The opinion of the court was delivered by: JOHNSON
NORMA HOLLOWAY JOHNSON, UNITED STATES DISTRICT JUDGE
Male inmates of federal Bureau of Prison institutions who were convicted of District of Columbia Code violations in either the United States District Court for the District of Columbia or the Superior Court of the District of Columbia bring this class action to challenge the use of federal suitability guidelines in parole determinations. The case is presently before the Court on the motion of plaintiffs for summary judgment and the motions of the federal and District of Columbia defendants to dismiss.
This case has a long history. Initially, the defendants' motion for summary judgment was granted on March 31, 1981. The motion was granted on the grounds that the U.S. Commission had plenary authority over D.C. Code offenders in its custody and that plaintiffs had not been denied equal protection because the federal and local parole criteria were substantially similar. Upon appeal, the judgment was reversed and remanded on January 11, 1983. Cosgrove v. Smith, 225 U.S. App. D.C. 235, 697 F.2d 1125 (D.C.Cir. 1983). On remand, the Circuit Court directed that the following issues be considered: 1) whether there is a substantial difference in parole suitability determinations under the federal and District of Columbia guidelines; 2) whether the U.S. Commission has legitimate interests in applying federal parole standards to D.C. Code offenders; and 3) the factual predicates underlying the constitutional claim.
The class members, all D.C. Code offenders, have been designated to Bureau of Prison ("BOP") institutions by the Attorney General for a number of reasons including, but not limited to, overcrowding of District of Columbia facilities, protective custody, and upon recommendation of sentencing judges. As a result, these offenders have been subject to the parole guidelines of the United States Parole Commission ("U.S. Commission") rather than those of the District of Columbia Board of Parole ("D.C. Board").
Plaintiffs challenge the utilization of federal law and guidelines in making parole determinations with respect to them and contend that District of Columbia Code § 24-209 mandates that the U.S. Commission apply District of Columbia regulations and guidelines. Plaintiffs also contend that they are being denied equal protection of the law in that male D.C. Code offenders housed in facilities of the District of Columbia Department of Corrections ("DCDC") and all female D.C. Code offenders, though housed in federal facilities, benefit from parole review by the D.C. Board.
Federal defendants deny that § 24-209 can be so construed and argue that the statute does not require the U.S. Commission to apply D.C. parole rules as the statute grants it plenary authority over the class members permitting the use of its own guidelines.
The parties have chosen to proceed at this juncture on the statutory construction issue only. Although the federal defendants denominated their motion as one to dismiss, they agree to have it treated as a cross-motion for summary judgment. The motion of the District of Columbia defendants to dismiss should be denied and will be by separate order.
The critical issue on the cross-motions for summary judgment is whether D.C. Code § 24-209 requires the U.S. Commission to apply not only District of Columbia parole laws but also its regulations and guidelines in making parole determinations for male D.C. Code offenders housed in federal prisons.
Plaintiffs, in moving for summary judgment, contend that the plain language of the statute requires adherence to the D.C. guidelines as well as its laws. In using the term "same power", plaintiffs argue, Congress meant the Commission to apply all of the rules used by the Board.
They point to the legislative history of the section which, it is maintained, expresses Congress' desire to create a model parole system in the District of Columbia, and that in extending to the U.S. Commission the power to parole D.C. Code offenders in its custody, Congress meant to have this progressive parole system applied in its entirety. According to plaintiffs, the legislative history "reveals that Congress fully intended § 209 to ensure that the federal authorities parole D.C. offenders where they had otherwise refused to do so, and to do so in accordance with the standards given by District law." Plaintiffs' Motion for Summary Judgment at 29.
Additionally, plaintiffs rely on a series of cases which have discussed the issue presently under consideration. They argue that the United States Court of Appeals for the District of Columbia and the Courts of Appeals for the Second, Seventh, and Eighth Circuits have all found that the statute in question requires the Commission to apply all of the Board's rules and regulations when determining the appropriateness of parole for D.C. Code offenders housed in federal facilities.
Finally, plaintiffs stress the differences in philosophies and procedures between the D.C. and U.S. parole statutes and guidelines. It is their position that the D.C. guidelines serve to implement the more progressive D.C. parole statutes, which emphasize rehabilitation, while the federal guidelines are primarily punishment-focused. Plaintiffs further contend that when the D.C. guidelines were finally promulgated and became effective on March 4, 1985, the D.C. Board "explicitly considered -- and rejected -- the federal parole guidelines as a model." Plaintiff's Motion for Summary Judgment at 9.
Federal defendants offer several arguments in support of this position. First, they maintain that the term "power and authority vested " as it appears in D.C. Code § 24-209, means only that power specifically granted by Congress. As the guidelines are promulgated by the D.C. Board and not by Congress, these guidelines, argue defendants, are not power "vested" in the Commission by Congress. Thus, the guidelines were not part of the "power and authority" to which Congress referred in the statute.
Secondly, defendants maintain that the guidelines are merely policy statements and not substantive rules as defined by the Supreme Court in Chrysler Corp. v. Brown, 441 U.S. 281, 301-03, 60 L. Ed. 2d 208, 99 S. Ct. 1705 (1979). As such, they do not carry the force of law and are not part of the "power and authority" vested in the Board.
Finally, federal defendants argue that even if the Court finds that § 24-209 mandates application of the D.C. guidelines, they should still be permitted to use their own. Because the sets of guidelines are substantially similar, they contend, there is no reason to apply the D.C. version when the federal guidelines are so much alike.