Matthew Sluss v. DOJ , 898 F.3d 1242 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 6, 2018 Decided July 31, 2018
No. 16-5373
MATTHEW SLUSS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE, INTERNATIONAL
PRISONER TRANSFER UNIT,
APPELLEE
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.
2
Before: ROGERS, SRINIVASAN, and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
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
3
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
*
The court expresses appreciation for the assistance provided
by amicus curiae.
4
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 (“APA”), 5 U.S.C. § 706(2)(A). He sought a
5
writ of mandamus, 28 U.S.C. § 1361, to compel the Attorney
General to reconsider his application “based solely . . . upon
permiss[i]ble factors as contemplated” by Section 6. Compl. at
29.
The district court treated Sluss’s petition as a civil
complaint in view of his request for relief under the APA, and
dismissed it on the ground that prisoner transfer decisions
“constitute agency action committed to agency discretion by
law” and are thus judicially unreviewable. Sluss v. U.S. Dep’t
of Justice, 78 F. Supp. 3d 61, 64 (D.D.C. Jan. 13, 2015)
(quoting Bagguley v. Bush, 953 F.2d 660, 662 (D.C. Cir.
1991)). Upon Sluss’s appeal, this court remanded for the
district court to address whether Sluss was entitled to relief
under the Treaty, as distinct from the different treaty addressed
in Bagguley. Order, Sluss v. U.S. Dep’t of Justice, No. 15-
5075, 2015 WL 6153951 (D.C. Cir. Oct. 6, 2015). On remand,
the district court concluded that Section 6 of the Treaty lacked
a “sufficiently objective standard by which to review” the
Attorney General’s transfer decisions, and, alternatively, that
the Attorney General had “clearly considered factors related to
[Sluss’s] best interests” under Section 6. Sluss v. U.S. Dep’t of
Justice, No. 14-cv-0759, 2016 WL 6833923, at *3 & n.2
(D.D.C. Nov. 18, 2016) (“Sluss II”).
Sluss appeals, and our review of the dismissal of his
complaint is de novo. De Csepel v. Republic of Hungary, 714
F.3d 591, 597 (D.C. Cir. 2013).
II.
Sluss has alleged the violation of his rights under Section
6 of the Treaty, which was duly signed by the President and
ratified by the Senate. See U.S. CONST. art. 2, § 2, cl. 2. Under
28 U.S.C. § 1331, “[t]he district courts shall have original
6
jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.”
The government maintains on appeal, however, that the
Treaty is not self-executing. Appellee Br. 13. While a self-
executing treaty “operates of itself without the aid of any
legislative provision,” and thus “automatically ha[s] effect as
domestic law,” Medellin v. Texas, 552 U.S. 491, 504–05
(2008), a non-self-executing treaty “can only be enforced
pursuant to legislation,” id. (citation omitted). Non-self-
executing treaties constitute “international law commitments,”
but are not themselves part of “binding federal law.” Id. at 504;
see Committee of U.S. Citizens Living in Nicaragua v. Reagan,
859 F.2d 929, 937, 942–43 (D.C. Cir. 1988). The
government’s view is that because the Treaty is not self-
executing, it is not part of binding federal law and therefore
cannot form the basis of Sluss’s claim. Rather, Sluss must rely
“exclusively” on the Transfer Act as “the source of domestic
law governing the treaty’s provisions,” which, the government
states, “commits international prisoner-transfer decisions to
agency discretion” and provides no law to apply. Appellee Br.
at 18–19 (quoting Bagguley, 953 F.2d at 662; 5 U.S.C.
§ 701(a)(2)).
The government did not raise the self-execution argument
in the district court. There it argued that the Treaty did not
provide a private right of action or a cognizable liberty interest
such that Sluss lacks standing under Article III of the
Constitution, and that the Treaty vested the Attorney General
with unbounded, judicially unreviewable discretion in
considering transfer requests. These arguments are distinct
from the question whether a treaty forms part of domestic
federal law. See Medellin, 552 U.S. at 506 n.3. The
government’s self-execution argument would ordinarily be
forfeit, see Lesesne v. Doe, 712 F.3d 584, 588 (D.C. Cir. 2013),
7
unless this court concludes that the question of a treaty’s self-
execution is a non-forfeitable jurisdictional issue. We
conclude it is not.
In determining whether self-execution presents a
jurisdictional issue, Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83 (1998), provides guidance. There
the Supreme Court observed that “[i]t is firmly established in
our cases that the absence of a valid (as opposed to arguable)
cause of action does not implicate subject-matter jurisdiction,
i.e., the courts’ statutory or constitutional power to adjudicate
the case.” Id. at 89. For instance, in Bell v. Hood, 327 U.S.
678, 682 (1946), the Court explained that “[j]urisdiction . . . is
not defeated . . . by the possibility that the averments might fail
to state a cause of action on which petitioners could actually
recover.” Rather, the district court has jurisdiction if “the right
of the petitioners to recover under their complaint will be
sustained if the Constitution and laws of the United States are
given one construction and will be defeated if they are given
another.” Id. at 685. In Oneida Indian Nation of N.Y. v. County
of Oneida, 414 U.S. 661, 666 (1974), the Court held that
dismissal for lack of subject matter jurisdiction because of the
inadequacy of the federal claim is proper only when the claim
is “so insubstantial, implausible, foreclosed by prior decisions
of this Court, or otherwise completely devoid of merit as not to
involve a federal controversy.” This court has likewise
appreciated the distinction between jurisdiction and cause of
action. For instance, in Doe v. Metro. Police Dep’t of D.C.,
445 F.3d 460, 466 (D.C. Cir. 2006), the court held the dismissal
for lack of subject matter jurisdiction of a complaint brought
pursuant to 42 U.S.C. § 1983 was error because “section 1983
itself provides the basis for federal question jurisdiction under
28 U.S.C. § 1331,” while the “failure to state a proper cause of
action calls for a judgment on the merits and not for a dismissal
8
for want of jurisdiction.” See also Apton v. Wilson, 506 F.2d
83, 95–96 & n.16 (D.C. Cir. 1974).
By analogy to the distinction between subject matter
jurisdiction and cause of action, we conclude that whether a
treaty is self-executing does not present a jurisdictional issue
regarding the court’s power to hear a case; rather, that inquiry
relates to whether the plaintiff has a cause of action. Our sister
circuits have reached a like conclusion. In Jogi v. Voges, 480
F.3d 822, 824–26 (7th Cir. 2007), the Seventh Circuit
confronted the question whether there was a remedy in a U.S.
court where the plaintiff alleged that officials failed to inform
him of his rights under the Vienna Convention on Consular
Relations. The district court dismissed the case. The Seventh
Circuit held that the court had subject matter jurisdiction under
28 U.S.C. § 1331, and further that the plaintiff had a remedy
under 42 U.S.C. § 1983, without reaching the question whether
the Vienna Convention provided a private remedy. “At
bottom, [the plaintiff] is complaining about police action, under
color of state law, that violates a right secured to him by a
federal law (here, a treaty).” Id. at 825. The court thus
distinguished the inquiry regarding the existence of a cause of
action from that of subject matter jurisdiction, confirming that
a claim arising under a treaty “is enough to support subject
matter jurisdiction unless the claim is so plainly insubstantial
that it does not engage the court’s power.” Id. By contrast, the
court treated the question of self-execution as one of several
non-jurisdictional “hurdles that must be overcome before an
individual may assert rights in a § 1983 case under a treaty.”
Id. at 827. The Third Circuit’s decision in Ogbudimpka v.
Ashcroft, 342 F.3d 207, 209 (3d Cir. 2003), is to the same
effect. The court held there was subject matter jurisdiction
under Section 1331 to hear a Section 1983 claim alleging
violations of the United Nations Convention Against Torture,
notwithstanding congressional legislation “purporting to cabin
9
[the U.N. Convention] as non-self-executing,” id. at 218 n.22
(citing Dreyfus v. Von Finck, 534 F.2d 24, 28, 30 (2d Cir.
1976)); the effect of the legislation, the court explained, is that
the treaty “does not provide a cause of action,” id.
Non-self-executing treaties are much like federal statutes
that do not supply a private cause of action. Although both are
enactments that create legal obligations, plaintiffs cannot bring
claims under either. As such, a helpful guide in assessing
whether self-execution is a jurisdictional issue may be whether
the existence of a cause of action is a jurisdictional issue. The
Supreme Court has repeatedly answered the latter question in
the negative, holding that “whether a federal statute creates a
claim for relief is not jurisdictional.” Northwest Airlines, Inc.
v. County of Kent, 510 U.S. 355, 365 (1994) (citing Air Courier
Conf. of Am. v. Am. Postal Workers Union, AFL-CIO, 498 U.S.
517, 523 & n.3 (1991); Burks v. Lasker, 441 U.S. 471, 476 &
n.5 (1979); Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429
U.S. 274, 278–79 (1977); Bell, 327 U.S. at 682). Other circuits
have drawn the same analogy between self-execution and the
existence of a cause of action, holding that because the latter is
not jurisdictional, neither is the former. See Ogbudimkpa, 342
F.3d at 218 n.22; Dreyfus, 534 F.2d at 28, 30.
The government’s self-execution argument on appeal,
therefore, does not relate to the court’s subject matter
jurisdiction, but rather to whether Sluss has a cause of action.
Because the question of self-execution is non-jurisdictional, the
court need not decide whether the Treaty is self-executing. The
court has jurisdiction under 28 U.S.C. § 1331, and the
government does not suggest Sluss’s claim “clearly appears to
be immaterial and made solely for the purpose of obtaining
jurisdiction or where such a claim is wholly insubstantial and
frivolous,” Steel Co., 523 U.S. at 89 (quoting Bell, 327 U.S. at
682–83), or that it is “so insubstantial, implausible, foreclosed
10
by prior decisions of this Court, or otherwise completely
devoid of merit as not to involve a federal controversy,” id.
(quoting Oneida Indian Nation, 414 U.S. at 666). For purposes
of this appeal, the court can treat the Treaty as forming part of
binding domestic law.
III.
Alternatively, even assuming, as the government
maintains, that the Treaty is not self-executing, the
government’s position that Sluss must rely “exclusively” on the
Transfer Act for his claim, Appellee Br. 18, misstates the
relationship between the Treaty and the Act.
As noted, the government raised its self-execution
argument for the first time on appeal and offers no explanation
as might normally excuse its forfeiture. See Lesesne, 712 F.3d
at 588 (citations omitted). But the court is confronted with
litigation that invokes an international agreement between the
United States and Canada. Traditionally, courts tread lightly in
matters involving foreign affairs, giving due consideration to
the government’s understanding of its related obligations. See,
e.g., Zivotofsky v. Clinton, 566 U.S. 189, 212–15 (2012)
(Breyer, J., dissenting) (collecting cases); Dames & Moore v.
Regan, 453 U.S. 654, 660–61 (1981); El-Shifa Pharm. Ind. Co.
v. United States, 607 F.3d 836, 842 (D.C. Cir. 2010). Before
addressing the merits of Sluss’s appeal, therefore, it behooves
the court to consider the government’s self-execution argument
in one limited respect.
In the government’s view, the significant consequence of
concluding the Treaty is non-self-executing is that Sluss must
rely “exclusively” on the Transfer Act as “the source of
domestic law governing the treaty’s provisions.” Appellee Br.
18–19. That conclusion misstates the relationship between the
11
Treaty and the Act. The Transfer Act is not in derogation of
the Treaty; to the contrary, it implements and incorporates the
Treaty, making its provisions (including the one on which Sluss
relies) part of domestic law. See Medellin, 552 U.S. at 505–06;
cf. Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 177–79
(1993).
The text of the Treaty indicates that certain action was
needed to carry out the Treaty, including designating an
“authority to perform the functions provided in this Treaty,”
and providing procedures to ensure “sentences pronounced by
the courts of” Canada are “give[n] legal effect” in the United
States. Treaty, art. III, §§ 1, 9; see also id. art. V. The Treaty’s
ratification history shows that the executive and legislative
branches expressly contemplated that implementing legislation
was necessary. S. REP. No. 95-435, at 9; id. at 14–15 (views of
Att’y Gen. Bell); H.R. REP. No. 95-720, at 1, 25–26; id. at 8
(letter of Sec’y Vance); id. at 48 (statement of Dep. Att’y Gen.
Peter F. Flaherty); id. at 54 (statement of Dep. Sec’y of State
Warren Christopher); S. REP. No. 95-10, at 18 (executive
report). Indeed, the Senate, by Resolution, gave its advice and
consent to the Treaty subject to the declaration that the United
States “will not deposit its instrument of ratification until after
the implementing legislation referred to in [a]rticle III has been
enacted.” S. REP. No. 95-10, at 18 (executive report); see H.R.
REP. No. 95-720, at 48 (Flaherty statement); id. at 53
(Christopher statement).
The Transfer Act takes an omnibus approach to prisoner
transfers, providing procedures to implement this Treaty and a
similar prisoner-transfer treaty with Mexico, as well as future
prisoner-transfer agreements with other countries. See S. REP.
No. 95-435, at 9; id. at 14–15 (views of Att’y Gen. Bell); H.R.
REP. No. 95-720, at 1, 26; id. at 48 (Flaherty statement). It is
“applicable only when a treaty providing for such transfer is in
12
force.” 18 U.S.C. § 4100(a). It designates the Attorney
General as the “author[ity]” to “act on behalf of the United
States as the authority referred to in a treaty,” id. § 4102(1), and
authorizes the Attorney General to transfer and receive
offenders and to issue implementing regulations, id.
§ 4102(2)–(4). It further sets forth the procedures by which
offenders shall be received into custody and transferred to the
authority of the other party to the treaty. For example, the
Transfer Act addresses transfer of juveniles and offenders on
probation and parole, id. §§ 4104, 4106, 4106A, 4110; the
length of sentence and conditions of confinement, id. § 4105;
verification of prisoner consent to transfer, id. §§ 4107–4109;
and bars transfer while a direct appeal or collateral attack is
pending, id. § 4100(c).
The Transfer Act does not, however, “provide substantive
guidelines by which the Attorney General should exercise his
discretion” in consideration of transfer applications. Scalise v.
Thornburgh, 891 F.2d 640, 645 (7th Cir. 1989) (emphasis
added). Rather, the text and legislative history of the Transfer
Act confirm that in considering a transfer application, the
Attorney General must look for substantive direction to the
Treaty itself. See 18 U.S.C. § 4100(a); Treaty, art. III, § 1.
Turning to the substantive standard the Treaty sets forth, the
question is whether the application of that standard is
committed to the discretion of the Attorney General or instead
is subject to judicial review.
IV.
Sluss filed his complaint under the APA, which provides
that “a person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof,” 5 U.S.C. § 702, unless the challenged “agency action
13
is committed to agency discretion by law,” id. § 701(a)(2). The
question thus becomes whether Section 6 of the Treaty on
which Sluss relies provides “law to apply” that provides a
“judicially manageable” standard. Heckler v. Chaney, 470
U.S. 821, 828–30 (1985); Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 410 (1970). The district court
acknowledged Section 6’s use of the word “shall” and its
directive to “bear in mind” the prisoner’s “best interests,” but
concluded they indicated neither “what these factors are or how
much weight they should be given,” nor that the Attorney
General was precluded from considering unrelated factors.
Sluss II, 2016 WL 6833923, at *3. Absent a “cabin[ing]” of
the Attorney General’s discretion “in any meaningful way,” the
district court ruled that transfer decisions under the Treaty are
not subject to judicial review. Id.
The framework for deciding whether there is law to apply
is explained in Mach Mining, LLC v. EEOC, 135 S. Ct. 1645
(2015). That case involved the requirement in Title VII that
the Equal Employment Opportunity Commission (“EEOC”)
“shall endeavor to eliminate [the] alleged unlawful
employment practice by informal methods of conference,
conciliation, and persuasion” before deciding whether to bring
an enforcement action. 42 U.S.C. § 2000e-5(b) (emphasis
added). After investigating a complaint of sex discrimination
in hiring, the EEOC engaged in conciliation, ultimately
concluded that “‘such conciliation efforts as are required by
law have occurred and have been unsuccessful’ and that any
further efforts would be ‘futile,’” and brought an action in
federal court against the employer. Mach Mining, 135 S. Ct. at
1650. The Supreme Court held that the EEOC’s effort at
conciliation under Section 2000e-5(b) was judicially
reviewable. Despite Congress’s decision to vest “the EEOC
with wide latitude over the conciliation process,” the Court
observed that “Congress has not left everything to the
14
Commission.” Id. at 1652 (emphasis in original). Had the
EEOC declined to make any attempt at conciliation and instead
taken the employer straight to court, Title VII would provide a
“perfectly serviceable standard for judicial review: Without
any ‘endeavor’ at all, the EEOC would have failed to satisfy a
necessary condition of litigation.” Id. The Court further
concluded that Title VII provided “concrete standards
pertaining to what that endeavor must entail,” such as
“communication between the parties, including the exchange
of information and views.” Id. Because “legal lapses and
violations occur, and especially so when they have no
consequence,” the Court noted that it “has so long applied a
strong presumption favoring judicial review of administrative
action.” Id. at 1652–53.
By parity of reasoning, there is sufficient law to apply
under Section 6 of the Treaty. “The interpretation of a treaty,
like the interpretation of a statute, begins with its text.”
Medellin, 552 U.S. at 506–07. Section 6 includes the
mandatory, not precatory, “shall” as it is followed by a
directive to “bear in mind” the factors relating to the prisoner’s
“best interests.” “Courts routinely enforce . . . compulsory
[directives].” Mach Mining, 135 S. Ct. at 1651. Although the
directive in Section 6 may vest the Attorney General with
“wide latitude” over prisoner transfers, the Treaty “has not left
everything to the [Attorney General].” Id. at 1652 (emphasis
in original). Section 6 requires that “the authority of each Party
shall bear in mind” the “best interests of the Offender,” and just
as words in a statute are understood in their context, see
Holloway v. United States, 526 U.S. 1, 7 (1999) (citations
omitted), the directive is properly understood in the context of
at least the Treaty’s purpose of prisoner rehabilitation. See
infra Part V. That is, the Attorney General must consider “all
factors” relating to the prisoner’s “best interests,” and in doing
so consider how those interests dovetail with the Treaty’s
15
rehabilitative purpose. Such “concrete standards” are
sufficient to apprise a court of what the Attorney General’s
“endeavor must entail.” Mach Mining, 135 S. Ct. at 1652. The
Treaty thus differs from that addressed in Bagguley, which this
court concluded “provides no criteria to govern the sentencing
state’s decision,” 953 F.2d at 662 n.2, and so precluded judicial
review.
Still, although there is some “law to apply,” the scope of
judicial review is narrow. Again Mach Mining provides
guidance. There, the Supreme Court concluded that judicial
review of the EEOC’s effort at conciliation was a “barebones
review,” confined to the terms of the conciliation provision,
that “allows the EEOC to exercise all the expansive discretion
Title VII gives it to decide how to conduct conciliation efforts
and when to end them.” 135 S. Ct. at 1655–56. Here, then, the
court’s review is appropriately limited to ensuring that the
Attorney General addressed the terms of Section 6, while
allowing the exercise of broad discretion in determining
whether to approve a transfer application. Section 6’s
“probab[ilistic]” inquiry — “bear in mind all factors bearing
upon the probability that transfer will be in the best interests of
the Offender” — underscores the narrow nature of review, for
Congress has determined that judgment is properly left to the
Attorney General. 18 U.S.C. § 4102(1). This court has
acknowledged that “a broad grant of discretionary authority is
particularly appropriate to prison transfer decisions, depending
as they do on a variety of considerations,” both domestic and
international. Bagguley, 953 F.2d at 662. The Attorney
General must consider the prisoner’s “best interests” in
determining whether to approve a transfer application, but
contrary to Sluss’s view, see Appellant Br. 9, Section 6 does
not limit consideration only to those interests. Nor does the
court’s review reach the correctness of the Attorney General’s
16
assessment of the factors considered or of the ultimate decision
whether to transfer.
V.
In denying Sluss’s transfer application, the Attorney
General explained that, “[a]fter considering all of the
appropriate factors . . . , the United States has denied the
request to transfer to Canada . . . because of the seriousness of
the offense, because the applicant has become a domiciliary of
the United States, because the prisoner is a poor candidate due
to his criminal history[,] and because the prisoner has
insufficient contacts with the receiving country.” Letter, Paula
A. Wolf, Chief, Int’l Prisoner Transfer Unit, Crim. Div., U.S.
Dep’t of Justice (hereinafter “Wolf”), to Chris Hill, Instit’l
Reintegration Ops., Corr’l Serv., Canada (Mar. 5, 2014).
Further explanation was provided in denying Sluss’s request
for reconsideration. Pointing to one of the Treaty’s purposes
— “to relieve the special hardships faced by prisoners who are
incarcerated in a foreign country far from their family and
friends, [including] cultural differences and difficulty in
maintaining contact with family in the home country, and
difficulty in speaking a foreign language in prison” — the
Attorney General advised that such hardships are “inapplicable
to an inmate [such as Sluss] who has resided in the United
States for a lengthy period of time with the intention to remain
in this country, and whose immediate family members are
living here.” Wolf Letter to Matthew Sluss (Aug. 12, 2014).
Sluss contends that a transfer to a Canadian prison would
be in his “best interests”: He would receive a reduced term of
imprisonment and a greater monetary allowance. See Compl.
at 23; Letter from Corinne Vitozzi, Senior Analyst, Intern’l
Transfers Unit, Corr. Serv., Canada, to Matthew Sluss (Dec.
21, 2015). His interpretation seeks to limit the Attorney
17
General’s discretion without regard to the Treaty’s purposes.
See supra Part I. Neither the text of Section 6 nor the
ratification history of the Treaty supports Sluss’s interpretation
that his personal interests are dispositive. Viewed in light of
the Treaty’s rehabilitative purpose, the Attorney General
properly considered factors such as Sluss’s long-term U.S.
domicile, the U.S. residency of his family, his insubstantial
contacts with Canada, and the absence of language, cultural, or
familial hardships. Sluss’s reference to a shorter sentence and
greater monetary allowance in Canada may be in his “best
interests” personally, but the Attorney General concluded those
factors are neither determinative nor necessarily significant
even if relevant to the rehabilitative purpose of the Treaty.
Finally, Sluss seeks to supplement the record before this
court with pre-decisional documents on his transfer request,
recently obtained pursuant to the Freedom of Information Act
in redacted form. Sluss does not suggest that the Attorney
General failed to consider his “entire” record. See, e.g., H.R.
REP. No. 95-720, at 7 (letter of Sec’y Vance); S. REP. No. 95-
435, at 14 (views of Att’y Gen. Bell). Rather, Sluss argues that
the district court needed to review the entire administrative
record. But he overlooks the limited scope of judicial review.
The pre-decisional documents presented by Sluss confirm,
even though heavily redacted, that the Attorney General
considered factors relating to Sluss’s “best interests” in light of
the rehabilitative purpose of the Treaty, namely, his offense
summary, criminal history, and the nature and extent of his and
his family’s contacts with Canada and the United States. The
Attorney General could properly rely on the Justice
Department’s records and the record Sluss presented with his
application for transfer. Under the circumstances, there is no
need to supplement the record.
18
Accordingly, we affirm the order dismissing the
complaint.