Howard Bloomgarden v. Bureau of Prisons ( 2013 )

FILED
NOT FOR PUBLICATION AUG 12 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOWARD BLOOMGARDEN, No. 12-55830
Petitioner - Appellant, D.C. No. 2:06-cv-01426-DSF-OP
v.
MEMORANDUM*
BUREAU OF PRISONS; STATE OF
CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted August 1, 2013**
Before: HAWKINS and FISHER, Circuit Judges, and ZOUHARY, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Appellant Howard Bloomgarden appeals the district court’s administrative
closure of his challenge to his transfer from federal to state custody. The Interstate
Agreement on Detainers Act (IAD) provides for the transfer of prisoners between
states, and between federal and state custody. 18 U.S.C. app. 2 § 2. When the
federal government transfers a prisoner to state custody, the IAD provides for a 30-
day period before the transfer during which the Attorney General “may disapprove
the request for temporary custody or availability, either upon his own motion or
upon motion of the prisoner.” 18 U.S.C. app. 2 § 2, art. IV(a). In an earlier appeal,
we held that Bloomgarden was transferred without the opportunity to request that
the Attorney General disapprove his transfer and we remanded with instructions
that “Bloomgarden may file a motion with the U.S. Attorney General . . .
requesting the Attorney General exercise his discretion to disapprove
Bloomgarden’s transfer to California. The Attorney General shall promptly review
Bloomgarden’s motion and shall notify Bloomgarden and the California district
court of his decision.” Bloomgarden filed such a motion, which was denied by the
warden of the federal prison where Bloomgarden had previously been in custody.
The district court then closed Bloomgarden’s case.
Bloomgarden argues the warden lacked authority to decide his motion under
both the IAD and this court’s prior order. He also argues that the warden was
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biased against him, that the warden improperly denied his motion on the merits and
that he should be returned to Texas and appointed counsel. Bloomgarden’s
contentions lack merit, and we affirm.
1. The Attorney General is permitted by statute to delegate his duties, see 28
U.S.C. § 510, and has delegated decisions regarding transfers under the IAD to the
Director of the Bureau of Prisons (BoP), see 28 C.F.R. § 0.96, who has in turn
delegated such decisions to the warden in charge of the institution where the
affected prisoner is being held, see BoP Program Statement 5800.15, Correctional
Systems Manual § 611(a) (July 1, 2009). Certain duties are non-delegable, but
Bloomgarden offers no evidence that ruling on IAD transfers is such a duty. On
the contrary, the mere fact that a duty has been vested in the Attorney General
“evinces no intention whatsoever to preclude delegation.” United States v.
Giordano, 416 U.S. 505, 513 (1974). We therefore reject Bloomgarden’s
contention that the warden lacked authority, either under the IAD or our prior
order, to rule on Bloomgarden’s motion.
2. Bloomgarden next argues that, having earlier denied him his procedural
rights under the IAD, the BoP was incapable of being a fair arbiter of his request to
disapprove the transfer. This argument is unfounded. There is no evidence that
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either the warden who actually decided Bloomgarden’s motion or the BoP more
generally was incapable of acting as a neutral arbiter.
3. Bloomgarden next argues that, for a variety of personal and policy
reasons, the warden should have granted his request to disapprove the transfer.
The IAD gives the Attorney General discretion to disapprove a transfer, and
Bloomgarden identifies no authority placing any limit on the Attorney General’s
discretion. We reject Bloomgarden’s invitation to second guess the warden’s
exercise of discretion. See Olim v. Wakinekona, 461 U.S. 238, 249-50 (1983)
(holding that a prisoner transfer regulation which “place[d] no substantive
limitations on official discretion create[d] no liberty interest entitled to protection
under the Due Process Clause”).
4. We have rejected Bloomgarden’s argument that he is entitled to file a
new motion with the Attorney General. His request that he be returned to Texas
and appointed counsel during the pendency of such a motion is therefore moot.
AFFIRMED.
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