ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. C.A. No. 76-1467.
Adams and Garth, Circuit Judges, and Lacey, District Judge.*fn*
This appeal, in an action challenging the parole guidelines promulgated by the United States Parole Commission, raises two issues of broad import. First, it requires us to examine the conditions under which a class action, which the trial court refused to certify, may be submitted to an appellate court despite the fact that the named plaintiff no longer retains a "live" personal grievance. Second, it presents the question of the validity, under both statutory and constitutional standards, of the guidelines that govern federal grants of parole.
Beginning in 1910, certain prisoners incarcerated for conviction of federal crimes have been eligible for release on parole.*fn1 To facilitate such arrangement, the United States, in 1948, established a Parole Board (the Board), under the Department of Justice, to rule on applications for parole. While originally the Board's decisions were not based on formally articulated policies and procedures, in 1973 the Board published a series of regulations governing parole decisions, including "guidelines" to establish "customary release dates" for given classes of offenders.*fn2
In 1976, Congress enacted the Parole Commission and Reorganization Act (the PCRA).*fn3 The PCRA reconstituted the Parole Board as the United States Parole Commission (the Commission), an independent federal agency. Under the PCRA, the Commission is responsible for promulgating "guidelines" for the exercise of statutory discretion concerning the granting of parole.*fn4 In making a decision regarding an individual inmate, the Commission is directed to examine "the nature and circumstances of the offense and the history and characteristics of the prisoner," and then to determine whether release would "depreciate the seriousness of his offense," "promote disrespect for the law" or "jeopardize the public welfare." Inmates are to be released "pursuant to the guidelines" if the determination by the Commission, in light of the statutory criteria, is favorable.*fn5
The "guidelines" currently utilized are substantially the same ones that channeled the Board's discretion before the enactment of the PCRA. Under them, offenses are assigned a "severity" rating, and are placed into one of six categories, ranging from "low" to "greatest." Each inmate is assigned a "parole prognosis score" of between 0 and 11, using "salient factors" such as the age at which the inmate was first convicted, his employment background, his drug history, his previous parole revocations, and his prior convictions. The "guidelines" include a grid in which a combination of salient factor score and offense severity rating identifies a "customary" time span to be served.*fn6
John M. Geraghty, a Chicago policeman, was convicted in 1973 of conspiracy to commit extortion and of making false declarations to the grand jury. The extortion charge was based on Geraghty's use of his position as a Chicago Vice Squad Sergeant to shake down local dispensers of alcoholic beverages; the false declaration charge arose out of denials of involvement in this activity. After attempts to overturn his sentence proved unsuccessful,*fn7 Geraghty applied for parole. Despite the good institutional adjustment one might expect from a former policeman, parole was denied Geraghty on the ground that:
Your offense has been rated as very high severity. You have a salient factor score of 11. You have been in custody for a total of 4 months. Guidelines established by the Board for adult cases which consider the above factors indicate a range of 26-36 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found that a decision at this consideration outside the guidelines does not appear warranted.
As finally amended, Geraghty's sentence was 30 months. Thus, under the "customary release date," he could not be granted parole before the end of his sentence as reduced by "good time" credits.
Geraghty applied for parole a second time, but that request was also denied in June, 1976. The second statement of reasons given by the Commission was substantially identical with the first.*fn8 Asserting that he was being denied parole by reason of a mechanical application of the guidelines, Geraghty then brought the present suit as a class action challenging the validity of the guidelines, and questioning the procedures by which the guidelines were applied to his case.*fn9
Judge R. Dixon Herman, of the District Court for the Middle District of Pennsylvania, declined to certify the class action, and granted summary judgment against Geraghty on all of the claims he had asserted. After an appeal from both rulings was docketed, but before oral argument was heard by us, Geraghty's sentence expired and he was released.
II. JURISDICTIONAL PROBLEMS
Before proceeding to the merits of Geraghty's contentions, we must consider a number of significant procedural objections.
A. Jurisdictional Basis of Suit
Initially, the question of the jurisdictional underpinning of the suit before us must be resolved. In his complaint, Geraghty claimed jurisdiction under (1) 28 U.S.C. § 2241 (the habeas corpus statute), (2) 5 U.S.C. §§ 700-706 (the Administrative Procedure Act), and (3) 28 U.S.C. § 1331 (federal question jurisdiction). The trial court held that under Preiser v. Rodriguez,*fn10 habeas corpus is the only remedial base available to the plaintiff. To the contrary, however, we conclude that it is appropriate to treat this action as one for declaratory judgment under 5 U.S.C. §§ 700-706 (1970) and 18 U.S.C. § 4218(c) (1976).
In Preiser, state prisoners brought suit seeking an injunction restoring "good time" credits that they claimed were unconstitutionally taken from them. The Supreme Court held that since the prisoners were challenging the fact or duration of their imprisonments, § 1983 was unavailable, and their sole federal remedy was by habeas corpus. The Preiser opinion rested on two grounds. First, the Court noted that the interest in federal-state comity weighed against the advisability of allowing state prisoners to bypass the exhaustion requirement*fn11 of the state habeas corpus statute.*fn12 Second, the Court stated that the more specific provisions of the habeas corpus act should be read to modify the general cause of action granted by § 1983.*fn13
Neither of these considerations is applicable here. The courts face no barriers resulting from federal-state relations in adjudicating issues such as the ones before us, since the present controversy involves the application of a federal statute by federal authorities. And, unlike a habeas corpus action challenging state confinements, no exhaustion has been statutorily mandated. Indeed, in contrast to the situation in Preiser, Congress expressly contemplated declaratory actions to challenge the provisions of the federal parole guidelines. 18 U.S.C. § 4218(c) (1976) declares that Parole Commission actions, except for individual parole decisions, are to be reviewable under the Administrative Procedure Act.*fn14 The legislative history of § 4218(c) states, inter alia :
This section brings the Commission rulemaking process within the coverage of the Administrative Procedure Act judicial review procedures. In this regard, the Conferees recognize the principles established in Pickus v. United States, 165 U.S. App. D.C. 284, 507 F.2d 1107 (1974).*fn15
Pickus v. Parole Board,*fn16 entailed a challenge by prisoners to parole guidelines brought as an action for declaratory judgment under the APA. It appears that Congress in citing Pickus clearly evinced an intent to allow suits like the one before us to proceed by way of an action for declaratory judgment.*fn17
Moreover, even under the strictures of Preiser, itself, the present action would not be inexorably channeled into the form of a habeas corpus proceeding. While the relief requested for Geraghty included "enlargement from custody" pending review of his parole status, such request is now moot. In comparison, the class relief sought was (a) a declaration that the parole guidelines are invalid, and (b) an injunction against further actions denying parole to other federal prisoners on the basis of the guidelines. This relief falls within the Supreme Court's holding in Wolff v. McDonnell, 418 U.S. 539, 554-55, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), that Preiser does not bar either a declaratory judgment or a prospective injunction against enforcement of unconstitutional regulations relating to revocation of good time credits. The class does not demand that its members be released on parole, but only that the Parole Board not utilize the guidelines in evaluating future parole applications.
Therefore we conclude that this suit may proceed as an action for declaratory judgment.*fn18
We are next faced with a challenge to this Court's jurisdiction on the basis of mootness. After the appeal was filed, but prior to oral argument, Geraghty was released from confinement. Since, at trial, Judge Herman declined to certify this case as a class action, the government contends that the matter is now moot because of Geraghty's release. The argument proceeds that Geraghty, as the named plaintiff, has no further stake in the operation of the parole guidelines, and no class, in fact, has been certified to assert an interest in the guidelines.*fn19
Geraghty makes two responses to the claim of mootness. First, he declares that challenges to the parole guidelines represent a situation where a legal injury is "capable of repetition yet evading review." Prisoners will often be released before their cases are finally resolved in the appellate courts. Therefore, he avers, the case before us comes within a traditional exception to the mootness doctrine.*fn20 Second, Geraghty maintains that his case is encompassed by the principle that a class action is not moot simply because the claims of the named plaintiff are rendered academic. He urges that the failure of Judge Herman to grant class action status was an abuse of discretion and that subsequently granted class status should be permitted to "relate back" to the time when Geraghty had a live claim.*fn21
Resolution of the justiciability of this case in light of the mootness objection is best undertaken in the context of a somewhat extended discussion of this evolving doctrine.*fn22
1. Contours of Mootness Doctrine
The principle that a court may not decide a moot case arose primarily from rules of equity and common law, as well as from traditional notions of the functions of courts.*fn23 It was only in the last decade that the attitude of the Supreme Court toward the adjudication of moot cases became definitively intertwined with the mandate of Article III, which provides that the power of the judiciary is limited to cases or controversies.*fn24
Still more recently, however, the Supreme Court has made clear that elements of the "mootness" doctrine find their roots not only in constitutional dictates, but also in more flexible considerations of policy.*fn25 The first step in our mootness analysis, therefore, must be to attempt to etch the outlines of the constitutional elements of this doctrine.
The constitutional command that matters submitted to the judiciary for resolution must be within the category of "case or controversy"
limits the business of the federal courts to questions presented in an adversary context, and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.*fn26
As we understand the constitutional requirements, a case presented for adjudication must be an actual, concrete dispute over legal rights; the controversy may not be a hypothetical one.*fn27 In addition, at the commencement of suit, the dispute must concern some individual plaintiff who is injured by the wrong in question.*fn28
However, once a suit meeting these conditions has been instituted, the limitations of Article III do not absolutely require that an individual who is personally harmed by the wrongs continue to have a live dispute. Rather, the issues with regard to jurisdiction are:
(1) Whether a legal controversy exists sufficient to establish that the case is not hypothetical.
(2) Whether the controversy affects an individual in a concrete case sufficient to provide the factual predicate for the reasoned adjudication which is the province of the judiciary.
(3) In addition, the court must answer the more policy-oriented question whether the parties before it have, at the time for decision, sufficient functional adversity to sharpen the issues for judicial resolution.
The existence of a plaintiff with standing at the outset of the litigation insures the initial fulfillment of these three conditions; but the elimination of the individual grievance may bring such fulfillment into question. Once suit has been commenced, it nonetheless remains open to the court to determine that a case or controversy persists despite the disappearance of the named plaintiff as a "live" litigant.*fn29 Moreover, since the third consideration is not an absolute Article III requirement, in evaluating the degree of functional adversity, the court may ascribe weight to reasons of policy.*fn30
We reach these conclusions on the basis not only of the Supreme Court's explications of the mootness doctrine, but in reliance on cases in which the Supreme Court has actually exercised jurisdiction.
2. Actions Surviving Loss of Claim by the Named Plaintiff
(a) Repetitious Evasion of Review
The first genre of disputes in which the Supreme Court has not required a continuing live stake was described by our Court in United States v. Frumento as the "most traditional of exceptions to the mootness doctrine."*fn31 This group of cases has utilized the rubric "capable of repetition yet evading review" to characterize controversies whose effect on plaintiffs is, by their very nature, of limited duration. In such instances it is unlikely that any person will retain a live stake in the outcome of the case by the time it has made its way through the appellate process. Nonetheless, the actions complained of are likely to be repeated, and therefore present the possibility of a recurring but a judicially irremediable wrong unless jurisdiction is retained.*fn32
In many of these cases, the party who originally brought suit can present a plausible argument that he or she will be subject to a recurrence of the conduct at issue, and accordingly continues to have a personal stake in the controversy. To this extent, the plaintiff retains a "live" interest. Such hypotheses, however, in many cases would clearly fail to meet the standards imposed on litigants at the outset of a case to show "standing,"*fn33 and in others seem to be keyed to the notion that the conduct at issue may be repeated with respect to someone within the class represented, although not with respect to the particular named plaintiff.*fn34
If the disputed action will, with reasonable probability, recur in the near future and the issues may be resolved without reference to nuances of particular fact situations, the constitutional prerequisites of a legal controversy and a concrete factual predicate may be satisfied despite the lack of a named plaintiff before the court who retains his original interest in the conflict. The potential for repetition with respect to such plaintiff may itself be one indication of the satisfaction of the further prudential criterion of functional adversity, but the unfairness of an evasion of review may also be relevant to the exercise of discretion. Repetition is not, however, the sole possible indication of either constitutional or discretionary justiciability.
In the related area of the mootness of class actions, the Supreme Court has consistently held that once a class action is certified, the mooting of a claim set forth by the named plaintiff does not automatically deprive a court of jurisdiction over the cause of action asserted by the class. A justiciable legal controversy may continue to exist between the class as an entity and the defendant, thus satisfying Article III. Originally, this holding was articulated in the context of class actions dealing with claims that were also capable of repetition but evading review.*fn35
But the Supreme Court has, in other situations, sustained the justiciability of what may be referred to as "headless" class actions; that is class actions in which the named plaintiff retains no "live" claim. In Richardson v. Ramirez,*fn36 the Court adjudicated the complaint of a class composed of California ex-prisoners, despite the fact that the three named plaintiffs already had obtained the relief they sought. The action challenged the denial of voting rights to ex-felons under California law. By the time the case reached the appellate court, however, the three named ex-felons had already been registered to vote by the named defendants, three county clerks charged with enforcing election statutes. Nonetheless, the California Supreme Court issued a declaratory judgment.
On review, the Supreme Court noted that inasmuch as the opinion of the California tribunal was binding on all county clerks, the underlying issue evaded review by being "incapable of repetition."*fn37 In addition, since the Court interpreted the case as an action against a class composed of all county clerks, it identified a "live" controversy between the non-consenting clerks and felons who, in the future, might wish to register in their districts. Although it is clear that the named plaintiffs could not have commenced suit simply by claiming that they wished to move to the other counties ...