Richard Pickus et al., Appellants, v. United States Board of Parole, 543 F.2d 240 (D.C. Cir. 1976)

This appeal asks us to decide whether the U.S. Board of Parole must provide federal prison inmates with some opportunity for oral presentation of views on the Board's proposed rules governing the grant or denial of parole. The rules set up guidelines indicating the customary range of time to be served before release for various combinations of offense and offender characteristics. As a predictive aid, the rules also provide for an evaluation sheet containing a "salient factor score" to serve as an aid in determining the parole prognosis. The rules specifically provide that decisions outside of the guidelines may be rendered when circumstances warrant (e. g. cases "with exceptionally good institutional program achievement"). 39 Fed.Reg. 45296 et seq. (Dec. 31, 1974). This court has previously held in this case that the Administrative Procedure Act's rulemaking provisions apply to such Parole Board rules.¹  Appellants now urge that principles of fundamental fairness and the Due Process Clause of the Fifth Amendment require an opportunity for prisoners to comment orally on the proposed rules before they are permanently adopted. We conclude that oral presentation of views is not required, and accordingly affirm the district court's judgment.

The Parole Board asserts that this case is moot²  because none of the three plaintiffs are currently incarcerated.³  We called for supplementary memoranda. Petitioners contend their dispute with the Board is alive in view of its continuing supervision over plaintiffs Richard Pickus, who will remain on parole until his sentence expires on May 30, 1980, and John Alkes, who is on mandatory release status and will remain under the Board's jurisdiction until his maximum term expires on February 8, 1978.

In Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975), the Court held the case moot because the respondent had been completely released from supervision, and therefore retained no interest in the constitutionality of North Carolina's parole granting procedures. However, plaintiffs in this case have not been completely released from supervision. In Ramer v. Saxbe, 173 U.S.App.D.C. 83, 91-92, 522 F.2d 695, 703-04 (1975) the court found that in the circumstances of that case, shifting custodial situations should not moot the appeal. The court recognized that "(w)hether actually incarcerated or in parole or mandatory release status, the appellants continue subject to the rules and regulations of the Bureau of Prisons."⁴  We might similarly find here that plaintiffs are sufficiently subject to continuing Parole Board supervision that they have a present interest in regulations governing parole release decisions. It is permissible, however, to pass over a threshold issue such as mootness when as here the resolution on the merits is clear. See Ripon Society v. National Republican Party, 173 U.S.App.D.C. 350, 525 F.2d 567 (1975) cert. denied, 424 U.S. 933, 96 S. Ct. 1147, 1148, 47 L. Ed. 2d 341 (1976), and cases cited at Footnote 28; Nixon v. Administrator of General Services, 408 F. Supp. 321, 367 (D.D.C. 1975). We follow this course.

Petitioners do not assert that an opportunity for oral presentation of views is required by the notice-and-comment rulemaking provision of the Administrative Procedure Act;⁵  nor do they contend that the APA's on-the-record rulemaking sections are applicable.⁶  Instead they argue that due process here requires procedures in addition to those mandated by statute, and that the specific procedure required is an opportunity for prisoners to comment orally on the Board's proposed rules. Petitioners suggest that this be handled by holding hearings at three federal prison facilities having differing degrees of security at which a transcript would be kept and at which at least one member of the Board would hear oral comments.

Plaintiffs base their due process claim on the assertion that the proposed parole guidelines mechanically rely on factors determinable as prisoners begin to serve their sentence (e. g. offense severity, prior convictions, prior parole history), and that in effect the proposed rules adjudicate each present and future prisoner's eligibility for parole well in advance of individual parole decisions. Thus petitioners' urge that the prisoners' only real chance for meaningful input into the process controlling their gaining of "conditional liberty"⁷  must come while the rules are being formulated. In their view, oral comment is necessary to protect the prisoners' right to a "meaningful opportunity to be heard"⁸  because the general prison population lacks the skills necessary for effective written communication.

Although informal rulemaking does not necessarily inflict "grievous loss"⁹  on individuals, its results do sufficiently impinge on their lives and rights to require some conformance with notions of due process.¹⁰  A reasonable balance must be struck between fairness and efficiency. Plaintiffs assert that the balance struck by § 553 of the APA is unreasonable in its application to the special situation of prisoners whose access to parole is at stake.¹¹  Though the district court rejected plaintiff's constitutional contention, it implicitly recognized that prisoners are subject to some disabilities in notice and comment rulemaking proceedings by ordering that the Board post special notices of the rulemaking proceeding in the prisons in addition to publishing notice in the Federal Register as the APA requires.

To evaluate appellants' contention that due process or fairness also requires "some kind"¹²  of oral hearing, we "must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 1748, 6 L. Ed. 2d 1230 (1961). We do not, however, write on a clean slate in evaluating the conflicting governmental and private interests in this case. Other cases have considered the necessity of providing an oral hearing in the context of informal rulemaking, and it is to those cases we turn.

A. The Sufficiency of Notice and Comment Rulemaking Procedures

When not bounded by statutory procedural requirements, the Supreme Court has consistently been willing to assume that due process does not require any hearing or participation in "legislative" decisionmaking other than that afforded by judicial review after rule promulgation. See Bowles v. Willingham, 321 U.S. 503, 64 S. Ct. 641, 88 L. Ed. 892 (1944); Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S. Ct. 141, 60 L. Ed. 372 (1915).¹³  In 1949, the Supreme Court rejected a Court of Appeals constitutional holding requiring oral argument on all questions of law in administrative adjudicative proceedings. FCC v. WJR, 337 U.S. 265, 69 S. Ct. 1097, 93 L. Ed. 1353 (1949). The Court emphasized Congressional control of administrative procedures and the availability of judicial review in reaching its result.¹⁴  In Bi-Metallic, supra, the Court upheld a general tax assessment increase against property in Denver County against the argument that such a change could not be made without a hearing.

Those decisions were relied on in United States v. Florida East Coast Railway, 410 U.S. 224, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973), which read an Interstate Commerce Commission-administered statutory "hearing"¹⁵  provision as requiring nothing more than notice and written comment when the proposed agency action, though similar to "adjudicative" ratemaking,¹⁶  fell within the APA's rulemaking definition.¹⁷  The Florida East Coast decision implicitly indicates that for "legislative-type"¹⁸  rulemaking, notice and written comment procedures comport with due process.¹⁹  The dividing line for additional procedures relied on by the Court is the "recognized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules or standards, on the one hand, and proceedings designed to adjudicate disputed facts in particular cases on the other." 410 U.S. at 245-46, 93 S. Ct. at 821. Due process requirements for more formal procedures will apparently overrule deference to Congressional notice and comment standards only if an effort is "made to single out any particular (party) for special consideration based on (his) own peculiar circumstances." 410 U.S. at 245-46, 93 S. Ct. at 821.

In this case, there is no singling out of a particular person in the light of his circumstances. Petitioners urge that the rules' effect is to adjudicate in advance each prisoner's right to parole. However, policy rules often have the effect of making individual outcomes more predictable. Petitioners' contention rests on the assertion that the prisoner's interest in parole standards requires a due process result different from that applicable when the property interests of regulated firms are at stake.

There is a tension between the permissive procedural rulings in the informal rulemaking context and the strict procedural requirements that attach when individual deprivations of liberty or property are at stake. Petitioners rely on such cases as Goldberg v. Kelly²⁰  and Morrissey v. Brewer²¹  for the proposition that the interest in gaining conditional liberty is so great, and the proposed regulations are so conclusive, that some kind of oral hearing is a prerequisite to their promulgation.

In the first place, the proposed rules do not conclusively establish parole rights for prisoners. They specifically provide for modification according to individual circumstances. They thus do not work the direct effect on petitioners' liberty that parole revocation or even good time deprivation does.²² 

Undeniably, petitioners have a substantial interest in the policies governing parole decisions. However, the courts have applied the principle of a notice-and-comment procedure, even when the rules have defined substantial individual rights. See, e. g., O'Donnell v. Shaffer, 160 U.S.App.D.C. 266, 491 F.2d 59, 62 (1974); Air Line Pilots Ass'n v. Quesada, 276 F.2d 892 (2d Cir. 1960) (loss of pilot license at age 60); Bi-Metallic, supra (tax assessment rates). The general principle that notice and comment rulemaking is constitutionally sufficient for policy decisions is applicable, at least in the absence of extraordinary circumstances mandating an exception. In the present "prisoner's rights" case the general notice-and-comment principle is supported by a normal governmental interest in efficient decisionmaking and buttressed by its special interest in avoiding disruption of a "closed, tightly controlled (prison) environment." Wolff v. McDonnell, 418 U.S. 539, 561, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Considerations of prison routine are certainly not conclusive, but they reflect an interest that can properly be given weight. See Wolff, supra.

Petitioners think themselves within the protection of the Goldberg/Morrissey line of cases because those cases recognized the importance of tailoring a hearing "to the capacities and circumstances of those who are to be heard." Goldberg, 397 U.S. at 269, 90 S. Ct. at 1021. Those cases involved individual determinations requiring flexibility in presentation and involving the issues of credibility and veracity. In this case, the parole guidelines involve policy questions rather than accurate development of a particular factual situation to which policy standards must be properly applied. See Goldberg, 397 U.S. at 268, 90 S. Ct. 1011. It may be that prisoners may lack the writing skills necessary for effective communication. Many indeed may also lack the skills and focus necessary for effective oral presentation of views. However, an exception along these lines would be far reaching and broad, and would apply to all kinds of rules, e. g. governing food stamps, welfare benefits, grant programs, social security matters, to start with, and doubtless many others. We have recently declined to take that approach in Thompson v. Washington,²³  a case involving rent increases in public housing where the general rule governing increases would have a particularized, predictable impact on each tenant's rent obligations in much the same manner that the parole guidelines are asserted to predetermine prisoners' rights in this case. We interpreted the governing statutes expansively in the light of constitutional due process considerations, and found them to require a written notice and comment opportunity to participate in the decision process. But we held that oral hearings were not compelled.

At least for the prisoners' rights involved here, providing the limited oral hearings proposed by petitioners would not remedy these disabilities; at best it would slightly broaden the comment base to include a few prisoners in three facilities willing to communicate their views verbally. There may be substantial advantages in adopting the procedures suggested by appellants since such oral hearings might serve to legitimate the parole rules in the eyes of prisoners, by giving at least some of them a more direct sense of participation in a policy process directly affecting their lives, and they could be structured to minimize disruption possibilities. This may call for the broad perspective of the Attorney General or the Deputy Attorney General rather than any narrow approach by the Parole Board or Bureau of Prisoners. It is not, however, for judicial mandate. We cannot hold that the balancing of private and government interests in this case requires displacing the procedures provided by Congress for policy development.

Plaintiffs also rely on cases decided by this Circuit suggesting or requiring oral presentations in rulemaking proceedings. For the most part, our decisions have not held oral presentations to be a condition of validity, but have called for them as a necessary adjunct to meaningful judicial review of highly technical issues.²⁴  In one instance, we found elements in the administrative procedure that led to a requirement of oral presentation to responsible officials, in order that the administrator would adequately exercise the decisionmaking discretion contemplated by the particular statute, by considering all relevant factors.²⁵  Although we have recognized that provision of oral hearings may be wise in some instances, we have never held that due process requires oral presentation of views as a matter of course. This case presents no occasion to expand on our previous holdings.

Affirmed.