Appeal from the United States District Court for the Southern District of Illinois, Benton Division, Nos. 84 C 4203 and 84 C 4387, Kenneth J. Meyers, Magistrate.
Before CUMMINGS and CUDAHY, Circuit Judges, and MAROVITZ, Senior District Judge.*fn*
Petitioner Henry B. Johnson ("Johnson") has been in prison for the past 18 years and is currently incarcerated at the United States Penitentiary at Marion, Illinois ("Marion), serving ten sentences, aggregating a total of 13 years to life plus 13 years imprisonment. The first three sentences were imposed by the United States District Court for the District of Columbia on June 20, 1969, for his convictions under the District of Columbia Code ("D.C. Code") for armed robbery and assault with a deadly weapon. Between 1971 and 1979 Johnson was sentenced to additional terms of confinement by the Superior Court of the District of Columbia for other violations of the D.C. Code and by various federal district courts apparently for violations of federal law. In 1973 he was transferred for disciplinary reasons from the Lorton, Virginia, Reformatory ("Lorton"), operated by the District of Columbia, to the federal prison system. He was provided a parole hearing before the United States Parole Commission ("U.S. Commission") and parole was denied on April 29, 1983, because of his having "exhibited a continual pattern of assaultive behavior." Petitioner's App. 5, at 2. Pursuant to federal parole guidelines, and at the heart of the dispute embodied in Johnson's habeas petitioners here, the U.S. Commission set Johnson's next full parole hearing for December 1992, which will be a 10-year reconsideration hearing, and set a statutory interim hearing, which is significantly more limited in scope, for December 1984. Id. at 1-2.
In 1984 Johnson, acting pro se, filed two habeas corpus petitions under 28 U.S.C. § 2241 that challenged the authority of the U.S. Commission to decide his suitability for release on parole under federal parole laws and regulations. In the first action, he named as respondents Jerry Williford, Warden of Marion, and former Attorney General William French Smith. While this first suit was pending, Drakeford v. United States Parole Commission, 83 C 4210 (S.D. Ill. May 24, 1984), opinion amended (S.D. Ill. July 15, 1984), vacated and dismissed as moot by unpublished order, Nos. 84-2295 and 84-2340 (7th Cir. Aug. 27, 1986), was decided. Drakeford held that a prisoner convicted in a District of Columbia Superior Court for violations of the D.C. Code had to have his suitability for release on parole determined by the District of Columbia Board of Parole ("D.C. Board"), but that the U.S. Commission could conduct an in-person, on-the-record "courtesy" hearing and send the record to the D.C. Board, as was the practice with state prisoners housed at Marion. After learning of the decision in Drakeford and prior to a ruling in his first action, Johnson filed a second pro se habeas petition raising more precisely the issues discussed in Drakeford and naming the U.S. Commission as respondent.
On August 31, 1984, Magistrate Kenneth J. Meyers issued an order in Johnson's first habeas petition. On the basis of his previous decision in Drakeford, he granted that part of the petition which challenged the U.S. Commission's authority to decide Johnson's parole suitability, but he stayed enforcement of the decision pending disposition of the Drakeford appeal. Johnson appealed that stay. In October 1984 a hearing was held on the second habeas petition and Magistrate Meyers added Warden Williford as a respondent. On January 9, 1985, Magistrate Meyers denied the second petition because he decided that his earlier decision in Drakeford was distinguishable from Johnson's case. See infra note 1. Johnson again took an appeal. On Johnson's motion, the two appeals were consolidated on May 10, 1985, and Johnson was represented by counsel at oral argument here in November 1986.
Johnson advances a two-fold challenge to the legality of the U.S. Commission's determining his suitability for release on parole. First, he argues that the U.S. Commission lacks statutory authority to decide his case. Failing that, he takes a different tack and argues that the statutory authority of the U.S. Commission is limited to "the same power and authority" as that of D.C. parole authorities, see D.C. Code § 24-209, and therefore the U.S. Commission must apply D.C. parole laws and regulations. We reject the first challenge but agree with the second.
In support of his first challenge, which is premised on an asserted lack of statutory authority of the U.S. Commission, Johnson argues that D.C. Code § 24-209 which refers by its terms to the U.S. "Board of Parole created by § 723a of Title 18, United States Code," does not apply to the United States Parole Commission. D.C. Code § 24-209 gives to the U.S. Board of Parole "the same power and authority" over D.C. Code offenders as is vested in the D.C. Board of Parole. Johnson admits that Public Law 94-233, which created the present U.S. Commission, contained a savings clause stating:
Whenever in any of the laws of the United States or the District of Columbia the term "United States Parole Board", or any other term referring thereto, is used, such term or terms, on and after the date of the effective date of this Act, shall be deemed to refer to the United States Parole Commission as established by the amendments made by this Act.
Parole Commission and Reorganization Act, Pub. L. No. 94-233, § 12, 90 Stat. 219, 233 (1976) (repealed by 98 Stat. 1837, 2027, 2031 (1984); 99 Stat. 1728 (1985), effective Nov. 1, 1987). Although 18 U.S.C. § 723a creating the U.S. Board of Parole was repealed in 1948, see Act of June 25, 1948, ch. 645, § 21, 62 Stat. 854, 862, the U.S. Board of Parole created thereby was replaced by the U.S. Parole Board which was eventually replaced by the U.S. Commission. The savings provision's language - "'United States Parole Board', or any other term referring thereto" - is broad enough to include the phrase in D.C. Code § 24-209 referring to the U.S. Board of Parole created by 18 U.S.C. § 723a; therefore, § 24-209 applies to the U.S. Commission.
Johnson next argues that the U.S. Commission lacks authority to determine his parole suitability because the D.C. government could not delegate the power to the U.S. Commission. He adopts in part the magistrate's conclusion in Drakeford that the passage of the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 473 (the "Court Reform Act"), which established a separate system of local courts for the District of Columbia, and the District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (the "D.C. Home Rule Act"), limited the U.S. Commission's authority to precisely that possessed by the former U.S. Parole Board. As the argument goes, D.C. Code § 1-233(b) (enacted by the D.C. Home Rule Act, 87 Stat. 774, 814), which states that "nothing in [the D.C. Home Rule] Act shall be construed as vesting in the District government any greater authority . . . over any federal agency than was vested in the [D.C.] Commissioner prior to January 2, 1975," the effective date of that Act, prevents the District of Columbia from delegating power to the U.S. Commission because that agency supposedly has power and authority not existing prior to January 2, 1975 and greater than that of the former U.S. Parole Board. See Drakeford, slip op. at 6-7.*fn1
Johnson's argument fails to take account of the long-standing Congressional grant of "the same power and authority" to federal parole authorities as that exercised by the D.C. Board. See D.C. Code § 24-209. Hence, even assuming that § 1-233(b) would prevent the District government from delegating to the U.S. Commission the right to exercise greater power than that of the D.C. Board, the U.S. Commission still would be able to wield the same power as the D.C. Board. To hold otherwise it would be necessary to conclude that the D.C. Home Rule Act repealed by implication. D.C. Code § 24-209, a result which we refuse to embrace. As a general matter of statutory construction, repeals by implication are disfavored. Morton v. Mancari, 417 U.S. 535, 549-551, 41 L. Ed. 2d 290, 94 S. Ct. 2474 ; Posadas v. National City Bank, 296 U.S. 497, 503, 80 L. Ed. 351, 56 S. Ct. 349 . But see generally Edwards v. United States, 814 F.2d 486, 488 (7th Cir. 1987) (questioning theoretical underpinnings of this maxim of statutory construction). The two Acts relied on by Johnson do not address D.C. Code § 24-209 nor do we understand them to post an irreconcilable conflict with that Section. Although, pursuant to the Court Reform Act, D.C. Code offenders are now convicted in D.C. Superior Court, there is no reason why Congress could not consistently continue its long-standing practice of allowing federal parole authorities to exercise the same power over D.C. Code offenders in federal prisons as D.C. parole authorities do over inmates at Lorton. Also, the D.C. Home Rule Act is not inconsistent with § 24-209; it may limit the power the District government can exercise over federal agencies, see D.C. Code § 1-233(b), but it does not restrict power delegated by Congress and § 24-209 of the D.C. Code was enacted by Congress. Act of June 5, 1934, ch. 391, 48 Stat. 880. In sum, the U.S. Commission's statutory authority remains unchanged under § 24-209 despite the adoption of the Court Reform Act and the D.C. Home Rule Act.
This conclusion is supported by Milhouse v. Levi, 179 U.S. App. D.C. 1, 548 F.2d 357 (D.C. Cir. 1976), in which inmates at Lorton argued that the Court Reform Act and D.C. Home Rule Act deprived the U.S. Attorney General of his preexisting statutory authority under a 1965 Act of Congress to regulate the District's furlough program at Lorton. The court of appeals rejected the argument that those Acts "reflect a congressional intent to vest the District of Columbia with a greater degree of autonomy" and that such congressional intent was so great as to overrule previous statutes that are arguably a product of an inconsistent prior Congressional intent. 548 F.2d at 362. The court rejected this implied-repeal argument as follows:
Congress, in enacting both the Court Reform Act and the Home Rule Act, did not amend any of the provisions under which the Attorney General has regulated the furlough program at the Lorton Reformatory. In light of the long-standing practice in this regard, any assumption that failure to amend was due to inadvertence as distinguished from design would be to ignore the meticulous care Congress ...