Administrative Law
Bowers v. United States Parole Commission
Eleventh Circuit Rules for Parole Commission in Denying Parole.
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It is axiomatic that the judiciaryâs mandate is to âsay what the law is.â1×1. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And the axiom is no less true when an agency has already weighed in on the question.2×2. See, e.g., Matthew C. Stephenson & Adrian Vermeule, Essay, Chevron Has Only One Step, 95 Va. L. Rev. 597, 601â02 (2009) (explaining that the role of the courts in conducting a Chevron analysis still requires identifying a range of permissible statutory interpretations). Recently, in Bowers v. United States Parole Commission,3×3. 775 F. Appâx 504 (11th Cir. 2019). the Eleventh Circuit shut down a federal prisonerâs challenge to a parole denial that was based on the United States Parole Commissionâs (Commission) reading of its statutory authority.4×4. See id. at 517â18. The plaintiff in Bowers challenged the Commissionâs restrictive interpretation of § 4206(d) of the Parole Commission and Reorganization Act5×5. Parole Commission and Reorganization Act, Pub. L. No. 94-233, § 2, 90 Stat. 219, 224 (1976) (codified at 18 U.S.C. § 4206(d) (1982)) (repealed 1984). (Parole Act), which is the Actâs mandatory parole provision.6×6. See Bowers, 775 F. Appâx at 517. Section 4206(d) outlines the requirements for mandatory parole, as well as the select instances in which the Commission is obligated to deny parole. See id. at 508. But rather than address the interpretive dispute presented by Bowers, the court exploited ambiguity in the Commissionâs decision to avoid identifying the contested meaning of the statute.7×7. See id. at 517â19. Specifically, the court declined to establish exactly how the Commission had interpreted the mandatory parole provision before applying it to Bowersâs case and then perfunctorily labeled the Commissionâs decision a mere âapplicationâ of the statute.8×8. See id. at 519. In so doing, the Bowers court effectively abdicated its responsibility to clarify what the Parole Act means. The courtâs reasoning is problematic, not only for its distortion of the judiciaryâs relationship to the administrative state, but also for its potential to hamper individualsâ ability to challenge agency interpretations of statutes.
In 1974, Veronza Bowers was sentenced to life imprisonment for the murder of a park ranger.9×9. See Bowers v. Keller, 651 F.3d 1277, 1283 (11th Cir. 2011). Five years into his sentence, he attempted (and failed) to escape from prison.10×10. Id. Bowers and another inmate climbed an interior fence but were halted by tower gunfire, which created a risk of injury to other inmates in the area. Id. But since then, Bowers has maintained an exemplary disciplinary record.11×11. See Bowers, 775 F. Appâx at 508 (noting that Bowers âhad not been the subject of a disciplinary report since 1988â). He earned an associateâs degree and was described by a chaplain at the prison as having âthe most positive attitude that could be imagined.â Id. On April 7, 2004, after serving thirty years, he became eligible for mandatory parole under § 4206(d) of the since-repealed Parole Act.12×12. See id. The Parole Act was repealed with the enactment of the Federal Sentencing Guidelines, but its requirements still apply to anyone sentenced prior to the Guidelinesâ effective date. See Walden v. U.S. Parole Commân, 114 F.3d 1136, 1138 (11th Cir. 1997). In May 2005, the Commission granted Bowers parole,13×13. See Bowers, 651 F.3d at 1286. only to reopen the case in June and reverse its position.14×14. See id. at 1287â88. The case was reopened at the request of the Attorney General; notably, this was the first time in the Commissionâs history that an Attorney General had sought review of a Commission determination. See id. at 1287. It decided that Bowers had âseriously violatedâ prison rules with his escape attempt twenty-five years prior, triggering an exception to mandatory parole.15×15. Id. at 1288; see id. at 1285â88. Section 4206(d) sets a timeline for mandatory parole, provided that âthe Commission shall not release such prisoner if it determines that he has seriously or frequently violated institution rules and regulations.â 18 U.S.C. § 4206(d) (1982) (repealed 1984) (emphasis added).
Bowers brought a series of habeas petitions to secure his original parole grant.16×16. See Bowers, 775 F. Appâx at 508â15. In response to the first, an Eleventh Circuit panel vacated the 2005 parole denial and remanded the case to the Commission.17×17. See Bowers, 651 F.3d at 1296. The Eleventh Circuit held that the June 2005 reopening of Bowersâs case had been unlawful because a Commissioner indicated clear bias against Bowers, violating the Commissionâs mandate of neutrality. See id. at 1292â96. On remand, the Commission reopened the case but once again voted to deny parole.18×18. See Bowers v. Keller, No. 08-cv-02095, 2012 WL 12964326, at *3 (N.D. Ga. Sept. 24, 2012). Another Eleventh Circuit panel granted Bowers discovery and leave to amend, after which he filed the amended petition at issue here, making two principal arguments.19×19. See Bowers v. U.S. Parole Commân, 760 F.3d 1177, 1185 (11th Cir. 2014) (granting Bowers leave to amend and discovery on the impact that political pressure may have had on the 2011 denial). First, he alleged the Commission violated his due process rights by acting with bias.20×20. Bowers v. Drew, No. 08-CV-2095, 2016 WL 9107434, at *5 (N.D. Ga. June 28, 2016). Bowers alleged that the Commission, instead of maintaining its statutorily mandated political independence, had been influenced by the Department of Justice in its decisionmaking. See id. at *7â8. Second, he argued the Commission violated both the Parole Act and its rules and regulations by denying him parole, and he specifically challenged the Commissionâs interpretation of a âserious[]â infraction under § 4206(d) as erroneously precluding a consideration of how much time had passed since his last rule violation.21×21. See id. at *10â13. Bowers argued that his offense necessarily became less serious because it was followed by a period of good behavior. Id. at *10.
The United States District Court for the Northern District of Georgia dismissed the petition on both grounds.22×22. Id. at *15. It held that Bowers failed to prove specific bias because he provided no evidence of undue influence on the Commission from the Department of Justice (DOJ) or Attorney General.23×23. See id. at *7â9. The court dismissed the latter challenge on the grounds that the Commissionâs interpretation of âseriouslyâ in § 4206(d) was not a âflagrantâ abuse of the Commissionâs discretion.24×24. Id. at *12.
The Eleventh Circuit affirmed.25×25. Bowers, 775 F. Appâx at 522. Writing for the panel, Judge Julie Carnes26×26. Judge Carnes was joined by Judges Jordan and Schlesinger. Judge Schlesinger was sitting by designation from the Middle District of Florida. held that the Commission did not apply an incorrect interpretation of âseriouslyâ in § 4206(d) and thus did not violate the Parole Act.27×27. See Bowers, 775 F. Appâx at 515. The court began with the standard of review. If the Commissionâs parole denial involved a disputed interpretation of § 4206(d), that would require a Chevron28×28. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). or Skidmore29×29. Skidmore v. Swift & Co., 323 U.S. 134 (1944). deference analysis; however, if the denial comprised a mere application of the statute, the Commissionâs decision would be reviewed for abuse of discretion.30×30. See Bowers, 775 F. Appâx at 515â17. Bowers alleged his case fit the former mold.31×31. Id. at 517. He argued that the Commission interpreted âseriouslyâ too restrictively because it read the statute as precluding consideration of the time that had passed since the rule violation.32×32. See id. at 518. Bowers believed the Commission was considering only whether the violation was serious when it was committed, rather than evaluating it in the context of the prisonerâs record. Id. But in his view, a violation is necessarily less âseriousâ if followed by a period of good behavior. Id. The Commission sought abuse of discretion review, but it argued that even under Chevron, its interpretation of âseriouslyâ â which required examining only the gravity of the offense in isolation from elapsed time â would be perfectly reasonable.33×33. See Brief of Appellees at 20, 34, Bowers, 775 F. Appâx 504 (No. 16-15737); see also Bowers, 775 F. Appâx at 517â18.
Judge Carnes first held that neither Chevron nor Skidmore deference was applicable because the parties did not disagree about the statuteâs meaning.34×34. Bowers, 775 F. Appâx at 518 (â[T]here is no disputed interpretation of the statute to referee.â). Specifically, she explained, there was no evidence that the Commission had actually adopted an interpretation of § 4206(d) that precluded a consideration of time.35×35. See id. For support, the court pointed to a line in the Commissionâs Denial Letter: âThe passage of time does not diminish the gravity of this rule violation.â36×36. Id. The letter contained notice of denial and an explanation for Bowers. Id. at 517. Judge Carnes acknowledged that both the Commissionâs General Counsel and the agency in litigation articulated a different, stricter view: that âseriouslyâ did not allow a consideration of time.37×37. See id. at 519; Brief of Appellees, supra note 33, at 17, 22â33 (making various arguments in support of the Commissionâs construction of the statute, including that the statute does not mandate that the Commission âdiscount the seriousness of an incident based on the passage of time from the date of the violation to the date of the parole review,â id. at 26). But the governmentâs litigating position did not bind the court. The court ultimately looked to the relevant line in the Denial Letter to conclude that the agency agreed with Bowers on the meaning of § 4206(d).38×38. Bowers, 775 F. Appâx at 518 (explaining that both parties seemed to agree that âone serious rule violationâ was sufficient to deny parole, and that the Commission agreed with Bowers that âthe passage of time could play a roleâ in characterizing a violation as âseriousâ). Having found no dispute as to the law itself, the court turned to whether the Commission âabused its discretionâ by denying parole.39×39. See id. Bowers had the burden of showing that the Commissionâs application of § 4206(d) involved a âflagrant, unwarranted, or unauthorized action.â40×40. Id. (quoting Glumb v. Honsted, 891 F.2d 872, 873 (11th Cir. 1990) (per curiam)). The court found that Bowers fell short under that standard.41×41. Id. It noted the standardâs deferential nature and highlighted Bowersâs concession that his attempted escape created significant danger.42×42. See id. at 518â19; see also supra note 10.
Judge Carnes then assessed whether the Commission violated Bowersâs due process rights by failing to review his case in an unbiased manner.43×43. See Bowers, 775 F. Appâx at 519. To succeed on a due process claim based on a lack of impartiality, Bowers had to show that âthe probability of actual bias . . . [was] too high to be constitutionally tolerable.â Id. at 520 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). The court concluded that it had not â Bowers had not produced evidence of any specific bias, nor had he shown that DOJâs prior positions on his parole tainted the Commissionâs eventual review.44×44. Id. at 522. Yes, DOJ had invested significant time and energy into Bowersâs parole, but because the Commission is an independent agency housed within DOJ, some level of interaction between the two bodies was unavoidable and so not dispositive on the bias question.45×45. See id. Judge Jordan concurred. Id. at 522â23 (Jordan, J., concurring). Section 4207 of the Parole Act, he wrote, states that the Commission can consider any reasonably available information in making parole decisions, which supports the conclusion that the Commission did consider all of Bowersâs prison history. See id. (citing 18 U.S.C. § 4207 (1982) (repealed 1984)).
The Bowers courtâs equivocation about whether and how the Commission interpreted § 4206(d) left open a central question in the case. The court failed to clarify how the Commission weighs the passage of time in determining the seriousness of a rule violation, if it does so at all. This is troubling for individuals who are approaching eligibility for mandatory parole, as they will have little clarity about how the Commission does or should make decisions. But Bowers is also concerning for its cursory â and ultimately inadequate â engagement with a quintessentially legal issue: agency statutory interpretation. In jumping to an abuse of discretion standard of review when faced with an interpretive dispute, the circuit abdicated its principal responsibility to say what the law is. That move calls into question courtsâ effectiveness at checking unreasonable administrative action, and it may well heighten the burden for individuals challenging agency decisions.
The court should have addressed the key dispute on the meaning of âseriously.â Instead, it held that scrutiny of the agencyâs interpretation was unnecessary,46×46. See id. at 517â18 (majority opinion). but neither of its two justifications for doing so was convincing. First, the court was wrong to imply that an examination of the agencyâs interpretation was dispensable because there was no interpretive disagreement between the parties for it to âreferee.â47×47. Id. at 518 (âGiven . . . the statement in the Denial Letter indicating . . . that the passage of time could play a role in a decision to characterize a particular violation as âserious,â we conclude that there is no disputed interpretation of the statute to referee.â (emphasis added)). Second, the court should not have found that the Commission merely applied, and did not interpret, the statute.48×48. See id. at 519.
The court erred in finding that the agency adopted Bowersâs interpretation of the statute, as the Commissionâs arguments during litigation and its internal communications suggest a disagreement. In the courtâs view, the agency agreed with Bowers that, when evaluating if a prisoner âseriouslyâ violated prison rules, it had to account for the time passed since the violation in question.49×49. See id. at 518 (pointing out that âthe Commission saw fit to add . . . a statement suggesting that for another instance of putative, serious misconduct, the passage of time might well result in a conclusion that the violationâ was not serious). But only limited evidence suggests that the agency used this interpretation; at best, the record was inconclusive as to how the Commission interpreted § 4206(d). First, throughout litigation, the agency actively contested Bowersâs interpretation. Bowers argued that assessing the seriousness of a violation requires the Commission to consider the prisonerâs record, because a violation can become less âseriousâ if followed by good behavior.50×50. Appellantâs Brief at 31, Bowers, 775 F. Appâx 504 (No. 16-15737) (âConduct deemed serious at the time it was committed may be viewed much differently after decades of . . . unblemished behavior.â). The agency pushed back, arguing that seriousness turns on the gravity of the offense at the time it was committed.51×51. Brief of Appellees, supra note 33, at 26 (âNothing in the statute itself mandates that the Parole Commission discount the seriousness of an incident based on the passage of time . . . . [U]nder the plain language of § 4206(d) . . . the Commission should consider whether an inmate has any history of institutional rule violations . . . .â (emphasis added)). Second, the agencyâs counsel had written a memo to Commissioners stating that âseriouslyâ precludes a consideration of time since a violation.52×52. The memo stated that âthe word âseriouslyâ in § 4206(d) does not allow the Commission to consider the antiquity of a particular rule violation.â Bowers, 775 F. Appâx at 519 (emphasis added). Lastly, at least one Commissioner who voted to deny parole testified to having adopted that interpretation.53×53. See id. at 519 n.10. Another Commissioner suggested she did not weigh time in this case. Id.
To avoid the dispute reflected in the evidence, the court relied almost exclusively on the Denial Letter, but that letter contained enough ambiguity that the court should have at least remanded for the Commission to clarify its interpretive posture. The circuit specifically relied on one sentence: âThe passage of time does not diminish the gravity of this rule violation.â54×54. Id. at 518. But that lineâs meaning is not facially clear. Does it mean that time is relevant generally but was not enough in this case? Or that time is always irrelevant and so had no mitigating effect in Bowersâs case, like all others? The court read the line as evidence of the former: that the Commission considered Bowersâs record and determined that the passage of time, while relevant, did not ultimately outweigh the gravity of his particular rule violation.55×55. See id. (pointing to this line to conclude that the Commission believed that the passage of time could âplay a roleâ in finding a particular violation âseriousâ). But it is equally plausible the line means the opposite: perhaps the Commission was emphasizing that Bowersâs record was not relevant to the âseriousnessâ of his violation, because time is never a consideration.56×56. Prior to Bowers, the Commission had never issued a rule or regulation elaborating on its interpretation of the word âseriously.â See id. at 519. As such, there was no âofficial positionâ to which the court could point in refusing to accept the agencyâs litigating position. This distinguishes Bowers from Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988), which the court referenced. Bowers, 775 F. Appâx at 517 (citing Bowen, 488 U.S. at 212). In Bowen, the Supreme Court refused to defer to the litigating position of the Department of Health and Human Services on its interpretation of the Medicare Act because that position was âwholly unsupported by regulations, rulings, or administrative practiceâ and contrary to the position taken by the agency itself in prior cases. Bowen, 488 U.S. at 212. Notably, Bowen is the only case that the Eleventh Circuit cited in support of its proposition that it was not bound to accept the Parole Commissionâs litigating position. See Bowers, 775 F. Appâx at 517. It is unclear which of these is the best reading. But in light of the other available evidence, it seems more plausible that the Commission interpreted âseriouslyâ consistent with its litigating position: that the passage of time is irrelevant. If that was the case, the court should have stepped in to decide whether that reading was the best, or at least a âreasonable,â construction of the statute. At the very least, the court should have acknowledged the Denial Letterâs ambiguity and remanded to ask the Commission to clarify its interpretive posture.
The courtâs second justification for avoiding review of the agencyâs interpretation of the Act â that the agency merely applied § 4206(d)57×57. See Bowers, 775 F. Appâx at 519 (â[W]e need not consider whether [the General Counselâs] interpretation is accurate or merits deference. Instead, we look to the statements made by the Commission in its Denial Letter and . . . conclude that the Commissionâs factual findings and application of the Parole Act did not constitute an abuse of discretion.â (emphasis added)).  â was question-begging. Of course the Commission applied the statute when it made a determination about Bowersâs parole â every parole adjudication necessitates applying a statute to individualized facts.58×58. 18 U.S.C. § 4203(b) (1982) (repealed 1984) (establishing that the role of the Commission is to grant or deny parole to individual prisoners âpursuant to the procedures set outâ in the Parole Act). But how did the Commission interpret the word âseriouslyâ in that statute before applying it? Both sides litigated that central question,59×59. Appellantâs Brief, supra note 50, at 25â44; Brief of Appellees, supra note 33, at 22â36. yet the court sidestepped it. The opinion did emphasize that the agency never announced it would be interpreting the statute.60×60. See Bowers, 775 F. Appâx at 519 (explaining that the Commission did not promulgate a rule adopting its General Counselâs interpretation). That is hardly dispositive, though; agencies frequently propagate interpretations in the course of adjudication.61×61. See, e.g., Clark-Cowlitz Joint Operating Agency v. Fed. Energy Regulatory Commân, 826 F.2d 1074, 1081 (D.C. Cir. 1987) (âThe general principle is that when as an incident of its adjudicatory function an agency interprets a statute, it may apply that new interpretation in the proceeding before it.â (emphasis added)); see also Owen M. Fiss, Objectivity and Interpretation, 34 Stan. L. Rev. 739, 739 (1982) (arguing that â[a]djudication is interpretationâ); cf. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 765 (1969) (âAdjudicated cases may and do, of course, serve as vehicles for the formulation of agency policies, which are applied and announced therein.â); SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (âNot every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule.â). NLRB v. Hearst Publications,62×62. 322 U.S. 111 (1944). which addressed whether newsboys were âemployeesâ under the National Labor Relations Act,63×63. 29 U.S.C. §§ 151â169 (2012). offers a high-profile example.64×64. Hearst Publications, 322 U.S. at 120. There, the agency applied a broad statutory term to specific facts. The Court deferred to the agencyâs decision, but only after analyzing whether the interpretation of âemployeeâ applied by the NLRB had âample basis in the law.â65×65. Id. at 132; see also, e.g., Inv. Co. Inst. v. Conover, 790 F.2d 925, 926â27, 932 (D.C. Cir. 1986) (analyzing as an issue of statutory interpretation the Comptroller of the Currencyâs finding that units of interest in a bank trust did not constitute âsecuritiesâ for the purposes of a statute). In short, interpretations need not be declared to be treated as such, and the Bowers court never explained why it could assume that the Commission did not, in applying the statute to Bowersâs case, incidentally interpret it, too.66×66. The court came closest to an explanation by pointing to the line in the Denial Letter stating that â[t]he passage of time does not diminish the gravity of this rule violation.â Bowers, 775 F. Appâx at 518. The court pointed to the use of the word âthisâ as evidence that the Commission had made a factual determination that time in this case was irrelevant. See id. This may well be correct, but it still skirts the question of how the agency interpreted âseriously.â
Notwithstanding the path of reasoning, the result was clear: the Bowers court avoided the difficult question of how the Commission interpreted § 4206(d). In failing to nail down and then apply judicial scrutiny to the agencyâs interpretation of the statute, the court abdicated its primary responsibility to clarify the meaning of statutory mandates for administrative agencies. Courts have long recognized that if they have any job, it is to âsay what the law is.â67×67. E.g., King v. Burwell, 135 S. Ct. 2480, 2496 (2015) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)); see also Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2154 (2016) (book review) (arguing that even when deference is required, âcourts should determine whether the agencyâs interpretation is the best reading of the statutory textâ); cf. Philip Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187, 1205â10 (2016) (calling into question the constitutionality of Chevron deference for causing judges to abandon their mandate to exercise independent judgment). The Bowers court, however, not only declined to clarify what the law of mandatory parole is when it comes to âseriousâ rule violations and the passage of time, but also failed to even conduct a deferential Chevron or Skidmore review to determine whether the agency had applied a âreasonable constructionâ of the statute.68×68. Indeed, after a lengthy exposition of both doctrines, the court did not once use either one. Bowers, 775 F. Appâx at 515â17. The proper standard of review is beyond the scope of this comment, but it is worth mentioning that it is not entirely clear that the Commissionâs interpretation would have merited any deference at all, had the court chosen to review it, as the agency did not go through any formal rulemaking or adjudication process prior to making its decision. Instead, it avoided an analysis of the Commissionâs interpretation altogether.69×69. See id. at 519 (determining that because the agency never promulgated a rule or regulation endorsing its counselâs interpretation, the court âneed not consider whether that interpretation is accurate or merits deferenceâ). Notably, the court failed to complete even the necessary predicate step to analyzing the reasonableness of an agencyâs interpretation: clarifying and establishing what that interpretation actually was. The Bowers decision thus quietly cast a shadow over a critical aspect of the judiciaryâs relationship to the administrative state: the courtâs implied mandate to check agency action by identifying the statutory space within which agencies may act.70×70. See, e.g., Stephenson & Vermeule, supra note 2, at 602 (âChevron supposes that interpretation is an exercise in identifying the statuteâs range of reasonable interpretations, a range that opens up a âpolicy spaceâ within which agencies may make reasoned choices . . . .â (footnote omitted)). Given that the Parole Commission is an independent and politically unaccountable body, this facet of the Bowers opinion should elicit particular pause.71×71. See Randolph J. May, Defining Deference Down: Independent Agencies and Chevron Deference, 58 Admin. L. Rev. 429, 449â50, 453 (2006) (arguing that deference to independent agencies has relatively weak legal grounding, at least compared to more politically accountable agencies); see also Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2376â77 (2001) (same). The Commission is an independent agency housed within DOJ. See 18 U.S.C. § 4202 (1982) (repealed 1984).
The Bowers courtâs approach is also troubling because it risks limiting recourse for individuals seeking to challenge an agencyâs statutory interpretation. The circuitâs reasoning leads to the following perilous scenario: where an agency does not explicitly announce that it has interpreted a statute while applying it, the court will treat the action as if it raises no interpretive dispute â even if the parties agree that they disagree on the meaning, as they did in Bowers.72×72. Bowers, 775 F. Appâx at 519. But this makes it nearly impossible to challenge any parole-like decision where interpretation of a statute and application of its terms occur simultaneously. For litigants, the impact of such a result is magnified where the alternative to judicial review of an agency interpretation is a standard as deferential as âabuse of discretion.â
The stakes of interpretation in this case â namely, Bowersâs freedom â were exceedingly high. Yet, the court failed to complete its role of adjudicating not just the most obvious disputes, but all issues of law presented before it, including difficult interpretive questions. The Parole Actâs repeal notwithstanding, the Bowers courtâs reasoning thus raises salient issues. It highlights the importance of judicial review of statutory interpretation that occurs incidental to agency actions. It cautions against the ease with which a court might avoid such review. And it offers a glimpse of the consequences such avoidance can have.
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