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BILLITERI v. UNITED STATES BD. OF PAROLE

November 26, 1974

Albert M. BILLITERI, Plaintiff,
v.
UNITED STATES BOARD OF PAROLE et al., Defendants



The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

 On July 5, 1972, plaintiff pled guilty to one count of conspiracy, a violation of 18 U.S.C. § 371. He was subsequently sentenced by the late Chief Judge John O. Henderson to a term of five years and a fine of $10,000. The remaining counts of the indictment regarding conspiracy and violations of the Extortionate Credit Act, 18 U.S.C. § 891 et seq., were dismissed. Plaintiff was subsequently incarcerated and is presently serving his term in the Federal Correctional Institution at Lewisburg, Pa. (See Cr-1970-197 -- W.D.N.Y.)

 Plaintiff became eligible for parole on March 3, 1974. To evaluate his parole prognosis, an initial parole hearing was held on February 14, 1974. On March 11, 1974, the United States Board of Parole (hereinafter Board) issued an order which provided that the plaintiff "continue to expiration." The reason cited for the decision was:

 
Your release at this time would depreciate the seriousness of the offense committed and is thus incompatible with the welfare of society.

 The last available administrative review by the National Appellate Board of the United States Board of Parole, on July 3, 1974, resulted in an affirmance of the prior decision.

 On July 29, 1974, this action was commenced. The complaint alleges that the reason given for denying parole was arbitrary, capricious, without foundation, vague and unlawful. The complaint further alleges that the procedures employed by the Board in reaching the decision violate plaintiff's rights to due process, equal protection, freedom of assembly, freedom from cruel and unusual punishment, and to fundamental fairness.

 The relief sought included a prayer for a declaratory judgment that the reason given by the parole board was unlawful and the granting of parole, or the ordering of a new hearing to be conducted in accordance with due process.

 The Government's responses allege that a sufficient basis for the Board's determination can be found in the prior decision read in conjunction with an affidavit of a senior analyst employed by the Board which explains in greater detail the reasons for denial of parole to the plaintiff. The Government claims that a similar process was deemed sufficient on remand in Candarini v. Attorney General of the United States, 369 F. Supp. 1132 (E.D.N.Y.1974), the case upon which plaintiff based his claim.

 The court has received numerous subsequent submissions from the plaintiff and the Government. In addition, the court heard oral argument on September 9, 1974, wherein the parties agreed that the taking of testimony was not necessary. A decision is, therefore, appropriate.

 I

 The initial inquiry for the court must relate to jurisdiction, although the parties have devoted scant attention to this question. The Administrative Procedure Act, 5 U.S.C. § 706(2) permits judicial examination of the action of the Board to determine whether or not there has been an abuse of discretion. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971); Pickus v. United States Board of Parole, 165 U.S. App. D.C. 284, 507 F.2d 1107 (1974); King v. United States, 492 F.2d 1337 (7th Cir. 1974); Hurley v. Reed, 110 U.S.App.D.C. 32, 288 F.2d 844 (1961); Sobell v. Reed, 327 F. Supp. 1294 (S.D.N.Y.1971); Candarini v. Attorney General of the United States, supra.

 Plaintiff prays for declaratory relief as well as alternative forms of mandatory injunctive relief in the district wherein he resided prior to his incarceration. The Administrative Procedure Act provides that the proper form and venue for a judicial review proceeding is,

 
". . . any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction."

 5 U.S.C. § 703. Furthermore, the "competent jurisdiction" language can reasonably be interpreted as equivalent to general venue requirements. (Pickus v. United States Board ...


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