The opinion of the court was delivered by: DUFFY
Generally, the question of whether a federal prisoner is entitled to be released on parole is one properly left to the discretion of the United States Parole Commission, (hereinafter "the Commission"). See 28 C.F.R. § 2.1 et seq. Indeed, judicial intervention is appropriate only when the Commission has exceeded its authority or abused its discretion. This is just such a case.
The plaintiff, Milton Parness, is not a stranger to this Court. In January of this year, he commenced this action against the United States Parole Commission and the Warden of the Metropolitan Correctional Facility seeking to enjoin the Commission from delaying his effective date of parole. I denied the injunction in an opinion, 488 F. Supp. 100, dated January 22, 1980. The plaintiff now seeks to enjoin the Commission from again delaying a subsequent effective date of parole. At this juncture the request must be granted.
A hearing was held before me on March 28. The parties were afforded an opportunity to brief the issues and orally state their positions. Based upon this oral argument and the memoranda and affidavits submitted by the parties, the following shall constitute my findings of fact and conclusions of law.
In April, 1979, Milton Parness was incarcerated at the Metropolitan Correctional Center (hereinafter "MCC"), serving a ten year sentence on convictions for Racketeering and Interstate Transportation of Stolen Securities. At that time he was given an initial parole hearing after which the Commission granted him a "presumptive parole" designating January 11, 1980, as a "tentative" release date. Under the applicable federal regulations, however, this grant of parole was conditioned upon the payment or discharge of a committed fine and upon Parness "maintaining good institutional conduct." See Exhibit 1 to the affidavit of Joseph A. Nardoza, dated January 16, 1980 (hereinafter "Nardoza affidavit").
In an attempt to have Parness' release date revoked, Assistant United States Attorney ("AUSA") Costello informed the Commission, by letter dated December 18, 1979, that while a federal prisoner at the MCC, Parness was quite possibly engaged in criminal conduct. The Commission also received a letter, dated December 21, 1979, from Parness' counsel in response to the Costello letter.
Thereafter, on January 3, 1980, while in receipt of the above mentioned communications, the Commission decided to change Parness' presumptive parole into an effective parole for January 11, 1980. The Commission concluded that the Costello letter was insufficient to warrant a rescission of the parole date. The Commission was particularly disturbed by the fact that Mr. Parness was not being prosecuted for his alleged criminal activity. Moreover, the Commission was not presented with a preview of the evidence which would be available to it should Parness' case be reopened. See Nardoza affidavit at P 7.
Undaunted, AUSA Costello composed yet another letter to the Commission, dated January 8, in which he recited in greater detail the alleged criminal conduct engaged in by Parness together with the evidence available to the Commission should the case be reopened. In addition, the Commission was informed that any prosecution of Parness was impossible since he had been given immunity.
Solely as a result of the second Costello letter the Commission decided, on January 10, that the allegations lodged against Mr. Parness warranted a full hearing to determine whether the grant of parole would be rescinded. Consequently, the Commission reopened Parness' case, pursuant to 28 C.F.R. § 2.28, and retarded his effective date of parole pending the outcome of the revocation hearing, pursuant to 28 C.F.R. § 2.34.
As previously mentioned, Parness attempted to enjoin the retardation of his effective date of parole. However, I found that "(t)he Commission (had) met the statutory requirements, if only minimally, and the (retardation was) proper." Plaintiff filed an appeal in the Second Circuit.
The decision to retard Parness' release date was that of Joseph Nardoza, Regional Parole Commissioner, made pursuant to the authority granted him under 28 C.F.R. § 2.34. At that point, Commissioner Nardoza had two options open to him. First, he could have acted under 28 C.F.R. § 2.17 which provides, in pertinent part:
(a) A Regional Commissioner may designate certain cases for decision by a quorum of Commissioners as described below, as original jurisdiction cases. In such instances, he shall forward the case with his vote, and any additional comments he may deem germane, to the National Commissioners for decision. Decisions shall be based upon the concurrence of three votes with the appropriate Regional Commissioner and each National Commissioner having one vote.
(b) The following criteria will be used in designating cases as original jurisdiction cases:
(1) Prisoners who have committed serious crimes against the security of the Nation, e.g., espionage or ...