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Docket Number

No. 89-5231.

Attorney(S)

Scott G. Hoy, Sioux Falls, S.D., for appellant. John J. Ulrich, Sioux Falls, S.D., for appellee.

Judges

Gerald William Heaney

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Smart Summary

Summary of Opinion: United States v. Calvin Hollow Horn Bear, No. 89-5231 (8th Cir. Oct. 19, 1989)

Factual and Procedural Background

Calvin Hollow Horn Bear was on parole on September 12, 1988. He was charged in tribal court with disorderly conduct and aggravated assault; Horn Bear asserted he could not have committed the assault because he was in police custody for other matters at the same time. A hearing examiner revoked Horn Bear's parole based on the probation officer's report and tribal court records. Horn Bear appealed the revocation to the National Appeals Board of the Parole Commission on October 31, 1988. The Appeals Board affirmed the revocation, but its written decision was filed on January 13, 1989, fourteen days after the sixty-day review period prescribed by 18 U.S.C. § 4215(b). Horn Bear moved to dismiss the revocation on grounds of delay and insufficient evidence. The district court denied the motion to dismiss on the ground that Horn Bear suffered no apparent prejudice from the delay, citing Ready v. United States Parole Comm'n. The district court had not reached the merits of the revocation decision when this appeal was taken. On appeal the government disputed the filing date (asserting the appeal was not received until November 15), but the court of appeals assumed, for purposes of the appeal, that the decision was untimely.

Legal Issues Presented

What is the effect of the Parole Commission's failure to comply with the sixty-day time limit in 18 U.S.C. § 4215(b) when that delay occurs during an appeal from a Regional Commissioner's revocation decision?
Whether the National Appeals Board's untimely decision requires dismissal of the revocation where the delay was fourteen days beyond the statutory period.
Whether the appropriate standard for assessing an untimely Commission decision is whether the decision was rendered in substantial compliance with the statutory timetable and whether the delay was reasonable under the circumstances.

Arguments of the Parties

Appellant's Arguments

Moved to dismiss the parole revocation on the ground that the National Appeals Board's decision was untimely (filed January 13, 1989, fourteen days after the statutory sixty-day period) and therefore the revocation should be dismissed.
Contended there was insufficient evidence to support revocation and maintained an alibi defense—claiming he was in police custody and therefore could not have committed the assault.

Appellee's (Government's) Arguments

On appeal the government asserted that, although Horn Bear's appeal was dated October 31, it was not received by the National Appeals Board until November 15; this factual dispute about the filing/receipt date was not presented to the district court.
The court of appeals assumed, for purposes of resolving this appeal, that the decision was untimely and proceeded to address the legal effect of the delay.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ready v. United States Parole Comm'n, 483 F. Supp. 1273, 1276 (M.D.Pa. 1980)	Used by the district court as authority for denying dismissal where there was no apparent prejudice from delay.	The district court relied on Ready to deny Horn Bear's motion to dismiss; the court of appeals affirmed the denial on different grounds (reasonableness/substantial compliance) and remanded for merits.
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)	General due process authority regarding parole revocation procedures.	Cited as part of the legislative and doctrinal background showing Congress created new revocation procedures in response to Supreme Court due process concerns.
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)	Due process principle that revocation hearings must be tendered within a reasonable time after the parolee is taken into custody.	Used to support the Act's requirement that revocation hearings occur without unnecessary delay.
Rastelli v. Warden, Metro. Correction Center, 610 F. Supp. 961, 965 (S.D.N.Y. 1985)	Discussing legislative history and Congress's concern to "ensure prompt decision and review."	Referenced to explain the Act's purpose (prompt decision and review) and to situate the sixty-day limit within that purpose.
rev'd on other grounds, 782 F.2d 17 (2d Cir. 1986)	Cited in connection with Rastelli and comparison of § 4215(b) to other provisions of the Act.	Noted by the court to support that § 4215(b) creates a mandatory time limit; used for statutory comparison.
Monks v. United States Parole Comm'n, 463 F. Supp. 859, 862-63 (M.D.Pa. 1978)	Interpretation of administrative rules treating untimely appeals as motions to reopen requiring new, substantial, favorable information; discussion of limited review and finality rules.	Used to describe the Commission's procedural posture when a parolee misses the thirty-day appeal deadline and to note that the procedure has been upheld as constitutional.

Court's Reasoning and Analysis

The court began by outlining the statutory framework: the Parole Commission and Reorganization Act established review procedures intended to protect due process by ensuring prompt decision and review. The Act provided a thirty-day filing deadline for appeals to the National Appeals Board and required the Board to act within sixty days of receipt of appellant's papers (18 U.S.C. § 4215(b)). The court recognized that the statutory time limits are strictly construed against parolees in some contexts (e.g., where the parolee fails to file a timely appeal), citing Commission rules that treat untimely appeals as motions to reopen requiring new substantial information.

The question before the court was the effect of the Commission's own failure to comply with the sixty-day statutory limit when that delay occurred during an appeal (i.e., after the Regional Commissioner's initial revocation decision). The court stated it was reluctant to require rigid strict compliance in the particular circumstances of this case—where the delay occurred on appeal and after a Regional Commissioner had already decided revocation—because the Commission's docketing difficulties could sometimes produce delays. At the same time the court expressed reluctance to render the statutory sixty-day limit merely advisory, indicating respect for Congress's clear command.

To reconcile these concerns, the court formulated the operative inquiry: whether the National Appeals Board's decision was rendered in substantial compliance with the statutory timetable and whether the delay was reasonable under the circumstances. Applying that test to the record, the court noted the decision was filed fourteen days late and was under submission over the Christmas, Hanukkah and New Year's Day holidays. Considering those circumstances, the court found the delay reasonable and the timing in substantial compliance with the statute.

Holding and Implications

AFFIRMED and REMANDED.

Holding: The court affirmed the district court's order refusing to dismiss the parole revocation despite the National Appeals Board's fourteen-day delay beyond the sixty-day statutory period, concluding that the delay was reasonable and the decision was in substantial compliance with the statute. The case is remanded to the district court for consideration of the merits of Horn Bear's revocation challenge.

Implications: The court applied a substantial-compliance and reasonableness standard when the Parole Commission itself causes a short delay in issuing an appeals decision, instead of mandating automatic dismissal for any statutory overrun. The direct effect is that Horn Bear's dismissal motion was denied and the district court must proceed to the merits. The opinion does not announce that it is creating a new binding precedent beyond the standards the court articulated for assessing Commission-caused delays.

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UNITED STATES OF AMERICA, APPELLEE, v. CALVIN HOLLOW HORN BEAR, APPELLANT.

HEANEY, Senior Circuit Judge.

Calvin Hollow Horn Bear sought to dismiss parole revocation proceedings on the grounds that the Parole Board's decision on appeal was untimely. The district court denied the parolee's motion to dismiss on the grounds that he had not been prejudiced by the delay. We affirm and remand to the district court with directions that it consider the merits of the parolee's claim. See 8th Cir.R. 12(a).

Calvin Hollow Horn Bear was on parole on September 12, 1988 when he was charged in tribal court with disorderly conduct and aggravated assault. Horn Bear argued that he could not have committed the assault because he was already in police custody for other reasons at the same time. A hearing examiner revoked Horn Bear's parole, relying on the probation officer's report and tribal court records. Horn Bear appealed the decision to the National Appeals Board of the Parole Commission on October 31, 1988. The Appeals Board affirmed the revocation decision, but filed its decision on January 13, 1989, fourteen days after the sixty-day review period required by law. 18 U.S.C. § 4215(b). Horn Bear moved to dismiss the revocation for delay and for insufficient evidence. The district court denied Horn Bear's motion to dismiss because there was no apparent prejudice from the delay, citing Ready v. United States Parole Comm'n, 483 F. Supp. 1273, 1276 (M.D.Pa. 1980). That court has yet to address the merits of the revocation decision.

Repealed by Pub.L. No. 98-473, Title II § 218(a)(5), 98 Stat. 2027 (1984). The effective date of the repeal of this section was delayed. Pub.L. No. 98-473, Title II § 235(b)(1); 98 Stat. 2032.

The government argues on appeal that while Horn Bear took an appeal on October 31, it was not received until November 15. The district court was not made aware of this fact dispute, and we assume for the purposes of this appeal that the decision was untimely.

II.

Chapter 311 of the Parole Commission and Reorganization Act, (Act), Pub.L. No. 94-233, 90 Stat. 219 (1976), created new revocation procedures in response to the Supreme Court's due process concerns with past Parole Board procedures. See S.Rep. No. 369, 94th Cong., 2d Sess. 15, reprinted in 1976 U.S. code Cong. Admin. news 335, 337; H.R.Conf.Rep. No. 838, 94th Cong., 2d Sess. 20-21, reprinted in U.S. Code Cong. Admin. news 351, 352-53; see also, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ("The revocation hearing must be tendered within a reasonable time after the parolee is taken into custody."). One of Congress's concerns was to "ensure prompt decision and review." Rastelli v. Warden, Metro. Correction Center, 610 F. Supp. 961, 965 (S.D.N.Y. 1985) (reviewing legislative history), rev'd on other grounds, 782 F.2d 17 (2d Cir. 1986). The Act provides that a preliminary hearing be held "without unnecessary delay, to determine if there is probable cause" to believe that a violation has occurred. 18 U.S.C. § 4214(a)(1)(A). If probable cause is found, a hearing is held within sixty days to decide whether revocation is required. 18 U.S.C. § 4214(a)(1)(B).

Repealed, see supra note 1.

The hearing examiners make recommendations to a Regional Commissioner. The parolee or the attorney general may appeal the decision to the National Appeals Board. The Act minimizes the incarceration of persons during revocation proceedings. Section 4215 provides:

These procedures apply to prisoners not within the original jurisdiction of the Parole Commission. See 28 C.F.R. § 2.27, Rastelli, 782 F.2d at 23.

(a) Whenever parole release is denied under section 4206, parole conditions are imposed or modified under section 4209, parole discharge is denied under section 4211(c), or parole is modified or revoked under section 4214, the individual to whom any such decision applies may appeal such decision by submitting a written application to the National Appeal Board not later than thirty days following the date on which the decision is rendered.

(b) The National Appeals Board, upon receipt of the appellant's papers, must act pursuant to rules and regulations within sixty days to reaffirm, modify, or reverse the decision and shall inform the appellant in writing of the decision and the reasons therefor.

18 U.S.C. § 4215 (Supp.II 1984); see 28 C.F.R. § 2.26(c) (1988) ("The National Appeals Board shall act within sixty days. . . ."). This section creates a mandatory time limit for review. See Rastelli, 782 F.2d at 23 (comparing § 4215(b) with other provisions of the Act).

The time limits imposed by section 4215 and the Commission are strictly construed against the parolee. If the parolee fails to appeal the Regional Commissioner's decision within thirty days, his claim is treated as a motion to reopen the matter, which requires " new information of substantial significance favorable to the prisoner." 28 C.F.R. § 2.28 (emphasis added); see also 28 C.F.R. § 2.26(d) (lack of timely appeal makes decision final); Monks v. United States Parole Comm'n, 463 F. Supp. 859, 862-63 (M.D.Pa. 1978) (procedure is constitutional). A single Regional Commissioner reviews the motion to reopen and there is apparently no appeal from her decision. Monks, 463 F. Supp. at 862.

At issue in this case is the effect of the Commission's own failure to comply with the statute. In light of the fact that the delay has occurred during Horn Bear's appeal and after the Regional Commissioner's initial decision that revocation is warranted, we are hesitant to require strict compliance in this case. We are also aware that from time to time the Commission may be unable to keep its docket fully current. We are, nevertheless, also hesitant to water down Congress's clear command in a way that would make the sixty-day limit merely advisory. Thus, we ask with respect to an appeal of a Regional Commissioner's decision to which no procedural challenge is raised, whether the National Appeals Board's decision was rendered in substantial compliance with the timetable required and whether the delay was reasonable under the circumstances.

In this case, the decision was rendered within fourteen days of the deadline and was under submission over the Christmas, Hanukkah and New Year's Day holidays. Under the circumstances, we find the delay reasonable and the decision's timing in substantial compliance with the statute.

We therefore affirm the district court's order refusing to dismiss, and we remand this case to the district court for consideration of the merits.

U.S. v. HORN BEAR