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Sluss v. United States Department of Justice

United States Court of Appeals, District of Columbia Circuit

July 31, 2018

Matthew Sluss, Appellant
v.
United States Department of Justice, International Prisoner Transfer Unit, Appellee

          Argued April 6, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-00759)

          Dominique Rioux, Student Counsel, argued the cause as amicus curiae in support of appellant. With her on the briefs were Erica Hashimoto, appointed by the court, and Benjamin Kurland, Student Counsel.

          Matthew D. Sluss, pro se, filed the briefs for appellant.

          Jane M. Lyons, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence and Johnny H. Walker, Assistant U.S. Attorneys. Joshua L. Rogers, Trial Attorney, entered an appearance.

          Before: Rogers, Srinivasan, and Wilkins, Circuit Judges.

          OPINION

          Rogers, Circuit Judge.

         This appeal is before the court in an unusual procedural posture. Matthew Sluss is a dual citizen of the United States and Canada, incarcerated in the United States upon conviction of a felony. He seeks a transfer under a treaty between the United States and Canada to a Canadian prison where his term of imprisonment would apparently be reduced and his monetary allowance increased. He now appeals the dismissal of his complaint under the Administrative Procedure Act alleging that the denial of his transfer application was arbitrary and capricious because based on improper factors. The government contends the Treaty is not self-executing and is not, therefore, part of domestic law, so Sluss must rely exclusively on the implementing statute, which the government maintains vests unbounded, unreviewable discretion of prisoner transfers in the Attorney General.

         For the following reasons, we hold: First, the government's self-execution argument is non-jurisdictional and therefore does not affect the court's subject matter jurisdiction to consider Sluss's case under 28 U.S.C. § 1331. Second, even assuming the treaty is not self-executing, the government's position that Sluss must rely exclusively on the implementing legislation is flawed. The text and legislative history of the treaty and the legislation show that the latter incorporates the substantive standards of the former, making those standards part of domestic law. Third, the treaty provision on which Sluss relies provides law to apply, although the scope of judicial review is narrow, limited to the terms of that provision and not reaching the correctness of the assessment or the outcome. Fourth, consistent with the narrow scope of judicial review, the denial of Sluss's transfer was not arbitrary and capricious. Accordingly, we affirm.[*]

         I.

         The Treaty on the Execution of Penal Sentences between the United States and Canada permits prisoners "to serve sentences of imprisonment . . . in the country of which they are citizens, thereby facilitating their successful reintegration into society." Preamble, 30 U.S.T. 6263 (1978) (the "Treaty"). Its purposes are basically two-fold: (1) to promote rehabilitation of individuals incarcerated away from their home countries who face linguistic, familial, cultural, educational, employment, and parole-related barriers by allowing transfers to a prison in their home country and thus permit their successful reintegration into society; and (2) to promote diplomatic and law enforcement relations by relieving strains that arise from imprisonment of large numbers of foreign nationals. See, e.g., S. Rep. No. 95-10, at 1-2, 9 (July 15, 1977) (executive report); S. Rep. No. 95-435, at 14 (Sept. 15, 1977) (views of Griffin B. Bell, U.S. Att'y Gen.); H.R. Rep. No. 95-720, at 26 (Oct. 19, 1977); id. at 7 (Letter of Submittal of Treaty to the President, Cyrus A. Vance, Sec'y of State); 95 Cong. Rec. 23, 729 (1977) (statement of the Chair, Senate Foreign Relations Committee). The Treaty was ratified by the Senate on July 19, 1977, and by the President on August 4, 1977, and, following Canadian ratification, "entered into force" July 19, 1978.

         Relevant here is article III of the Treaty. Section 1 of that article provides: "Each Party shall designate an authority to perform the functions provided in this Treaty." Section 6 provides: "In deciding upon the transfer of an Offender, the authority of each Party shall bear in mind all factors bearing upon the probability that transfer will be in the best interests of the Offender." Section 9 provides: "Each Party shall establish by legislation or regulation the procedures necessary and appropriate to give legal effect within its territory to sentences pronounced by courts of the other Party."

         On October 28, 1977, Congress enacted the Transfer of Offenders to or from Foreign Countries Act ("Transfer Act"), 18 U.S.C. § 4100 et seq. It "authorized" the Attorney General "to act on behalf of the United States as the authority referred to in [the Treaty]," to receive and transfer prisoners, and to issue implementing regulations. 18 U.S.C. § 4102 (1)-(4). It also provided procedures for prisoner transfers as contemplated by Section 9.

         Sluss pleaded guilty in the United States District Court for the District of Maryland to one count of advertising child pornography in violation of 18 U.S.C. § 2251(d), and in 2012 he was sentenced, in view of two prior convictions of sexually assaulting children, to 396 months' imprisonment (33 years) with lifetime supervised release thereafter. On July 2, 2013, Sluss, who has dual citizenship in the United States and Canada, applied for transfer under the Treaty to a Canadian prison. The Attorney General (acting by delegation to the Criminal Division, see 18 U.S.C. § 4102(11); 28 C.F.R. § 0.64-2) denied his application and his request for reconsideration. On April 28, 2014, Sluss filed a petition for habeas corpus in the federal district court, alleging that the Attorney General considered factors beyond the scope of Section 6 of the Treaty and consequently the denial of his transfer was arbitrary and capricious under the Administrative Procedure Act ...


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