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).
2 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
3 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.
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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).
2 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
3 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.
4 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
5 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).
6 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