The opinion of the court was delivered by: TRAVIA
These matters are separately present before the court on the petitioners' applications for writs of habeas corpus, mandamus and certiorari. The United States Attorney for the Eastern District of New York has appeared in opposition to the petitioners' requested relief. All interested respondents have been requested to appear and submit opposing papers if they so desired. Without exception, they have opted not to appear but rather have agreed that the United States Attorney for this district act as their advocate and he has submitted opposing papers on behalf of all respondents. Since all petitioners are seeking similar relief and all petitions are based on somewhat similar facts, this court files this decision and order to cover all petitions.
The salient facts are as follows. All of the petitioners are presently confined in the Federal Correctional Institution, Danbury, Connecticut. Eight of the nine petitioners are participants in the United States Board of Parole's pilot project being conducted at the Danbury Institution, among other places, to test both the concept of regionalization as well as new parole procedures.
As a result of this experience, the petitioners have filed the instant applications alleging that the parole release procedures of the Board of Parole ("Board") run afoul of the due process clause of the Fifth Amendment.
At the outset, that part of each petitioner's application which seeks a writ of habeas corpus must be denied. Title 28 U.S.C. § 2255 applies to an inmate who is attacking the sentence under which he is committed. In the case at bar, petitioners are not attacking their sentences but rather are attacking the parole release procedures of the Board. Consequently, the actions as they pertain to Warden Norton must be dismissed as petitioners, even if they have been denied due process, are not entitled to be released. See, e.g., Halprin v. United States, 293 F. Supp. 1186 (S.D.N.Y. 1968). Moreover, this court is without jurisdiction under Title 28 U.S.C. § 2241 since neither the petitioners nor the Warden are within the Eastern District of New York. Jones v. Cunningham, 371 U.S. 236, 243-244, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963); In re Gillette, 175 F. Supp. 255, 257 (E.D.N.Y. 1959). Similarly, the actions against the Bureau of Prisons of the United States, the Attorney General of the United States and the Department of Justice of the United States must be dismissed since Congress has vested exclusive authority in the Board to determine when an inmate should be placed on parole. Cf. Title 18 U.S.C. § 4203; Buchanan v. Clark, 446 F.2d 1379 (5th Cir.), cert. denied, 404 U.S. 979, 92 S. Ct. 347, 30 L. Ed. 2d 294 (1971).
The petitioners also seek writs of certiorari. Title 5 U.S.C. § 701(a) (2) provides:
"(a) This chapter applies, according to the provisions thereof, except to the extent that --
(2) agency action is committed to agency discretion by law."
Yet, the same chapter of the APA contains Section 706(2) (A) dealing with the scope of review, which states:
"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall --
(2) hold unlawful and set aside agency action, findings, and conclusions found to be --
(A) arbitrary, capricious, an abuse of discretion; or otherwise not in accordance with law;"
The Supreme Court of the United States has now reconciled these two seemingly contradictory subdivisions of the APA. In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971), the Court opted for the position that administrative action is always reviewable for abuse of discretion. This court then has jurisdiction over the subject matter of this lawsuit pursuant to Title 5 U.S.C. § 706(2) (A).
Concomitantly, venue is proper in this district due to the fact that at least five of the petitioners were domiciled in the Eastern District of New York prior to their incarceration. Cf. Title 28 U.S.C. § 1391(e); Ott v. United States Board of Parole, 324 F. Supp. 1034, 1037 (W.D. Mo. 1971). Conversely, there may be some question as to whether jurisdiction over the Board may be had in a district other than the District of Columbia. Stone v. United States Board of Parole, 360 F. Supp. 22, 24 (D. Md. 1973); Langston v. Ciccone, 313 F. Supp. 56, 60 (W.D. Mo. 1970). Due to the current national controversy concerning the Board's practices, this court cannot ignore the issue and will retain jurisdiction and attempt to clarify the extent, if at all, to which due process affects parole release procedures.
Courts have traditionally been satisfied with playing a minimal role in the review of parole decisions. Until recently, judges have deferred to the "expertise" of parole board members and to statutory grants of wide discretion.
Consequently, the Board's discretion has been described as "unreviewable" or "almost unreviewable." See, e.g., Tarlton v. Clark, 441 F.2d 384, 385 (5th Cir.), cert. denied, 403 U.S. 934, 91 S. Ct. 2263, ...