Appeal from decision of the United States District Court for the Southern District of New York, Abraham D. Sofaer, J., invalidating 28 C.F.R. § 2.27(a)'s time limit for Parole Commission's processing of "original jurisdiction" appeals. Reversed.
The Warden of the Metropolitan Correctional Center, the Bureau of Prisons and the United States Parole Commission appeal from that portion of the decision of the United States District Court for the Southern District of New York, Abraham D. Sofaer, J., that invalidated 28 C.F.R. § 2.27(a), a Commission regulation governing the time allowed for processing parole appeals in "original jurisdiction" cases. Judge Sofaer held that section 2.27(a) conflicted with the legislative scheme insofar as it allows appeals to be heard up to 119 days from the time they are filed. Specifically, he interpreted 18 U.S.C. § 4203(c)(4) to require review within 30 days of the date of decision. Because we find that section 4203(c)(4) does not apply to appeals in original jurisdiction cases, we reverse the district court's decision in relevant part.
A brief summary of the facts relevant to this appeal follows. The facts and procedural history are set forth in greater detail in Judge Sofaer's opinion, which is reported at 610 F. Supp. 961. Philip Rastelli was convicted of Hobbs Act and criminal anti-trust violations in 1976 and sentenced to ten years imprisonment. On April 21, 1983, he was mandatorily released from his ten-year term after the deduction of good time credit, pursuant to 18 U.S.C. § 4163. He was required, however, to remain under supervision, as if on parole, until December 16, 1986, in accordance with 18 U.S.C. § 4164. Following extensive government surveillance, he was arrested in August 1984 and charged with violating the conditions of his parole by associating with persons engaged in criminal activity and persons with criminal records. Rastelli's case was designated for original jurisdiction pursuant to 28 C.F.R. § 2.17(b) and, accordingly, was governed by the special rules applicable to such cases. On January 16, 1985, the Commission notified Rastelli that his parole had been revoked. Although the violations charged were classified as administrative, and would ordinarily have resulted in at most a nine-month sentence, see 28 C.F.R. § 2.21(a), the Commission decided to exceed the guidelines due to aggravating factors. Rastelli was ordered incarcerated for the remainder of his sentence.
Rastelli field an administrative appeal of this decision of February 1, 1985. As provided by section 2.27(a), it was reviewed by the full Commission at its April 22 meeting and was unanimously affirmed. Before this administrative appeal was filed, however, Rastelli petitioned the district court for a writ of habeas corpus, alleging due process violations in connection with the decision revoking his parole. The government moved to dismiss the petition, based on Rastelli's failure to exhaust his administrative remedies. Although the government's motion became moot when the Parole Commission affirmed the decision to revoke Rastelli's parole, Judge Sofaer found the question of whether exhaustion is required in original jurisdiction cases to be "paradigmatically 'capable of repetition, yet evading review.'" 610 F. Supp. at 963 (citation omitted). He then found that "the procedure established by the Commission under . . . § 2.27(a) . . . for dealing with appeals of original jurisdiction cases is invalid to the extent that it permits the Commission to take up to 119 days to review an appeal." Id.
Although judge Sofaer affirmed only one of the charges of parole violation that the Commission had found, he upheld the Commission's revocation of Rastelli's parole. Id. at 978. He found the decision to exceed the guidelines arbitrary and capicious, however, Id. at 980. Since Rastelli had been incarcerated for almost ten months, Judge Sofaer granted his petition for a writ of habeas corpus, but stayed its issuance for thirty days, "during which time the Commission must commence a new parole revocation proceeding, or seek to justify his continued detention on some legally sufficient basis." Id. The government does not appeal from this portion of the district court's decision, but it did bring new revocation proceedings against Rastelli within the 30-day period. Once again, the Commission revoked his parole and again Rastelli brought the matter before the district court. Judge Weinfeld, to whom the case was transferred, determined that Rastelli was deprived of due process in this second revocation proceeding and subsequently issued a writ directing Rastelli's release. 85 Civ. 0613 (EW) (S.D.N.Y. November 23, 1985).
As a preliminary matter, we must consider whether the question of the validity of section 2.27(a) was rendered moot by the Commission's decision affirming its revocation of Rastelli's parole. Although the mootness issue was not briefed by either party, we raised it at oral argument and feel compelled to address it here. After further consideration and, in light of the subsequent developments in this case, we conclude that the issue before us is not moot because it is indeed "capable of repetition, yet evading review." See Weinstein v. Bradford, 423 U.S. 147, 149, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975) (per curiam).
Weinstein set forth the two-prong standard for determining whether an issue is "capable of repetition, yet evading review." The two requirements are both satisfied here: "the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration," and there is "a reasonable expectation that the same complaining party would be subjected to the same action against." Id. As to the first requirement, the period provided by the regulation--from 31 to 119 days--had clearly proved too short to allow litigation of the issue in the instant case, or for that matter, in the subsequent proceeding before Judge Weinfeld.*fn1 As to the second, Rastelli's release under supervision until December 16, 1986 and the Parole Commission's past conduct toward him provide the necessary "reasonable expectation" that he (as the original complaining party) will again be subject to revocation proceedings, and his case will be designated for original jurisdiction and that he will again be subject to the regulation governing appeals in original jurisdiction cases.
III. Validity of section 2.27(a)
The district court found that 28 C.F.R. § 2.27(a) conflicts with the statutory scheme established by the Parole Commission and Reorganization Act of 1976, Pub. L. 94-233, 90 Stat. 219 (PCRA) (codified at 18 U.S.C. §§ 4201-18), because it allows the Commission to take as long as 119 days to review an appeal in a case designated for its original jurisdiction. Judge Sofaer found that the PCRA embodies two Congressional concerns: "To ensure fair and uniform treatment of prisoners, and to ensure prompt decision and review," F. Supp. at 965 (citing Sen. Rep. No. 369, 94th Cong. 1st Sess. 19, reprinted in 1976 U.S. Code Cong. & Ad. News 335, 340; Parole Reorganization Act: Hearings on H.R. 1598 Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 93rd Cong., 1st Sess. 130, 219, 233 (1973) (statements of Maurice H. Sigler, Chairman, U.S. Board of Parole, Norman A. Carlson, Director, Federal Bureau of Prisons and Howard Eglit, former counsel to the subcommittee)), and that the procedures provided in section 2.27(a) were neither prompt nor fair.
Even prior to the enactment of the PCRA, certain parole cases were designated as original jurisdiction cases, which require a higher voting quorum "to protect confidence in the integrity of the Parole Board by assuring that there is a broader consensus among Board members in cases where there is more likely to be public or private pressure to parole or not to parole." King v. Warden, 551 F.2d 996, 999 (5th Cir. 1977) (citing 40 Fed. Reg. 5357 (1975)). Although the PCRA does not specifically refer this practice, the legislative history indicates that Congress was aware of it, see, e.g., Hearings, supra, at 130, 189 (statement of Maurice H. Sigler), and allowed it to continue. H.R. Rep. No. 838, 94th Cong., 2d Sess. 22, reprinted ...