                                  United States Court of Appeals,

                                            Fifth Circuit.

                                            No. 92–1364.

                              Jimmy Lee PENIX, Plaintiff–Appellant,

                                                  v.

               UNITED STATES PAROLE COMMISSION, Defendant–Appellee.

                                           Dec. 21, 1992.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.

       PER CURIAM:

       In this case, Petitioner–Appellant Jimmy Lee Penix appeals the district court's denial of

injunctive relief against Respo ndent–Appellee United States Parole Commission. Penix sought to

enjoin the Commission from executing a parole violator warrant issued against him. The district court

rejected Penix's assertion that, as the Commission failed to hold a hearing within five years following

the commencement of his parole term, that term automatically expired—as did the Commission's

jurisdiction over him. Finding no reversible error, we affirm.

                                                   I

                             FACTS AND PROCEDURAL HISTORY

       Penix was convicted in the Western District of Oklahoma of conspiracy to import cocaine,

traveling in interstate commerce to facilitate illegal activity, and using a communication device to

facilitate the conspiracy. He was sentenced to fifteen years in prison, but was paroled on August 4,

1986, after serving five years and four months of his sentence. He was eventually placed under the

supervision of the U.S. Parole Commission in the Northern District of Texas.

       In August 1991, more than five years after commencement of his parole, Penix was notified

by the Commission that a preliminary determination had been made to continue his parole, but that

a final determination would not be made until Penix had been given an opportuni ty for a personal

hearing before a Commission representative. Penix requested early release from parole and an
in-person hearing, but no hearing was ever scheduled.

          On April 9, 1992, Penix's parole officer requested the issuance of a parole violator warrant,

charging Penix with conspiracy and possession of marijuana with intent to deliver, possession of

cocaine, and associating with a person who has a criminal record. The Commission agreed with that

request and the warrant was issued but never executed.

          After the warrant was issued, Penix filed a lawsuit in the Northern District of Texas, seeking

a temporary restraining order, as well as temporary and permanent injunctions, to restrain the

Commission from executing the warrant against him.             Penix asserted that the Commission's

jurisdiction over him had terminated after five years of supervised parole. In support of his claim, he

cited 28 C.F.R. § 2.43(c)(1), which mirrors 18 U.S.C. § 4211(c)(1) and provides:

          Five years after release on supervision, the Commission shall terminate supervision over such
          parolee unless it is determined, after a hearing ... that such supervision should not be
          terminated because there is a likelihood that the parolee will engage in conduct violating any
          criminal law.1

Penix asserted to the district court as he does here that, as the hearing did not occur before the end

of his five years of supervised parole, "the jurisdiction of the Parole Commission[ ] terminated by

operation of law," in consequence of which the Commission could not issue the warrant against him.

          The dist rict court rejected Penix's assertion, finding that § 4211(c)(1) did not divest the

Commission of jurisdiction automatically after five years of supervised parole. Penix timely appealed.

                                                    II

                                              ANALYSIS

A. Standing

           The Co mmission asserts on appeal that Penix does not have standing to challenge the

issuance of the parole violator warrant because he has not suffered a "legal injury." We have recently

stated that "[s]tanding defies precise definition, but at the least insists that the complained of injury

be real and immediate rather than conjectural, that the injury be traceable to the defendant's allegedly




   1
       (Emphasis added).
unlawful conduct, and that relief from the injury must be likely to follow from a favorable ruling."2

             Although presently unexecuted, the execution of the parole violator warrant at any time would

result in Penix's immediate incarceration, and he would remain in custody until his hearing pursuant

to 18 U.S.C. § 4214(a). "To obtain equitable relief for past wro ngs, a plaintiff must demonstrate

either continuing harm or a real and immediate threat of repeated injury in the future."3 The injury

Penix alleges is the incarceration that would result instantaneously from the warrant's execution. If

Penix is correct concerning his proffered interpretation of § 4211(c)(1), then the i ssuance of the

warrant would be unlawful and the injunction would be proper to prevent unjust incarceration. Given

his very real Damoclean predicament, we hold that Penix has standing to bring this lawsuit.

B. Section 4211(c)(1)'s Effect on Penix's Parole

             After five years of supervised parole, a hearing is required to determine whether the parole

status should continue or be terminated.4 Penix asserts that under § 4211(c)(1), his parole terminated

ipso facto, exactly five years after it began, because the Commission had not yet held a hearing much

less decided affirmatively to continue his parole. Penix's argument relies on the proposition that the

mandatory language of the statute which provides that "the Commission shall terminate supervision

... unless it is determined after a hearing" that the parolee will likely engage in "conduct violating any

criminal law"5 must be interpreted to mean that if the hearing does not occur before the five years is

completed the parole is automatically terminated.               Penix's proffered interpretation of §

4211(c)(1)—as he recognizes—directly contravenes interpretations by the Seventh, Eleventh, and

Ninth Circuits.6 Penix asserts that those circuits' interpretations are incorrect and, more importantly,

   2
    Society of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir.) (en banc) (citing
Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)), cert. denied, ––– U.S.
––––, 113 S.Ct. 191, ––– L.Ed.2d –––– (1992).
   3
       Id.
   4
       See 18 U.S.C. § 4211.
   5
       18 U.S.C. § 4211(c)(1) (emphasis added).
   6
    See United States ex rel Pullia v. Luther, 635 F.2d 612, 614–16 (7th Cir.1980); Sacasas v.
Rison, 755 F.2d 1533, 1535 (11th Cir.1985); Tatum v. Christensen, 786 F.2d 959, 963 (9th
Cir.), overruled on other grounds sub nom. Wallace v. Christensen, 802 F.2d 1539, 1554 (9th
that a subsequent Supreme Court decision overrules their analyses. We disagree.

             In United States ex rel. Pullia v. Luther,7 the Seventh Circuit rejected the precise argument

Penix makes to us. Pullia, like Penix, "contend[ed] that under section 4211(c)(1) a hearing is a

prerequisite only to a continuation of supervision, not to a termination, and that unless the

Commission has held a hearing and decided to the contrary, the statute compels [the Commission]

to terminate parole on the expiration of five years."8 Pullia, like Penix, also "relie[d] on the use of

the mandatory phrase "shall terminate' in section 4211(c)(1), in contrast to the earlier use of "may

terminate' in section 4211(a)"9 in making his argument.

             The Seventh Circuit concluded that the case could not be "resolved solely on the basis of a

grammatical analysis" of the difference between the mandatory and permissive language of the statute,

and looked to the legislative history of the Parole Act for clarification. That legislative history

forcefully demonstrated to the Seventh Circuit—and convinces us as well—of the fallacy of Pullia's

(and therefore Penix's) argument. The legislative history of the provision "make[s] clear that

Congress intended that the Commission would exercise its judgment prior to releasing a parolee from

supervision."10 That judgment is exercised at a hearing, which should take place near the end of or


Cir.1986) (en banc).
   7
       635 F.2d at 615.
   8
       Id.
   9
       Id.
   10
     Id. at 616. The Seventh Circuit quoted the House and Senate sponsors of the Act, and the
Section–By–Section Analysis of the House Conference Report. Representative Robert
Kastenmeier stated:

                    [T]here are certain decisionmaking deadlines provided for in H.R. 5727. If the
                    Commission fails to act in accordance with these deadlines, the prisoner or parolee
                    would not automatically be released from confinement, but he could compel the
                    Commission to make their decision promptly.... [I]f for some reason [the
                    Commission] were unable to meet a deadline, the prisoner or parolee could solicit
                    the assistance of the court under existing section [28 U.S.C. § 1361], which is an
                    action in mandamus to compel an employee of the United States to perform his [or
                    her] duty. I expect these cases would be very rare, but the court would review the
                    case and determine whether there was any justification for the delay. If there is no
                    justification, the court would remedy the situation by ordering a hearing
                    immediately. Otherwise, the Commission would be in contempt of court.
soon after the completion of the five years of supervision. If the Commission fails to provide a

hearing to a parolee through neglect or administrative error, the paro lee's remedy is a mandamus

action to compel a hearing.11 We agree with our colleagues on the Seventh Circuit concerning the

history and interpretation of the statute.

          Penix nevertheless argues that the rulings in Pullia and those from the other circuits have been

overruled by the Supreme Court's ruling in Board of Pardons v. Allen.12 In Allen, the Court held that

a state parole statute which provided that a state parole board would release prisoners on parole when

certain prerequisites were met created a liberty interest under the Fourteenth Amendment's due

process clause.13 The question whether there is a liberty interest associated with the parole statute,



          Id. (quoting 122 CONG.REC. 5163 (1976)). Senator Burdick stated:

                  [T]he conferees acknowledge that from time to time extraordinary reasons may
                  result in delay in making any of the decisions. If a legal remedy is necessary in the
                  absence of good faith effort on the part of the Commission, the remedy is to
                  compel the decision, not release from custody.

          Id. (quoting 122 CONG.REC. 4862). The Seventh Circuit also reasoned that the hearing
          could not be held before the five years of probation was served because the intent of
          Congress was that the entire five years be reviewed in determining the likelihood of
          recidivism. The Section–By–Section Analysis of the House Conference Report states:

                  This section further provides that after 5 years of parole supervision each parolee
                  shall be released from further supervision, unless the Parole Commission
                  determines that there is a likelihood that the parolee will engage in criminal
                  behavior. The phrase "likelihood that the parolee will engage in conduct violating
                  any criminal law" is a phrase closely related to the term "release would not
                  jeopardize the public welfare" from section 4206. Both rely on the use of
                  probability in making the judgments required of the Commission by this section.
                  Likelihood is a higher standard upon which the judgment is to be based, but this is
                  only recognition by the Conferees that the Commission has five continuous years
                  of supervision in the community on which to base its comparisons with other
                  offenders who have similar backgrounds.

          Id. (citing H.R.REP. No. 5727, 94th Cong., 2d Sess. 2, reprinted in 1976 U.S.C.C.A.N.
          335, 365).
   11
      See Richardson v. Luther, 692 F.Supp. 1452, 1457 (D.Conn.1988) ("Absent a showing of
prejudice or bad faith, the appropriate remedy ... is a mandamus action to compel a hearing.
(citing Sacasas, 755 F.2d at 1535)); supra note 10.
   12
        482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987).
   13
        Id. at 380–81, 107 S.Ct. at 2422.
however, is simply irrelevant to the statutory interpretation made in Pullia.

          The Allen decision involved state prisoners attempting to force the state parole commission

to perform its duties in the constitutionally proper manner. The Court held that the mandatory

language in the state statute created a property interest for the prisoners in the Commission's

completion of its statutory task. Pullia and the cited decisions on point from the other circuits merely

looked to the legislative history to interpret an ambiguity in the particular federal statute at issue.

Penix cannot assert an unassailable property interest in his incorrect interpretation of § 4211(c)(1)

merely because there is mandatory language in the statute.

          We thus concur with the Seventh, Ninth, and Tenth, Circuits' interpretation of § 4211(c)(1)

and reject Penix's assertion that those cases have been implicitly overruled by the Supreme Court's

holding in Allen.14

                                                     III

                                             CONCLUSION

          The district court correctly found that Penix had standing to bring this cause of action. It also

correctly held that parole supervision does not automatically end upon the expiration of five years

following commencement of parole. We hold that the parolee has a right to a hearing concerning the

termination of supervision and that the writ of mandamus is available to compel that hearing after the

five years has run. We therefore reject the suggestion that the Commission has no jurisdiction to hold

such a hearing later than five years after commencement of parole. The district court's decision is

          AFFIRMED.




   14
        See Richardson, 692 F.Supp. at 1457.
