you're familiar i hope with our lighting system when the yellow like goes on that means that your time is about to expire so start wrapping up if we take you beyond the lights then don't worry about it you're on our time and and not yours and with that we're ready to begin our first case is number sixteen dash one five seven three seven verandas about ours junior versus the united states parole commission mr frank the court my name is ted frank and i want to friends of ours lawyers i would like to as you know i have reserved three minutes for but there are two issues that i'd like to discuss in this argument the first is whether section five forty two is sixty the mandatory appropriation of the parole act requires the commission to deny mandatory parole whenever a prisoner seriously violates prison rules without regard to whether  violation occurs or what his conduct subsequently found and the second is whether the commission on reman from bowers one and we'll refer to as one of ours who is we didn't a priest afforded mr powers a fair and impartial hearing proper interpretation of forty two of sixty but the question i'd like to pose to you is whether you think that mr bowers was required to receive mandatory parole or whether or not even if your interpretation of the statutory provision is correct the parole commission had discretion to consider for example the rest of his record while he was incarcerated and deny parole and the reason i ask that is not so much for mr bowers this case but because what we say in this case is going to govern other cases in the future for those who are still left in the parole system and so it matters from an institutional perspective although i know that you represent mr powers foremost i understand that no we do not think that is automatically entitled to a mandatory parole i think the commission is required to evaluate his escape attempt in one nine hundred seventy nine which we can see that in one nine hundred seventy nine was a serious violation of the rules but they were required to balance that against his overall record and mr bowers has not had an infraction of the commission of the prison rules since  eighty eight which is about thirty of syria years ago more or less so it's a balancing requirement is not absolutely required to do it although that will get to the question of what we think is the appropriate remedy in this case no i know i know you've asked for the remedy and that's part of your argument i just wanted you to address that other point some and some priests say it's a balancing test but nothing in the language of the statute indicates that the commission shall not release such prisoner if it determines that is seriously or frequently violated institutional rules breaking that down of that sermons he has seriously violated institution rules there's no clause that says and after you decide that then you should balance and against the rest of his behavior in all due respect those in the statute that says they're precluded from doing that either and the statute the section should be read in the context of the act as a whole i think as we demonstrated in our brief if you look at the act as a whole reading the commission's reading the the way we believe it should be read that the commission is required to balance the serious violation against his subsequent good behavior none of those anomalies exist it gives full purpose to this i don't understand the anomalies exactly and i could be wrong about this she read these statutes more than i have probably but as i read it the mandatory release provision says look if you're going to get out in thirty years unless i'm last you've had a serious violation the rules are violations do that you're in big trouble but you're not irrevocable in trouble you have discretionary parole where the commission always has the authority is understand it every few years to look at whether you've substantially complied that is you've had an escape but you've done ok otherwise would releasing you undermine the seriousness of your fence so the mandatory is a get out of jail free card if you can say serving thirty years is get out of jail for it's a lot but it's mandatory but if you've screwed up in that way then you still have the ability under discretionary release for the commission to to balance everything as you suggest is that wrong as we could not find a case for president as to whether or not once the thirty year period runs wisenberg who's had extensive experience in parole matters is not aware of any situation in which discretionary parole is who granted once the mandatory parole date has been reached what have you all as his lawyer said you know this is another outlet for us you know because we'd like a way for you to balance it that we have a discretionary parole hearing have you tried we have not tried because for reasons that go to the due process we think the record in this case shows quite that this commission is not going to grant mr powers a parole it has consistently taken what you want to get to the due process argument are we no i i'm just saying that it goes to your argument goes to the question of a remedy because one of the reasons we have not gone mean don't you think it was because it was a federal law enforcement officer that could be your ana but i would think that that under our system of justice it's fairness over the term of that that that because he committed up to kill the police off a lot of us was he was given a life sentence and that but under the sentence that he was given he was entitled to parole after thirty years if his conduct was appropriate and we think that over twenty five years he's had forever tainted the pro commission was their decision we're going forward so your argument then is that the commission as it was constituted i guess with three commissioners at that point then it was mitchell the former and sued and what was smooth in yes if they could not be fair but as i look at it when the parole was first granted and then denied back in two thousand and five mitchell voted for your client then he didn't and then smoot had always been a q now who was the other she and then the new person had not done it so i don't understand why you say it's for dang we had a new commissioner plus we already had the commissioner who had voted for him before all the tanks so that's two out of her it yeah but the commissioner who voted for all the website there are only two commissioners commissioners smoot who spent all of forty five minutes going through the record over there which is as you can see is rather voluminous in this case and that doesn't include his prison record of some forty two years  d she spent over forty five minutes so she didn't have many real serious consideration as to whether if you look at this as a whole you should be getting them somewhere we're assuming at this point let's assume for to separate the arguments that they had the ability not to grant probe if they found one serious because obviously you're if you're going to cite it yeah you've got to look at the whole record where maybe in a different ballpark here but i thought you had a different view process sort of argument that leave aside all of that the basically this was so tainted that due process was violated we do take that position because the way the commission exists under the proper justice in the control of the department of justice has it with commissions operations this is the only case here saying every time they they're under the control of the commission of the department of justice they don't even report to congress directly the department of justice reports of them the department justice controls whether they continue after all is now on and i magine they do but that this what we're saying is that this is a unique case this is the only case in which they have reversed the grant of a judgment well there's one other bit the gentleman is that there is there are very few cases in which the attorney general is this is the first one only and it's a unique case it's not like general a case in which they're operating making decisions about parole without any interference with the department of justice the commission was created in this very hard to keep it insulated from political pressure that the department of justice is imposing march may two thousand and five greater pro we're not asking you to substitute your judgment for that of the commission prison granted to a parole in may of two thousand and five nothing has changed since then except these twelve years older and a lot please the court on david powell with the u s attorney's office northern district of georgia and i represent the united states twelve commission and tangentially the warden in this case as the custody of mr bo s as a court has noted the ultimate issue in this appeal is simply whether the parole commission is a denial of own revote should be affirmed or not and the pro commission takes the position obviously that it should be affirmed because it did act in an unbiased and and it influenced  in making its decision the district court applied proper standards which was one of the challenges and while it's a lot let's talk about that for a second about could not i'd like if we could too break it down into segments because i from my perspective i think that there may be different standards of review depending on where you go in the analysis you know so for example the ultimate denial of parole may be subject to an arbitrary and  faith standard but it seems to me that whatever deference you give that can't be the standard for the parole commission's interpretation of the statute right that can't be possible there are no cases out there that i have i want to know before you even get to any deference and i'm assuming for purposes of my question that the parole commission is entitled to some deference interpret in the statute my question to you is can that deference ever be stated as an arbitrary and capricious standard and if so if you know of any authority that lets us do that i'd be happy to hear what you're honoring in cook  circuit panel equated the difference we're just not dealing with a regulation here we're dealing with an interpretive rule that was applied in the decision making process within mr bowers hearing so there's no interpretive rule there's no rule here just it's just a flat out interpretation of the statute because the parole commission's rule says nothing different than the statute right it's there one in the same right the rule except that this is the rip the regulation actually adds the language that shelby can continued until expiration the senate was ok but that's neither here nor there in this case right so my question to you is with where do you get an arbitrary and capricious standard for an agency's interpretation of a statute that will in this case what they were we focused purely on what the meaning of serious is and in the determination of the statute is such that it says that the commission shall not i'm not i'm ok i don't want to get into the merits of the issue yet i just want to know generally speaking do you ever use an arbitrary and capricious standard to evaluate an agency's in the legal interpretation of a statute not it's happily cation of the statute to the merits and it's all to me a decision for example a decision to deny mr bowers parole but to the meaning of the statutory text is there ever a place for the use of the arbitrary and capricious standard at that level of analysis well you're on record my interpretation of cooke is that the whether it's a reasonable interpretation or not is the equivalent of whether they abused discretion of whether it's arbitrary i know religious those are all legal terms of art an abuse of discretion is not the same as arbitrary and capricious and that matters may not matter here in the ultimate result but it matters in cases going down the line so i'm trying as hard as i can to pin you down with with little success well you may not lose if you did it is no matter what the answer to your to my question is but i would like an answer to the question if i could i will try it's a very can fusing issue and my big belief is that it's a to the court it's a question of law applied to sort of a mixed question if you will in this case but for the  legal analysis it would be so you just get deference but you don't get arbitrary and capricious review is that right or am i putting words in your mouth i believe it that's right you get deference and then if that  not engaged in formal rulemaking with regards to a regulation that interprets the statute any differently all we have is basically the ring codification of the statute so in your opinion do you get chevron deference do you get skidmore deference or do you get something in between because skidmore deference which you generally get with informal applications or informal or ad hoc rulemaking or interpretations by agencies in other words the agency hasn't proposed a regulation hasn't put it out for notice or comment hasn't received pros and cons hasn't deliberated and hasn't issued a regulation so what  differences do you think i believe it's the skidmore difference where you were not dealing with a notice and comment an act meant we're dealing with just a an interpretation that was necessary to make a decision and that seems to be what cook has applied although it did not cite skidmore from ok ok you've answered my question so you can proceed with your argument thank you very much  ok and leading into that then first the commission definitely acted independently mr bowers has drawn together a number of facts some of which they knew before discovery some of which they found out during discovery three rating gay males and various things that that the items were such as that the d o j department justice proper has influence or control on their budget although the statute says still that the chairman proponents and determines the budget it does pass through the department for administrative purposes at this point it would have makes who makes a request to congress  the department has a component that pulls all of the different d o j components budgets together and submits the request so the parole commission sort of depends on the department of justice to further its budget agenda i believe this appropriate i mean proper interpretation especially since the nine hundred ninety eight legislation that requires the attorney general to review and make reports on the parole commission's activities in viability is and whether those functions should be moved into a different component of the department justice as a requirement by law that there be some involvement and that also required that is also why the department and attorney general are involved in they re authorization legislation that appears it every two three five this last one i think was a five year extension through twenty eighteen so it's let's talk about the merits then mr hauck what in your view a serious infraction automatically disqualifies or the parole commission's view i should say your view in the pearl commission's view a serious infraction automatically precludes a prisoner from getting mandatory parole but still permits the granting of discretionary parole right here that's an interesting question and we don't know there's been no determination whether subpart a is available to a two thirds date prisoner i know that's why i'm asking you on the face it does there doesn't appear to be a preclusion of so so that paroled the parole commission is going to say this infraction was serious and although it occurred decades ago it's so serious that you're precluded from mandatory parole but don't worry because you've got discretionary parole coming up in six months and we're going to give you discretionary parole that's a crazy legislative system don't you think it would be and well that's that's what the parole commission says right well there's no official interpretation but my own i understand that you're advocating for the parole commission so ok you're unfortunately the guinea pig here today ok my understanding from discussions with  commission's counsel that it likely would be interpreted that there's no a review but they haven't had to address that yet but that's the position that's why haven't they given mr bowers discretionary parole review well is it isn't discretionary parole review automatic when it applies in other words you get it every x number of years well actually that is their position there they had to consider him for the mandatory release under day under forty two a six day so the parole commissions if not official interpretation but it's interpretation through action or inaction is that i have no official position but that's just in practice as mr powers never requested that you give them a discretionary hearing or it is is that something people can do i don't well that is a they can make a request for review in this case back in the previous like the first and second rounds there were requests at one point mr bowers made his own request for parole review another hearing and that was and there was mention of the fact that or the argument that it's preordained that he would be denied relief in the future under any circumstance because of the attorney everything except for the allegation that former commissioners bagnall he had tainted the proceedings and that slow of the case that the if the in to attorney general's involvement in two thousand five was not did not stay to claim then his lesser involvement in this last round also could not be argued to be tightening the proceedings and there's no none of the evidence mr bauer cites considered singly or in conjunction with each you know it but the cumulative effect show that there was any connection to the decision in this case or and and it does not even the imply that there was a connection to this case i presume that there are reported cases of i'm not asking about any water cooler stuff and i really i presume that there are reported cases where the parole commission has granted discretionary parole to somebody who has committed a serious infraction right well what they consider serious enough to whether it's serious enough to allow to require them to deny or not is the standard that like for escape there have been some that have been to have been granted perot that had escapes but they found that those were not as illyria those were mandatory scenarios right and as i'm asking you whether you know of any reported cases not discussions you've had informally with the with the parole commission itself i think as judge current suggested that would be an unfair question to ask you but are there do you know of reported cases where the commission has granted discretionary parole to someone who has committed a serious infraction while incarcerated factor but they have discretion to i've tried as a discretionary parole statute didn't even mention the word serious i thought it just said have you substantially violated the real substantial meaning maybe you had one bad escaped thirty years ago but since then you've been good so you substantially comply then you got through all the nature and circumstances would it undermine the seriousness of the offense you go through the whole list approach of i didn't think is there and discretionary be looking at whether something serious or not is part of the statutory formula well that is there cancel the statute does not directly said whether it's serious or not but look at the whole picture and would it depreciate the seriousness of the original crime does the president pose a risk to society and own balancing of all of the factors of this prisoner's case should he nonetheless be granted parole so your reading of the statute is or you would argue that you could commit a say that again that because he had where his mandatory parole rights he was no longer in title role what do you mean waived his mandatory but that was that the position is that he had had waived a discretionary parole hearing all discretionary no mandatory not and then they held that seat that that effectively denied in the opportunity for mandatory parole that was reversed but they took the position that the two were not did you that the discretion or pros not available once mandatory i think there is no case in which i could find we could find no case in which the court has deferred to an agency under an arbitrary capricious tenet interpreted statute and it would seem to me that that question congressional problem and senator coburn and held it up as apparently he helped things up a lot according to the record and i bet the commission was nervous about their existence but from your argument today it seems to me you're arguing the bias is more because the department of justice is involved and in their organization is it both or which one and we have always maintained the department of justice and that partly just as part of the bias problem isn't that existed here as well as the fact that there was congressional interference we put this what happened is we got through we did the depositions the record was rather thin and what we couldn't find we did not find any direct interference is to just record held play that by the by the members of congress but what we did find was that there was no serious consideration i request by the commission that they were just going through the motions and that's why we shifted to in on this appeal to the argument that in the due process in the sense of being denied his due process rights the commission didn't give him a full up and i'm biased a review the court in crack and the the the colts held due process requires a hearing by an open minded tribunals we don't think the commission is an open minded trib unbiased decision of this and to a parole like you say i'm biased but if the truth matters it's a legal question whether or not one serious offense argued for mandatory versus looking at the record discretionary openminded is not exactly or time or time out whether the