Appeal from an order of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, preliminarily enjoining appellants from removing members of appellees' class from participation in New York's temporary release program. Affirmed as modified.
Before: OAKES and VAN GRAAFELLAND, Circuit Judges, and BARTELS, district Judge.*fn*
This appeal is from an order of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, granting appellees' motion for a preliminary injunction and ordering reinstatement of members of the plaintiff class*fn1 in the temporary release program instituted by the New York State correctional system in 1969,*fn2 Tracy v. Salamack, 440 F. Supp. 930 (S.D.N.Y. 1977) (mem.), and delineating the circumstances under which removal would be proper after a Due Process hearing. Tracy v. Salamack, No. 77 Civ. 3937 (S.D.N.Y., dated Nov. 7, 1977).
Under the statutory scheme in effect before September 1, 1977, any inmate within one year of eligibility for parole could apply for participation in the program.*fn3 Each of the 140 original members of the plaintiff class had received approval to participate in the program prior to August, 1977, and many were already doing so. The underlying statute was amended in July, 1977, effective September 1, 1977, (a) to provide that no person otherwise eligible*fn4 who is under sentence for certain violent crimes*fn5 may participate in the program "without the written approval of the commissioner," and (b) to require the commissioner to "promulgate regulations" for the guidance of temporary release committees at each institution in effectuating the statutory mandate.*fn6 No such regulations were formulated. Nonetheless, in August, 1977, the Department of Correctional Services conducted a four-step screening process*fn7 of the 824 temporary release participants, resulting in removal of the 140 original members of appellees' class.*fn8 The inmates then brought this civil rights action and moved for a preliminary injunction requiring the Department to reinstate them and to grantthem hearings before future changes in their status could be made.
Judge Lasker concluded that the Due Process Clause protects appellees against removal from the program without a prior hearing. He first found that appellees had suffered a "grievous loss" of a liberty interest by analogizing temporary release to other release programs which have been held to merit Due Process protection.*fn9 Tracy v. Salamack, supra, 440 F. Supp. at 933-34. Relying on these precedents, see note 9 supra, the statute, prior official policy and practice in administering the program, and the wording of the form agreement signed by all participants, the district court further held that appellees had an "entitlement" in the temporary release program.*fn10 Id. at 934-36.
Thus far, we agree with Judge Lasker's findings of fact and conclusions of law. We also agree that a preliminary injunction to maintain the status quo of appellees' eligibility and participation was warranted. However, we cannot agree with the constraints which the district court imposed on the Department's authority to revoke these participation rights.
Judge Lasker held that "because plaintiffs' entitlement... came into existence only after a security check at the time each plaintiff was originally admitted to the program," Tracy v. Salamack, supra, No. 77 Civ. 3937, at 1,
none of the members of the plaintiff class may be removed from the temporary release program on allegations that their participation would constitute a threat to the security of the community except upon a showing, in accordance with due process, that a change of facts has occurred since the original determination permitting the inmate's participation, or the discovery by the defendants of new relevant facts which, although they existed at the time of the original decision, were unknown to the defendants through no fault of their own and through no lack of reasonable diligence on their part. As to any inmate alleged to be a security risk under such circumstances, he shall be restored to the temporary release program unless within twenty days from the filing of this order the charges against him ar heard and determined in accordance with the requirements for hearings at correctional institutions set forth in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974).
We think this order goes too far by in effect prohibiting the State from changing its law regarding the eligibility of inmates already participating in the program.*fn11 An "entitlement" rooted in state law may well require an individualized procedural due process hearing before it may be revoked. It does not, however, have the substantive effect of prohibiting alteration of the underlying law which creates the entitlement. See generally Tribe, Structural Due Process, 10 Harv. C.R.-C.L. L. Rev. 269, 270-83, 301-08 (1975). We believe that a Due Process hearing is required before inmates already participating in or approved for the program may be removed. But the formula adopted by the district court - authorizing revocation of participation rights only when based on additional new facts or previously unknown facts indicating a threat to the community - is too rigid. Due Process requires a reevaluation by the commissioner of each participating inmate's eligibility in the light of the threat that the inmate presents to the security of the community, N.Y. Correc. Law § 855(4) (McKinney Supp. 1977-78), taking into account his eligibility for parole, his past institutional record, the particular circumstances underlying the violent offense for which he is under sentence, and his previous temporary release record. There is, as we read the statute, no blanket requirement that the commissioner disapprove an otherwise eligible participant because he is serving for one of the specified offenses;*fn12 otherwise, the phrase "without the written approval of the commissioner" would be meaningless. What is required is the commissioner's independent, good faith evaluation*fn13 - a reviewable exercise of discretion - to take place following a Morrissey v. Brewer*fn14 Due Process hearing which must be accompanied by a written statement of reasons under Wolff v. McDonnell, 418 U.S. 539, 564-65, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), and United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925, 926, 928-34 (2d Cir.), vacated and remanded as moot sub nom. Regan v. Johnson, 419 U.S. 1015, 42 L. Ed. 2d 289, 95 S. Ct. 488 (1974). See Williams v. Ward, 556 F.2d 1143, 1158-59 (2d Cir. 1977); Friendly, " Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1292 (1975).
Thus, we modify the preliminary injunction to read as set forth in the margin,*fn15 and as so ...