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September 18, 1979

Marselle J. BOWERS
Charles FENTON, Warden, Walter Redman, Warden; Walter H. BROWN, Jr. v. Charles FENTON, Warden, Walter Redman, Warden.

The opinion of the court was delivered by: NEALON



 Petitioners are Delaware state prisoners who in consolidated habeas corpus actions under 28 U.S.C. § 2254 challenge the right of the Federal Bureau of Prisons to hold them in custody. Both are inmates who were transferred to the United States Penitentiary at Lewisburg under the terms of an agreement between state and federal officials. The original petitions alleged that the forced move to Lewisburg deprived the petitioners of constitutional rights by cutting off access to counsel, Delaware legal library sources, family visits, and more satisfactory state prison conditions. Furthermore, the petitioners assert that the federal government has no statutory authority to imprison them under present conditions.


 The respondents have raised two arguments. First, they ask this Court to dismiss this action, because the petitioners allegedly have similar litigation pending before the Federal District Court for the District of Delaware. The respondents contend that a decision on the merits in the instant case would amount to a waste of judicial effort, because the same issues are already before a district court within the Third Circuit. The record does indeed show that both petitioners have separate civil actions in the District of Delaware attacking the legality of their confinement in Lewisburg and seeking a variety of remedies. It is not clear, however, in which court litigation was first commenced.

 The Supreme Court has clearly stated that when identical issues are filed in different federal districts, duplicate litigation should be avoided, but no mechanical rule determines which forum should decide the case. Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S. Ct. 1236, 1246, 47 L. Ed. 2d 483 (1976); Kerotest Mfg. Co. v. C-O-Two Co., 342 U.S. 180, 183-84, 72 S. Ct. 219, 221, 96 L. Ed. 200 (1952). Normally, the court in which the relevant action was first filed should maintain jurisdiction. Nonetheless, the determining consideration should be equity. Columbia Plaza Corp. v. Security National Bank, 173 U.S. App. D.C. 403, 525 F.2d 620, 627 (D.C.C.1975); Scott v. Fetzer Co. v. McCarty, 450 F. Supp. 274, 276-77 (N.D.Ohio, 1977); Wheeling-Pittsburgh Steel v. Donovan Wire & Iron, 416 F. Supp. 602, 602-03 (N.D.Ohio, 1976). Relevant factors include convenience of the parties in conducting the litigation and the extent to which the matter can be resolved more efficiently in one district than the other. Columbia Plaza Corp. v. Security National Bank, 525 F.2d at 628-29.

 Concerning the petitioner's constitutional claims, the respondents are correct in suggesting that this Court stay its hand. The record in the District of Delaware shows that these issues have been developed more fully before that court. Furthermore, the petitioners are represented by counsel in that litigation who are familiar with Delaware laws and, thus, will be in a better position to develop any arguments that may relate to Delaware law. An examination of Delaware law may be necessary to determine whether plaintiffs had some right or justifiable expectation that they would not be transferred except for misbehavior or upon the occurrence of other specific events which might implicate the due process clause. Sisbarro v. Warden, Mass. State Penitentiary, 592 F.2d 1, 3 (1st Cir. 1979). Additionally, the need of access to counsel or to Delaware law library facilities could be more appropriately determined in that forum. Therefore, this Court will not rule on these matters.

 The situation is quite different, however, with regard to the federal statutory claim. The record demonstrates that this issue has been raised in each of the Delaware cases only once, in a most tangential manner. Before the Middle District of Pennsylvania, conversely, the matter has been addressed by both parties and the Court is ready to rule. Failure to proceed to the merits would simply delay resolution. Such a result would hardly further judicial efficiency.


 The respondents' second contention is that the language of 18 U.S.C. § 5003(a) does in fact give the Federal Bureau of Prisons authority to accept the custody of state prisoners such as the petitioners. The relevant language of this section reads:

The Attorney General, when the Director shall certify that proper and adequate treatment facilities and personnel are available, is hereby authorized to contract with the proper officials of a State or Territory for the custody, care, subsistence, education, treatment, and training of persons convicted of criminal offenses in the courts of such State or Territory: Provided, That any such contract shall provide for reimbursing the United States in full for all costs or other expenses involved.

 There is a sharp split in authority on this matter. The petitioners cite Lono v. Fenton, 581 F.2d 645, 646-47 (7th Cir. 1978) (en banc) in which the Seventh Circuit held that § 5003(a) authorizes transfers of state prisoners to federal institutions only for the purposes of "specialized treatment." Speaking for the majority, Judge Wood gave two reasons for this interpretation. First, the language of § 5003(a) places special emphasis on "treatment facilities" and makes their adequacy a condition precedent to any transfer. Judge Wood reasoned that this "unique" terminology clearly demonstrated that the literal wording of the provision only permits the federal prison system to accept the transfer of state prisoners who are to receive "specialized treatment." Id. at 646-47. Second, the Lono court argued that the legislative history of § 5003(a) also upheld its interpretation. According to the majority, Committee reports clearly reflected that the purpose of the provision was to make available to the states "specialized types of institutions and training programs" maintained by the federal government. The Lono opinion also cited a significant portion of the House Judiciary Committee Report stating that the legislation limited the use of federal prisons to state transferees in need of medical care and specialized rehabilitation programs. Id. at 647.

 There was a strong dissent in Lono which maintained three points of contention. On behalf of the minority, Judge Bauer first argued that the literal wording of § 5003(a) establishes only two conditions to federal acceptance of a state transfer: (1) certification that adequate treatment facilities and personnel are available and (2) reimbursement for the care and custody of the transferees. The dissent claimed that since the plain language of the statute in no way limited such transfers to instances where "specialized treatment" was involved, no such requirement should be construed. In the words of the dissenting opinion, "I think that the language of the statute itself is clear and should control any seemingly inconsistent legislative history." Id. at 649 (Bauer, J., dissenting). The second minority contention hinged on interpretation of the legislative history itself. The dissent stated that the Committee Reports on which the majority relied simply explained the need for the legislation, and did not describe actual limitations to be placed on the Bureau of Prisons' discretion under the statute. Finally, Judge Bauer argued that the court should pay deference to the Bureau's administrative interpretation of § 5003(a) which had stood unchallenged for twenty-five years. Id.

 Cases subsequent to Lono have taken the position of the dissent. Sisbarro v. Warden, Mass. State Penitentiary, 592 F.2d at 4; Fletcher v. Warden, 467 F. Supp. 777, 780-82 (D.Kan.1979); Bradshaw v. Carlson, Civil No. 79-544 (M.D.Pa., Aug. 9, 1979). In the instant action, the respondents have asked this Court to adopt these holdings and to reject the ...

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