MILHOUSE v. LEVI, 548 F.2d 357 (D.C. Cir. 1976)

LESTER D. MILHOUSE ET AL., APPELLANT, v. EDWARD H. LEVI, UNITED STATES ATTORNEY GENERAL, ET AL.

No. 75-1844.United States Court of Appeals, District of Columbia Circuit.Argued February 19, 1976.
Decided December 13, 1976.

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Richard B. Wolf, Washington, D.C., with whom Victor H. Kramer, Charles E. Hill and Diane B. Cohn, Washington, D.C., were on the brief for appellants.

S. Cass Weiland, Atty., Dept. of Justice, Washington, D.C., with whom Robert L. Keuch, Atty., Dept. of Justice, Washington, D.C., was on the brief for Federal appellees.

C. Francis Murphy, Corp. Counsel for the District of Columbia, Louis P. Robbins, Principal Asst. Corp. Counsel, Richard W. Barton and Leo N. Gorman, Asst. Corp. Counsel, Washington, D.C., were on the brief for the District of Columbia appellees.

Appeal from the United States District Court for the District of Columbia (D.C.Civil 74-1596).

Before BAZELON, Chief Judge, WILKEY, Circuit Judge and MERHIGE,[*] United States District Judge for the Eastern District of Virginia.

MERHIGE, District Judge:

[1] Appellants, inmates of the Lorton Reformatory, a part of the District of Columbia Corrections System, and others,[1] filed this action in the District Court challenging an order issued by the Attorney General of the United States on October 1, 1974 which curtailed furlough privileges previously available to certain inmates. The District Court found the Attorney General to be statutorily authorized to promulgate the contested order, but concluded that he had done so in violation of the rule-making procedures of the Administrative Procedure Act, 5 U.S.C. § 553(b).[2] Having so concluded, the District Court dismissed the action as to all but the Attorney General and the United States Department of Justice. This appeal followed.

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[2] Prior to October 1, 1974, the District of Columbia Department of Corrections, acting under authority delegated to it by the Attorney General,[3] promulgated guidelines to govern the furlough programs in operation at the Lorton Reformatory. Pursuant to the pre-October 1, 1974 guidelines, furloughs were made available to any inmate at Lorton who the Department believed would honor the trust placed in him, regardless of the crime for which he had been convicted and incarcerated. See District of Columbia Department of Corrections Order 4920.1A (Aug. 28, 1974). On October 1, 1974, the Attorney General issued an order restricting the furlough eligibility of persons who had been convicted of certain crimes and who were not within six months of a firm date of release from confinement.[4] The District of Columbia shortly thereafter implemented the Attorney General’s order. See District of Columbia Department of Corrections Order 4920.3 (Nov. 11, 1974). It is beyond dispute that the guidelines premised on the Attorney General’s order are substantially more restrictive than those in effect prior thereto, and have resulted in the termination of the furlough program of a number of the appellants.

[3] The pivotal issue before this Court is whether the Attorney General has the authority to regulate the furlough program at the Lorton Reformatory. The matter is somewhat complicated by Lorton’s status as “an integral part of the District of Columbia correctional system”[5] and the unique

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relationship between the District of Columbia and the federal government.[6] For the reasons which follow, this Court has concluded that the Attorney General was empowered to issue the contested regulations.

[4] There is no question but that the Attorney General has the statutory authority to designate the place of confinement of all persons convicted of a crime in a court of the District of Columbia. D.C. Code § 24-402 (1973 ed.).[7] The Attorney General is additionally vested with custody over such persons throughout their entire period of incarceration. D.C. Code § 24-425 (1973

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ed.).[8] Thus, in Frazier v. United States,
119 U.S.App.D.C. 246, 339 F.2d 745, 746 (1964), we noted that “it is clear that the `custody’ intended is not limited to actual physical custody, but denotes a type of legal custody which remains in the Attorney General even though the prisoner is assigned to an institution over which the Department of Justice has no control.” (footnotes omitted). Thus, a person who escapes from a facility operated by the District of Columbia, such as the Lorton Reformatory, escapes from the custody of the Attorney General within the meaning of 18 U.S.C. § 751. United States v. Taylor, 158 U.S.App.D.C. 298, 485 F.2d 1077 (1973) Frazier v. United States, supra.

[5] Congress, additionally, has empowered the Attorney General to initiate furlough programs. 18 U.S.C. § 4082(c)(1).[9] In enacting this legislation, the Congress chose to define the program in terms of extending “the limits of confinement . . .” of affected inmates. By defining furloughs in such terms, Congress authorized the Attorney General to establish such programs at Lorton for, as heretofore noted, he has custody of its inmates and the power to designate their place of confinement. Furthermore, the furlough programs at Lorton have operated under the direction of the Attorney General since their inception following the enactment of 18 U.S.C. § 4082(c)(1), Pub.L. 89-176, 79 Stat. 674 (1965). See 31 Fed.Reg. 704-705 (Jan. 19, 1966).[10] Thus, in order for the appellants to prevail, this Court would have to conclude that the Attorney General and the District of Columbia have misinterpreted the law for the past decade.

[6] The Attorney General’s authority to regulate the furlough programs of the District of Columbia correctional facilities has heretofore

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been implicitly acknowledged by this Circuit. In Green v. United States, 157 U.S.App.D.C. 40, 481 F.2d 1140 (1973), two prisoners who had been sentenced in the District of Columbia sought leave to appeal in forma pauperis the denial by the District Court of motions designed to enable them to participate in work release programs. In denying their motion, the Court noted:

The work release legislation permits the Attorney General to authorize a prisoner “as to whom there is reasonable cause to believe he will honor his trust . . . to . . . work at paid employment or participate in a training program in the community on a voluntary basis while continuing as a prisoner of the institution or facility to which he is committed . . . .” Both the literal terms and legislative history of Section 4082(c) make it clear that the decision as to whether or not to authorize work release is one dependent on an exercise of discretion by the Attorney General. Although Congress recognized in amending Section 4082 in 1965 that work release may, in some instances, be a valuable rehabilitative tool, it did not establish an absolute legal right to immediate work release such as is urged by petitioners.

[7] Green v. United States, supra, 481 F.2d at 1141-42. (footnotes omitted.) In light of the Green-appellants’ status as inmates of a District of Columbia correctional institution and the similarity between work release and furlough programs,[11] the heretofore quoted language recognizes the Attorney General’s authority to promulgate regulations such as the one presently in issue.

[8] The thrust of appellants’ contention is that the District of Columbia Court Reform and Criminal Procedure Act (Court Reform Act), Pub.L. No. 91-358, 84 Stat. 473 (1970) and the District of Columbia Self-Government and Reorganization Act (Home Rule Act), Pub.L. No. 93-198, 87 Stat. 774 (1973) reflect a congressional intent to vest the District of Columbia with a greater degree of autonomy and reduce the role of the federal government in making decisions of purely local concern. This policy, appellants submit, is perverted by federal regulation of the internal affairs of the Lorton Reformatory. The appellants thus analogize the Attorney General’s actions herein, to an attempted regulation of state furlough programs in facilities which house federal prisoners.[12] Concededly, there is support for this position.[13] The Court is of

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the view that to invalidate the Attorney General’s order on this ground would be to ignore the statutes heretofore alluded to, or assume that the failure to amend their provisions was mere legislative oversight.

[9] 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 longstanding 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 exhibited in conforming other statutory provisions to its legislative scheme for the District of Columbia.[14] In short, if Congress had intended to alter the nature of the Attorney General’s control over the Lorton furlough program, same could have been done by express provision. Cf. Palmore v. United States, 411 U.S. 389, 395, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); Farnsworth v. Montana, 129 U.S. 104, 113, 9 S.Ct. 1670, 36 L.Ed. 616 (1889). It follows, therefore, that we affirm the District Court’s conclusion that the Attorney General enjoys the statutory authority to promulgate the contested order.

[10] The appellants next contend that the Attorney General’s order which acts to deny furlough eligibility to persons convicted prior to said order is prohibited by the ex post facto clause of the Constitution.[15] This claim was not presented to the District Court. The issue is one of law, however, which does not require further factual development. Hence, despite the failure of appellants to raise the issue before the District Court we will address it on its merits. United States v. Jones,
174 U.S.App.D.C. 34, 527 F.2d 817, 819 (1975). Cf. Hormel v. Helvering 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037 (1941).

[11] The appellants cite the well-established principle that “[E]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed” is constitutionally impermissible. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). See Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Rooney v. North Dakota, 196 U.S. 319, 325, 25 S.Ct. 264, 49 L.Ed. 494
(1905). Cf. United States v. Henson, 159 U.S.App.D.C. 32, 486 F.2d 1292, 1305-1306 (1973) (en banc). The gist of appellants’ argument is that the curtailment of furlough privileges for those convicted prior to the issuance of the Attorney General’s order constitutes an infliction of greater punishment than was possible at the time of the commission of the offense. The appellants rely primarily on a decision of the Ninth Circuit Court of Appeals which ruled that administrative alteration of parole eligibility guidelines resulting in increasing the amount of time an inmate must serve before attaining eligibility for parole, violated the constitutional provisions against ex post facto laws. Love v. Fitzharris,

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460 F.2d 382 (9th Cir. 1972) vac. as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973). The Supreme Court, while not directly embracing the rationale as expressed by the Court of Appeals for the Ninth Circuit in Love, supra, has recognized that “a repealer of parole eligibility previously available to imprisoned offenders would clearly present [a] serious question under the ex post facto clause of Art. I, § 9, cl. 3 of the Constitution. . . .” Warden v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383 (1974). See also Greenfield v. Scafati, 277 F.Supp. 644
(D.Mass. 1967) (three-Judge Court), aff’d, 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968).

[12] Retroactive restrictions on parole eligibility, however, are conceptually distinguishable from the issues presented herein. The Ninth Circuit’s decision in Love, supra, was premised upon the conclusion that parole eligibility, under local law, was part of the “law annexed to the crime when committed” within the meaning of Calder v. Bull, supra. Specifically, parole eligibility was considered part of the sentence. Love v. Fitzharris, supra, 460 F.2d at 384-385. The effect of the administrative action in that case was to lengthen the time of incarceration, and hence, constituted a greater punishment. Appellants do not suggest that the regulations herein under attack have any impact on an inmate’s date of release. A furlough program, unlike parole, is not an integral part of the sentencing procedure. It is an internal rehabilitational program the denial of which cannot be said to be an element of the punishment attached to an inmate’s initial conviction. Administrative regulations which adversely affect an inmate’s eligibility for furloughs are not, therefore, subject to the constitutional prohibitions against ex post facto laws. To hold otherwise would severely limit the flexibility needed to implement innovative rehabitational programs.[16]

[13] The last major issue[17] concerns the propriety of the District Court’s dismissal of the District of Columbia defendants without reaching the question of whether they had complied with proper rule-making procedures. As the dismissal of those defendants was made pursuant to Fed.R.Civ.P., Rule 12(b)(6), we must accept as factual, the appellants’ allegations. Jenkins v. McKeithen, 375 U.S. 411, 421-422, 89 S.Ct. 1843, 23 L.Ed.2d 404
(1969). Those allegations as disclosed by the pleadings, in brief, are that the District of Columbia defendants promulgated furlough regulations in violation of the notice and publication provisions of the District of Columbia Administrative Procedure Act. (D.C.A.P.A.), D.C. Code § 1-1501 et seq. (1973 ed.). The District Court dismissed the action as to the District of Columbia defendants solely because the Attorney General was found to possess the requisite authority to issue the order which is the subject of this controversy. In light of our affirmance of the latter conclusion, the issue before us is whether the Lorton inmates stated a claim against the District of Columbia defendants notwithstanding the Attorney General’s authority over the program.

[14] The scope of the October 1, 1974 order of the Attorney General was narrow.

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It merely places eligibility restrictions on persons convicted of a crime of violence. The eligibility criteria for all other prisoners as well as all other pertinent guidelines are to be established by local officials.[18] Hence, the District of Columbia defendants retain significant rulemaking responsibilities which may have a substantial impact upon appellants. In light of this Court’s recent decisions in Ramer v. Saxbe, 173 U.S.App.D.C. 83, 522 F.2d 695 (1975) an Pickus v. United States Board of Parole, 165 U.S.App.D.C. 284, 507 F.2d 1107 (1974) it is highly unlikely, as the appellees concede, that any such regulations may be issued without, as alleged, complying with the rule-making procedures of the D.C.A.P.A. Consequently, the appellants have stated a claim against the District of Columbia defendants notwithstanding the Attorney General’s authority in this area. The District Court should retain jurisdiction[19] over the District of Columbia defendants in order to determine whether compliance with the D.C.A.P.A. is required; and if so, whether there was such compliance and, if necessary, to fashion the appropriate remedy.[20]

[15] Affirmed in part, reversed in part and remanded.