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The Administrative Procedures Act

By Robert R. Berg, Prisoner of War in America

This is to introduce one of the most valuable tools available to persons in federal custody, when fighting an erroneous policy or rule. Read on!

The Administrative Procedures Act, hereinafter APA, was conceived by Title 5 U.S.C. §§551-702. Any policy or rule which the Bureau of Prisons (B.O.P.) promulgates, must comport with rigorous standards and procedure. The B.O.P. is an administrative agency, pursuant to Title 18 U.S.C. §4001. Thus the APA is applicable to all policy it creates which effects federal prisoners. For example, the B.O.P. created its policy pursuant to Title 18 U.S.C. §3621, which Congress created to give nonviolent offenders up to a year of their sentences upon completion of the comprehensive drug program. An agency like the B.O.P. has two types of rule making authority, "interpretive" and "legislative." The "legislative" power is somewhat a contemporary, as this was previously referred to as "substantive."

The B.O.P. has lost decisions challenging its policy on denying successful candidates for the year reduction, based on their being enhanced two levels for possessing a firearm in the underlying conduct. However, most recently in the District Court for the Western District of Wisconsin, Hon. Barbara Crabb was presented with an APA claim, challenging the B.O.P. policy itself. Having already granted the relief at page 14 of her decision, she then proceeded with the APA claim. Initially the B.O.P. attempted to evade APA requirement by alleging their policy merely interpreted the statute. The Court opined in opposite and held that the policy far exceeded the strict statutory language and expanded the meaning and intent, becoming legislative in nature. Finding the policy to be as such, she then employed the two pronged Chevron test in determining the B.O.P. policy's application to the statute §3621.

The Court found a conflict, in that the statute, which supersedes any policy, was created for nonviolent offenders and the B.O.P. lacked any authority in defining a "crime of violence," which are statutorily defined already. The B.O.P. urged the Court that because the defendant received a two point enhancement, that his crime was tantamount to a crime of violence. Such interpretations by the B.O.P. are common, as the B.O.P. attempts to curtail efforts of prisoners to gain their release, in this instance the year off. The Court, in closing held the policy "null and void" as it failed to comport with the APA. (see Schmitz -v- Pitzer, Case No.97-CV-240C). The government refuses to appeal.

Before readers begin an onslaught of filings seeking relief on the Schmitz decision, beware that this decision applies only to him or to similarly situated prisoners in her geographical district.

There is a secondary tool available for use in the struggle with the B.O.P. In accord with the Federal Rules of Appellate Procedure, FRAP, Rule 15(a), a "petition for review of an agency decision or rule." Such a pleading is filed under Title 5 U.S.C. §551 et. seq., to the Court of Appeals, directly. They are not filed in any district court! This writer suggests such filings be had in the U.S. Court of Appeals, District of Columbia Circuit, under 28 U.S.C. §1332, diversity of citizenship. This hits the B.O.P. on home turf. Any decision rendered in that scenario, would effect bureau-wide, not fragmented like district court cases. There are at least two such challenges now pending in the court. One challenging forfeiture of good time for old law offenders, by policy and the other seeking mortality of the Financial Responsibility Program, the FRP. In pleadings, both of which seek declaratory relief under 5 U.S.C. §702, the B.O.P. would be mandated to comport with APA requirements before enacting policy.

The APA, coupled with FRAP, Rule 15(a), combine to become extremely effective tools of leverage to force the B.O.P. to adhere to statutory mandates, not passing rules to whim. When prisoners learn the APA, which took this writer a long while, without the help of anyone else, you realize in a bright-light fashion, the chink in the B.O.P. armor. As Judge Crabb recently realized, the B.O.P. has little concern for rules and regulations itself, as she reversed a prior ruling and invited that petitioner to return to her Court and would now grant him relief. She wasn't aware of how the B.O.P. worked intrinsically, in such regard.

Although the APA journey will seem arduous at first, I cannot stress enough the importance of arming yourself with this weapon when you battle the likes of the B.O.P. There are hundreds of administrative agencies, like the U.S. Parole Commission, Immigration and Naturalization Service or even the Dept. of Justice. The cutting edge of the APA can find the heart of any agency ruling or decision. I urge every reader to properly arm himself with this armor-piercing weapon and hold agencies to task when creating policy which continues confinement.

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