Appeal from the United States District Court for the Southern District of Illinois, Benton Division, No. CV 84-4066, Kenneth J. Meyers, Magistrate.
Before EASTERBROOK and RIPPLE, Circuit Judges, and GRANT, Senior District Judge.*fn*
EASTERBROOK, Circuit Judge.
The United States Penitentiary at Marion, Illinois, houses the worst of the bad. It is the maximum security institution in the country. Since October 1983 Marion has been "locked down". Every prisoner is confined to his cell most of the day; when let out for short periods, prisoners are apt to be chained and closely guarded. We have held that the lockdown does not violate the Constitution, including the due process clause of the fifth amendment. Caldwell v. Miller, 790 F.2d 589, 601-05 (7th Cir. 1986). Caldwell did not deal with a due process claim based on particular regulations. 790 F.2d at 602. James Miller, who was transferred to Marion two months before the lockdown began, raises that claim in this action under 28 U.S.C. § 2241.
Miller is a federal prisoner serving a long term. "Persons convicted of offenses against the United States . . . punishable by imprisonment for more than one year may be confined in any United States penitentiary." 18 U.S.C. § 4083. Until August 1983 Miller was held at Leavenworth, a "Level 5" prison designed for incorrigible inmates. After a weapon was found in his cell he was transferred to Marion, the only Level 6 prison, the end of the line for those who can not or will not accept the responsibility that comes with the limited freedom allowed in less secure prisons. In May 1984 he was put into segregated confinement at Marion as a result of the staff's complaints about his behavior. Segregation has strict controls and few privileges (no television, for example), although it is not as strict as Marion's Control Unit.
The transfer was authorized by 18 U.S.C. § 4082(b), which allows the Attorney General to designate the place of confinement for each federal prisoner; the Attorney General "may at any time transfer a person from one place of confinement to another." Miller concedes that § 4082(b) allows the Attorney General to move a prisoner for any reason or no reason (other than one, such as race, that a substantive portion of the Constitution forbids). See Brown-Bey v. United States, 720 F.2d 467, 470 (7th Cir. 1983). The prisoner has no statutory entitlement to be held in one prison rather than another; §§ 4082(b) and 4083 jointly negate any such claim.
When the jailer is free to move a prisoner for any or no reason, the due process clause does not require hearings. Meachum v. Fano, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976); Montanye v. Haymes, 427 U.S. 236, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976); Olim v. Wakinekona, 461 U.S. 238, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983). Miller tries to tiptoe around these holdings. His first argument is that Marion, as the nation's maximum security prison, is qualitatively different from all others. Miller assimilates Marion to an asylum, and Vitek v. Jones, 445 U.S. 480, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980), holds that there must be a hearing before a prisoner may be sent to a mental hospital. An inmate's life is so greatly changed on arrival at Marion, the argument runs, that the due process clause requires a hearing. Caldwell rejects this argument, 790 F.2d at 603-05, holding that even when locked down Marion is not "qualitatively different from the punishment characteristically suffered by a person convicted of crime." Vitek, 445 U.S. at 493. Because the nature rather than the weight of the interest determines whether the due process clause applies, the Constitution does not require hearings before transfers to Marion.
Miller's second argument is that prisoners have a legitimate claim of entitlement to avoid Marion unless they have been classified as suitable. Every federal prisoner has a security classification and is supposed to be held at a prison as secure as (or more secure than) his classification. A prisoner classified Level 4 might be held in a Level 4 prison or in a Level 5 prison; a prisoner classified Level 6 must be held at Marion. More, Miller contends, since the lockdown began in October 1983, only Level 6 prisoners may be held in Marion. Inmates classified as suitable for less-secure prisons were removed from Marion after October 1983, Miller alleges, while he was retained. He seeks to establish that the security classification of a prisoner is governed by rules, for if rules establish a legitimate claim of entitlement to one classification rather than another, the due process clause requires hearings to determine whether the facts support particular treatment under the rules. Hewitt v. Helms, 459 U.S. 460, 471-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983); Huggins v. Isenbarger, 798 F.2d 203, 205 (7th Cir. 1986).
The Bureau of Prisons has general operating procedures, set forth in several looseleaf documents, that instruct its staff how to make security classifications and when to transfer prisoners. These documents include "program statements" that describe the nature of particular prisons and the criteria that may make one prison rather than another preferable for a particular prisoner. The staff is told, for example, not to send to Marion anyone who needs psychiatric care; none is available. The documents also point out, just in case it were not obvious, that only the toughest, hardest to control prisoners should be sent to Marion. It is for roughnecks, not tax protesters. The point of Miller's argument is that written documents confirm what is undeniable; assignment to Marion is not random; people are not confined there for any reason or no reason; the Bureau of Prisons has a very good idea who should be at Marion. These criteria, Miller insists, establish a liberty or property interest, which in turn requires a hearing.
Just how much the writings structure the discretion of the Bureau's staff is open to question, because Miller has not seen all of them. Sections were made available, but critical portions were obliterated. The magistrate, who rendered final judgment by consent under 28 U.S.C. § 636(c), examined the deleted portions in camera and concluded that "the deleted material represents sensitive information, the release of which could endanger lives and cause security problems at USP-Marion." We have not examined the redacted portions of the materials. The documents that have been disclosed show that the Bureau of Prisons has numerous criteria, such as the lack of need for psychiatric treatment. We assume, moreover, that there are undisclosed criteria, perhaps things such as "do not transfer to Marion any prisoner who has not committed two violent infractions in other prisons".
The appropriate question is not whether a writing takes the form: "If facts A and B, then result Z." It is instead whether the writing, whatever the form, creates a substantive rule of decision, a "legitimate claim of entitlement", Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), an "expectancy . . . that was legally enforceable", O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 788 n.21, 65 L. Ed. 2d 506, 100 S. Ct. 2467 (1980). The existence of substantive criteria is compatible with unfettered discretion to disregard the criteria. When the Court says that a person may act for any reason or no reason at all, and that this sort of freedom negates a liberty or property interest, it does not mean that the person exercising the discretion acts for no reason. The prisoners in Meachum and Montanye were transferred for disciplinary reasons, because appropriate officials thought they should be in more secure custody. Similarly, the Connecticut Board of Pardons did not draw straws to determine who would be pardoned. It tried to make sensible decisions. The question under the due process clause was not whether the Board had some standards (written or not) but whether these standards created substantive restrictions. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 69 L. Ed. 2d 158, 101 S. Ct. 2460 (1981). There is a difference between criteria and binding rules of decision, a difference dispositive in this case.
The Attorney General possesses statutory discretion to move Miller where he will, but because the Attorney General does not act on his own behalf he must tell his subordinates what to do. Thus the instructions to the staff. The Attorney General could establish rules for the benefit of prisoners, giving them entitlements depending on provable facts. In order to restrict his statutory discretion, to bind himself by enforceable rules, he had to follow the forms of the Administrative Procedure Act. He could have adopted a rule after notice and comment, and administrative agencies must follow their own formal rules. Accardi v. Shaughnessy, 347 U.S. 260, 265-67, 98 L. Ed. 681, 74 S. Ct. 499 (1954). The rule creates the substantive entitlement, just as a contract may, even if the statute does not. The enforceability of the substantive criteria in turn would create a liberty or property interest. When a regulation or rule with binding force establishes substantive criteria, it also creates constitutional "liberty" or "property". See Wolff v. McDonnell, 418 U.S. 539, 571-72 & n.19, 41 L. Ed. 2d 935, 94 S. Ct. 2963 ; Hewitt, 459 U.S. at 466-67; Olim, 461 U.S. at 244-46. (We need not and do not discuss how much restraint on discretion is necessary to create such an interest, on which see, e.g., Huggins v. Isenbarger; Scott v. Village of Kewaskum, 786 F.2d 338 (7th Cir. 1986); and Reed v. Village of Shorewood, 704 F.2d 943, 948-49 (7th Cir. 1983).) But if all the Attorney General has done is to tell his staff how he wants to exercise his discretion -- language that brings his subordinates' acts in line with his wishes but does not reduce his discretion to do otherwise -- then there is no substantive rule enforceable in any forum. Whether we call the pronouncements "internal personnel manuals" or "precatory" or something else, they remain statements of the way in which discretion is exercised but do not establish substantive rights. See Schweiker v. Hansen, 450 U.S. 785, 789, 67 L. Ed. 2d 685, 101 S. Ct. 1468 (1981) (an internal manual that is "not a regulation . . . has no legal force, and it does not bind" the agency). And because the liberty and property of a prisoner are defined by the substantive rules of positive law, the absence of such rules is dispositive.
Quite a number of cases hold that regulations or policy manuals endow prisoners with liberty or property interests. Many of these cases, including some in our circuit, treat formal regulations, internal policies, and customary practices interchangeably. E.g., Durso v. Rowe, 579 F.2d 1365, 1371 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S. Ct. 1033, 59 L. Ed. 2d 82 (1979); Arsberry v. Sielaff, 586 F.2d 37, 47 (7th Cir. 1978). But with a few exceptions these cases predate Hewitt, which emphasized the importance of binding regulations. We concluded after Hewitt that only statutes and binding regulations establish liberty interests in favor of prisoners. Mathews v. Fairman, 779 F.2d 409, 414 (7th Cir. 1985). And with only two exceptions the cases in other circuits do not explicitly consider whether the legal enforceability of the regulation or policy statement matters. The exceptions are Lucas v. Hodges, 235 App. D.C. 63, 730 F.2d 1493, 1501-05 (D.C. Cir. 1984), and Parker v. Corrothers, 750 F.2d 653 (8th Cir. 1984).
In Lucas a divided panel held that any policy manual or course of practice may establish liberty interests, even if the policy or practice creates no rights enforceable under the substantive law of the jurisdiction. Lucas later was vacated as moot, 738 F.2d 1392 (D.C. Cir. 1984), so it is not binding even within the D.C. Circuit. We have given respectful attention to its reasoning yet find Judge Starr's dissenting opinion the more persuasive. The majority concluded that statements of policy, even established practices, can set up expectations of similar treatment in the future, and that these expectations are protected by liberty interests. This decision, it seems to us, contradicts Connecticut Board of Pardons v. Dumschat. The prisoner in Dumschat relied on a practice. Most prisoners were granted clemency, and the plaintiff said that this practice created an expectation of similar treatment. The Supreme Court concluded, however, that expectations based on practices are insufficient. There must be a promise of such treatment. 452 U.S. at 465-67. The Court stated: "The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency." Id. at 465 (emphasis added). See also Jago v. Van Curen, 454 U.S. 14, 18-20, 70 L. Ed. 2d 13, 102 S. Ct. 31 (1981). Whether a writing establishes an "obligation" depends on whether it is enforceable under the law of the jurisdiction that adopted it. As a promise without consideration usually does not create a contract, so a policy manual usually does not create a rule binding on the proprietor of ...