Michael Cosgrove v. William French Smith, Attorney General of the United States , 697 F.2d 1125 ( 1983 )

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Under District of Columbia law, offenders convicted of violations of local law may be assigned by the Attorney General to serve their sentences either in federal facilities or in facilities maintained by the District of Columbia. D.C.Code Ann. § 24-425 (1981). In 1976, Congress enacted sweeping reforms of the federal parole system. Parole Commission and Reorganization Act, Pub.L. No. 94-238, 90 Stat. 219 (1976). That same year the Federal Bureau of Prisons entered a consent decree in a case involving alleged discrimination in parole standards against female prisoners in federal and local prison facilities, Garnes v. Taylor, Civ.No. 159-72 (D.D.C. Dec. 10, 1976). That decree stipulated that all female offenders sentenced in the District of Columbia should be paroled under local, rather than federal, standards, regardless of the site of incarceration or the type of offense, be it D.C. or U.S. Code. On the basis of these two events, male D.C.Code offenders assigned to federal prisons¹ challenge the application of the revised federal parole guidelines to decisions on their parole. They allege, first, that the federal scheme imposes different, and harsher, parole standards than the scheme enacted for the District of Columbia and applied to male D.C. offenders assigned to local facilities. They then argue that this treatment exceeds the statutory mandate that the federal parole authorities are to “have and exercise the same power and authority” over D.C.Code offenders assigned to them, as D.C. parole authorities do over offenders assigned to them, D.C.Code Ann. § 24-209 (1981). They also argue that the alleged differences in treatment, both in terms of D.C.Code offenders assigned to federal prisons and those assigned to local facilities and in terms of male and female D.C.Code offenders assigned to federal prisons, have no rational basis and violate their constitutional right to equal protection of the laws.

The district court granted the government’s motion for summary judgment. On the statutory question, it held that the District of Columbia statutory scheme assigns federal authorities plenary authority over D.C.Code offenders placed in federal custody. On the equal protection question, it found that the record did not support the plaintiff’s allegations that offenders assigned to federal authorities received harsher parole treatment than offenders remaining with District of Columbia authorities. This holding disposed of the sex discrimination claim. The court went on, however, to hold that, even if a difference existed, the government could apply different parole standards to inmates charged under the same Code offense but incarcerated in different facilities. We reverse.

I. Jurisdiction

We must first address a threshold jurisdictional problem pressed by the United States.

The district court indisputably had jurisdiction of this case as an action arising under the laws and Constitution of the United States. 28 U.S.C. § 1331 (Supp. IV 1980). The United States contends, however, that the plaintiffs did not timely file their notice of appeal, and that we therefore lack jurisdiction over this case. There is no dispute that the federal rules allow sixty days to notice an appeal when the United States is a party, Fed.R.App.P. 4(a), and that this requirement is jurisdictional, e.g., Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). The district court granted the government’s motion for summary judgment on March 31, 1981, Record (R.) 40, and the plaintiffs’ appeal was noticed on August 7, 1981, R. 46—a time lapse which, had it not been for other events, quite clearly would have deprived this court of jurisdiction of this appeal.

On April 10,1981, however, the plaintiffs had filed another motion, which was not denied until June 10, 1981, R. 45. The plaintiffs’ appeal, filed within sixty days, was therefore timely if the April 10 motion tolled the time for appeal. The April 10 motion was styled as a motion for clarification under Fed.R.Civ.P. 60(b), which does not toll the time for appeal. Pleadings, however, are to be construed so as to do “substantial justice,” see Fed.R.Civ.P. 8(f), and the plaintiffs’ motion here can fairly be read as a motion to alter or amend the judgment under Fed.R.Civ.P. 59(e), which does toll the time for appeal. See Dove v. Codesco, 569 F.2d 807 (4th Cir.1978); Sea Ranch Ass’n v. California Coastal Zone Conservation Commissions, 537 F.2d 1058 (9th Cir.1976); 7 J. Moore, Federal Practice ¶ 60.29 n. 4 & Supp. (1979). We hold that the plaintiffs’ motion was timely under Rule 59(e). It sought both “clarification and certification”—clarification that the judgment had resolved only one portion of the case² and certification of that portion as ripe for appeal, R. 41. The judgment was in fact meant to resolve the entire case—as the order denying the plaintiffs’ motion makes clear, R. 45—and thus what the plaintiffs sought, but misdescribed, was an amendment of the judgment. Finally, relief under Rule 59(e) would have been available to the plaintiffs, for the district court could have amended its judgment to limit it as the plaintiffs hoped. Although the plaintiffs’ pleadings here were not artful, they can be construed as falling under Rule 59(e), and therefore tolled the time for noticing the plaintiffs’ appeal. The court has jurisdiction of this case, and we turn to the merits.

II. Analysis

A. The District Court’s Decision

There were three crucial steps in the district court’s decision. First, the court held that under the relevant sections of the District of Columbia Code, federal authorities were ceded full authority to treat D.C.Code offenders as they treat federal offenders. Second, the court found that District of Columbia and federal standards for parole were the same. As a result, the court concluded, no equal protection difficulties, whether they be between male and female D.C.Code offenders or between male D.C. Code offenders in federal and local prison facilities, were posed by the treatment of D.C.Code offenders according to federal guidelines. We find that none of these decisions properly could be reached at the stage of summary judgment. We reverse so that there may be an amplification of the record, which will allow the district court to determine, and, if necessary, this court to review, the questions raised by this case.

1. The Scope of Federal Authority Over D.C.Code Offenders

The statutory framework for the treatment of prisoners in the District of Columbia was established in the 1930’s and has not been revised significantly since. Its antiquity is particularly telling because of important, intervening legal changes: the grant of limited home rule to the District of Columbia in 1973, District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. No. 93-198, 87 Stat. 774 (1973), and the reorganization of the federal parole system in 1976. Difficulties in understanding what the original statutory scheme intended are therefore complicated by the need to accommodate what has come between.

Before the 1930’s, decisions about parole for D.C.Code offenders were handled exclusively by federal authorities. The District of Columbia has operated under a bifurcated parole system since 1932, when Congress created the “Board of Indeterminate Sentence and Parole” for the District of Columbia, Act of July 15, 1932, ch. 492, 47 Stat. 696 (“1932 Act”).³ The 1932 Act authorized indeterminate sentencing for offenders convicted of crimes in the District of Columbia, with minimum sentences not to exceed one-fifth of the maximum sentence, or fifteen years in the case of life imprisonment, 1932 Act § 3 (current version at D.C.Code Ann. § 24-203(a) (1981)). Offenders convicted of offenses committed before the effective date of the 1932 Act were also to be eligible for parole after serving one-fifth of their maximum term, 1932 Act § 9. In conjunction with indeterminate sentencing, the 1932 Act created the Board, with authority to grant parole to prisoners incarcerated in District of Columbia facilities, 1932 Act § 7, who were eligible for parole by virtue of having served the minimum sentence, and who met statutory standards of parole suitability,⁴ 1932 Act § 4, D.C.Code Ann. § 24-204(a) (1981). Finally, the 1932 Act gave the Attorney General authority to assign prisoners convicted of crimes in the District of Columbia to District of Columbia, federal, or other suitable facilities. 1932 Act § 11 (current version at D.C.Code Ann. § 24-425 (1981); see Goode v. Markley, 195 U.S.App.D.C. 391, 603 F.2d 973 (1979).

But there were anomalies. In 1932, the federal parole statute did not include provision for parole of offenders given indeterminate sentences, as many D.C.Code offenders were under the new statute. Moreover, the federal parole statute authorized release only after an inmate had served a minimum of one-third of his sentence, Act of Jan. 23,1913, ch. 9,37 Stat. 650, whereas the D.C. Board was permitted to parole an offender who had served as little as one-fifth of his sentence. Prisoners assigned by the Attorney General to federal facilities continued to be subject to federal parole authorities, and thus eligible for parole in some cases considerably later than inmates assigned to District of Columbia facilities. An equal protection challenge to the latter disparity was rejected, Aderhold v. Lee, 68 F.2d 824 (5th Cir.1934), but probably triggered an important amendment to the 1932 Act, see Bracey v. Hill, 11 F.Supp. 148, 149 (M.D.Pa.), aff’d, 77 F.2d 970 (3d Cir.1935). The amendment reads in pertinent part:

The Board of Parole created by § 723a of Title 18, United States Code, shall have and exercise the same power and authority over prisoners convicted in the District of Columbia of crimes against the United States or now or hereafter confined in any United States penitentiary or prison (other than the penal institutions of the District of Columbia) as is vested in the District Board of Parole over prisoners confined in the penal institutions of the District of Columbia.

Act of June 5, 1934, ch. 391, 48 Stat. 880 (codified at D.C.Code Ann. § 24-209 (1981)).

This 1934 amendment, section 24-209, is the statutory provision at the heart of the dispute here. The government contends that the amendment plainly grants federal authorities plenary power over D.C. offenders in federal custody. The plaintiffs argue that the 1934 amendment just as plainly constrains federal authorities to apply District of Columbia parole standards to District of Columbia offenders.

Problems in interpreting section 24-209 remained dormant for an extended period, however, because District of Columbia and federal parole practices were virtually identical. In 1940, the District of Columbia parole statute was amended to set eligibility for parole after service of a minimum of one-third of the maximum sentence, thus bringing methods for calculating parole eligibility for D.C.Code offenders nearly into line with those for federal offenders, Act of June 6,1940, ch. 254, 54 Stat. 242. The only remaining difference was that federal offenders serving a life sentence were eligible for parole after ten years, whereas District of Columbia offenders became eligible only after fifteen years, a difference that remains today. Compare 18 U.S.C. § 4205(a) (1976) with D.C.Code Ann. § 24-203 (1981).

With the 1976 revisions of the statutory scheme for parole of federal offenders, however, the question of the interpretation of section 24r-209 assumed renewed urgency. In 1976, the former United States Parole Board was replaced by a Parole Commission, which was geographically divided in an effort to bring parole decisions closer to inmates and the areas in which they are imprisoned.⁵ Procedural protections were increased in response to concerns that the earlier system had been arbitrary and secretive.⁶ Most importantly for this litigation, the federal standards for parole suitability were extensively revised, see infra pp. 16-17. Despite these changes in the federal parole statute (whether the changes were changes of substance is one of the disputes in this lawsuit), section 24—209, in its original 1934 form, remains part of the District of Columbia Code.⁷

The scope of the authority conveyed by section 24r-209 has thus remained largely unexplored in the courts. It is settled that under section 209, federal authorities may make parole decisions about D.C.Code offenders committed to them, Beard v. Bennett, 72 U.S.App.D.C. 269, 114 F.2d 578 (1940); Story v. Rives, 68 U.S.App.D.C. 325, 97 F.2d 182, 184, cert. denied, 305 U.S. 595, 59 S.Ct. 71, 83 L.Ed. 377 (1938). Whether these decisions are to be made according to federal or District of Columbia standards for parole suitability, however, has never been finally decided.

The legislative history of the 1932 Act and the 1934 amendment, although inconclusive, points toward the interpretation urged by the plaintiffs. The 1932 Act introduced the “modern” penological practice of indeterminate sentencing to the District of Columbia, and sought to relieve federal authorities of the burden of supervising D.C.Code offenders.⁸ At the time of the 1932 Act, Congress apparently anticipated that the prison facilities maintained by the District of Columbia at Lorton would be expanded, and that the District of Columbia would in large measure assume responsibility for D.C.Code offenders.⁹ When large numbers of D.C.Code offenders continued to be committed to federal custody, however, Congress was troubled by the fact that the federal authorities could not parole offenders serving indeterminate sentences:

As Congress unquestionably intended [in the 1932 Act] that prisoners convicted in the District of Columbia should be entitled to parole, their confinement in a Federal penal institution, where they are deprived of the benefits of parole, would, therefore, be illegal.¹⁰

Congress therefore enacted the 1934 amendment, to ensure that the benefits of penological reform which had been provided for D.C.Code offenders did not vanish when the offenders were committed to federal custody. That the 1932 Act adopted a penal philosophy for the District,¹¹ and that the 1934 amendment was meant to extend the benefits of that philosophy to D.C. offenders in federal custody, suggest that the amendment should not now be read to allow a different, harsher federal standard to be imposed on D.C. offenders in federal hands. But this history is at best suggestive as to the ultimate scope of federal authority over D.C.Code offenders conferred by the 1934 amendment.

Judicial glosses on section 24-209 are similarly inconclusive. At the outset, section 24-209 was read as a limited effort to correct the anomaly that federal authorities could not parole D.C.Code offenders given indeterminate sentences, e.g., Story v. Rives, 68 U.S.App.D.C. 325, 97 F.2d 182, cert. denied, 305 U.S. 595, 59 S.Ct. 71, 83 L.Ed. 377 (1938); Bracey v. Hill, 11 F.Supp. 148 (M.D.Pa.), aff’d, 77 F.2d 970 (3d Cir.1935). In Story, a D.C.Code offender in federal custody, conditionally released as required by federal law, contended that federal authorities could not issue a warrant against him for violating the terms of his release. This court held that because D.C.Code offenses are offenses against the United States, federal authorities did have power to issue the warrant. In rejecting the argument that the 1932 Act deprived the federal authorities of power over conditional release of D.C.Code offenders, the court held that the sole force of the 1932 Act was to grant D.C. authorities the power to parole offenders in their custody, and that the 1934 amendment had simply reassigned the District’s authority over offenders in federal care. 97 F.2d at 186. The scope of the reassignment was not discussed, however.

Later cases do not take a clear position on the interpretation of section 24r-209. It is settled that Congress may, with good reason, enact different rules to govern District of Columbia and federal offenders. Griffin v. United States, 336 U.S. 704, 69 S.Ct. 814, 93 L.Ed. 993 (1949). Four categories of offenders are in fact relevant here:

(a) D.C.Code offenders in D.C. custody;

(b) D.C.Code offenders in federal custody;

(e) federal offenders in D.C. custody; and

(d) federal offenders in federal custody.

The precise category at issue here, D.C.Code offenders in federal custody, has not been squarely considered, however, and decisions concerning other categories have admonished that a conclusion for one category should not be extrapolated to another category.

In Gilstrap v. Clemmer, 284 F.2d 804 (4th Cir.1960), a D.C. offender in D.C. custody claimed that he should be subjected to the more lenient federal method of computing good time deductions, by virtue of the fact that D.C.Code offenses are regarded as offenses against the United States. The court rejected his argument, because it determined that in the ease of D.C.Code offenders in D.C. facilities, Congress had exercised its power to create separate, more stringent good conduct standards than those it had created for federal offenders. The Fourth Circuit also inferred that D.C. Code offenders in federal custody should, by parity of reasoning, be treated according to D.C. standards, 284 F.2d at 808-09.

In Howerton v. Rivers, 117 U.S.App.D.C. 110, 326 F.2d 653 (1963), this court confronted the category of federal offenders in D.C. custody, and held that the 1932 Act had transferred all parole power over prisoners in D.C. custody to D.C. officials—whether the prisoners were D.C.Code or federal offenders. The court distinguished Gilstrap:

because the court was there dealing with the question of whether the federal parole law or the D.C. parole law applied to a person convicted under the D.C.Code. Congress presumably can handle these varying situations in varying ways. Although it might be more logical for Congress to prescribe uniformity in the parole treatment of all United States prisoners, whether “D.C.” prisoners or “federal” prisoners, it is not urged upon us in this proceeding that it has done so.

326 F.2d at 655. In thus distinguishing Gilstrap, the court reiterated the basic problem of this ease: Congress may provide differently for any of the four categories of offenders, provided it has good reason for so doing. The reiteration of the problem, however, does not solve it for us. There is no reason to assume that Congress intended the same rationale to be applied to D.C. Code offenders in federal custody that it applies to federal offenders in D.C. custody.

Several recent equal protection challenges to the treatment of D.C. offenders apparently have relied on differing assumptions about whether section 24-209 assigns federal authorities the power to treat D.C. Code offenders by federal parole standards. Because the District has no facilities for long-term incarceration of women, all female D.C.Code offenders serving more than brief sentences are assigned to federal institutions. Female D.C.Code offenders have argued that their automatic assignment to federal facilities on the basis of sex violates equal protection because it subjects them to more stringent federal parole standards; a premise of this argument is that federal authorities apply their parole guidelines to D.C.Code offenders in federal hands. A suit brought in the District of Columbia courts resulted in a holding that because the federal Parole Board applied stiffer guidelines—the suit was brought before the 1976 reforms, when the former Board was experimenting with the new procedures— section 24-209 was unconstitutional insofar as it applied to women automatically assigned to federal custody. Williams v. Levi, No. SP 792-76 (D.C.Super.1976), reprinted in Plaintiffs’ Appendix (Pl.App.) 91. A suit at about the same time in federal court, challenging a range of features of the treatment of female D.C.Code offenders, resulted in a stipulation by the parties (“the Games decree”) that female D.C.Code offenders were to be referred to the D.C. Parole Board for parole determinations. Games v. Taylor, Civ. No. 159-72 (D.D.C.1976), reprinted in Pl.App. 115.

There has been one equal protection challenge to the assignment of male D.C.Code offenders to federal custody in the wake of the 1976 parole reforms that has resulted in a written opinion. The challenge was rejected, but not on the basis that section 24-209 assigns federal authorities the power to treat D.C.Code offenders by federal standards. In Gates v. United States Parole Commission, Civ. No. 77-136 (M.D.Pa. 1977), reprinted in Pl.App. 144, the court held that the new federal standards are substantially similar to the Board’s own parole practices, and therefore no equal protection question was posed. In addition, the court pointed out that section 24-209 probably requires the federal authorities to apply D.C. parole standards in any event:

Moreover § 24-209 specifically grants District of Columbia Code offenders who are incarcerated in institutions outside of the District of Columbia the same privileges of parole as are accorded to District of Columbia Code offenders committed to institutions within the District of Columbia. By virtue of § 24-209 the Parole Commission is granted only the “same power and authority” over District of Columbia Code offenders who are confined in any United States penitentiary or prison outside of the District of Columbia as is vested in the District of Columbia Parole Board over prisoners confined in the penal institutions of the District of Columbia. See Bracey v. Hill, 11 F.Supp. 148 (M.D. of Pa.1935).

Pl.App. 148.

Courts thus have reached no clear consensus about the scope of the authority conferred by section 24-209.¹² The district court’s judgment for the government therefore vastly overstated in assuming that it was settled law that section 24-209 conferred on federal officials the power to treat D.C.Code offenders by federal standards. The import of section 24r-209 is an open question for us, despite—and complicated by—the fact that the statute is more than forty years old.

We do not believe it proper, however, to resolve the issue of the interpretation of section 24-209 at this stage of the case. Because the district court granted summary judgment, the record is woefully inadequate even on the crucial preliminary issue of whether the new federal parole standards as applied differ significantly from the standards employed by the D.C. Board. There are in addition possible equal protection difficulties with some interpretations of section 24-209, but the record inadequately explores the questions of fact underlying these issues as well.

2. The Federal and District of Columbia Standards for Parole Suitability

The district court also asserted that it was settled that the new federal and the District of Columbia standards for parole suitability are the same. PI. App. 76. In reaching the conclusion, the court relied squarely on a decision by a district court in Pennsylvania, Gates v. United States Parole Commission, Civ.No. 77-136 (M.D.Pa.1977), reprinted in Pl.App. 144. Gates is not authority that we are bound to follow, and we find that the conclusion that the two standards are the same was prematurely reached.

First, we note that the standards as set out in the current statutes are not the same. Ever since the passage of the 1932 Act, the District of Columbia Parole Board has been authorized to grant parole to D.C. prisoners who have served their minimum sentence and observed the rules of the facilities in which they are incarcerated, upon finding that they appear likely to “live and remain at liberty without violating the law,” and that their release will not be “incompatible with the welfare of society,” 1932 Act § 4, D.C. Code Ann. § 24-204(a) (1981). This was the federal statutory standard until the 1976 revision of the federal parole system. The new federal statutory standard, which accepted guidelines that had been employed on an experimental basis for several years before, provides for release:

if the [Parole] Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines:

(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and

(2) that release would not jeopardize the public welfare ....

18 U.S.C. § 4206(a) (1976).

The new standard, moreover, was introduced in the course of congressional consideration of the 1976 Parole Commission and Reorganization Act. The original Senate version of the Act had preserved the earlier standard.¹³ The new standard emerged in conference, in the effort to resolve differences between the House and Senate over how much discretion was to be accorded the new Parole Commission. The compromise struck was that the standards set out for the Commission were to be stiffened, and that the Commission was to have discretion to go outside them in particular cases.¹⁴

The new federal standards are implemented by guidelines promulgated by the Commission. The guidelines assign a “salient factor score” to an inmate, based on personal characteristics such as pre-offense employment history, and rate his crime on an “offense severity scale.” Parole recommendations are then based on an intersection of the two ratings, 28 C.F.R. § 2.20 (1981); see Warren v. United States Parole Commission, 659 F.2d 183, 191—92 (D.C.Cir.1981). The District of Columbia Board does not employ similar guidelines in making parole decisions.

Despite these apparent differences, it remains possible that the Commission and the Board in practice employ parole criteria that are substantially the same. The plaintiffs allege that they do not, and that as a group D.C.Code offenders in federal custody receive parole markedly later than D.C. Code offenders in the custody of the District of Columbia. Whether there are differences between the practice of the Commission and the practice of the Board was thus a crucial question of fact at issue, and not capable of resolution on a motion for summary judgment.

3. Equal Protection

It is at this stage that the district court’s treatment of the two equal protection claims differs. On the sex discrimination claim, the district court held that because no difference existed between the federal and D.C. parole standards the fact that all women, regardless of the site of incarceration, were paroled under the D.C. standards was irrelevant. On the claim alleging different treatment for male D.C.Code offenders in federal and local facilities, the court held that regardless of the different treatment equal protection is not violated. We note that although inmates do have an equal protection right not to be subjected to discriminatory sentencing practices or to be assigned to a federal or local facility in a discriminatory manner, no showing was made here that the manner in which inmates are assigned to federal or local facilities or the differences between the federal and D.C. standards, if they do exist, are not justified by legitimate local interests. Thus, while interpreting section 24-209 to allow the federal Commission to apply federal parole standards to D.C.Code offenders might well raise serious equal protection questions, we are unable either to determine whether the questions must be reached or to answer them at this stage.¹⁵

B. The Task of the District Court on Remand

We therefore reverse the district court’s grant of summary judgment for the United States and remand this case for further proceedings, should the parties wish to continue. We note that because of the premature initial decision, much of this case remains unresolved. The district court did not rule on the plaintiffs’ motion for class certification or on their motion to amend their complaint.

Moreover, the record did not explore crucial factual issues. The important threshold question of whether the federal and the District of Columbia parole suitability standards are in fact different cannot be resolved from the present record. Nor does the record yet permit resolution of the difficult question of what, if any, legitimate governmental interests would be served by the application of federal parole standards to D.C.Code offenders in federal custody as opposed to women offenders or D.C.Code offenders in local custody. The parties must be given the opportunity to probe these, and perhaps other, questions pertinent to final determination of the scope of federal parole authority over D.C.Code offenders in federal custody.

The legal questions potentially posed by this case are complicated. Plaintiffs seek to procure a determination of fundamental constitutional rights. Before any of these questions can be faced or resolved, there must be a factual underlay not now present. We therefore reverse and remand.

So ordered.

1 . This case originated as a motion for correction of sentence brought by Michael Cosgrove in the District of Columbia courts. The District of Columbia Court of Appeals held that it should be treated as a civil action challenging Cosgrove’s classification as a prisoner, Cosgrove v. United States, 411 A.2d 57 (D.C.1980), and the United States sought removal to federal district court. Record (R.) 1. An amended complaint was then filed by plaintiffs Michael Cosgrove, James Greenard, Waymond Rice, Robert Robertson, and Hector Rodriguez, all D.C.Code offenders in federal facilities. R. 17, at 2. A motion by the plaintiffs to amend the complaint further and join additional parties plaintiff, R. 26, apparently was never acted on by the district court. The plaintiffs’ motion for class certification, with the class to be “all persons convicted and sentenced under District of Columbia laws in the District of Columbia Superior Court, who are subject to parole release determinations by the United States Parole Commission because of their confinement in federal ... institutions,” R. 32, also was never acted on by the district court. We are informed by the government that Michael Cos-grove and James Greenard are no longer in federal custody, and hence no longer subject to federal parole guidelines. Government Brief at 1 n. 1. If so, this case is moot as to them. Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam).

2 . In addition to their statutory and equal protection challenges, the plaintiffs had raised a sex discrimination claim, R. 17, at 7, because under a recent decree parole decisions on all female offenders in the District of Columbia are made by the D.C. Board. The sex discrimination claim was not mentioned in the district court’s judgment, and the plaintiffs therefore sought “clarification” that the court had not ruled on the claim, R. 41. The court pointed out, however, that the holding that federal and District of Columbia parole guidelines did not differ obviated the discrimination claim, which was predicated on the assumption that female offenders receive the more favorable parole treatment of the D.C. Board. R. 45.

3 . The “Board of Indeterminate Sentence and Parole” has since been replaced by the “Board of Parole,” which under the governmental structure of the District of Columbia is now appointed by the Mayor, D.C. Code Ann. § 24-209 (1981). The change in nomenclature, however, was not accompanied by any changes in the statutory scheme of relevance to this litigation. In this opinion, “Board” or “Parole Board” will refer to the District of Columbia body with authority to parole inmates in District of Columbia facilities.

4 . “Parole eligibility” refers to the earliest date an inmate may be considered for parole; “parole suitability” refers to whether the inmate appears to be a good candidate for release into society.

5 . S.Rep. No. 369, 94th Cong., 1st Sess. 15 (1975), U.S.Code Cong. & Admin.News 1976, p. 335.

6 . E.g., 121 Cong.Rec. 15,702 (1975) (remarks of Rep. Kastenmeier).

7 . The 1934 amendment, currently codified at D.C.Code Ann. § 24-209 (1981), continues to assign “the same power and authority” over D.C.Code offenders to “[t]he Board of Parole created by § 723a of Title 18, United States Code,” although the United States Board has been replaced by the Commission and § 723a is no longer part of the current code. Even a note appended to the most recent edition of the District of Columbia Code, in 1981, indicating that § 723a has been recodified, refers to a section of the United States Code repealed in 1976, see D.C.Code Ann. § 24-209 note (1981).

8 . E.g., H.R.Rep. No. 881, 72d Cong., 1st Sess. 2 (1932).

9 . S.Rep. No. 674, 73d Cong., 2d Sess. 2 (1934) (letter from D.C. Commissioners urging approval of the amendment).

10 . Id.

11 . Legislative materials on the reform of federal parole in 1976 treat the rehabilitative penal theories of 1932 as in turn outmoded, e.g., S. Rep. No. 648, 95th Cong., 2d Sess. 25-28 (1976); 121 Cong.Rec. 15,702 (1975) (remarks of Rep. Kastenmeier).

12 . The government contends that a case from this jurisdiction explicitly holds that D.C. offenders in local custody and D.C. offenders in federal custody may be treated in accord with different parole standards. The case, however, stands only for the more general and unexceptionable propositions that D.C.Code offenders may be subjected to the federal parole authorities and that Congress could set out different methods of treating D.C.Code offenders depending on their situs of incarceration. Curry-Bey v. Jackson, 422 F.Supp. 926, 931 (D.D.C.1976), aff’d sub nom. Morgan v. Jackson, No. 75-2127 (D.C.Cir. Dec. 9, 1977) (mem.). It does not hold that Congress has in fact determined in § 24-209 that D.C.Code offenders in federal custody are to be subjected to federal parole standards.

13 . S.Rep. No. 369, 94th Cong., 1st Sess. 18 (1975).

14 . S.Rep. No. 648, 94th Cong., 2d Sess. 25-28 (1976).

15 . The plaintiffs also argue that application of the federal parole standards to D.C.Code offenders operates as an unconstitutional ex post facto change in their punishment. We recently have rejected- just such a challenge, on the theory that an offender sentenced to an indefinite term has no vested right that parole authorities continue to exercise their discretion in the manner employed at the time of sentencing. Warren v. United States Parole Comm’n, 659 F.2d 183, 197 (D.C.Cir.1981).