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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2003 Decided June 18, 2004
No. 02-5228
THADDEUS FLETCHER,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv601)
D. Allison Baker, appointed by the court, argued the cause
as amicus curiae in support of appellant. With him on the
briefs were William B. Schultz and David Reiser.
Thaddeus Fletcher, appearing pro se, was on the briefs for
appellant.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Beverly M. Russell, Assistant U.S. Attorney, argued the
cause for appellee United States Parole Commission. With
her on the brief were Roscoe C. Howard, Jr., U.S. Attorney,
and R. Craig Lawrence, Assistant U.S. Attorney.
Edward E. Schwab, Acting Deputy Corporation Counsel,
and Mary L. Wilson, Assistant Corporation Counsel, were on
the brief for appellee the District of Columbia.
Before: GINSBURG, Chief Judge, and RANDOLPH and
ROBERTS, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Thaddeus Fletcher challenges the
district court’s dismissal of his claim, brought pursuant to 42
U.S.C. § 1983, that the United States Parole Commission
exceeded its authority and violated the Ex Post Facto Clause
of the Constitution of the United States by determining his
parole eligibility date on the basis of parole regulations and
guidelines promulgated after the crime for which he was
incarcerated. Although we conclude the district court erred
in holding Fletcher’s claim must be brought as a petition for
habeas corpus, we affirm the judgment of the district court
because Fletcher’s claims fail on their merits.
I. Background
In 1978 Fletcher was convicted of rape in District of
Columbia Superior Court and was sentenced to a term of 12–
36 years in prison. He was released on parole in 1990, after
having served the minimum of 12 years. In 1995 he was
convicted in Maryland of assault with intent to commit mur-
der and was sentenced to five years in prison. The District
of Columbia Board of Parole then issued a warrant against
Fletcher for violation of his parole. The warrant was execut-
ed upon Fletcher’s release from custody in Maryland in
August 1998. After affording him a hearing, the Board
revoked Fletcher’s parole in October of that year and im-
posed a 24–month ‘‘set-off’’ before he could be considered
again for parole.
3
In August 2000, pursuant to § 11231 of the National Capi-
tal Revitalization and Self–Government Improvement Act of
1997, Pub. L. 105–33, 111 Stat. 712 (D.C. Revitalization Act),
the D.C. Board was dissolved and its responsibility for the
release of prisoners incarcerated under D.C. law was trans-
ferred to the United States Parole Commission. That body
was vested with ‘‘authority to amend or supplement any
regulation interpreting or implementing the parole laws of
the District of Columbia.’’ D.C. Code § 24–131(a)(1). Pursu-
ant to that authority, the Commission promulgated a regula-
tion in which it applied to D.C. prisoners its existing guide-
lines for the reparole of federal prisoners. See 28 C.F.R.
§ 2.80.
In December 2000 the Commission considered and denied
Fletcher reparole. Pursuant to its regulations, the Commis-
sion gave Fletcher a ‘‘presumptive’’ reparole date of October
29, 2010.* Fletcher, who was then confined at D.C.’s Lorton
Correctional Facility, filed a pro se complaint in district court
against the District of Columbia, the D.C. Department of
Corrections, the D.C. Board, and the Commission,** seeking
compensatory and punitive damages under 42 U.S.C. § 1983.
He alleged the Commission exceeded its statutory authority
and violated the Ex Post Facto Clause by applying its 1998
regulations and guidelines to him. As the foundation for his
constitutional claim, Fletcher asserted he would have been
eligible for parole sooner under the D.C. Board guidelines in
effect when he was convicted in 1978.
The district court granted the defendants’ motion to dis-
miss on the ground that Fletcher could not seek damages via
§ 1983 ‘‘for alleged constitutional errors by the paroling
authorities in setting a release date.’’ The district court
concluded that, because a judgment in Fletcher’s favor
* After Fletcher filed suit in the district court the Commission,
realizing it ‘‘may have’’ erred, gave Fletcher a new presumptive
reparole date of October 29, 2007.
** We affirm the district court’s dismissal of Fletcher’s claims
against the District of Columbia defendants because they had
nothing to do with the decision of which he complains.
4
‘‘would be equivalent to a decision that his detention until the
parole date set by the [Commission] would be unlawful,’’ his
claim must be brought as a petition for habeas corpus.
Noting that Fletcher had filed a habeas petition alleging the
same constitutional violation, the district court further held
that, under Heck v. Humphrey, 512 U.S. 477 (1994), the
present action for damages was premature.
On appeal Fletcher argues he is challenging neither the
validity of his conviction or sentence nor the Commission’s
denial of his reparole. Rather, he challenges only the ‘‘proce-
dures used TTT in determining whether or not he is eligible
for parole,’’ a claim he asserts may be brought under § 1983.
The District and the Commission argue that Fletcher’s case
falls under the Preiser trilogy as interpreted in this circuit
and it therefore must be brought as a petition for habeas
corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)
(habeas is exclusive remedy for state prisoner’s attack on
revocation of good-time credits because he ‘‘is challenging the
very fact or duration of his physical imprisonment, and the
relief he seeks is TTT immediate release or a speedier release
from that imprisonment’’); Heck, 512 U.S. at 487 (claim for
damages under § 1983 not available where ‘‘a judgment in
favor of the plaintiff would necessarily imply the invalidity of
his conviction or sentence’’ unless ‘‘plaintiff can demonstrate
that the conviction or sentence has already been invalidated’’);
Edwards v. Balisok, 520 U.S. 641, 646–48 (1997) (claim that
good-time credits were revoked without due process not
cognizable under § 1983 because success would ‘‘necessarily
imply’’ the invalidity of continued imprisonment); Razzoli v.
Federal Bureau of Prisons, 230 F.3d 371, 374–76 (D.C. Cir.
2000) (habeas is exclusive vehicle for federal prisoner’s chal-
lenge to postponement of parole eligibility).
II. Analysis
In Chatman-Bey v. Thornburgh, we held that habeas is the
exclusive means by which a federal prisoner may challenge a
parole eligibility decision, even though success on such a
claim would lead neither to his immediate release nor to a
5
definite reduction in his sentence. See 864 F.2d 804, 808–10
(D.C. Cir. 1988). A decade later, with the benefit of the
Supreme Court’s decisions in Heck and Balisok and in accord
with the decisions of the other circuits that had addressed the
issue, see, e.g., Gwin v. Snow, 870 F.2d 616, 624–25 (11th Cir.
1989); Serio v. Members of La. State Bd. of Pardons, 821
F.2d 1112, 1119 (5th Cir. 1987), we held a ‘‘challenge[ ] to
state parole procedures whose success would not necessarily
result in immediate or speedier release need not be brought
in habeas corpus, even though the prisoners filed their suits
for the very purpose of increasing their chances of parole.’’
Anyanwutaku v. Moore, 151 F.3d 1053, 1055–56 (D.C. Cir.
1998). In that case we distinguished Chatman-Bey as having
concerned a federal prisoner, see id. at 1057, of which more
below.
Contrary to the Government’s argument, our subsequent
decision in Razzoli v. Federal Bureau of Prisons — which
also involved a federal prisoner — left Anyanwutaku intact.
Razzoli brought a claim under § 1983 challenging the Parole
Commission’s decision to postpone the date on which he
would become eligible for parole. 230 F.3d at 374. In
keeping with our decision in Chatman-Bey v. Thornburgh, we
held his claim must be brought in habeas. See id. at 376.
Because the Supreme Court had not ‘‘had occasion to rule
definitively’’ upon whether ‘‘claims with a merely probabilistic
impact on the duration of custody’’ could be brought under
§ 1983, id. at 375, we concluded there was no conflict between
Chatman-Bey and the Preiser trilogy. We confined our
holding in Razzoli, however, to claims brought by federal
prisoners:
Chatman-Bey made clear that a major implication of
habeas exclusivity in cases involving federal prisoners
was its impact on venue. In non-habeas federal prisoner
actions, a plaintiff could almost always name a defendant
over whom the district court for the District of Columbia
would have personal jurisdiction. But a habeas chal-
lenge must be brought against the custodian, a rule that
channels such claims into the federal court with jurisdic-
6
tion over the claimant’s prison. That consequence is, of
course, every bit as applicable here as in Chatman-Bey
itself, but had little or no relevance to Anyanwutaku;
even if state prisoners with probabilistic claims are re-
lieved of the strictures of Balisok, the District of Colum-
bia would generally not be a possible site for litigation.
Id. at 376 (emphasis in original).
A ruling in favor of Fletcher on the merits of his challenge
to the procedures pursuant to which the Commission denied
his parole would not be, in the words of the district court,
‘‘equivalent to a decision that his detention until the parole
date set by the Parole Commission would be unlawful.’’ Such
a ruling would affect only the date on which he becomes
eligible for parole, not necessarily the date on which he is in
fact paroled. This case is therefore controlled by our holding
in Anyanwutaku v. Moore that a D.C. prisoner’s § 1983 claim
‘‘must first be brought in habeas only when, if successful, it
would ‘necessarily imply,’ or automatically result in a speedier
release from prison.’’ 151 F.3d at 1056. Hence, Fletcher
may bring his claim pursuant to § 1983.
* * *
The Commission takes the position that it is not amenable
to suit under 42 U.S.C. § 1983 because ‘‘it does not act under
color of state law.’’ Not so with respect to a D.C. prisoner.
Fletcher challenges actions taken by the defendants pursuant
to the D.C. Revitalization Act. Section 1983 provides for
recovery against any person who deprived the plaintiff of a
constitutional right ‘‘under color of any statute TTT of any
State or Territory or the District Columbia,’’ including ‘‘any
Act of Congress applicable exclusively to the District of
Columbia.’’ 42 U.S.C. § 1983. Because the D.C. Revitaliza-
tion Act is such a statute, we have no doubt the defendant
members of the United States Parole Commission are amena-
ble to suit under § 1983 for actions taken pursuant to that
Act.*
* The Commission also argues it cannot be sued under 42 U.S.C.
§ 1983 because it is not a ‘‘person.’’ We construe Fletcher’s
7
With regard to the merits of his claim, Fletcher first
argues the Commission exceeded its statutory authority by
applying to him its own parole regulations and guidelines
rather than the guidelines of the defunct D.C. Board of
Parole. This argument is without merit. As the Commission
points out, under D.C. Code § 24–131(c), the Commission
may ‘‘amend or supplement’’ the rules of the D.C. Board of
Parole. Pursuant to this authority, the Commission promul-
gated a regulation making its guidelines regarding reparole
applicable to D.C. Code offenders. See 28 C.F.R. § 2.81(a).
Fletcher also argues that application to him of the Commis-
sion’s guidelines offends the Ex Post Facto Clause because
the guidelines were promulgated by the Commission and
made applicable to D.C. Code offenders after the conduct for
which he was convicted. This claim is also without merit.
The Ex Post Facto Clause provides: ‘‘No TTT ex post facto
Law shall be passed’’ by the Congress. U.S. Const. Art. I,
sec. 9. Although we have twice reserved the issue, see Blair–
Bey v. Quick, 151 F.3d 1036, 1049 n.12 (D.C. Cir. 1998);
Warren v. U.S. Parole Comm’n, 659 F.2d 183, 197 n.57 (D.C.
Cir. 1981), we think it perfectly clear, and we now hold, a
parole guideline is not a ‘‘law’’ within the proscription of the
Ex Post Facto Clause; the Commission’s guidelines are
merely policy statements, from which the Commission may
depart in its discretion. We join the Second, Seventh, Ninth,
and Eleventh Circuits in so holding. See Wallace v. Christen-
sen, 802 F.2d 1539, 1553 (9th Cir. 1986) (Parole Commission’s
guidelines ‘‘are procedural guideposts without the characteris-
tics of laws’’); Prater v. U.S. Parole Comm’n, 802 F.2d 948,
954 (7th Cir. 1986) (‘‘guides may be discarded where circum-
stances require; laws may not’’); DiNapoli v. Northeast
Regional Parole Comm’n, 764 F.2d 143, 147 (2d Cir. 1985);
Dufresne v. Baer, 744 F.2d 1543, 1550 (11th Cir. 1984).
complaint to have named the individual members of the Commis-
sion, in accordance with the general rule that, upon a motion to
dismiss, the complaint — particularly a complaint filed by a pro se
prisoner — should be construed liberally. See, e.g., Warren v.
District of Columbia, 353 F.3d 36, 37 (D.C. Cir. 2004).
8
III. Conclusion
For the foregoing reasons, the judgment of the district
court is
Affirmed.