Government Response to Preliminary Injunction

8/2/2019 Government Response to Preliminary Injunction

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ANDR BIROTTE JR.United States AttorneyLEON W. WEIDMANAssistant United States AttorneyChief, Civil DivisionROBERT I. LESTER (CBN 116429)Assistant United States Attorney

300 North Los Angeles StreetRoom 7516Los Angeles, California 90012Phone: (213) 894-2464Fax: (213) 894-7819

[email protected] for Defendants

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

JOHN PAUL MORROW; and CHRISTIAN DAVIS, ))

Plaintiffs, ))

v. ))

UNITED STATES PAROLE COMMISSION; )ISAAC FULWOOD, JR., in his official )

capacity; CRANSTON J. MITCHELL, in his )official capacity; PATRICIA K. CUSHWA, )in her official capacity; J. PATRICIA )WILSON SMOOT, in her official capacity; )and the UNITED STATES OF AMERICA, )

)Defendants. )

________________________________________ )

No. CV 12-0700

OPPOSITION OF TO MOTION OF PFOR PRELIMINARINJUNCTION.

DATE: March 1TIME: 1:30 p.CTRM: Hon. Da

Fischer

Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 1 of 29


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TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . .

II. FACTS . . . . . . . . . . . . . . . . . . . . . .

A. Plaintiff John Paul Morrow . . . . . . . . .

B. Plaintiff Christian Davis . . . . . . . . . .

III. THE APPLICABLE STATUE AND REGULATION . . . . . . .

A. The Statute And The Regulation . . . . . . .

B. Background On The Commissions Use Of

Videoconferencing . . . . . . . . . . . . .

IV. THE COURT SHOULD DENY PLAINTIFFS MOTION FOR APRELIMINARY INJUNCTION . . . . . . . . . . . . . .

A. Preliminary Injunction Standard . . . . . . .

B. Plaintiffs Are Not Likely To Succeed On The Me

1. Applicable Standard For The Merits .

2. Plaintiffs Claim Under The APA Fails .

a. The Commissions Administrative Reme

System . . . . . . . . . . . . . .

b. There Has Been No Final Agency Acti

3. Plaintiffs Claim Is Speculative And Not

4. 18 U.S.C. 4208(e) Does Not Require ThatPrisoner Be Allowed To Appear In PersonThe Hearing Examiner . . . . . . . . . .

5. The Commissions Decision To Use Video-Conferencing Is A Reasonable Construction



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TABLE OF AUTHORITIES

CASES

Americopters, LLC v. FAA,441 F.3d 726 (9th Cir. 2006) ......................

In re Cavanaugh,306 F.3d 726 (9th Cir. 2002) ......................

Chevron U.S.A., Inc. v. Natural Resources Defense Counci

467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)

DISH Network Corp. v. FCC,653 F.3d 771 (9th Cir. 2011) ......................

Idaho Sporting Congress, Inc. v. Rittenhouse,305 F.3d 957 (9th Cir. 2002) ......................

Johnson v. Reilly,

349 F.3d 1149 (9th Cir. 2003) .....................

Katz v. United States,389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) .

Merritt-Chapman & Scott Corp. v. United States,528 F.2d 1392 (Ct. Cl. 1976) ......................

Paul Revere Insurance Group v. United States,

500 F.3d 957 (9th Cir. 2007) ......................

Putnam Family Partnership v. City of Yucaipa,--- F.3d --- 2012 WL 516063 (9th Cir. Feb. 17, 2012

Ruviwat v. Smith,701 F.2d 844 (9th Cir. 1983) ......................

Terrell v. United States,564 F.3d 442 (6th Cir. 2009) ................... 1

United States v. Horvath,492 F.3d 1075 (9th Cir. 2007) .....................

United States v. Thompson,



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Winter v. Natural Resources Defense Council, Inc.,555 U.S. 7, 29 S.Ct. 365, 172 L.Ed.2d 249 (2008) ..

Wooton v. United States Parole Commission,2010 WL 2595341 (C.D. Cal. June 22, 2010) .........

Wooton v. United States Parole Commission,2010 WL 2595341 (C.D. Cal. June 22, 2010) .........

Parke-Bernet Galleries, Inc. v. Franklyn,31 A.D.2d 276, 297 N.Y.S.2d 151 (N.Y. App. Div. 196

STATUTES AND REGULATIONS

5 U.S.C. 704 ........................................

5 U.S.C. 7118(3) .....................................

8 U.S.C. 1324b(e)(1)..................................

10 U.S.C. 1185(a)(3)..................................

Parole Act .............................................

22 U.S.C. 4136(2) ....................................

28 U.S.C. 1361 .......................................

42 U.S.C. 1997e(a) ...................................

20 C.F.R. 404.936(c) .................................

28 C.F.R. 2.23-2.24 & 2.26 ....................... 1

28 C.F.R. 541.7(d)(1) ...............................

69 F.R. 5273 ........................................

70 F.R. 19262 .........................................



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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

A federal regulation, 28 C.F.R. 2.25, authorizes

examiners of the United States Parole Commission (Commi

to conduct parole hearings by videoconference with feder

prisoners. The regulation is based on 18 U.S.C. 4208(which entitles a prisoner to appear at his or her paro

determination proceeding. Plaintiffs request this Court

expand the term appear to mean appear in person. Th

should reject that request because, among other things,

Plaintiffs have failed to exhaust their administrative r

and the Commissions construction of the governing statu

reasonable.1

II.

FACTS

A. Plaintiff John Paul Morrow

Morrow is serving a life sentence imposed by the Un

States Army on September 16, 1992. Exhibit A. He had b

convicted of, among other things, murder. Morrow was la

transferred from the custody of the Army to the custody

the Federal Bureau of Prisons (BOP). On February 25,

a hearing examiner of the Commission conducted Morrows

parole hearing in person. Exhibit C. The Commission de



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continue the case so that it could obtain a current psyc

report on Morrow from the BOP. Exhibit D.

On July 16, 2002, after receiving the requested rep

the Commission conducted another hearing in person. Exh

The hearing examiner recommended that Morrow be granted

after Morrow served 300 months. Id. Agreeing with the

examiner, the Commission granted Morrow a parole date of17, 2017. Exhibit F. Morrow appealed the decision to t

Commissions National Appeals Board (Board), which aff

the decision on October 29, 2002. Exhibit G.

On May 25, 2004, the Commission conducted an in-per

interim hearing. Exhibit H. The Commission decided not

change its previous decision. Exhibit I. The Board aff

the decision. Exhibit K.

On May 3, 2006, the Commission conducted another in

in-person hearing. Exhibit L. On May 16, 2006, the Com

ordered no change to the parole date. Exhibit M. The B

affirmed the decision. Exhibit N.

On March 25, 2008, Morrow received an interim heari

video conference. Exhibit O. On April 2, 2008, the Com

reaffirmed the presumptive parole date of March 17, 2017

Exhibit P. Although the Commission advised Morrow that

appeal to the Board, he did not file an appeal.

Morrows most recent interim hearing was conducted



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presumptive parole date to March 17, 2016. Exhibit R.

Commission informed Morrow that his next interim hearing

held in March 2012. Id. The Commission also advised hi

its decision was appealable to the Board (id.), but Morr

not appeal.

Morrows next interim hearing date is scheduled to

conducted in March 2012, by video conference. Exhibit SB. Plaintiff Christian Davis

Davis is serving a life sentence imposed by the Uni

States Army on January 27, 1993. Exhibit T. He, too, h

convicted of murder. Id. Davis was later transferred f

custody of the Army to the custody of the BOP. On May 3

a hearing examiner of the Commission conducted Morrows

parole hearing in person. Exhibit V. Ultimately, the C

set a parole date of May 21, 2016, after the service of

months. Exhibit X. Though the Commission advised Davis

right to appeal to the Board (id.), Davis did not appeal

decision.

On March 30, 2004, the Commission conducted an in-p

interim hearing. Exhibit Y. The Commission decided not

change its previous decision. Exhibit Z. The Board aff

that decision. Exhibit BB.

On March 2, 2006, the Commission conducted another

in-person hearing. Exhibit CC. The hearing examiner re



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On March 25, 2008, Davis received another interim h

by video conference. Exhibit EE. On September 23, 2008

Commission kept the presumptive parole date in place. E

FF. Although the Commission advised Davis of his right

to the Board (id.), he did not file an appeal.

Davis most recent interim hearing was conducted on

18, 2010 by video conference. Exhibit GG. The hearing recommended a six-month credit for Davis achievements.

Ultimately, however, the Commission decided not to chang

previous decision. Exhibit HH. Although the Commission

Davis of his right to appeal to the Board (id.), he did

an appeal.

Davis next interim hearing date is scheduled to be

conducted in March 2012, by video conference. Exhibit I

III.

THE APPLICABLE STATUE AND REGULATION

A. The Statute And The Regulation

The relevant statute provides: The prisoner shall

allowed to appear and testify on his own behalf at the p

determination proceeding. 18 U.S.C. 4208(e).2

The relevant federal regulation provides:

The Commission may conduct a parole

determination hearing (including a rescission

2 This provision was enacted in section 2 of the P



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hearing), a probable cause hearing, and an

institutional revocation hearing, by a

videoconference between the hearing examiner

and the prisoner or releasee.

28 C.F.R. 2.25.3

B. Background On The Commissions Use Of Videoconferen

Until 2004, all parole release hearings were conducsite and in-person at the federal penitentiary where the

was held. Early that year, the Commission began a pilot

in which hearing examiners conducted some release hearin

through a videoconference with the prisoner. The Commis

promulgated an interim rule at 28 C.F.R. 2.25 to give

public notice that it would be carrying out the pilot pr

See 69 FR 5273-75 (Feb. 4, 2004).

As the Commission explained, it was looking for way

reduce travel costs and conserve the time of its hearing

examiners, and saw hearings by videoconference as a mean

achieving these ends. 69 FR 5273. The Commission noted

expectation that videoconference technology had improved

point that a prisoners ability to effectively participa

hearing would not be diminished by the use of videoconfe

Id. The Commission also noted that conducting hearings

videoconference would be especially cost-effective for h

that would otherwise have to be conducted at facilities



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conducted over 100 hearings through videoconferencing, a

determined that the technology worked well and did not d

the prisoners ability to effectively participate in hea

See 70 FR 19262 (Apr. 13, 2005).

In February 2004, the Commission promulgated the

videoconference regulation, stating that it was carrying

a pilot project to study the feasibility of conducting release hearings through video conferences between the

examiner (who was located in Washington, D.C.), and the

(who was located at a prison in the United States). 69

5273. The Commission reasoned that the use of videoconf

would conserve its limited financial resources and the t

expended by its hearing examiners, without detracting f

prisoners opportunity for a fair parole hearing. Id.

2005, the Commission observed that the pilot program had

well. Indeed, [t]he Commissions experience is that t

prisoners ability to effectively participate in the hea

not been diminished by the use of the videoconference pr

70 Fed.Reg. 19262.

A parole hearing by videoconference does not commen

the hearing examiner is convinced that the technology is

properly. Declaration of Stephen J. Husk 4, attached

Exhibit JJ. The hearing examiner is able to assess the

of the prisoner during the hearing. The camera has a zo



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documents that are submitted during the hearing. Husk D

Otherwise, the prisoner can make an offer of proof and,

appropriate, the hearing examiner can continue the heari

A hearing examiner does not make the final decision

whether a particular prisoner will be released on parole

Commissioners themselves, who are the ultimate decision-

this process, neither participate in the videotaped hearobserve them when they are taking place. Instead, they

the hearing examiners written summary and the supportin

materials submitted to them. The Commissioners also hav

option of reviewing an audio recording that is kept of t

hearing. Husk Dec. 8.

The Commission conducts hearings at 67 BOP faciliti

throughout the country. The Commission currently provid

person hearings at 32 BOP institutions and videoconferen

hearings at 35 BOP institutions. Husk Decl. 9. Condu

many of the parole hearings by videoconference saves a

considerable amount of money for the Commission, and con

the time of hearing examiners, particularly with respect

facilities that are difficult to reach. Husk Decl. 9

IV.

THE COURT SHOULD DENY PLAINTIFFS MOTION FOR A

PRELIMINARY INJUNCTION

A. Preliminary Injunction Standard



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the absence of preliminary relief, that the

balance of equities tips in his favor, and

that an injunction is in the public interest.

Winter v. Natural Resources Defense Council, Inc., 555 U

20, 29 S.Ct. 365, 172 L.Ed.2d 249 (2008). If the plaint

not satisfy his burden of establishing the first element

court need not consider the remaining three. DISH NetCorp. v. FCC, 653 F.3d 771, 777 (9th Cir. 2011).

In Winter, the Supreme Court emphasized that a prel

injunction may issue only if the plaintiff demonstrates

irreparable injury is likely in the absence of an injunc

555 U.S. at 22 (emph. in original). A preliminary injun

not issue based only on a possibility of irreparable ha

is an extraordinary remedy that may only be awarded upo

showing that the plaintiff is entitled to such relief.

The fact that the defendant is not conducting a ne

of activity with completely unknown effects . . . is p

as well. Id. at 23.

Additionally, the district court must balance the

claims of injury . . .. Id. at 24.

Finally, an application for preliminary injunction

disfavored where the granting of the preliminary injunct

give the plaintiff substantially the relief it would obt

a trial on the merits. William W. Schwarzer, A. Wallace


C 2 12 00700 DSF RZ D t 11 Fil d 02/23/12 P 13 f 29


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B. Plaintiffs Are Not Likely To Succeed On The Merits

1. Applicable Standard For The Merits

Plaintiffs purport to assert claims for relief for

of the Parole Act and seek review under the Administrati

Procedure Act (APA). Their case, however, sounds mo

properly in mandamus, because Plaintiffs allege that t

Commission is denying them a right provided by statute.Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003)

(petitioners claim that the Commission denied him his

mandated speedy parole revocation hearing following his

a parole violator warrant sounds more properly in mand

than habeas).

Pursuant to 28 U.S.C. 1361, district courts have

jurisdiction of any action in the nature of mandamus to

officer or employee of the United States or any agency t

perform a duty owed to the plaintiff. 28 U.S.C. 1361

Mandamus is available only when (1) the plaintiffs clai

clear and certain; (2) the officials duty is nondiscret

ministerial and so plainly prescribed as to be free from

and (3) no other adequate remedy is available. Johnson,

349 F.3d at 1154. Even if this test for mandamus relief

a district court has discretion to deny relief. Id.

2. Plaintiffs Claim Under The APA Fails

To the extent that the APA arguably applies to this


Case 2 12 c 00700 DSF RZ Doc ment 11 Filed 02/23/12 Page 14 of 29


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court. 5 U.S.C. 704. The APA requires that plainti

exhaust available administrative remedies before bringin

grievances to federal court. Idaho Sporting Congress,

Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002); see also

Weinstein v. United Sates Parole Commission, 902 F.3d 14

(9th Cir. 1990) (federal prisoners are required to exhaus

administrative remedies prior to seeking federal court r

a Parole Commission decision).

Use of available administrative remedies conserves

courts time because of the possibility that the relief

for may be granted at the administrative level. Ruviwa

Smith, 701 F.2d 844, 845 (9th

Cir. 1983). Moreover, it a

the administrative agency an opportunity to correct err

occurring in the course of administrative proceedings.

Thus, for example, this Court dismissed a habeas petitio

containing the identical district court challenge to vid

parole hearing, because the prisoner had failed to appea

to the Board. Wooton v. United States Parole Commission

2010 WL 2682387 (C.D. Cal.) (unpublished report and

recommendation of Magistrate Judge Rosalyn M. Chapman),

adopted in 2010 WL 2595341 (C.D. Cal. June 22, 2010)

(unpublished order of District Judge Valerie Baker Fairb

a. The Commissions Administrative Remedy Sy

The Commission regulations provide an administrativ


Case 2:12 cv 00700 DSF RZ Document 11 Filed 02/23/12 Page 15 of 29


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and ending with the National Appeals Board. See 18 U.S.

4215(a); 28 C.F.R. 2.23-2.24 & 2.26.5 However, as

above, neither plaintiff filed any appeal with regard to

decisions arising out of the videoconferenced proceeding

Plaintiffs should not be excused from the exhaustio

requirement, given that: (1) Plaintiffs were prominently

of their right to appeal; and (2) Plaintiffs had already

exhibited familiarity with the administrative appeals pr

See also 42 U.S.C. 1997e(a) (prisoners are required to

such administrative remedies as are available). Nor sho

be excused because exhaustion now as to the 2008 and 201

proceedings would be futile. Even now the administrati

is not necessarily foreclosed to Plaintiffs.7 Moreover,

Commission still conducts some parole hearings in person

b. There Has Been No Final Agency Action

Plaintiffs have failed to identify a final agency

First, although the Commission has promulgated a regulat

5 The Board must issue a decision within 60 days oof the appeal. 18 U.S.C. 4215(b); 28 C.F.R. 2.26(c).Decisions of the Board are final. 28 C.F.R. 2.26(c).

6

Morrow had previously filed appeals arising out person hearings to the Board; Davis filed one appeal ariof an in-person hearing to the Board.

7 The Board can review even tardy appeals in the inof justice. See USPC Rules and Procedures Manual 2.26-0Appeals) ([L]ate appeals may be accepted for good cause




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allowing for parole hearings to be conducted by videocon

the rule does not revoke the authority of the Commission

conduct any given parole hearing in person. See n. 8 &

accompanying it. And, with respect to these Plaintiffs,

appealed the absence of an in-person hearing to the Boar

someone at the Commission determined that any given paro

hearing is scheduled to be conducted by video-tape is ha

final agency action as contemplated by the APA. Becau

is no final agency action for review, the APA bars the d

court from hearing the case for lack of jurisdiction. E

Americopters, LLC v. FAA, 441 F.3d 726, 735 (9th Cir. 200

Therefore, based on the foregoing, the APA bars Pla

from proceeding with this case.

3. Plaintiffs Claim Is Speculative And Not Ripe

Plaintiffs claim is speculative and not ripe. Pla

devote a lot of attention to their argument that it is l

advantageous for them (for intangible, hard to describe

if parole hearings are conducted by video conference ins

in person. That proposition is debatable, and is a topi

suitable only for Congress, not for a court conducting s

analysis. Moreover, even if we assume, arguendo, that a

person hearing would likely be more favorable to a priso

one conducted by videoconference, even Plaintiffs do not

that the result of video conference hearings would inevi




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Indeed, there is ample basis, even on this record,

the notion that an in-person hearing is, by definition,

advantageous for a prisoner than one by video-tape. In

a hearing examiner recommended -- after conducting the h

by video conference -- that Morrow be granted a 12-month

for his accomplishments. Exhibit Q. And in a video con

hearing the same day, the hearing examiner recommended t

be granted a six-month credit for his accomplishments.

GG.6 By contrast, for the in-person hearings that Morrow

been afforded in 2004 and 2006, the hearing examiners di

recommend that he be granted any relief. See Exhibits I

Davis had some success with in-person hearings; although

the hearing examiner did not recommend that Davis be aff

relief (Exhibit Z), the one in 2006 did recommend that D

receive an 18-month credit for his accomplishments (Exhi

The point is that Plaintiffs should not be permitte

the Parole Commission before the March 2012 parole heari

occur - much less bring a motion for preliminary injunc

Their claims simply are not ripe. For that reason alone

motion for preliminary injunction should be denied.

4. 18 U.S.C. 4208(e) Does Not Require That The

Be Allowed To Appear In Person Before The He

Examiner

Even addressing the merits of Plaintiffs argumen




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prisoner be allowed to appear and testify on his own be

the parole determination proceeding. The substantive q

raised by this petition is whether appear has its ordi

meaning of be visible or whether, instead, it should b

mean be physically present; i.e., appear in person.

ordinary meaning applies, there is no question that Sect

4208(e) is satisfied here: Plaintiffs will be visible t

videoconferencing, and will be seen and heard by the Com

in that fashion while giving testimony. It is not out o

ordinary for administrative agencies to have parties ap

by teleconferencing.7

Plaintiffs, however, argue that appear must be gi

special meanings of either be physically present or a

person. Therefore, they contend, their Section 4208(e)

appear will be violated when the Commission conducts t

hearing (at least their fifth, apparently) by videoconfe

This argument ignores the plain meaning of Section 4208(

adding words not found in the statute.

In interpreting a statute, [the court must] first

the plain meaning of its text. See Paul Revere Insuran

v. United States, 500 F.3d 957, 962 (9th Cir. 2007). The

meaning of appear (when unadorned by the modifier in

is to become or be visible. That is true today, and i




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true in 1976 when Section 4208(e) was enacted. See The

Dictionary and Thesaurus (1996) 62; The Random House Dic

of the English Language, The Unabridged Edition (1969) 7

Websters Third New International Dictionary (1963) 103

come into view (as from a distance or place of concealme

become visible; . . . b: to be in sight: be visible).

In order for appear to be synonymous with physica

presence, the words in person must follow. But such a

of Section 4208(e) would be impermissible, because a cou

not add to the statute terms that Congress omitted. In

Cavanaugh, 306 F.3d 726, 738 (9th Cir. 2002). Indeed, in

strikingly similar situation, the Ninth Circuit explainewould not insert the word personally or directly int

statutory requirement that a statement be submitted by

party . . . to a judge:

[S]ubmitted is not necessarily the

equivalent of spoken in the presence of or

handed to. Nor - as we have noted above -

- does the statute require that a statement

must be submitted directly or personally

to the judge. [W]e may not add to the

statute terms that Congress omitted.

United States v. Horvath, 492 F.3d 1075, 1081 (9th Cir. 2

Here, as in Horvath, the unmodified word cannot bear the

g



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5 U.S.C. 7118(3), enacted in 1978, provides

organizations or agencies the right . . . to

person or otherwise and give testimony.

8 U.S.C. 1324b(e)(1), as added on November 6

Pub.L. 99-603, Title I, 102(a), 100 Stat. 337

provides that any person accused in a complain

engaging in an unfair-immigration practices s

the right . . . to appear in person or otherwi

give testimony.

10 U.S.C. 1185(a)(3), enacted in 1980, provi

any officer required to show cause for retenti

active duty shall be allowed to appear in per(Emphasis added in each).

If Plaintiffs theory were correct, all of the in

language in those statutes was surplusage, and the or o

language in Section 1342b(e)(1) would be gibberish. Any

that nullifies the words Congress writes, while giving e

to words Congress omitted, is not statutory interpretati

statutory interpolation. The Court must reject that app

Plaintiffs offer no authority that undermines the p

ordinary meaning of appear -- that is, to be or becom

visible. Even if Plaintiffs were able to establish tha

appear is ambiguous and could mean either be visible

be physically present, they would still lose on the me



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means be visible, any ambiguity must be resolved in fa

the Commissions interpretation under Chevron U.S.A., In

Natural Resources Defense Council, Inc., 467 U.S. 837, 1

2778, 81 L.Ed.2d 694 (1984). Courts will defer to an a

interpretation of a statute that it is charged with impl

if the statute is ambiguous and the agencys interpretat

is reasonable. Putnam Family Partnership v. City of Yu

- F.3d ---, 2012 WL 516063, *6 (9th Cir. Feb. 17, 2012)

A statute is ambiguous if Congress has no directly spo

the precise question at issue. Id.

Plaintiffs do not explain why the Court should cons

meaning of the phrase appear . . . at the parole determproceeding" in 18 U.S.C. 4208(b) to mean only what the

it commonly meant in 1976. Under Plaintiffs reasoning,

example, the Fourth Amendments use of the term search

not possibly include law enforcement actions that use mo

technology (such as wiretapping), because there was no s

as wiretapping in 1791 - yet that is not the law. See,

Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507,

19 L.Ed.2d 576 (1967) (The Governments activities in

electronically listening to and recording the petitioner

[while he was using a telephone booth] constituted a se

seizure within the meaning of the Fourth Amendment.)

Plaintiffs rely heavily on Terrell v. United States



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this Court - and even assuming, arguendo, that the cour

methodology was correct -- that decision does not compel

suggest, a ruling in Plaintiffs favor, because it rests

critical factual error. Indeed, the opinion makes clear

the Sixth Circuit had realized its factual mistake, it w

ruled in favor of the government.

Terrell rests entirely on the unsubstantiated and i

assertion that [a]t the time appear pursuant to 18 U.

4208(e) was enacted into law [1976], videoconferencing

exist. 564 F.3d at 449. That this factual premise is

linchpin of the decision is clear because the court went

explain that [s]ubsequent technological developments maappear ambiguous because videoconferencing offered an

to in-person hearing in which all participating persons

still be visible to and be able to interact with each ot

Id. And, the court conceded, [i]f the statute is ambig

then we defer to the agencys interpretation. Id. But

court held there was no ambiguity because [a]t the time

statute was enacted, [appear] unambiguously meant that

prisoner appeared in person . . . because no technology

to project the prisoners visage into the room with the

examiner. Id. at 451 (emphasis added).

The flaw with this syllogism is that videoconferenc

did exist in 1976, and had in fact been used for hearing



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the technology itself existed in 1976, albeit under the

videophone or picturephone.

AT&T and Bell Laboratories, at great expense, devel

videoconferencing technology under the trademarked name

Picturephone. Picturephones debuted at the Worlds Fa

1964, and soon entered commercial use, receiving wide-sp

public attention, including on the front page of the New

Times and in the magazines Life and Popular Science.9

Videoconferencing (under the name Picturephones)

merely a matter of public excitement, it was a technolog

as important to the development of the justice system.

example, in 1969, a court in New York noted that [i]t mthat progress in communications, the development of tech

devices such as the videophone, will ultimately reach a

where it may be said that a foreign domiciliary is physi

present in New York for all intents and purposes. Park

Galleries, Inc. v. Franklyn, 31 A.D.2d 276, 277, 297 N.Y

(N.Y. App. Div. 1969).10 In 1970, commercial Picturephon

service debuted in Pittsburgh. See http://www.corp.att.

attlabs/reputation/timeline/70picture.html.

9 Donald Janson, Picture-Telephone service is startPittsburgh, New York Times (July 1, 1970) 1; W.S. BaconAmazing New Picture Phone: A step closer to in person,Popular Science (June 1968) 46, available athttp://books.google.com/books?id=mykDAAAAMBAJ&pg=PA46;Bell System introduces PICTUREPHONE service Life Maga



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Most significantly, however, in January 1976 - thr

before Section 4208(e) was enacted -- the United States

Claims issued a decision in which it prominently mention

it had participated in an experiment sponsored by the A

Bar Association and the Federal Judicial Center and he

argument delivered by counsel in New York, New York, usi

Picturephone facilities provided by the American Telep

Telegraph Company. Merritt-Chapman & Scott Corp. v. Un

States, 528 F.2d 1392, 1393 (Ct. Cl. 1976). It may well

this experiment was on Congresss mind when it was consi

how parole hearings might be conducted down the line; in

event, Congress certainly must have been aware of a techuniversally heralded as the way of the future.

Thus, the Sixth Circuits Terrell decision actually

the Commissions position in this case, not Plaintiffs.

because the Sixth Circuit held that if videoconferencing

existed at the time Section 4208(e) passed (which it did

the statute would at best be ambiguous, and that any amb

would be resolved in favor of the Commission under Chevr

See Terrell, 564 F.3d at 449. Therefore Terrell, like c

sense and plain language, supports the idea that when a

is visible, audible, and actively participating in a par

hearing, he has appeared for purposes of Section 4208(

Plaintiffs also cite United States v. Thompson, 599



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determination whether the inmate will be released, but r

performs an advisory function. 28 C,F.R. 2.23; Husk D

Thus, the prisoners right to appear and testify has n

understood to encompass a right to have face-to-face int

with the ultimate decision-maker -- the Commissioners th

Rather, the right to appear at the proceeding is satisfi

prisoners is provided an opportunity to be heard or al

give oral testimony that is treated as part of the recor

which the parole determination is based.

In contrast, in supervised release revocation proce

the judge is both the hearing examiner and the ultimat

decision-maker. In supervised release revocation casesappearing before the court allows the defendant to plea

casepersonally to the judge who will decide whether to

supervised release and return him to prison. Thompson,

at 599 (emphasis in original). In parole determinations

no statute (or regulation) provides the prisoner the rig

to plead his casepersonally to the Commissioners.

A prisoners exercise of his right to appear and

testify . . . at the parole determination proceeding w

entail testimony in the same room as the decision-maker,

regardless of the respective locations of the prisoner a

hearing examiner at the time the testimony is given. Pl

major practical objection to the Commissions use of vid



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actual decision-maker even before the Commission adopted

videoconferencing method.

Before the Commission adopted videoconferencing pro

the hearing examiner, not the Commissioners, would typic

travel to federal prisons to conduct parole hearings. T

prisoners right to appear and testify on his own behal

parole determination proceeding has never been understo

encompass a right to have face-to-face interaction with

ultimate decision-maker. Rather, the right to appear

proceeding is satisfied if the prisoner is allowed to gi

testimony that is treated as part of the record. Since

physical absence of the ultimate decision-maker does notstatutory violation, then the physical absence of the he

examiner should not have that effect.

5. The Commissions Decision To Use Video-Confere

Is A Reasonable Construction Of The Parole Act

Plaintiffs argue that the notice provision of 18 U.

4208(b), which states that an inmate shall be provided

notice of the time and place of the proceeding, is dif

to reconcile with a video hearing that occurs in two loc

Plaintiffs are misguided. The parole determination pro

occurs at the institution where the prisoner testifies.

institution is the principal locus of the proceeding, si

participants, except the hearing examiner, are located t



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Plaintiffs also argue that, pursuant to 18 U.S.C.

if parole is denied, a personal conference to explain t

reasons for a denial shall be held, if feasible, stro

implies an in-person hearing. All that provision does i

to require that a direct communication between each pris

a representative of the Commission, if feasible, about

facts and circumstances surrounding that prisoners case

videoconferenced hearing is not inconsistent with that

requirement. Moreover, the language indicates that a p

conference will only be held if feasible. Accordingl

turns out that a personal conference cannot occur afte

videoconference hearing, then the Commission is excused conducting it due to the if feasible language. Theref

the statutory language does not exclude videoconference

Finally, Plaintiffs argue that the requirement that

hearing be held at the institution, pursuant to 4208

cannot easily be reconciled with the concept of a video

where the examiner does not come to the prison. Before

of videoconferencing by the Commission, there was no

inconsistency between (a) the fact that the Commissioner

physically absent from the hearing where the prisoner te

and (b) the conclusion that the parole determination pr

nevertheless occurred at the institution where the tes

was given. Likewise, the physical absence of the hearin



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C. Balancing The Competing Claims Of Injury

Plaintiffs have not shown that they would be irrepa

harmed if their parole hearings are conducted by

videoconferencing. For example, Plaintiffs allege that

of videoconferencing left Plaintiffs effectively unable

present documents available in support of their claim .

Compl. 3. That is not true. They may produce any doc

they wish to the Commission before the hearing. If they

documents just prior to the hearing, the BOP case manage

the documents to the hearing examiner. Husk Decl. 6.

Plaintiffs could also make an offer of proof and seek a

continuance of the hearing. Additionally, as set forth Husk Declaration, the Commission has established that it

videoconference technology effectively and fairly. Inde

Morrow admits that a[a]t my last hearing [conduct by

videoconference in 2010 . . . This was the most progress

ever had during a hearing. Morrow Decl. 17.

As noted above, it may well be that the Commission

grant parole to Plaintiffs after videoconferenced hearin

March 2012. Issuing a preliminary injunction based onl

possibility of irreparable harm is inconsistent with our

characterization of injunctive relief as an extraordinar

that may only be awarded upon a clear showing that the p

is entitled to such relief. Winter, 555 U.S. at 22. P



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By contrast, as set forth above, the Commission wil

an actual hardship if required to conduct all parole hea

person. Conducting parole hearings by videoconference r

the Commissions travel costs and conserves the time of

examiners, particularly with respect to BOP facilities t

difficult to reach. Husk Decl. 9.11 Based on the foreg

the balance of hardships tips in favor of the Parole Com

V.

CONCLUSION

In conclusion, this Court should deny Plaintiffs m

preliminary injunction.

DATE: February 23, 2012. Respectfully submitted,ANDR BIROTTE JR.United States AttorneyLEON W. WEIDMANAssistant United States AtChief, Civil Division

/s/ Robert I. LesterROBERT I. LESTERAssistant United States At

Attorneys for Defendants

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 1 of 84


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ANDR BIROTTE JR.United States AttorneyLEON W. WEIDMAN

Assistant United States AttorneyChief, Civil DivisionROBERT I. LESTER (CBN 116429)Assistant United States Attorney

300 North Los Angeles StreetRoom 7516Los Angeles, California 90012Phone: (213) 894-2464Fax: (213) [email protected]


UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

JOHN PAUL MORROW; and CHRISTIAN DAVIS, ))

Plaintiffs, ))

v. ))

UNITED STATES PAROLE COMMISSION; )ISAAC FULWOOD, JR., in his official )capacity; CRANSTON J. MITCHELL, in his )

official capacity; PATRICIA K. CUSHWA, )in her official capacity; J. PATRICIA )WILSON SMOOT, in her official capacity; )and the UNITED STATES OF AMERICA, )

)Defendants. )

________________________________________ )

No. CV 12-0700

EXHIBITS TO OP

OF DEFENDANTS

OF PLAINTIFFS

PRELIMINARY IN

DATE: March 1TIME: 1:30 p.CTRM: Hon. Da

Fischer

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 2 of 84


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Attached are the certified administrative record of

the United States Parole Commission for plaintiffs John

Morrow (Exhibits A-S) and Christian Davis (Exhibits T-II

Exhibit JJ is the declaration of Stephen J. Husk.

DATE: February 23, 2012. Respectfully submitted,

ANDR BIROTTE JR.United States AttorneyLEON W. WEIDMAN

Assistant United States AtChief, Civil Division

/s/ Robert I. LesterROBERT I. LESTERAssistant United States At


Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 3 of 84 Page ID #:179


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Documents

Government Response to Preliminary Injunction