The opinion of the court was delivered by: NEAHER
Petitioner brings this action under 28 U.S.C. § 1361 to obtain an order directing this Court's Probation Department to recall a presentence investigation report (PIR) prepared in earlier criminal proceedings against petitioner, to excise from it statements petitioner challenged at the sentencing hearing, and to issue a new redacted report.
On November 11, 1976, petitioner was found guilty, following a jury trial, of conspiracy to import and possess, and importation and possession of hashish oil, in violation of 21 U.S.C. §§ 841(a), 952(a), 960(a)(1), and 960(a)(2).
On February 18, 1977, he was sentenced by this court as a youth offender, pursuant to 18 U.S.C. § 5010(b), and is now confined at the Federal Correctional Facility at Lompoc, California.
At the time of sentencing, petitioner's counsel objected to certain statements contained in the PIR. Specifically, counsel took issue with the assertion that unidentified government agents believed, on the basis of their investigation, that Rosati had "acted as a type of "mule' for a well organized heroin ring" during several trips he had made to India, PIR at 5,
and requested a hearing for the purpose of controverting the assertion.
Sentencing Minutes (SM) at 9-10. In addition, counsel objected to the statement that Rosati's work record was "for the most part" unverifiable, PIR at 9, 19,
and attempted to demonstrate that the statement was unsupportable. After permitting the government to respond to these objections, this court imposed sentence on petitioner, noting that it did so solely on the basis of the evidence adduced at trial and without regard to the disputed matters. Id. at 19. The court also directed that the sentencing minutes be transcribed and forwarded to the institution of incarceration. Id. at 25.
Petitioner in effect renews here his contention that the challenged statements are unsubstantiated and inaccurate, and now claims that these statements have had an adverse effect both on his custody status at the Lompoc facility and on his prospects for parole.
Respondent raises the threshold objection that petitioner has failed to demonstrate that the challenged materials have operated to his prejudice. Respondent does, however, concede that the report has been used by prison officials at Lompoc to classify petitioner at a medium level of custody. On this state of the facts, and because the issues raised are essentially of first impression, it is necessary at least to determine whether this action properly sounds in mandamus, and, if so, whether the petition sets forth a sufficient basis for granting the relief sought.
As noted above, jurisdiction in this action is asserted under 28 U.S.C. § 1361, which confers on federal district courts jurisdiction of actions "in the nature of mandamus to compel an officer or employee of the United States or an agency thereof to perform a duty owed to plaintiff." The law is settled that "the mandamus remedy is an extraordinary one, and it is to be utilized only under exceptional circumstances . . . ." Haneke v. Secretary of Health, Education and Welfare, 175 U.S.App.D.C. 329, 334, 535 F.2d 1291, 1296 (1976). Three elements generally must be satisfied before the writ may issue: "(1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available." Lovallo v. Froehlke, 468 F.2d 340, 343 (2 Cir. 1972). See also Haneke, supra, 175 U.S.App.D.C. at 334, 535 F.2d at 1296 n. 15.
Petitioner does not contend that excision of the challenged statements is expressly required by any pertinent statute or regulation. Rather, he urges that because certain governmental agencies rely on the PIR as a source of information when making determinations that affect protected interests, and do not afford the defendant an adequate opportunity to contest the accuracy of its contents, due process requires the excision of statements alleged by the defendant to be inaccurate and unsubstantiated when the sentencing court has not found them to be otherwise. Although the traditional formulation of the prerequisites to mandamus include a clear right in the plaintiff to the act sought and a clear duty of the defendant to perform it, mandamus will not be precluded solely because judicial construction is required to clarify the duty. See Knuckles v. Weinberger, 511 F.2d 1221 (9 Cir. 1975); Martinez v. Dunlop, 411 F. Supp. 5 (N.D.Cal.1975); Lyons v. Weinberger, 376 F. Supp. 248 (S.D.N.Y.1974). Thus, mandamus will lie not only where a federal officer has failed to comply with a specific statutory or regulatory directive, see Lyons, supra, 376 F. Supp. at 255; Leonhard v. Mitchell, 473 F.2d 709, 713 (2 Cir.), Cert. denied, 412 U.S. 949, 93 S. Ct. 3011, 37 L. Ed. 2d 1002 (1973), but also where a constitutionally mandated duty has not been performed. See Frost v. Weinberger, 515 F.2d 57, 62 (2 Cir. 1975); Mattern v. Weinberger, 519 F.2d 150 (3 Cir. 1975); Martinez v. Richardson, 472 F.2d 1121 (10 Cir. 1973); Andujar v. Weinberger, 69 F.R.D. 690, 694 (S.D.N.Y.1976). In Frost, for example, the Second Circuit held that § 1361 provided a jurisdictional basis where plaintiffs alleged that they had been denied procedural rights recognized by the Supreme Court in Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Thus, resolution of the issues raised by petitioner requires an examination of the post-sentencing uses of the PIR, and a determination of whether these uses impinge on interests within the purview of the due process clause.
The mandate for preparation of the PIR is contained in Rule 32(c) of the Federal Rules of Criminal Procedure. As amended in 1975, Rule 32(c)(1) requires preparation of a PIR by the district court's probation department prior to the imposition of sentence, unless it is waived by the defendant with the court's permission or the court expressly finds that the trial record contains "information sufficient to enable the meaningful exercise of sentencing discretion." Although the PIR is assembled in the first instance for use by the sentencing judge, Rule 32(c)(2), which prescribes the kind of information that is to be included in the report, clearly contemplates that the PIR will be utilized by those agencies that are involved in the correctional process:
"The report of the presentence investigation shall contain any prior criminal record of the defendant and such other information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court."
If the defendant is sentenced to a term of imprisonment or, as here, is committed to the custody of the Attorney General pursuant to the Youth Corrections Act, 18 U.S.C. § 5010(b), the PIR is forwarded to both the Bureau of Prisons and the institution of confinement, and becomes part of the defendant's correctional file. See Bureau of Prisons Policy Statement No. 7200.17 (Oct. 23, 1975); United States Probation System, Operations Manual, P P 2.39, 3.3 (Administrative Office, July 2, 1973). During the defendant's orientation period at the correctional institution, which lasts approximately 30 days, 18 U.S.C. § 4205(d), or, in the case of a youth offender, his stay at a classification center or agency for a similar period, 18 U.S.C. § 5014,
a classification study is prepared by institutional staff, and the PIR serves as a primary source of data. See Bureau of Prisons Policy Statement No. 7200.17, Supra; Operations Manual, Supra, at P 3.3; Probation Division, The Presentence Investigation Report at 1 (Administrative Office Publ. No. 103, 1965). The classification study, in turn, provides the basis for determining the adult or youth offender's custody status and treatment program. Cf. 18 U.S.C. §§ 4001(b)(2), 4081, 5015(a).
The United States Parole Commission is the other agency that makes use of the PIR.
In the case of a prisoner who has been sentenced pursuant to 18 U.S.C. § 5010(b), an initial parole determination hearing must be conducted "(a)s soon as practicable after commitment," 18 U.S.C. § 5014, although the prisoner may waive his right to parole consideration, 18 U.S.C. § 4208(a); 28 C.F.R. §§ 2.11(b), 2.12(a). The PIR is among those materials that must be considered by the panel at this initial parole determination hearing. 18 U.S.C. § 4208; 28 C.F.R. § 2.19(a)(3). On the basis of information presented at the hearing,
the panel formulates a guidelines evaluation statement, which consists of the panel's assessment of the inmate's "offense severity rating" and "salient factor score," the two components of the test used to determine the Paroling Policy Guidelines range for the amount of time the prisoner will customarily be required to serve prior to release on parole. See 28 C.F.R. §§ 2.13, 2.20. If the prisoner has satisfied the three statutory prerequisites to parole,