because the final decision
on his parole application was made in Washington, D.C., which is
located in the Northeast Region. Eligibility for appeal, however,
does not turn on where the decision was made. Eligibility depends
on where the parole hearing was held. Since Nussbaum's hearing
was not held in the Northeast Region, he has no right to appeal
his denial of parole.
Plaintiffs have failed to state any claims upon which relief
can be granted. Accordingly, their cases are hereby dismissed.
It is so ordered.
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