The opinion of the court was delivered by: Robertson, District Judge.
Plaintiff, a dual citizen of the United States and Canada*fn1
presently incarcerated in a Canadian prison, has filed a
complaint pro se seeking an order directing the Defendant
Attorney General to accept custody of him and to allow his return
to this country pursuant to the Treaty Between the United States
of America and Canada on the Execution of Penal Sentences, 30 UST
6263, T.I.A.S. 9552 (1977) (hereinafter, "Treaty"), and
18 U.S.C. § 4102(2). He also seeks monetary damages. [Dkt. #1]. The
Defendant has filed a motion to dismiss, Plaintiff has filed an
opposition, and the Defendant has submitted a reply. On
consideration of the memoranda of the parties, the files and
records in this case, and the applicable law, the Defendant's
motion will be granted.
Plaintiff alleges that he is serving a life sentence imposed by
a Canadian court in 1988, for two counts of second degree murder,
and is ineligible for parole for twenty years (Cpt. ¶¶ 8, 9). In
1994, he applied for transfer to the United States under Article
III of the Treaty between the United States and Canada on the
Execution of Penal Sentences ("Treaty") (Cpt. ¶ 10). His
application was approved by the Solicitor General of Canada
(Cpt. ¶ 11). The Defendant Attorney General, however, refused to
approve the transfer (Cpt. ¶¶ 12, 13). After an inquiry by a
Senator from Georgia, the Attorney General gave as reasons for
the denial the apparent weakness of Plaintiff's ties to the
United States, the seriousness of the offenses, and his apparent
lack of rehabilitative potential (Cpt. ¶¶ 14, 15). Plaintiff
challenges factual bases of these reasons (Cpt. ¶¶ 16-19) and
seeks an order directing the Attorney General to approve his
In Bagguley v. Bush, 953 F.2d 660 (D.C.Cir. 1991), cert.
denied, 503 U.S. 995, 112 S.Ct. 1698, 118 L.Ed.2d 408 (1992),
the Court of Appeals for this Circuit held that the Convention on
the Transfer of Sentenced Persons, ratified by the United States
and the United Kingdom, and the Transfer of Offenders to and from
Foreign Countries Act, 18 U.S.C. § 4100 et seq., do not provide
a private right of action for a prisoner seeking consent of the
Attorney General to a transfer. Moreover, the Court held, Section
4102(4) authorizes but does not require the Attorney General to
issue regulations for the exercise of her discretion in ruling on
transfer requests. Because neither the Convention nor the Act
describe any "particularized standards or criteria" for the
exercise of this discretion, there are no substantive limits on
its exercise. Bagguley, 953 F.2d at 663, citing Olim v.
Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 75 L.Ed.2d 813
(1983). Moreover, the Court held, because the decision to approve
or disapprove transfer is committed to the discretion of the
Attorney General, her decision is not subject to review under the
Administrative Procedure Act. 5 U.S.C. § 701(a)(2).
In reaching these conclusions, the Court followed the prior
decision of the Court of Appeals for the Seventh Circuit in
Scalise v. Thornburgh, 891 F.2d 640 (7th Cir. 1989), cert.
denied, 494 U.S. 1083, 110 S.Ct. 1815, 108 L.Ed.2d 945 (1990).
Analogous decisions have been reached by the Court of Appeals for
the Tenth Circuit in Marquez-Ramos v. Reno, 69 F.3d 477 (10th
Cir. 1995), where a Mexican national in U.S. custody sought
transfer to Mexican prison, and by another judge of this Court
in, Brancaccio v. Reno, 964 F. Supp. 1 (D.D.C. 1997), where a
Canadian citizen in U.S. custody sought to be returned to Canada
to serve his sentence. Finally, in Marshall v. Reno,
915 F. Supp. 426 (D.D.C. 1996), the Court rejected a
post-incarceration civil damage suit filed by a Canadian citizen
who had been refused transfer to Canada to serve his U.S.
sentence. In all of these cases, the Attorney General was held to
have unfettered discretion to approve or disapprove transfers.
The principles remain the same, although different treaties were
involved in some of these decisions.
Plaintiff attempts to distinguish Bagguley, Scalise, and
Marquez-Ramos on their facts, arguing that the prisoners in
those cases were not "model" prisoners, had not used their
incarceration constructively, or did not meet the requirements
for transfer set out in the particular treaty. These arguments,
and Plaintiff's discussion of the factors favoring his transfer,
go to the merits of the Attorney General's decision to refuse to
accept him. The merits of that decision, however, are not subject
to review by this Court. It follows, therefore, that Plaintiff
cannot recover damages because the discretion was exercised to
refuse his request for transfer. Marshall v. Reno, supra.
Accordingly, the Court concludes that Plaintiff's complaint
fails to state a claim on ...