UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) PAVANDEEP TOOR, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-2021 (ESH) ) ERIC H. HOLDER, JR., ) Attorney General, ) ) Defendant. ) __________________________________________)

MEMORANDUM OPINION

Plaintiff Pavandeep Toor, a Canadian citizen serving a 35-month federal prison sentence

at Moshannon Valley Correctional Institution in Philipsburg, Pennsylvania, claims that the

United States Department of Justice (ADOJ@) prevented him from applying for transfer to a

Canadian prison as he had sought to do pursuant to international treaties and the Transfer of

Offenders To or From Foreign Countries Act,

. He has sued defendant,

alleging that its process for reviewing his transfer application violated international treaties, the

Supremacy Clause of the United States Constitution,1 and the notice-and-comment provisions of

Administrative Procedure Act (“APA”),

. Defendant now moves to dismiss

Toor=s claims for lack of subject matter jurisdiction and for failure to state a claim. For the

reasons stated herein, the Court will grant this motion.

1 In his Opposition, plaintiff indicates that he does not oppose the dismissal of his claim based on the Supremacy Clause. (Opp’n at 23 n.26.)

1 BACKGROUND

On August 27, 2009, after pleading guilty in the Eastern District of California to drug

trafficking charges, plaintiff was sentenced to serve 35 months in federal prison. (Def.=s Mot. to

Dismiss (ADef.’s Mot.@), Ex. C at 2-3 (Public Information Inmate Data).) On October 20, the

Federal Bureau of Prisons (ABOP@) took custody of Toor – who, until then, had been in the

custody of the United States Marshals Service – and moved him to Moshannon Valley

Correctional Institution (AMoshannon Valley@) in Philipsburg, Pennsylvania. (Id. at 1.)

Eight days later, on October 28, 2009, Toor filed suit in this Court, alleging that

defendant Aprevented Toor from applying . . . in a timely fashion@ to be transferred to a Canadian

prison for the remainder of his sentence. (Compl. at 1 ¶ 1.) Plaintiff alleges that DOJ=s transfer

application procedure conflicts with international treaties to which the United States is signatory

and with the APA. (Id. at 6-7 ¶¶ 12-14, 18-20.) He requests an injunction requiring DOJ to

review his transfer application and to align the regulations governing international prisoner

transfers with the relevant treaties and with the APA. (Id. at 7 ¶¶ 1-2.)

After filing his complaint, Toor met with BOP-provided case workers to express his

interest in transfer to Canada; thereafter, he submitted his transfer application to the warden at

Moshannon Valley. (Decl. of Sandra Kaz ¶ 6.) The application was received by BOP=s Central

Office on December 10, 2009, forwarded to DOJ=s International Prisoner Transfer Unit (AIPTU@)

the same day, and denied on January 12, 2010. (Id.; Decl. of Paula Wolff & 6.) IPTU then

notified its Canadian counterpart in Ottawa, the Canadian Embassy in Washington, and

plaintiff=s counsel of its decision. (Def.’s Mot., Ex. D at 1.)

2 Defendant subsequently moved to dismiss, arguing that this Court lacks jurisdiction to

hear the case, that the transfer application process does not violate international treaties or the

APA, and that the complaint does not state a claim upon which relief can be granted. (Def.’s

Mot. at 1-2.)

ANALYSIS

I. MOOTNESS

Defendant argues that this matter is moot, and that the Court therefore does not have

jurisdiction to decide the case. The Court agrees.

AFederal courts lack jurisdiction to decide moot cases because their constitutional

authority extends only to actual cases or controversies.@ Iron Arrow Honor Soc=y v. Heckler,

(1983). The case or controversy requirement Ameans that, throughout the litigation,

the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant

and likely to be redressed by a favorable judicial decision.@ Spencer v. Kemna,

(1998) (internal quotation marks omitted). AEven where litigation poses a live controversy when

filed, the [mootness] doctrine requires a federal court to refrain from deciding it if events have so

transpired that the decision will neither presently affect the parties’ rights nor have a

more-than-speculative chance of affecting them in the future.@ Clarke v. United States,

(D.C. Cir. 1990) (en banc) (internal quotation marks omitted). An intervening event

may render a claim moot if there is no reasonable expectation that the conduct will recur.

Pharmachemie B.V. v. Barr Labs., Inc.,

(D.C. Cir. 2002). ASimply stated, a

case is moot when the issues presented are no longer live or the parties lack a legally cognizable

interest in the outcome.@ Larsen v. U.S. Navy,

(D.C. Cir. 2008).

3 Plaintiff seeks to have defendant “accept and process” his application for transfer to

Canada. (Compl. at 7 ¶ 1.) When plaintiff commenced this action, he had not yet been able to

submit his transfer application. By the time defendant filed its motion to dismiss, IPTU had

processed the application, denied it, explained the decision, and notified plaintiff=s counsel. No

live controversy remains, because plaintiff can no longer claim the harm of an unresolved

transfer request. Therefore, a decision in this case could not affect the parties’ rights, and the

controversy is moot.2

Plaintiff argues that the case fits into two exceptions to the mootness doctrine: Acapable

of repetition, yet evading review@ and Avoluntary cessation.@ Broadly, these exceptions provide

that Aif a plaintiff=s specific claim has been mooted, [plaintiff] may nevertheless seek declaratory

relief forbidding an agency from imposing a disputed policy in the future.@ Nat=l Air Traffic

Controllers Ass=n v. Fed=l Serv. Impasses Panel, No. 08-5479,

(D.C.

Cir. June 1, 2010) (quoting City of Houston v. Dep’t of Housing & Urban Dev.,

,

2 Courts often find mootness on similar grounds when an agency action is first challenged as Aunlawfully withheld or unreasonably delayed@ under the APA, see 5 U.S.C. 706(1), and is then rendered during litigation. See, e.g., Sze v. INS,

(9th Cir. 1998) (finding mootness when INS issued decision on plaintiff=s naturalization application, despite agency=s delay until after statutory deadline and after complaint); Agbor v. Napolitano, No. 08-CV-7801,

, at *2 (S.D.N.Y. Aug. 7, 2009) (“Courts have generally held that where, as here, a plaintiff seeks to compel the immigration authorities to adjudicate an application for immigration benefits, and the application is thereafter adjudicated, the case is moot and must therefore be dismissed for lack of subject matter jurisdiction.”). In these cases, the delay triggers a well-defined, legally cognizable interest in litigation – for example, an express right of action for the agency=s failure to meet its 120-day statutory deadline, see Sze,

– whereas in the present case, it is unclear that there is any injurious delay in the review of plaintiff=s application, given the law=s permissive Aas soon as practicable@ language. See infra Part II.C. Regardless, even where there is an express private right of action, if it is undisputed that agency action was unlawfully withheld or unreasonably delayed, then once the agency takes action, no live controversy remains as to its delay.

4 1429 (D.C. Cir. 1994). The exceptions do not apply here because defendant has shown that there

is no threat of reinstating the same action against plaintiff in the future.

A. Capable of Repetition, Yet Evading Review

Plaintiff’s argument that defendant’s conduct is Acapable of repetition, yet evading

review,@ S. Pac. Terminal Co. v. ICC,

(1911), relies upon the D.C. Circuit’s

decision in Del Monte Fresh Produce Co. v. United States,

(D.C. Cir. 2009).

However, Del Monte is distinguishable, and its concerns are not applicable here.

To show that a defendant’s conduct is capable of repetition yet would evade review, a

plaintiff must demonstrate both that A(1) the challenged action is in its duration too short to be

fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that

the same complaining party would be subjected to the same action again.@ Del Monte,

(quoting Clarke,

) (alteration in original); see also City of Los Angeles v.

Lyons,

(1983). In Del Monte, a produce distributor sued the Office of Foreign

Assets Control (OFAC) for failing to issue an export license within a nine-day window as

required by regulation. Id. at 320. OFAC issued the license after litigation began and argued

that the suit was moot. Id. at 320-21. Applying the two-pronged test, the Court of Appeals

reversed the district court=s finding that the case was moot. Id. First, the Court of Appeals found

that the requested license would expire before the matter could be fully litigated, and second, it

found that Del Monte=s frequent applications to OFAC for similar export licenses put the parties

in a position to repeat the controversy in the future. Id. at 321-24. Therefore, the court had

jurisdiction over Del Monte=s request for declaratory relief. Id. at 326.

5 Here, by contrast, plaintiff fails to satisfy the second requirement for the Acapable of

repetition, yet evading review@ exception, because he has not shown any reason to anticipate the

parties will face a similar situation in the future. In fact, plaintiff concedes that Ahe is quite

unlikely ever to be charged again with a criminal offense@ (Opp’n at 16), and unless he is

charged in the United States, he could never be subjected to the challenged action again. There

is thus no Areasonable expectation@ of repetition, so the exception cannot apply.

B. Voluntary Cessation

Another exception to the mootness doctrine urges that a defendant=s Avoluntary cessation@

of a challenged practice does not moot the case, because such a result would leave the defendant

free to “‘return to its old ways.’” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,

(2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc.,

, 289 n.10

(1982)). However, if the allegedly wrongful behavior could not reasonably be expected to recur,

then this exception does not apply, and a case may become moot after all.

The voluntary

cessation exception is typically invoked when there is a threat that the defendant will reestablish

the challenged and ceased practice against the plaintiff after dismissal of the suit. See, e.g., id. at

193 (finding that ceasing illegal pollution failed to moot the controversy unless defendant could

show that it “could not reasonably be expected” to resume unlawful practices); Isenbarger v.

Farmer,

(D.D.C. 2006) (finding that the Army could issue a new

extension of an officer=s active duty obligation, after it dropped the challenged extension to try to

moot the case).

Although the defendant did voluntarily cease the conduct at issue, there is no real threat

of reversion. The challenged conduct was defendant’s delay in considering plaintiff=s

6 application, but defendant ended that delay by considering and deciding not to grant plaintiff’s

request. This cessation cannot be reversed while plaintiff serves his current sentence. Defendant

has demonstrated the improbability of this inmate making a future transfer request, because this

situation can only present itself again if plaintiff is charged, convicted, and incarcerated in the

United States for another crime and then applies for transfer. (Reply at 7.) Even plaintiff

concedes that such a situation is Aquite unlikely.@ (Opp’n at 16.) The challenged behavior and

the means of cessation – i.e., a final decision adverse to plaintiff – remove any threat that

defendant will “return to its old ways.” Friends of the Earth,

. Therefore, the

controversy is moot and this Court lacks jurisdiction to hear it.

II. ALLEGED TREATY VIOLATIONS

In the alternative, defendant argues that there is no private right of action under the

Convention, and that even if there were, defendant did not violate the treaties in question.3

Plaintiff alleges that defendant violated international treaties by delaying the process for

reviewing his transfer request. Because the relevant treaties and implementing statute do not

create a private right of action, plaintiff has failed to state a valid claim, and even assuming there

were such a private right of action, defendant=s actions were entirely consistent with its

obligations under international treaties.

3 Defendant argues that because the treaties create no private right of action, plaintiff lacks “standing” and the action must be dismissed for lack of jurisdiction. (See Mem. of P. &. A. in Supp. of Def.’s Mot. at 12.) However, the absence of a private right of action merely requires dismissal for failure to state a claim under Rule 12(b)(6). See, e.g., Mora v. New York,

(2d Cir. 2008) (affirming dismissal of treaty-based claim for failure to state claim upon which relief could be granted, because treaty did not create private right of action); Cornejo v. County of San Diego,

(9th Cir. 2007) (same).

7 A. Relevant Law

The United States and Canada are parties to the Council of Europe Convention on the

Transfer of Sentenced Persons, March 21, 1983, T.I.A.S. No. 10,824, 22 I.L.M. 530 (hereinafter

AConvention@), which provides broad authorization for prisoner transfers among signatories.4

Under the Convention a prisoner, the sentencing state, or the receiving state may request a

transfer.

at Art. 2, cls. 2-3. Notably, the Convention never requires a state to transfer a

prisoner, and in fact, the agreement only allows transfer when all three parties (the prisoner and

both states) agree to it.

at Art. 3, cls. 1(d) & (f). Accordingly, the statute providing for

international prisoner transfers pursuant to the Convention vests in the Attorney General the

discretion to accept or deny transfer requests, to promulgate regulations implementing relevant

treaties and statute, and to delegate implementation within DOJ. See

.

B. The Convention Does Not Create a Private Right of Action

In Medellin v. Texas,

(2008), the Supreme Court endorsed “the background

presumption . . . that ‘[i]nternational agreements, even those directly benefiting private persons,

generally do not create private rights or provide for a private cause of action in domestic

courts.’”

at 506 n.3 (quoting 2 Restatement (Third) of Foreign Relations Law of the United

States § 907, Comment a (1986)). In dicta, the Court noted approvingly that many circuits,

including the D.C. Circuit, require “express language to the contrary” in order to rebut that

4 Both countries also previously ratified the Treaty between the United States of America and Canada on the Execution of Penal Sentences, March 2, 1977, 30 U.S.T. 6263, which also provided for prisoner transfers. While the complaint also references this 1977 bilateral treaty (Compl. at 3 ¶ 7), the parties’ arguments rely exclusively on the multilateral Convention, and the substantive similarity of the two treaties makes it unnecessary to analyze both. Moreover, this Court has already held that the 1977 treaty does not provide a private right of action. See Coleman v. Reno,

(D.D.C. 2000). Accordingly, the Court=s analysis is focused on the Convention.

8 presumption and find a privately enforceable right under a treaty.

(citing Canadian Transp.

Co. v. United States,

(D.C. Cir. 1980)).5 Moreover, the statute that

implements the provisions of the Convention – the Transfer of Offenders To or From Foreign

Countries Act,

– does not create a private right of action. Bagguley v.

Bush,

(D.C. Cir. 1991); Coleman,

(discussing

Bagguley).

Since the Convention has no express language to rebut a presumption against a private

right of action, plaintiff lacks standing to sue under the treaty or its implementing statute,

.

C. Defendant’s Actions Conform to Its Obligations under the Convention

At the time of the complaint, plaintiff had not yet applied for transfer to his native

Canada. This, he insists, was not for lack of effort on his part, but a result of delays built into

defendant=s application procedure. Plaintiff asserts that these alleged delays violate the

5 Plaintiff disputes the applicability of Medellin, arguing that it was decided on other grounds. Instead, plaintiff urges this Court to view the earlier case of Hamdan v. Rumsfeld,

(2006), as controlling. Plaintiff’s reliance on Hamdan is misplaced. There, the Supreme Court held that a military commission lacked power to try a suspected terrorist “because its structure and procedures violate both the UCMJ [i.e., Uniform Code of Military Justice] and the Geneva Conventions.”

. With respect to the petitioner’s rights under the relevant treaty provision, the Court merely concluded that even if the Geneva Convention, on its own, did not “furnish[] petitioner with any enforceable right,” it was nonetheless part of the common law of war, which Congress had incorporated into federal statutes via the UCMJ as a limitation upon military commissions’ jurisdiction. See

; see also

. Thus, Hamdan is inapposite and does not contradict Medellin=s more recent and more broadly stated presumption against private enforceability of treaty rights both as a general matter, see, e.g., Mora, 524, F.3d at 201, and, even more persuasively for the instant case, specifically with respect to international prisoner transfer treaties. See Yosef v. Killian,

, 506- 07 (S.D.N.Y. 2009).

9 Convention by not allowing prisoners to begin the transfer application process immediately upon

final judgment.

When one signatory to the Convention sentences a citizen of another signatory, and the

prisoner has requested transfer, the sentencing state Ashall so inform the administering State as

soon as practicable after the judgment becomes final.@ Convention, Art. 4, cl. 2. Plaintiff urges

the Court to interpret this language as Aan expectation@ that the transfer process begin on the date

of final judgment. (Opp’n at 14.) But a plain reading of the treaty shows the error of that

interpretation. The treaty=s language concerning the timing of final judgments is limited to two

provisions: the instruction quoted above for when the sentencing state should notify the

administering (i.e., receiving) state; and a condition that no prisoner may be transferred under the

Convention before the sentencing country enters final judgment.

at Art. 3, cl. 1(b). Even if

one reads the quoted language on the timing of notification to also control the timing of the

application process itself, the suggested timing is only Aas soon as practicable after the judgment

becomes final,@

at Art. 4, cl. 2 (emphasis added), rather than the narrow requirement, as

plaintiff urges, Athat this is the date on which the process begins.@ (See Opp’n at 14.)

To be sure, defendant=s process does not begin as soon as judgment becomes final, but it

does begin as soon as practicable after the judgment becomes final. The delay in beginning

plaintiff=s application process was the time between his sentencing and his relocation into BOP

custody and Moshannon Valley. A prisoner requesting transfer must submit his application to

the warden at his BOP correctional institution, so until BOP assigns him to an institution and he

arrives there, he cannot file his transfer request. See

.

10 Plaintiff was sentenced on August 27, 2009, and he arrived at Moshannon Valley on

October 20. On November 12, plaintiff met with Moshannon Valley case workers to begin his

application process. Thus, two months and sixteen days out of plaintiff=s 35-month sentence

passed before his application process began. The minimal delay before BOP takes custody of a

prisoner and before he arrives at his prison fits comfortably within the Aas soon as practicable@

language set forth in the treaty. Even assuming that plaintiff did attempt to apply for transfer

before his move to Moshannon Valley and that defendant prevented him from applying, the

alleged prevention does not violate the treaty.

D. The Decision on Transfer Is Not Judicially Reviewable

When a treaty and statute set out no Aparticularized standards or criteria@ on which to

judge a transfer request, the agency reviewing the application has A completely

unfettered@discretion. Bagguley,

(interpreting DOJ=s discretion under

international prisoner transfer treaties and

) (quoting Olim v. Wakinekona,

, 249 (1983)). Because the United States= prisoner transfer agreements and

Aprovide[] no criteria to govern the sentencing state=s decision as to whether to agree to the

transfer,@ there is no protected liberty interest in international transfer even when treaties and

statute authorize it. Id.; see also Olim,

(interpreting Hawaiian interstate

prison transfer regulations as Aplac[ing] no substantive limitations on official discretion and thus

creat[ing] no liberty interest@). As such, action on prisoners= transfer requests Ais committed to

agency discretion by law,@ thus rendering such decisions unreviewable under the APA.

Bagguley,

(quoting

(a)(2)).

11 To the extent that plaintiff bases his grievances on IPTU=s decision to reject his transfer

application upon review, his claims are not justiciable. In response to this, plaintiff asserts that

his claims address Athe right to apply to transfer rather than the decision of the Attorney General

on his application.” (Opp’n at 9 n.16.) Yet, many of his arguments address the decision rather

than the right to apply.6 Those arguments fail because they effectively amount to a challenge to

agency action that is unreviewable.

III. ALLEGED VIOLATION OF THE APA

Plaintiff argues that by issuing transfer policies without notice and comment, as required

for agency rules, see

, defendant has violated the APA. Defendant responds that

the interpretive regulation in question is neither subject to notice-and-comment requirements nor

in conflict with the relevant treaties, statutes, and rules. To the extent that plaintiff=s cause of

action under the APA is not moot (see supra Part II), the Court concludes that it still fails

because both DOJ=s transfer review policies and its actions in this case comply with APA

procedures.

To effectuate this country=s international prisoner transfer agreements, Congress

delegates transfer decisions and procedures to the Attorney General. See

. In

turn, the Attorney General can delegate those powers within DOJ, see

§§ 4102(11), which he

has done by appointing BOP and IPTU to control the transfer process.

6 For example, in his Opposition plaintiff focuses on the economic benefits of approving transfer applications, allegedly improper motives behind defendant=s decision to deny his application, the apparent hastiness of the review, prosecutors’ dissension from the decision, and allegations of retaliation. (Opp’n at 2-4.) However, plaintiff=s complaint does not address the actual decision to deny transfer and offers no factual basis for any inference that defendant denied his request in retaliation for his exercise of his rights.

12 For its part, BOP has memorialized the transfer application procedure using two

regulatory instruments available to agencies under the APA: notice-and-comment rulemaking

and interpretive rules. See

(b). The APA provides for the promulgation of

substantive rules, see

and BOP took advantage of this by issuing 28 C.F.R §§ 527.41-527.44

(which address the transfer of Bureau of Prisons inmates to other countries) after publishing it in

the Federal Register and accepting public comment. See Control, Custody, Care, Treatment and

Instruction of Inmates,

(June 12, 1981) (proposed rulemaking and request

for comments);

(Dec. 4, 1981) (final rules). In this rule, BOP sets out, inter

alia, the process for submitting and reviewing transfer applications. See generally

. The same rule requires BOP to inform eligible prisoners about the transfer

process during prison orientation,

§§ 527.43(a), and requires prisoners to submit their

applications to prison wardens. Id. § 527.44(a).

To provide for more detailed internal procedures, BOP also issued a program statement

on international prisoner transfers. See Bureau of Prisons, Program Statement 5140.39

(renumbered from Program Statement 5140.34, Dec. 4, 2009), Transfer of Offenders to or from

Foreign Countries (2009) (hereinafter “PS 5140.39”). The APA specifically excludes such

Ainterpretive rules, general statements of policy, or rules of agency organization, procedure, or

practice@ from the notice-and-comment process.

(b)(A); see Reno v. Koray,

(1995) (finding that BOP program statement was exempt from notice-and-

comment requirement because it was an Ainternal agency guideline, which is akin to an

>interpretive rule=@). The program statement clarifies, for example, how to send a prisoner=s

personal property to the receiving country during a transfer, see PS 5140.39 at 10, and the form

13 for eligible prisoners to acknowledge that BOP has made them aware of the possibility of

transfer. Id. at 6. It also reiterates the requirement that a transfer applicant submit his request to

a warden, id. at 7, and adds details such as the forms that make up a complete application and to

whom the warden must forward it. Id. at 7-9.

Plaintiff argues that the program statement violates the APA because it did not go

through the notice and comment process. In particular, he alleges that BOP=s procedure of

requesting transfer through prison wardens and after prison orientation, which delayed his

opportunity to apply for transfer, is invalid for having been promulgated without notice and

comment. But the operative provisions and transfer application requirements are embodied in a

rule promulgated after notice and comment, in the form of

. Therefore, BOP

published in the Federal Register the requirements that ultimately delayed plaintiff=s application

until his move to Moshannon Valley; the public had an opportunity to comment on them; and the

rule was announced as final in the Federal Register, all before the rule=s official promulgation.

The program statement added only internal BOP guidelines, so it was not subject to the notice-

and-comment requirements of the APA.

CONCLUSION

For the reasons discussed above, this Court will grant defendant=s motion to dismiss for

lack of jurisdiction or, in the alternative, for failure to state a claim on which relief can be

granted. A separate Order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge Dated: June 15, 2010

14