William Varellas v. United States Parole Commissi
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Richard D. Cudahy, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Ann Claire Williams, Circuit Judge. [6538523-1] [6538523] [13-1582]
Case: 13-1582 NONPRECEDENTIAL DISPOSITION
Document: 16
Filed: 12/16/2013
To be cited only in accordance with
Fed. R. App. P. 32.1
Pages: 3
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 9, 2013*
Decided December 16, 2013
Before
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13‐1582
WILLIAM J. VARELLAS,
Plaintiff‐Appellant,
Appeal from the United States District
Court for the Southern District of Indiana,
Terre Haute Division.
v.
No. 2:12‐cv‐14‐WTL‐WGH
UNITED STATES PAROLE COMMISSION,
Defendant‐Appellee.
William T. Lawrence,
Judge.
O R D E R
William Varellas sued under the Administrative Procedure Act, see 5 U.S.C.
§ 702, claiming that the United States Parole Commission violated the Sentencing
Reform Act of 1984 by not setting his parole date before the Commission’s scheduled
*
After examining the briefs and record, we have concluded that oral argument
is unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP.
P. 34(a)(2)(C).
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(but canceled) shutdowns. The district court dismissed his suit for failure to state a
claim. We affirm the judgment.
Varellas was convicted in 1986 of conspiracy to kidnap, 18 U.S.C. § 1201(a),(c);
interstate travel in aid of racketeering, id. § 1952(a)(2); and interstate transportation of
firearms with intent to commit a felony, id. § 924(b). United States v. Hagen, 869 F.2d 277,
278 (6th Cir. 1989). He was sentenced to 150 years’ imprisonment for the conspiracy to
kidnap and to shorter terms of imprisonment for the other charges. Id. Varellas is
eligible for parole because he committed his crimes before November 1, 1987, the
effective date of the Sentencing Reform Act of 1984. See Sentencing Reform Act of 1984,
Pub. L. No. 98‐473, § 235(a)(1), 1984 U.S.C.C.A.N. (98 Stat.) 2031, amended by Sentencing
Reform Amendments Act of 1985, Pub. L. No. 99‐217, § 4, 1985 U.S.C.C.A.N. (99 Stat.)
1728, reprinted in 18 U.S.C. § 3551 note (Effective and Applicability Provisions); Hagen,
869 F.2d at 278. He waived parole consideration in July 1998 and since then has never
applied for a parole hearing.
Under the Sentencing Reform Act, the Commission originally was scheduled to
close permanently on November 1, 1992, but Congress repeatedly has extended the
Commission’s life, most recently until November 1, 2018. See § 235(b)(1), 98 Stat. at 2032;
United States Parole Commission Extension Act of 2013, Pub. L. No. 113‐47, § 2, 127
Stat. 572. Section 235(b)(3) of the Sentencing Reform Act requires that the Commission
set a parole date for prisoners who will be in its jurisdiction the day before the
Commission’s scheduled closure.
In January 2012, Varellas filed this APA suit, claiming that the Commission
repeatedly had violated his rights by not setting a parole date before its scheduled
demise in 2002, 2005, 2008, and again in November 2011. He sought a declaration that
the Commission had been obligated to decide, at least six months before every
scheduled shutdown, if and when he would be paroled. The Commission had never
done so, and thus Varellas asked the district court to compel the agency to determine
his release date. The Commission moved to dismiss, arguing that Varellas was not
entitled to a parole decision until he applied for one. See 28 C.F.R. § 2.11. In February
2013, the district court dismissed for failure to state a claim. The court expressed
uncertainty whether Varellas’s suit is proper under the APA or instead arises under 28
U.S.C. § 2241. Yet either way, the court reasoned, the Commission is not, nor has it ever
been, required to set a parole date for Varellas. Varellas filed a notice of appeal, and
afterward Congress again extended the Commission’s life.
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On appeal Varellas argues that the district court erred by not deciding if his
lawsuit is one under the APA or § 2241. He also contends that the court should not have
dismissed the suit. The Commission insists that Varellas’s suit arises under § 2241. On
this point the Commission is mistaken. Varellas does not seek release from prison—a
claim cognizable under habeas corpus, see Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir.
2005); Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir. 2003)—but instead challenges the
Commission’s asserted failure to discharge a statutory duty to consider him for release.
We thus review whether Varellas states a claim for relief under the APA. See 18 U.S.C.
§ 4218; Richmond v. Scibana, 387 F.3d 602, 605–06 (7th Cir. 2004); Valona v. United States,
138 F.3d 693, 695 (7th Cir. 1998).
The Commission must determine release dates far enough in advance to allow
prisoners to appeal the decision before the Commission eventually shuts down.
See § 235(b)(3), 98 Stat. at 2032; Furnari v. U.S. Parole Comm’n, 531 F.3d 241, 248 (3d Cir.
2008); Bledsoe v. United States, 384 F.3d 1232, 1236–37 (10th Cir. 2004). A former version
of a regulation implementing § 235(b)(3) provided that three to six months was
sufficient time to allow prisoners to appeal their release dates, see Furnari, 531 F.3d at
248 (citing 28 C.F.R. § 2.64(b) (1996)), but the Commission revised the regulation,
omitting any suggestion that it would set prisoners’ release dates at least three months
before its eventual closure. See 61 Fed. Reg. 55,743 (Oct. 29, 1996) (to be codified at 28
C.F.R. pt. 2). In any event, the statute requires the Commission to set release dates only
for those prisoners who remain in custody the day before the agency ceases to exist.
See § 235(b)(3), 98 Stat. at 2032; Furnari, 531 F.3d at 248; Bledsoe, 384 F.3d at 1236–37.
Therefore, Varellas will have a statutory right to have his release date set only if he is
still in prison the day before the Commission actually closes permanently.
It follows that Varellas’s complaint does not state a claim for relief. The APA
authorizes courts to award two types of relief when reviewing agency decisions: to
“compel agency action unlawfully withheld or unreasonably delayed; and . . . hold
unlawful and set aside agency action.” 5 U.S.C. § 706. The Commission was never
required to set a release date for Varellas, nor will it be required to do so until it actually
shuts down. Therefore, the district court cannot compel the Commission to set
Varellas’s release date, nor is there any agency action for the court to set aside. See id.
Accordingly, the judgment of the district court is AFFIRMED.
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