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Scalise v. Thornburgh

decided: December 19, 1989.

JEROME J. SCALISE, ET AL., PLAINTIFFS-APPELLEES,
v.
RICHARD THORNBURGH, ET AL.,*FN* DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 C 7898 -- Brian Barnett Duff, Judge.

Wood, Jr., Coffey, and Kanne, Circuit Judges.

Author: Kanne

KANNE, Circuit Judge.

In this appeal, the Attorney General contests the district court's conclusion that § 4102(4) of the Transfer of Offenders To and From Foreign Countries Act, P.L. No. 95-144, 91 Stat. 1212, 18 U.S.C. §§ 4100 et seq. (1977) ("the Act"), requires him to issue substantive regulations governing his exercise of discretion in international prisoner transfer decisions. By virtue of this initial determination, the district court deemed it proper to exercise "mandamus jurisdiction" under 28 U.S.C. § 1361 compelling the Attorney General to promulgate such regulations. This initial determination also served to underpin the district court's exercise of jurisdiction under § 701(a)(2) of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. §§ 701 et seq. (1946), in reviewing the Attorney General's decision not to promulgate such regulations. Finally, the district court concluded that § 4102(4) of the Act raised a liberty interest under the due process clause that was violated in these proceedings by the Attorney General's denial of plaintiffs' transfer request. In that we conclude that the Attorney General is not required under § 4102(4) to issue substantive regulations governing his discretion in international prisoner transfer decisions, we reverse the district court's grant of summary judgment and remand for proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

Plaintiffs below, Jerome Scalise and Arthur Rachel, are United States citizens. In 1980, they committed an armed robbery of a jewelry store in London, escaping with jewels worth $3.6 million, including the famous Marlborough diamond. Scalise and Rachel were arrested and subsequently convicted in the United Kingdom of robbery and possession of a firearm with intent to commit an indictable offense in violation of the United Kingdom's 1968 Theft Act and Firearms Act of 1968.*fn1 Each was sentenced to 15 years in prison in the United Kingdom with the sentences to commence on August 6, 1984. Plaintiffs, however, do not wish to remain in England during their terms of incarceration.

On July 1, 1985, the United States and the United Kingdom ratified the Convention on the Transfer of Sentenced Persons ("the Convention"). This treaty provides for the transfer of foreign prisoners from the country of their incarceration to their home countries. Under the Transfer of Offenders To and From Foreign Countries Act, the Attorney General is granted the authority to implement the Convention.*fn2 Specifically, under § 4102(4) of the Act, "[the] Attorney General is authorized . . . to make regulations for the proper implementation of such treaties in accordance with this chapter and to make regulations to implement this chapter. . . ."

After the Convention went into effect, Scalise and Rachel sought transfer to the United States under its terms. The Attorney General refused to approve their request. In a letter to plaintiff's counsel, the Department of Justice, acting on behalf of the Attorney General, explained:

The principal factors we took into consideration in making the decision not to request Mr. Scalise's transfer were: the relative seriousness of his offense; his extensive criminal record; the manner of his return to the United Kingdom; his "A" security classification in the United Kingdom, the highest security category; and, the likelihood that a transfer would not further his rehabilitation.

On September 11, 1988, Scalise and Rachel filed this action in federal district court seeking a writ of mandamus or, alternatively, a mandatory injunction to compel the Attorney General to seek their transfer and to issue substantive guidelines for his administration of the Convention. In a subsequent motion for summary judgment, Scalise and Rachel alleged that the Attorney General had breached a mandatory duty under § 4102(4) of the Act to publish regulations establishing standards for his review of prisoner transfer requests under international treaties. Scalise and Rachel further alleged that they had a liberty interest entitling them to due process in consideration of their transfer request and that the failure of the Attorney General to provide them with a hearing prior to denial of this request violated their fifth amendment rights.

The Attorney General argued that 18 U.S.C. § 4102(4) does not impose a mandatory duty to promulgate substantive regulations governing his exercise of discretion in prisoner transfer requests. The Attorney General argued further that the refusal to seek plaintiffs' transfers was reasonable in light of their lengthy criminal records involving violent crimes and their failure to cooperate in ongoing law-enforcement efforts to recover the stolen jewels. Finally, the Attorney General argued that the plaintiffs had no liberty interests in the transfer process entitling them to a hearing prior to denial of their requests for transfer.

The district court held that § 4102(4), viewed in light of its legislative history, does impose a mandatory duty upon the Attorney General to promulgate substantive regulations governing his exercise of discretion in considering prisoner transfer requests. Relying on this initial determination, the district court concluded that mandamus to compel the Attorney General to issue such regulations was appropriate under 28 U.S.C. § 1361. The district court also concluded that the Attorney General's denial of plaintiffs' transfer requests was subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"), and that the denial in this case constituted an abuse of discretion. Finally, with regard to plaintiffs' procedural due process claims, the district court stated that a liberty interest arises whenever a statute or regulation places limits on the discretion of administrative officials with regard to transfer decisions. Relying on its earlier conclusion that § 4102(4) of the Act required the Attorney General to issue regulatory standards governing his review in prisoner transfer requests, the trial court held that Scalise and Rachel had a liberty interest in the transfer process which could be denied only through procedures mandated by the due process clause. Concluding that the Attorney General's letter denying plaintiffs' transfer requests was an inadequate basis for review of that decision, the court held that due process required that they be given a more specific explanation of his decision and an opportunity to rebut.

II. DISCUSSION

In this appeal, the Attorney General contests each of the district court's findings. Most significant, however, is the appeal of the district court's initial determination that § 4102(4) of the Act compels the Attorney General to issue substantive regulations governing the exercise of his discretion in international prisoner transfer decisions. The Attorney General asserts that § 4102(4) does not impose such a mandatory obligation. Based on this position, the Attorney General claims that the district court's exercise of mandamus jurisdiction under 28 U.S.C. § 1361 was not warranted under this court's precedent. The Attorney General further argues that § 701(a)(2) of the APA precludes judicial review of his decision in that his determination is committed to agency discretion by ...


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