                                                                              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                           NOT FOR PUBLICATION                                AUG 12 2013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


                                          2
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




                                          3
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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