                                   UNITED STATES DISTRICT COURT
                                   FOR THE DISTRICT OF COLUMBIA

 MATTHEW SLUSS,

                        Petitioner,

                        v.                           Case No. 14-cv-0759 (CRC)

 UNITED STATES DEPARTMENT OF
 JUSTICE,

                        Respondent.

                                      MEMORANDUM OPINION

       A citizen of one country who is convicted of a crime and sentenced to prison in another

country may be eligible to serve the sentence in his home country. These international prisoner

transfers are governed by treaties and their associated implementing statutes. The United States is a

signatory to the Convention on the Transfer of Sentenced Persons (“the Convention”), March 21,

1983, 22 I.L.M. 530, a multilateral treaty that has been ratified by twelve nations, including (as

relevant here) Canada. Apart from the Convention, the United States has also entered into a series

of bilateral treaties regarding the transfer of prisoners between it and particular countries. The

United States and Canada executed one such treaty in 1977. Treaty between the United States of

America and Canada on the Execution of Penal Sentences (the “U.S.-Canada Treaty” or the

“Treaty”), March 2, 1977, 30 U.S.T. 6263. Our domestic implementing statute—the Transfer of

Offenders to and from Foreign Countries Act, 18 U.S.C. § 4100 et seq.—authorizes the Attorney

General to issue regulations governing inmate transfers under all of these various treaties, id.

§ 4102. Under that statute, the Attorney General has delegated oversight of prisoner transfer

requests to the Department of Justice’s International Prisoner Transfer Unit. Id.

       Matthew Sluss, a citizen of both the United States and Canada, is serving a lengthy sentence

at the Federal Correctional Institution in Petersburg, Virginia resulting from his 2012 conviction for
advertising child pornography. See Sluss v. U.S. Citizenship and Immig. Servs., 899 F. Supp. 2d

37, 42 n.2 (D.D.C. 2012). Mr. Sluss brings this action to challenge DOJ’s denial of his request to

serve the remainder of his sentence in Canada. 1 In an earlier ruling dismissing Sluss’s complaint,

the Court found that DOJ’s decision was not judicially reviewable because both the Convention and

its implementing statute vest the Attorney General with “unfettered discretion to grant or deny the

requested transfer.” Sluss v. U.S. Dep’t of Justice, 78 F. Supp. 3d 61, 63 (D.D.C. 2015) (citing

Bagguley v. Bush, 953 F.2d 660, 662 (D.C. Cir. 1991)). After Sluss appealed that ruling, the D.C.

Circuit remanded the case for consideration of whether Sluss is entitled to relief under the U.S.-

Canada Treaty, which the Court had neglected to address in its opinion. Mar. 23, 2016 D.C. Cir.

Order, ECF No. 38. Having now considered that issue, the Court finds that the Attorney General’s

discretion to grant or deny prisoner transfer requests is likewise unreviewable under the U.S.-

Canada Treaty. The Court will therefore again dismiss Sluss’s complaint for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6).

        I.     Background

       As noted above, the U.S. and Canada entered a bilateral prisoner transfer treaty in 1977.

The Treaty “enable[s] Offenders, with their consent, to serve sentences of imprisonment or parole

or supervision in the country of which they are citizens, thereby facilitating their successful




       1
          Sluss originally styled this action as a Motion for a Writ of Habeas Corpus under
28 U.S.C. § 2241. However, he only sought relief under the APA. And, in any event, the Court
would lack jurisdiction over Sluss’s habeas petition because it does not have personal jurisdiction
over the warden of the federal prison in Virginia where he is being held. See Stokes v. U.S. Parole
Comm’n, 374 F.3d 1235, 1239 (D.C. Cir. 2004) (prohibiting district courts from exercising
jurisdiction over habeas petitions involving the physical custody of a petitioner when the warden is
not within the court’s geographical jurisdiction). The Court therefore previously characterized the
action as a civil complaint and instructed Sluss to comply with the corresponding filing
requirements. See May 14, 2014 Order, ECF No. 4; see also Sluss v. U.S. Dep’t of Justice, 78 F.
Supp. 3d 61, 63, 65 n.3 (D.D.C. 2015).

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reintegration into society.” 30 U.S.T. 6263. A prisoner may request a transfer under the Treaty by

submitting a written application to the authority of the sending state. If the sending state approves

the request, it sends the application along with its approval to the authority of the receiving state.

Id. at art. III § 3. In deciding whether to approve a request, the Treaty counsels that the determining

authority “shall bear in mind all factors bearing upon the probability that transfer will be in the best

interests of the Offender.” Id. at art. III § 6. Congress enacted the Transfer of Offenders to and

from Foreign Countries Act (the “Act”) to implement the United States’ obligations under a range

of international inmate transfer treaties, including the U.S.-Canada Treaty. The Act vests the

Attorney General with the authority to deny or grant these requests for prisoners held in the United

States and U.S. citizens held abroad. Notably, “the Act does not contain any limits on the exercise

of the Attorney General’s discretion.” Wirsz v. Sugrue, 2010 WL 3957500, at *2 (E.D.C.A. 2010).

       In July 2013, Sluss submitted a transfer request to his prison case manager, asking to serve

out the remainder of his sentence in Canada pursuant to the U.S.-Canada Treaty. Mot. for Writ of

Habeas Corpus. DOJ’s International Prisoner Transfer Unit denied that request in March 2014. In

a letter to Sluss, DOJ indicated that it was denying his request “because of the seriousness of the

offense, because Applicant has become a domiciliary of the United States, because Applicant is a

poor candidate due to his criminal history and because Applicant has insufficient contacts with the

receiving country.” Pet’r’s Opp’n Resp’t Suppl. Br. Supp. Dismissal (“Pet’r’s Opp’n”) ¶ 3.

       Sluss challenges the denial of his transfer request as arbitrary and capricious under the

Administrative Procedure Act and seeks a writ of mandamus, under 28 U.S.C. § 1361, to compel

DOJ to reconsider the request. Pet’r’s Opp’n 4–5. The government initially moved to dismiss, but

focused its arguments on the relief available to Sluss under the Convention rather than the U.S.-

Canada Treaty. Relying on clearly controlling D.C. Circuit precedent that transfer decisions under

the Convention and the Act are “committed to agency discretion by law . . . [and] therefore, not

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reviewable [under the APA,]” Bagguley, 953 F.2d at 662, the Court granted DOJ’s motion to

dismiss on the grounds that Sluss had failed to state a claim. The D.C. Circuit remanded with

instructions to address specifically whether Sluss is entitled to relief under the U.S.-Canada Treaty.

The government now renews its motion to dismiss, arguing that Sluss also fails to state a claim

under the U.S.-Canada Treaty.

        II.     Standard of Review

        Dismissal is warranted if the allegations in Sluss’ petition do not “contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In

order to survive DOJ’s motion to dismiss, Sluss must have alleged facts that would entitle him to

the requested relief. See Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir.2003). Although the

Court must accept the facts pled as true, legal allegations devoid of factual support are not entitled

to this assumption. See Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

        III.    Analysis

        Under the APA, “a person suffering legal wrong because of agency action . . . is entitled to

judicial review” unless the challenged agency action “is committed to agency discretion by law.”

5 U.S.C. §§ 701(a)–702. An action has been committed to agency discretion by law, and is

therefore unreviewable, if there is “no meaningful standard against which to judge the agency’s

exercise of discretion.” Starr Int’l Co., Inc. v. U.S., 139 F. Supp. 3d 214, 224 (D.D.C. 2015)

(internal quotation marks omitted) (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). The

party seeking to preclude judicial review must show by clear and convincing evidence that no

meaningful standard exists. Starr Int’l, 139 F. Supp. 3d at 225. When deciding that issue, a court

“consider[s] both the nature of the administrative action at issue and the language and structure of

the statute that supplies the applicable legal standards for reviewing that action.” Sierra Club v.

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Jackson, 648 F.3d 848, 855 (D.C. Cir. 2011) (internal quotation marks omitted) (quoting Sec’y of

Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir. 2006)). This approach applies equally

to treaties. See Starr Int’l, 139 F. Supp. 3d at 226.

       While the D.C. Circuit has not yet had an occasion to consider the reviewability of DOJ’s

actions pursuant to the U.S.-Canada Treaty, it has confronted transfer decisions under the

Convention—a substantially similar treaty implemented by the same Act. See Bagguley, 953 F.2d

at 662. In Bagguley, the D.C. Circuit joined the Seventh Circuit in holding that the Convention and

Act together “give the Attorney General unfettered discretion with respect to transfer decisions . . .

[and] [s]uch decisions are, therefore, not reviewable according to 5 U.S.C. § 701(a)(2).” 953 F.2d

at 662 (citing Scalise v. Thornburgh, 891 F.2d 640, 648–49 (7th Cir. 1989)). In light of the D.C.

Circuit’s remand instructions, the Court’s primary task is to determine if the U.S.-Canada Treaty,

unlike the Convention, provides any meaningful standards by which to judge the exercise of DOJ’s

discretion in denying a transfer request. The Court joins several of its colleagues in finding that

transfer decisions under the Treaty are not subject to judicial review. See, e.g., Coleman v. Reno,

91 F. Supp. 2d 130, 132 (D.D.C. 2000) (dismissing petitioner’s challenge to DOJ’s denial of his

transfer request under the U.S.-Canada Treaty because it is unreviewable under the APA); see also

Toor v. Holder, 717 F. Supp. 2d. 100, 109 n.4 (D.D.C. 2010) (holding that a transfer decision under

the Convention is not judicially reviewable and stating that the “substantive similarity of the

[Convention and the U.S.-Canada Treaty] makes it unnecessary to analyze both.”); Marshall v.

Reno, 915 F. Supp. 426 (D.D.C. 1996) (dismissing a Bivens action in part because the transfer

process under the U.S.-Canada Treaty is discretionary).

       Although the U.S-Canada Treaty provides somewhat more guidance to the Attorney General

than either the Convention or Act, it still does not supply a sufficiently objective standard by which

to review DOJ’s actions. Sluss can only point to the following treaty provision—not found in the

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Convention—as creating a meaningful standard: “[i]n 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.” Art. III § 6, 30 U.S.T. 6263. The directive “shall,”

Sluss asserts, requires DOJ to only consider factors related to the prisoner’s best interest and limits

its discretion to deny a request if it were to find that a transfer would be in the prisoner’s best

interest. Pet’r’s Opp’n ¶¶ 6–7, 11–12. But while “shall” is usually interpreted as “the language of

command,” it cannot be viewed in isolation from its surrounding language. See Sierra Club, 648

F.3d at 856. Here, the term only requires DOJ to bear in mind, i.e. consider, factors that affect

whether a transfer would be in the applicant’s best interest. The provision does not instruct DOJ on

what these factors are or how much weight they should be given. Nor does it exclude DOJ from

considering any factors unrelated to the best interests of the applicant, such as criminal history or

seriousness of offense. As a result, the U.S.-Canada Treaty, like the Convention, fails to cabin the

Attorney General’s discretion in any meaningful way. 2

       The Court must also consider “the nature of the administrative action.” Sierra Club, 648

F.3d at 855. To that end, the D.C. Circuit has recognized that “a broad grant of discretionary

authority is particularly appropriate to prison transfer decisions, depending as they do on a variety

of considerations.” Bagguley, 953 F.2d at 662; see also Marquez-Ramos v. Reno, 69 F.3d 477, 480

(10th Cir. 1995) (“[T]he particular context in which transfer decisions are made cannot be ignored;

such determination have international and political ramifications that cannot be relegated to mere

ministerial actions.”). Taking into account both the Treaty text and the nature of inmate transfer



       2
         Even assuming arguendo that this scant provision provides enough of a meaningful
standard for judicial review, Sluss still cannot show that DOJ abused its discretion in denying his
request because it clearly considered factors related to his best interests, like Sluss’s residency in
the U.S. and his “insufficient contacts with [Canada].” See Resp’t’s Reply 4–5 (citing March 5,
2014 Denial of Request to Transfer Letter).

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decisions, the Court concludes that the denial of Sluss’s transfer request is not judicially reviewable,

and his claim under the APA must therefore be dismissed. And because DOJ’s decision to deny

Sluss’s transfer request is discretionary, a writ of mandamus is similarly unavailable to him. See

Cox v. Sec’y of Labor, 739 F. Supp. 28, 30 (D.D.C. 1990) (“[I]t is well-settled that a writ of

mandamus is not available to compel discretionary acts.”) (citing Dunlop v. Bachowski, 421 U.S.

560 (1974)).

        IV.    Conclusion

        For the foregoing reasons, Respondent’s motion to dismiss under Rule 12(b)(6) for failure to

state a claim shall be granted. A separate Order accompanies this Memorandum Opinion.




                                                              CHRISTOPHER R. COOPER
                                                              United States District Judge

Date:    November 18, 2016




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