In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2971

James J. Valona,

Plaintiff-Appellant,

v.

United States Parole Commission,

Defendant-Appellee.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97-C-531--Rudolph T. Randa, Judge.


Submitted November 20, 2000--Decided December 22, 2000



  Before Fairchild, Easterbrook, and Diane P. Wood,
Circuit Judges.

  Easterbrook, Circuit Judge. Federal offenders
whose crimes predated November 1, 1987, remain
eligible for parole. James Valona was released on
parole in December 1992 and, under 18 U.S.C.
sec.4211(c)(1) (1982 ed.), was presumptively
entitled to release from supervision five years
later:

Five years after each parolee’s release on
parole, the Commission shall terminate
supervision over such parolee unless it is
determined, after a hearing conducted in
accordance with the procedures prescribed in
section 4214(a)(2), that such supervision should
not be terminated because there is a likelihood
that the parolee will engage in conduct violating
any criminal law.

December 1997 came and went without the hearing
and decision required by sec.4211(c)(1). Valona
sought a judicial order ending the Commission’s
supervision over him. Twice the district court
declined to reach the merits of this claim; twice
we remanded, the second time adding that, until
the Parole Commission got around to Valona’s
case, supervision must cease. Valona v. United
States, 138 F.3d 693 (7th Cir. 1998); Valona v.
United States Parole Commission, 165 F.3d 508
(7th Cir. 1998). In February 1999 the National
Appeals Board of the Commission concluded that he
should remain under supervision because he is a
suspect in an ongoing arson investigation. The
district court concluded that this decision is
neither arbitrary nor capricious and reinstated
the Commission’s authority over Valona. (The
district court used the standard of the
Administrative Procedure Act, 5 U.S.C. sec.706,
as our opinions required. See 18 U.S.C. sec.4218
(1982 ed.).)

  One of Valona’s arguments is that, because the
Commission missed the five-year deadline and this
court lifted his supervision as an interim
remedy, see 5 U.S.C. sec.705, the Commission
cannot resume supervision. An interim remedy
under sec.705 is just that, however--interim. Now
that the Commission has rendered its decision,
the legal question is whether delay always brings
parole supervision to a close. Two decades ago we
addressed that question and concluded that parole
supervision can survive tardy actions by the
Parole Commission. Pullia v. Luther, 635 F.2d 612
(7th Cir. 1980). Accord, Russ v. Perrill, 995
F.2d 1001, 1003 (10th Cir. 1993); Penix v. United
States Parole Commission, 979 F.2d 386, 388-90
(5th Cir. 1992); Robbins v. Thomas, 592 F.2d 546,
549 n.7 (9th Cir. 1979). Revisiting that
interpretation of a repealed statute applicable
to a dwindling number of cases could not be
justified--especially not after Brock v. Pierce
County, 476 U.S. 253 (1986), which shows that as
a rule an agency that misses a statutory deadline
does not lose authority to make a belated
decision with the same legal effect as a timely
one. Congress sometimes specifies a consequence
of delay, along the lines of a statute of
limitations or the law at issue in Miller v.
French, 120 S. Ct. 2246 (2000), but, when the
statute is silent on the effect of delay,
shortcomings by public officials rarely preclude
(eventual) implementation of laws designed for
protection of the public at large. Valona
received an appropriate remedy when he was
released from supervision pending the
Commission’s action. Whether he should be on
parole supervision in 2001 and later depends on
the adequacy (as opposed to the timing) of the
Commission’s disposition.

  Section 4211(c)(1) calls for extended
supervision if the Commission concludes that
there "is a likelihood that the parolee will
engage in conduct violating any criminal law."
This language does not answer a vital question:
how likely must future criminality be? Even a
saint may violate the criminal law in the future;
what is more, most hardened criminals eventually
go straight (if only because many kinds of crime
require physical exertion in which older persons
cannot engage). Efforts to predict future
criminality person-by-person have not done well.
Although past convictions are good indicators of
future crimes, this is prediction in the
statistical sense; no one has been able to devise
a method of determining which released convicts
will commit new crimes. Those who kill in a fit
of passion are unlikely to murder again, but
Valona was a drug dealer, and the recidivism rate
is high when crime pays. If this regularity were
enough to justify a finding of "likelihood,"
however, the statute might as well deny release
to all drug dealers; yet if "likelihood" means
"more likely than not" then there is little point
to the possibility of extension, because someone
who spends five years on parole without a fresh
conviction must be among those at lesser risk of
recidivism.

 Because any mechanical reading of "likelihood"
either extends or terminates parole
automatically, and because automatic extensions
(or terminations) are just what sec.4211(c)(1)
does not authorize, the statute effectively hands
discretion to the Parole Commission. See Chevron
U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). One of the
Commission’s regulations specifying how this
discretion will be exercised provides that
supervision will continue if unresolved criminal
charges are pending against the parolee. 28
C.F.R. sec.2.43(e)(4). No "charges" have been
leveled against Valona, but a cloud hangs over
his head, and an investigation is ongoing.

  In July 1996 Valona asked his parole officer to
arrange for early termination of his supervision.
The parole officer replied that this could not be
done while the balance of Valona’s criminal fine,
some $23,000, remained unpaid. Only that month
Valona had filed a financial statement claiming
to have at least $75,000 worth of antiques
available for sale. That inventory was soon
turned into cash-- though in a way the parole
officer could not have contemplated. Six days
after the officer told Valona to pay his fine,
the warehouse holding that inventory burned to
the ground, and Valona submitted an insurance
claim for the stated value of his stock in trade.
At about the same time Michael Antonelli, who
Valona had come to know while in prison and who
like Valona had been released on parole, told his
wife that he had a contract to burn down a
warehouse holding antique furniture; later
Antonelli told his wife that the job had been
done and that he had been paid for his work.
Valona has not been charged with hiring Antonelli
to torch the warehouse, but neither has he been
absolved of suspicion. Parole officials also
suspect him of bankruptcy fraud (it seems that he
obtained a discharge in 1995 without revealing
his antiques and other assets) and of associating
with other felons. Suspicion is not proof, but
"likelihood" also falls short of proof--and new
crimes committed after release from prison are
the best possible indicator that there "is a
likelihood that [Valona] will engage in conduct
violating any criminal law." Sensible people
could conclude that supervision should be
continued, if only to allow the intermediate step
of revoking Valona’s parole rather than
initiating a new criminal prosecution. The
Commission’s decision to continue Valona’s parole
cannot be set aside under the APA.

  Valona argues that, even if the Commission’s
decision of February 1999 is lawful, we should
remand to the district court with instructions to
enter an order requiring the Commission to comply
with sec.4211(b): "Two years after each parolee’s
release on parole, and at least annually
thereafter, the Commission shall review the
status of the parolee to determine the need for
continued supervision." The Commission’s record
of delay does raise the question whether it can
be counted on to review Valona’s situation "at
least annually"; it not only missed the five-year
deadline under sec.4211(c)(1) but also has not
inquired since February 1999, yet we are closing
in on the second anniversary of that decision.
Perhaps, however, the Commission believed that it
could not properly hold additional proceedings
while the interim order lifting supervision
remained in force. Now that supervision has
resumed, so has the schedule under sec.4211(b).
If the Commission again lapses into inaction,
Valona will again be entitled to interim
cessation of supervision. We are confident that
the district court will protect his entitlements.

Affirmed
