Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 83 C 7351, Milton I. Shadur, Judge.
Before WOOD and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge. This case presents a federal prisoner's challenge to the refusal of the Bureau of Prisons ("Bureau") to move his sentencing court to reduce his minimum sentence time served. Because the Parole and Reorganization Act, Pub. L. No. 94-233, § 2, 90 Stat. 219 (codified as amended at 18 U.S.C.A. §§ 4201-4218 (West 1985) ("Parole Act")), reveals an intent to preclude judicial review of the Bureau's decision, we will affirm the district court's dismissal of the action.
James Turner, the petitioner below and the appellant here, was convicted of unarmed bank robbery and sentenced to a minimum ten-year term, which he began serving on March 15, 1982. while incarcerated, he voluntarily (and apparently without receiving any promises in return) testified for the government in another criminal trial that resulted in the conviction of a third party.
After testifying for the government, turner requested the Bureau under 28 C.F.R. § 572.40(a) (1986) to move his sentencing court to reduce his minimum sentence to time served under 18 U.S.C. § 4205(g) (1982) in order to make him eligible for parole.*fn1 Turner claimed as justifications his testimony for the government in the later criminal trial and his medical condition - the pleadings allege that he suffers from some presently nonlife-threatening symptoms of scleroderma. He also alleged that his life had been threatened in prison on account of his testimony, and that he warned prison officials of a threat of violence to a prison guard.
The General Counsel of the Bureau refused the request on behalf of the Bureau and provided Turner written notice and the reasons for the refusal. Turner then filed a claim in district court alleging jurisdiction under 28 U.S.C. § 2241 (1982) and claiming that the Bureau had abused its discretion in refusing Turner's request.*fn2 The trial court dismissed the suit, ruling that section 701(a) of the Administrative Procedure Act ("APA") deprived the federal courts of subject matter jurisdiction.*fn3 5 U.S.C. § 701(a) (1982). Turner appeals that decision.
The dispositive issue in this case is whether the Bureau's refusal to make the motion to reduce Turner's sentence is reviewable by the courts. Section 702 of the APA generally allows a person who "suffers legal wrong" or who is "adversely affected or aggrieved" by a federal agency's action to obtain judicial review of that action. 5 U.S.C. § 702 (1982). We also must apply the generally applicable presumption in favor of judicial review, which requires "clear and convincing evidence" of preclusion to deprive the federal courts of jurisdiction. See, e.g., Block v. Community Nutrition Institute, 467 U.S. 340, 104 S. Ct. 2450, 2456-57, 81 L. Ed. 2d 270 (1984); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S. Ct. 1507, 1510-11, 18 L. Ed. 2d 681 (1967); Cardoza v. Commodity Futures Trading Commission, 768 F.2d 1542, 1551 (7th Cir. 1985). But see Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 1655-56, 84 L. Ed. 2d 714 (1985) (presumption of nonreviewability applies to agencies' decisions not to take enforcement action).*fn4 The APA denies judicial review in two specific situations. 5 U.S.C. § 701 (1982). Section 701(a)(1) denies review if Congress expresses its intent in a statute (here the Parole Act) to preclude judicial review. See Block v. Community Nutrition Institute, 467 U.S. 340, 104 S. Ct. 2450, 81 L. Ed. 2d 270 (1984). If the search for statutory intent regarding judicial review is unavailing, judicial review will still be presumed unless the statutory scheme provides no meaningful guideline by which to define the limits of the agency's discretion, leaving the Bureau's decision "committed to agency discretion by law" under section 701(a)(2). See Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985) (presumption for reviewability applies unless agency action challenged is a decision not to enforce).
At first blush, the latter approach under section 701(a)(2) might appear appropriate here. There is no explicit language in the Parole Act itself or in the legislative history regarding judicial review of the Bureau's power to move a court to reduce a sentence. Moreover, language in the Parole Act explicitly subjects certain Parole Commission actions (rulemaking) to review under the APA, 18 U.S.C. § 4218(c); see id. § 4203(a)(1), and other language explicitly excepts other Parole Commission actions (parole decisions) from the APA, id. § 4218(d); see id. §§ 4203(b)(1) - 4203(b)(3). Standing alone, these differing explicit provisions would appear to preclude any fair inference one way or the other regarding the remaining Parole Act provisions, the judicial review of which Congress did not explicitly address. In addition, both parties have on appeal argued the applicability of Chaney, the leading case applying section 701(a)(2).
Nevertheless, the parties' appeal to Chaney is misguided. Chaney itself firmly establishes that § 701(a)(2) is only applicable if no statutory intent can be discerned under § 701(a)(1). Chaney, 105 S. Ct. at 1655. We do not reach the test under § 701(a)(2) because our application of the test for statutory intent outlined in Community Nutrition requires us to hold that Congress intended the Parole Act to preclude judicial review of the Bureau's decisions whether to move in federal court for sentence reductions under 18 U.S.C. § 4205(g) (1982).*fn5 The search for Congress's intent goes beyond simply cataloguing the explicit references to the APA and to judicial review in the statute and its legislative history; Community Nutrition requires us to look to "inferences of intent drawn from the statutory scheme as a whole," Community Nutrition, 104 S. Ct. at 2456, and to the "nature of the administrative scheme involved," id. at 2454; see also Morris v. Gressette, 432 U.S. 491, 501, 97 S. Ct. 2411, 2418, 53 L. Ed. 2d 506 (1977); Barlow v. Collins, 397 U.S. 159, 165-66, 90 S. Ct. 832, 837, 25 L. Ed. 2d 192 (1970).
First, we note that all the explicit provisions within the Parole Act regarding judicial review under the APA are addressed to the powers of the Parole Commission and not to those of the Bureau. Congress explicitly chose to provide exclusive internal review by the Parole Commission of its parole decisions.*fn6 18 U.S.C. § 4218(d) (1982). Congress also explicitly chose to make the rulemaking efforts of the Parole Commission subject to judicial review. 18 U.S.C. § 4218(c) (1982). This suggests that congress perceived the Parole Commission's decisions regarding parole itself to require review of one specified character and the Parole Commission's decisions in rulemaking to require review of another character.
Section 4205(g) is wholly unlike those provisions; it contains a grant to an entirely different agency (the Bureau) of an entirely different power (motions for sentence reduction). The power is not the direct control of decisions to grant the conditional liberty of parole or to change a sentence; it is merely the power to bring an inmate's sentence before a federal court for review. And the power is not delegated to the Parole Commission, the agency normally delegated the authority to decide questions of length of incarceration. Nor is the power delegated to the courts, who make the initial sentencing decisions; it is to the Bureau, the agency responsible for maintaining and overseeing the prisons.*fn7 See 18 U.S.C. § 4042 (1982). This placement of the power to make § 4205(g) motions with the Bureau suggests that Congress perceived the control of the power to require less oversight and less administrative time than parole and sentencing decisions, for the Bureau is not staffed with adjudicators.
The absence of mandatory language in this provision also immediately suggests the breadth of discretion characteristic of nonreviewable authority. If Congress meant to bind the Bureau's discretion, surely it would have done so more directly than by means of a single line only implicitly granting even the power itself. The Parole Act devotes only a single clause in section 4205(g) to the Bureau's power; it reads " at any time upon motion of the Bureau of Prisons, the court may reduce any minimum term to the time the defendant has served." 18 U.S.C. § 4205 (1982) (emphasis added). This clause is entirely bereft of any standards a court could apply in reviewing the Bureau's decision. Considering this lack of standards, the wholly different character of the Bureau's ...