in person at any parole review given him by the Parole Board and thus the record review ordered by the court violates this section of the A.P.A. First, assuming that Section 555(b) applies to the Parole Board, it would not apply to the parole review ordered by the court for petitioner in the instant case because he had been sentenced pursuant to 18 U.S.C.A. § 4208(a)(2), see Stroud v. Weger, M.D.Pa.1974, 380 F. Supp. 897.
Section 555(b) does not require an agency to hold hearings in matters where the ultimate decision will not be enhanced or assisted by receipt of evidence. City of Lafayette v. Securities & Exchange Commission, D.C.Cir.1971, 454 F.2d 941. The court holds that the affirmative grant of the right to appear apparently bestowed by Section 555(b) is not blindly absolute, without regard to the status or nature of the proceedings and concern for the orderly conduct of public business. Easton Utilities Commission v. Atomic Energy Commission, 1970, 137 U.S.App.D.C. 359, 424 F.2d 847, 852. In Stroud v. Weger, MD.Pa.1974, 380 F. Supp. 897, the court decided that a prisoner sentenced pursuant to 18 U.S.C.A. § 4208(a)(2) who receives a continuance to a date past one-third of his maximum sentence at the initial in-person parole hearing should receive upon completion of one-third of his sentence a review by an examiner panel on the record, which includes a current institutional progress report. The court explicitly rejected the contention that a second in-person hearing in place of the aforementioned record review was due the (a)(2) prisoner, because an in-person hearing on whether the inmate's institutional program achievement had been so exceptional as to warrant early parole release -- i.e., earlier than the period of incarceration indicated by the Board's paroling guidelines, 39 Fed.Reg. § 2.20, and therefore earlier than the Board had decided at the inmate's initial in-person hearing -- would be of little benefit and would only hinder parole decision-making by increasing needlessly the already heavy burden of the Board. In short, the court concluded in Stroud that the question of whether a prisoner's institutional performance had been so exceptional as to warrant early parole release could be adequately reviewed by an examiner panel on the record utilizing a current institutional progress report. 380 F. Supp. at 901. For the same reasons, the court concludes that Section 555(b) does not require an in-person hearing in place of the record review since Section 555(b), even if applicable to the Board, does not require useless hearings, particularly when such hearings could overburden and thereby hinder the orderly functioning of the parole system.
Moreover, the court doubts that Section 555(b) is applicable at all to parole decision-making. In Hiatt v. Compagna, 5 Cir. 1949, 178 F.2d 42, aff'd per curiam by an equally divided court, 1950, 340 U.S. 880, 71 S. Ct. 192, 95 L. Ed. 639, the Court of Appeals for the Fifth Circuit held that the procedures of the Parole Board are fixed by the parole statute and the procedural requirements contained in the A.P.A. have no application to the Parole Board. In Hyser v. Reed, 1963, 115 U.S.App.D.C. 254, 318 F.2d 225, in an opinion by Chief Justice (then Judge) Burger, the court held that the A.P.A. is not applicable to parole revocation proceedings. Most importantly, in Washington v. Hagan, 3 Cir. 1960, 287 F.2d 332, the Court of Appeals for the Third Circuit held that the A.P.A. does not apply to parole revocation proceedings. If the Act does not apply to parole revocation proceedings, a fortiori it does not apply to parole decision-making. Cf. Lesser v. Humphrey, M.D.Pa.1950, 89 F. Supp. 474 (The A.P.A. is not applicable to proceedings of Good Time Board at penitentiary in proceedings to revoke prisoner's good time allowance because of alleged violation of prison rules.).
For the foregoing reasons, this court holds that Section 555(b) does not require that an (a)(2) prisoner be given an in-person hearing at the one-third point of his sentence. Having previously held that Section 554 does not apply to parole decision-making, the court holds that petitioner's contention that he is entitled to the procedural rights, including an in-person hearing, afforded by Sections 554 and 555(b) of the A.P.A. instead of a record review is without merit.
Finally, petitioner contends that the Board's paroling policy guidelines, 39 Fed.Reg. § 2.20 (1974), were promulgated in violation of Section 553 of the A.P.A., 5 U.S.C.A. § 553, which requires that federal agency rule-making be attended by advance public notice and opportunity for interested persons to participate through oral or written submission of data or opinion. Petitioner relies on Pickus v. United States Board of Parole, D.C.Cir., 165 U.S. App. D.C. 284, 507 F.2d 1107 (decided October 11, 1974). In that case the Court of Appeals for the District of Columbia held that the Parole Board had failed to comply with Section 553 in its promulgation of the paroling policy guidelines, that the guidelines therefore had been illegally promulgated, and thus they were invalid.
Even if the holding in Pickus were to be applied in this case, petitioner would not be entitled to the habeas corpus relief he seeks. Assuming the paroling guidelines were improperly promulgated, they are nonetheless, so far as substance is concerned, consistent with the statutory criteria for parole release embodied in 18 U.S.C.A. §§ 4202, 4203. Wiley v. United States Board of Parole, 380 F. Supp. at 1197. Since the criteria relied on by the Board in the instant case are consistent with the substantive statutory directives, and since there is a reasonable basis for the Board's decision not to release petitioner on parole, petitioner is not entitled to the habeas corpus relief which he seeks -- i.e., discharge from custody. The assumed failure of the Board to promulgate its paroling guidelines in accordance with 5 U.S.C.A. § 553 in no way undermines the parole decision reached by the Board in the instant case.
In Pickus three federal prison inmates had petitioned the Parole Board to conduct a public rule-making proceeding consistent with 5 U.S.C.A. § 553. When the Board failed to act on their petition, the inmates filed a complaint in federal court pursuant to Section 10 of the A.P.A., 5 U.S.C.A. §§ 701-706, seeking to force the Board to comply with the requirements set forth in 5 U.S.C.A. § 553 with respect to agency rule-making. But as the court stated in Pickus:
"We have considered the Board's argument that its promulgation of parole selection criteria is not subject to judicial review -- whether or not subject to the Act -- because release on parole is committed to agency discretion within the meaning of Section 10 of the Act, 5 U.S.C. § 701(a)(2), by 18 U.S.C. § 4203(a). But we are not reviewing the granting or denying of parole in a particular case, action which may reflect an unreviewable exercise of agency discretion. We are not even reviewing the merits of the rules and standards the Board has adopted. The appellees' complaint and our consequent adjudication address themselves solely to the procedures by which those rules may be formulated. The justiciability of such a complaint depends upon Section 10, particularly subsection (e), of the Act, as already discussed, not the discretionary character of the Board's determinations as to when parole shall be granted. The giving of notice of rule-making and the consideration of consequent submissions by interested persons might inform, but would not otherwise impinge upon, the Board's discretion in framing its standards and guidelines."
It should be noted that the Court of Appeals for the Third Circuit has consistently held that the A.P.A. does not provide an independent basis for jurisdiction and hence this district court would not have jurisdiction to entertain suits challenging the validity of Parole Board action which rely on the A.P.A. as their source of jurisdiction. Grant v. Hogan, 3 Cir., 505 F.2d 1220 (filed November 20, 1974); Zimmerman v. United States, 3 Cir. 1970, 422 F.2d 326, 330.
Regardless of whether the paroling guidelines were promulgated in compliance with Section 553, the Board's parole decision in the instant case is amply supported by the record and clearly is not arbitrary or capricious. The criteria utilized by the Board in reaching its decision are consistent with the substantive statutory criteria for parole embodied in 18 U.S.C.A. §§ 4202, 4203 and the reasons relied upon are proper under these sections and meaningful. See Wiley v. United States Board of Parole, M.D.Pa.1974, 380 F. Supp. 1194; Kohlman v. Norton, D.Conn.1974, 380 F. Supp. 1073; Battle v. Norton, D.Conn.1973, 365 F. Supp. 925.
Accordingly, a writ will issue discharging petitioner from custody unless within thirty days the Parole Board accords petitioner a review by an examiner panel on the record which includes a current institutional progress report that fully complies with Bureau of Prisons Policy Statement No. 7200.12 (including an evaluation of release readiness pursuant to Section 7 of the above Policy Statement) and is otherwise consistent with this memorandum. All other relief requested by petitioner will be denied.
BUREAU OF PRISONS
WASHINGTON, D.C. 20537
SUBJECT: PROGRESS REPORT
L. Taylor - Case Management
1. POLICY. It is the policy of the Bureau of Prisons to maintain current information regarding an offender's response to confinement. This policy is implemented by continuously updating the Central file by various means but primarily by completing formal progress reports annually and as requested by the United States Board of Parole.
2. PURPOSE. To implement changes in the requirements for progress reports and to provide instructions regarding the preparation of these reports and the use of the required format.
3. DIRECTIVES AFFECTED. Memorandum from the Assistant Director dated August 11, 1955 is cancelled.
4. BACKGROUND. Generally, progress reports serve as a basis for making decisions related to treatment programs and parole consideration. As such, it is important that they are prepared in a professional manner and contain the kind of information necessary to make appropriate decisions. However, periodic surveys of progress reports have revealed that they are not consistent in terms of format or content. In many instances, the reports do not accurately reflect the staff's total treatment efforts and expenditure of resources. To assure that progress reports meet the minimum requirements as identified by the Bureau of Prisons and the United States Board of Parole, the following format and instructions have been developed.
5. FORMAT. A sample of the format to be used in preparing progress reports for institutional review hearing, special progress reports, and annual reports to the Bureau has been attached to this policy statement. The attached sample also provides some brief instructions which should be reproduced and made available to caseworkers as a guide in preparing the required reports.
As indicated by the attached sample, the first page of all progress reports should be typed on Classification Form 3. Initially, precautions will have to be taken to assure that the necessary information and subheadings are added to make the report consistent with the attached format. A revised Classification Form 3 will be issued in the near future which will reflect the changes described in this policy statement. The progress report may utilize as many pages as necessary to adequately report on the progress of an individual. However, in all cases, the second and subsequent pages of the report should be typed on Classification Form 2 with the appropriate format being reproduced. In addition to the brief instructions on the attached format, the following more extensive instructions should be referred to often and used as a vehicle for intra-departmental training sessions.
6. PREPARATION OF PROGRESS REPORTS -- Generally the progress report will summarize information related to the offender's offense and background, response to institutional experience, release readiness and plans. By design, the current offense and background portion of the report will cover many of the same areas included in the Classification Summary. Although it is necessary to briefly summarize known information under each heading, material previously reported on in the Classification Summary should be represented in only the most concise style. On the other hand, new information should receive greater emphasis and be integrated into the progress report in such a way as to make it a totally independent summary. The initial progress report will generally present information in more detail than will be necessary in subsequent reports.
A. Progress Report : The identifying information which must be included in the heading of progress reports, does not require extensive explanation. The following is a list of information which must be completed:
(1) IRH, SPR, Annual Report to the Bureau. The type of report being prepared should be identified by placing a mark (X) in the appropriate space.
(2) Name. Use the offender's committed name in the following order: last, first, middle.