Paul Bijeol et al., Petitioners-appellees, v. Charles L. Benson et al., Respondents-appellants, 513 F.2d 965 (7th Cir. 1975)

This is a sequel to Garafola v. Benson, 505 F.2d 1212 (7th Cir. 1974), in which we held that prisoners sentenced under 18 U.S.C. § 4208(a) (2) were entitled to a meaningful hearing before the Board of Parole at some point prior to the expiration of one-third of their sentences. The question here is whether the Garafola rule can be applied to other similarly situated federal prisoners by means of a class action or a proceeding analogous to a class action, and, if so, whether it should be so applied nationally, only within this circuit, or only within the district in which the case was filed.

Petitioners are five prisoners convicted of bank robbery who are serving sentences of various lengths under 18 U.S.C. § 4208(a) (2) in the United States Penitentiary at Terre Haute, Indiana. In their pro se complaint, they sought declaratory, injunctive, and habeas corpus relief¹  based on the failure of the United States Board of Parole in each of their cases to hold a meaningful parole hearing before the expiration of one-third of the sentence. They sought to represent not only themselves but all prisoners at Terre Haute who were sentenced under § 4208(a) (2) for bank robbery.

The complaint, filed before the entry of the District Court order affirmed in Garafola, relied upon Grasso v. Norton, 376 F. Supp. 116 (D. Conn. 1974), which was then and is now pending on appeal. Respondents promptly moved to stay this case pending review of Grasso by the Court of Appeals for the Second Circuit but filed no other motion and no answer. Nothing further transpired in this case until nine days after our affirmance in Garafola, when the District Court entered an order holding that respondents, by moving for a stay without filing an answer, had admitted the facts pleaded; that the action should proceed as a class action under Rule 23(a), Fed. R. Civ. P. ; that the class should be defined as all federal prisoners sentenced under § 4208(a) (2); and that relief based on Garafola should be granted to the entire class. Shortly thereafter the court stayed its order until January 9, 1975, except as to prisoners in Terre Haute, and thereafter we entered a like stay pending appeal.

Respondents ask us to reconsider our holding in Garafola, which we decline to do, but they concede that, assuming Garafola is to stand, the District Court properly granted relief to the named petitioners. We therefore are not required to consider the correctness of the District Court order as to them.

Turning to the class allegations, we conclude that while Rule 23, Fed. R. Civ. P., does not apply, a representative action may be maintained in the unusual circumstances of this case, limited to federal prisoners in custody in the district in which the district court sits who are serving sentences imposed under § 4208(a) (2) and have not yet been given a parole hearing other than the initial hearing customarily given shortly after custody begins. Terre Haute is the only federal penitentiary in the district.

Respondents do not directly question the appropriateness of a representative proceeding in habeas corpus actions. Nor do they directly question the appropriateness of a class limited to prisoners within the district. Instead they argue that the District Court did not comply with the procedural requirements they assert are necessary under Rule 23. They also challenge the authority of the District Court to extend the effect of the order outside the district. Thus, if an order based on Garafola met the technical objections and granted relief only within the district, respondents' only serious challenges to the validity of the District Court's order would be resolved. We need not decide, therefore, whether the District Court could properly go beyond the pleadings in defining the appropriate class, insofar as the designated class is entirely within the district.

The gist of petitioners' allegations is that they are being unlawfully subjected to physical restraint by reason of the Parole Board's failure to comply with the statute. Their remedy, therefore, is habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 485-489, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). Although the Preiser case dealt with a state prisoner's attempt to use 42 U.S.C. § 1983 instead of 28 U.S.C. § 2254 to challenge the fact or duration of his custody, we think the Court would reach the same result in the case of a federal prisoner attempting similarly to circumvent 28 U.S.C. § 2241 et seq., in challenging the fact or duration of his custody. Cf. id. at 489, 93 S. Ct. 1827.

Rule 23, Fed. R. Civ. P., does not apply to habeas corpus proceedings for the reasons stated in United States ex rel. Sero v. Preiser,506 F.2d 1115, 1125 (2d Cir. 1974), cert. denied, --- U.S. ---, 95 S. Ct. 1587, 43 L. Ed. 2d --- (1975). Nevertheless, as the Sero case also held, a representative procedure analogous to the class action provided for in Rule 23 may be appropriate in a habeas corpus action under some circumstances. Such a procedure is appropriate here: Given the nature of the case, there can be no genuine issues of fact.²  The single issue of law presented is identical as to all prisoners sentenced under § 4208(a) (2) and has already been definitively adjudicated for the circuit by this court in Garafola. The number of § 4208(a) (2) prisoners at Terre Haute alone is too great for joinder of all to be practical.

Because we agree with the reasoning of the Sero case that a representative action for habeas corpus relief is merely analogous to a proceeding under Rule 23, we need not decide whether the District Court complied with "the precise provisions of Rule 23 (, which) are not applicable to these proceedings." (Sero, supra, 506 F.2d at 1126.) We hold that in the circumstances of this case, in which the class, as we redefine it, consists of prisoners in a given category in one penitentiary and the likelihood is that all prisoners in the represented class were in fact informed about the action, due process did not require notice, although it would have been preferable to give notice.³ 

The District Court could properly conclude that in this case a representative action was appropriate, but not, we believe, with respect to prisoners outside the Southern District of Indiana. By so limiting the representative proceeding, we avoid the possibility that respondents, the members of the Board of Parole, whose responsibilities extend throughout the United States, will be subjected, even temporarily, to inconsistent judgments by courts of coordinate jurisdiction, and we give the other courts of appeals the respect and comity which are their due.⁴ 

Moreover, a true representative action cuts both ways. Allowing wider representation in a habeas corpus action might very well result in injustice to absent prisoners within the represented class, who, if entitled to the benefits of the action, would also be affected, if not bound, by an adverse determination.⁵  We think it best that, even considering the narrowness of the category of habeas corpus cases suitable for representative treatment, the representation be limited to other prisoners within the district. The result we reach on this issue makes it unnecessary for us to address the question of whether the writ of habeas corpus may run in favor of prisoners who are in custody outside the district in which the court sits, restrained by custodians also outside the district. Compare, e. g., Schlanger v. Seamans, 401 U.S. 487, 91 S. Ct. 995, 28 L. Ed. 2d 251 (1971), with Ex parte Hayes, 414 U.S. 1327, 94 S. Ct. 23, 38 L. Ed. 2d 200 (1973), and Strait v. Laird, 406 U.S. 341, 92 S. Ct. 1693, 32 L. Ed. 2d 141 (1972). See also Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973).

We, of course, assume that, even though the representative effect of the judgment in this case is limited to the Southern District of Indiana, respondents will follow the procedure required by Garafola in the cases of other § 4208(a) (2) prisoners incarcerated within this circuit, making further judicial proceedings in this circuit unnecessary.

The judgment of the District Court is modified to limit its effect to the Southern District of Indiana, and, as modified is affirmed.

Affirmed as modified.