Carver v. Lehman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSEPH CARVER, 
Plaintiff-Appellant,
No. 06-35176
v.
JOSEPH LEHMAN; KIMBERLY ACKER;  D.C. No.
CV-04-05570-RBL
VICTORIA ROBERTS; SIX TO BE
OPINION
NAMED DEFENDANTS,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding

Argued April 17, 2007
Submitted April 28, 2008
San Francisco, California

Filed June 9, 2008

Before: Warren J. Ferguson, Stephen Reinhardt, and
Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Reinhardt;
Concurrence by Judge Milan D. Smith, Jr.

6509
 CARVER v. LEHMAN 6513

COUNSEL

Tyler A. Baker, Esq., Todd Gregorian, Esq., Heather N.
Mewes, Esq. (argued), Fenwick & West, LLP, Mountain
View, California, for the plaintiff-appellant.

Rob McKenna, Esq., Sara J. Olson, Esq. (argued), Gregory J.
Rosen, Esq., Office of the Washington Attorney General,
Criminal Justice Division, Olympia, Washington, for the
defendants-appellees.
6514 CARVER v. LEHMAN
OPINION

REINHARDT, Circuit Judge:

This case presents the question whether Washington state
law creates a liberty interest in an inmate’s early release into
community custody that is protected under the Due Process
Clause of the Fourteenth Amendment. We hold that it does.
We conclude, however, that this right was not clearly estab-
lished at the time of the facts giving rise to this case. We
therefore affirm the district court’s grant of qualified immu-
nity.

I. Factual and Procedural Background

In August 1999, Joseph Dale Carver pled guilty to child
molestation in the third degree. He was sentenced to fifty-four
months of confinement in the custody of the Washington
State Department of Corrections (“DOC” or “Department”).
Because he was a sex offender, state law also required that
Carver be sentenced to a term of community custody to begin
“either upon completion of the term of confinement or at such
time as [he] is transferred to community custody in lieu of
earned release[.]” See WASH. REV. CODE § 9.94A.710(1)
(2006).1 He was sentenced to a thirty-six-month period of
community custody.
1
The Washington Court of Appeals has explained that “[c]ommunity
custody is the intense monitoring of an offender in the community for a
period of at least one year after release or transfer from confinement.
Although it has other purposes, community custody continues in the
nature of punishment, and is not equivalent to general release.” In re
Crowder, 985 P.2d 944, 945 (Wash. Ct. App. 1999). Offenders in commu-
nity custody live in a residence pre-approved by the DOC and are subject
to mandatory and discretionary conditions imposed by either the DOC or
the sentencing court. See, e.g., WASH. REV. CODE §§ 9.94A.710(2)-(3),
9.94A.700(4)-(5) (listing mandatory and discretionary conditions imposed
on offenders subject to community custody including, inter alia, reporting
requirements, payment of supervision fees, and prohibitions against pos-
session of controlled substances and consumption of alcohol).
 CARVER v. LEHMAN 6515
Carver’s good behavior as a prisoner earned him an early
release date of June 27, 2002.2 Carver’s sex offense, however,
precluded him from being released on his earned date. WASH.
REV. CODE § 9.94A.728(2)(a) (2006). Rather, state law pro-
vides that sex offenders may become eligible for transfer to
community custody in lieu of early release. Id. Eligibility for
transfer to community custody is determined based on “re-
lease plan[s]” submitted by offenders. WASH. REV. CODE
§ 9.94A.728(2)(c). In March 2002, Carver submitted a release
plan. His plan was denied in April 2002, pursuant to a DOC
policy then in effect which provided for the categorical denial
of release plans of offenders, like Carver, whom the Depart-
ment determined “appear[ed] to meet the definition of a sexu-
ally violent predator and [who had] been referred for Civil
Commitment . . . .” DOC Policy Directive 350.200 (May 4,
2001).3 As a result of the denial of his proposed release plan,
Carver served his full term of confinement.

In September 2004, Carver filed a civil rights suit under 42
U.S.C. § 1983, asserting that DOC officials denied him early
release into community custody without affording him due
process of law under the Fourteenth Amendment.4 The district
court, adopting the report and recommendation of the magis-
trate judge, granted the DOC officials’ motion for summary
judgment on two principal grounds: one, that Washington law
does not create a liberty interest in early release into commu-
nity custody and therefore Carver did not have a due process
2
For reasons that are not explained in the record before us, this date was
subsequently pushed back to January 13, 2003.
3
As we explain infra, this policy was subsequently struck down by the
Washington Court of Appeals in In re Dutcher, 60 P.3d 635, 640 (Wash.
Ct. App. 2002) (holding “DOC Policy 350.200 . . . violates the governing
statutes”).
4
Carver’s original complaint named as a defendant only Joseph Leh-
man, secretary of the DOC at the time that Carver’s release plan was
denied. In his amended complaint, Carver named two additional defen-
dants, Kimberley Acker and Victoria Roberts, both DOC officials
involved in making end of sentence review determinations.
6516 CARVER v. LEHMAN
right protected by the Fourteenth Amendment and two, that
even if such a right existed, Defendant Lehman was entitled
to qualified immunity.5 Carver timely appealed. We have
jurisdiction to review the district court’s determination pursu-
ant to 28 U.S.C. § 1291, and we review de novo its grant of
summary judgment and finding of qualified immunity. See
Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs.,
237 F.3d 1101, 1106 (9th Cir. 2001); Galen v. County of Los
Angeles, 477 F.3d 652, 658 (9th Cir. 2007).

II. Discussion

[1] The Due Process Clause of the Fourteenth Amendment
provides that no state shall “deprive any person of life, liberty,
or property, without due process of law . . . .” U.S. CONST.
amend. XIV, § 1. Our analysis of due process claims proceeds
in two steps. “[T]he first asks whether there exists a liberty or
property interest which has been interfered with by the State;
the second examines whether the procedures attendant upon
that deprivation were constitutionally sufficient.” Ky. Dep’t of
Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citation omit-
ted).

[2] We have recognized that “[a] liberty interest may arise
from either of two sources: the due process clause itself or
state law.” Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th
Cir. 1986). Carver concedes that the Due Process Clause does
not create a liberty interest in an inmate’s “conditional[ ]
release[ ] before the expiration of a valid sentence.” Green-
holtz v. Inmates of the Nebraska Penal and Corr. Complex,
442 U.S. 1, 7 (1979). Rather, he argues that Washington
state’s statutory scheme governing early release into commu-
5
The district court also adopted the magistrate judge’s finding that
Defendants Acker and Roberts were entitled to summary judgment
because Carver failed to show that “these defendants played any part in
enacting the policy that precluded [Carver] from being considered for
release.” Carver does not appeal this portion of the judgment below.
 CARVER v. LEHMAN 6517
nity custody “uses mandatory language, ‘creat[ing] a pre-
sumption that . . . release will be granted’ . . . unless certain
designated findings are made, and thereby gives rise to a con-
stitutional liberty interest.” McQuillion v. Duncan, 306 F.3d
895, 901 (9th Cir. 2002) (quoting Greenholtz, 442 U.S. at 12;
citing Bd. of Pardons v. Allen, 482 U.S. 369, 377-78 (1987)).
As in prior cases, our task here is to apply the well-established
mandatory language rule governing state-created liberty inter-
ests set forth by the Supreme Court in Greenholtz and Allen
to the Washington statutory scheme at issue.6 See, e.g., Sass
v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127-28 (9th Cir.
2006) (holding California law creates a liberty interest in
parole); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003)
(same); McQuillion, 306 F.3d at 901-902 (same); Bermudez
v. Duenas, 936 F.2d 1064, 1065-66 (9th Cir. 1991) (holding
Guam law creates a liberty interest in parole); Baumann v.
Ariz. Dep’t of Corr., 754 F.2d 841, 843-45 (9th Cir. 1989)
(holding Arizona law does not create a liberty interest in cus-
todial release); Balla v. Idaho State Bd. of Corr., 869 F.2d
6
In his reply brief, Lehman argued that Sandin v. Connor, 515 U.S. 472
(1995) should control our liberty interest inquiry. In Sandin, the Supreme
Court considered a challenge to a prison regulation imposing disciplinary
segregation for misconduct. Id. at 475-77. In holding that the regulation
did not create a liberty interest, the Court did not apply the “mandatory
language” framework of Greenholtz and Allen. Id. at 481-86. Instead, it
focused on whether the challenged restraint arising from the regulation
“impose[d] atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” Id. See also Wilkinson v. Austin, 545
U.S. 209, 222-224 (2005) (applying Sandin to determine whether Ohio
inmates have a liberty interest in avoiding placement in a “supermax”
prison). As Lehman properly conceded in his supplemental submissions to
the court, we have since held that Sandin’s holding was limited to “the
separate but related question of when due process liberty interests are cre-
ated by internal prison regulations.” McQuillion, 306 F.3d at 902-03
(emphasis added). See also Sass, 461 F.3d at 1127 n.3 (explaining that this
court has “consistently rejected th[e] argument” that Sandin eliminated the
“ ‘mandatory language’ approach of Greenholtz and Allen). Accordingly,
we continue to apply the “mandatory language” rule set forth in Green-
holtz and Allen in order to determine whether Washington’s statutory
scheme creates a liberty interest in early release into community custody.
6518 CARVER v. LEHMAN
461, 469-70 (9th Cir. 1989) (holding Idaho law does not
create a liberty interest in parole). We turn to that task now.

A. The Washington statutory scheme governing early
release into community custody creates a
constitutionally protected liberty interest.

Washington law mandates that an individual convicted of
a sex offense be sentenced to a term of community custody
that “shall begin either upon completion of the term of con-
finement or at such time as the offender is transferred to com-
munity custody in lieu of earned release.” WASH. REV. CODE
§ 9.94A.710(1). Unlike other inmates, then, a convicted sex
offender who accrues “earned release time . . . for good
behavior and good performance” is not entitled to early
release; rather, he is eligible for transfer into community cus-
tody at an earlier date. WASH. REV. CODE § 9.94A.728(1),
(2)(a). The law requires the DOC to develop a program to
effectuate the transfer to community custody of such inmates.
See WASH. REV. CODE § 9.94A.728(1). As part of that pro-
gram, the Department must “require the offender to propose
a release plan that includes an approved residence and living
arrangement.” WASH. REV. CODE § 9.94A.728(2)(c). The law
then describes how the DOC should evaluate such release
plans, stating:

The department may deny transfer to community
custody status in lieu of earned release time pursuant
to subsection (1) of this section if the department
determines an offender’s release plan, including pro-
posed residence location and living arrangements,
[1] may violate the conditions of the sentence or
conditions of supervision, [2] place the offender at
risk to violate the conditions of the sentence, [3]
place the offender at risk to reoffend, or [4] present
a risk to victim safety or community safety.
 CARVER v. LEHMAN 6519
WASH. REV. CODE § 9.94A.728(2)(d) (emphasis added).7

In order to comply with the statutory mandate, the DOC
promulgated Policy Directive 350.200. Under the version of
this policy in force when Carver submitted his release plan,
the DOC instructed that release plans of sex offenders be
assessed to determine “the degree of risk for victims and
potential victims of similar age or circumstances” and to
ensure that, subject to certain exceptions, “[s]ex offenders will
not return to a residence where minor victim(s) or other chil-
dren of similar age are present in the residence[.]” DOC Pol-
icy Directive 350.200 (May 4, 2001). The Policy Directive
specified that a residence proposed by an offender within a
release plan may be denied if the proposed location will place
the offender in violation of court-imposed conditions, at the
likely risk to re-offend, or in close proximity to the minor vic-
tim(s), school, child care center, playground, or other facilities
where children of similar age and circumstances surrounding
the conviction are present and who may be put at substantial
risk of harm by the offender residing at that location.8 The
7
The provision goes on to state that “[t]he department’s authority under
this section is independent of any court-ordered condition of sentence or
statutory provision regarding conditions for community custody or com-
munity placement.” WASH. REV. CODE § 9.94A.728(2)(d). The concurrence
argues that this sentence makes it clear that the function of section
9.94A.728(2)(d) is “to preserve to the DOC the discretion to deny transfer
in the event that it makes one of the four determinations, notwithstanding
what other legal sources might otherwise require.” Conc. Op. at 6532. We
do not disagree. The fact that the provision permits the DOC to deny
release even where other legal sources would allow for it is irrelevant,
however, to the question at hand: whether, regardless of other legal
sources, the statute itself places substantive limits on the DOC’s exercise
of discretion? As we explain infra, the provision’s preservation to the
DOC of discretion to deny transfer only “in the event that it makes one
of the four determinations[,]” is precisely the type of substantive limitation
that gives rise to the liberty interest that we now recognize.
8
The final of these criteria is drawn from section 72.09.340(3)(a) of
Washington’s Revised Code which provides that the DOC is “authorized
to reject a residence location if the proposed residence is within close
6520 CARVER v. LEHMAN
DOC’s policy also provided for the categorical denial of
release plans “if the End of Sentence Review Committee has
determined that the offender appears to meet the definition of
a sexually violent predator and s/he has been referred for Civil
Commitment . . . .”9 This final provision, under which Car-
ver’s release plan was denied, was subsequently eliminated
after the Washington Court of Appeals held that it violated the
statutory requirement that all sex offenders “may become eli-
gible” for community custody. See In re Dutcher, 60 P.3d at
638-40. See also Letter from Anne L. Fiala, Assistant Deputy
Secretary, Washington State Dep’t of Corrections, to Office
of Correctional Operations Management (Jan. 12, 2003).10

[3] Carver argues that this statutory scheme creates a pro-
tected liberty interest because it requires the DOC to transfer

proximity to schools, child care centers, playgrounds, or other grounds or
facilities where children of similar age or circumstance as a previous vic-
tim are present who the department determines may be put at substantial
risk of harm by the sex offender’s residence at that location.” WASH. REV.
CODE § 72.09.340(3)(a) (2006).
9
Washington state law defines “sexually violent predator” as “any per-
son who has been convicted of or charged with a crime of sexual violence
and who suffers from a mental abnormality or personality disorder which
makes the person likely to engage in predatory acts of sexual violence if
not confined in a secure facility.” WASH. REV. CODE § 71.09.020(16)
(2006). An offender determined to be a sexually violent predator may be
subject to civil commitment after his term of confinement. WASH. REV.
CODE § 71.09.040 (2006).
10
The DOC amended Policy Directive 350.200 in June 2002. In its
amended form, the policy provides for the denial of release plans “[w]hen
the offender’s plan is to return to a residence where there is a victim(s)
that the [department] believes is at risk[,]” and for the rejection of pro-
posed residences under the same criteria as set forth in its prior directive.
See DOC Policy Directive 350.200 (June 25, 2002). The amended policy
also initially retained the provision requiring the categorical denial of the
release plans of those who appear to meet the sexually violent predator
definition and have been referred for civil commitment. Id. As we explain
supra, the categorical denial provision was eliminated after the Washing-
ton Court of Appeals’ decision in In re Dutcher, 60 P.3d at 640.
 CARVER v. LEHMAN 6521
an inmate to community custody in lieu of earned release “un-
less any one of the . . . specifically designated reasons are
found[,]” thereby “creat[ing] a presumption that . . . release
[into community custody] will be granted, and that this in turn
creates a legitimate expectation of release absent the requisite
finding that one of the justifications for [denial] exists.”
Greenholtz, 442 U.S. at 11-12. See also Allen, 482 U.S. at
377-78. We agree.

[4] The Washington statutory scheme uses language that
effectively mandates the transfer to community custody of
those inmates who have earned release time and who have not
been found to meet one of the statutory reasons for denial of
a release plan set forth in § 9.94A.728(2)(d). Section
9.94A.710(1) requires that sex offenders be sentenced to a
term of community custody to begin either when the offend-
er’s term of confinement is complete or when he is transferred
as a result of earned release time. Section 9.94A.728(1) like-
wise requires the DOC to develop and promulgate procedures
by which a sex offender may become eligible for transfer to
community custody in lieu of earned release time. The same
section then sets forth the limited circumstances under which
the Department “may deny” an inmate’s proposed plan for
transfer to community custody. WASH. REV. CODE
§ 9.94A.728(2)(d) (listing as legitimate reasons for denial, a
DOC determination that the release plan may violate the con-
ditions of the sentence or conditions of supervision, place the
offender at risk to violate the conditions of the sentence, place
the offender at risk to reoffend, or present a risk to victim or
community safety). By placing substantive limitations on
DOC’s discretion to deny release plans and, in particular, by
requiring that denial of such plans be based on the limited
criteria contained in section 9.94A.728(2)(d), Washington has
created a liberty interest in early release into community cus-
tody that is protected by the Due Process Clause of the Four-
teenth Amendment.11 See Allen, 482 U.S. at 375-76 (clarifying
11
At oral argument, Lehman argued that the presence of more specific
criteria for denial of proposed residence locations in section
6522 CARVER v. LEHMAN
that a state may grant “significant discretion to the decision-
maker” to apply “general or broad release criteria” without
“depriv[ing] the prisoner of the liberty interest in parole[,]” so
long as “release is required after the [decisionmaker] deter-
mines (in its broad discretion) that the necessary prerequisites
exist”). See also Baumann, 754 F.2d at 844 (noting that “[a]
state may create a constitutionally protected liberty interest by
establishing regulatory measures that impose substantive limi-
tations on the exercise of official discretion”); Bergen v.

72.09.340(3)(a) undermines Carver’s contention that the four criteria listed
in section 9.94A.728(2)(d) provide the exclusive legitimate bases for
denial of a release plan. Lehman is incorrect: the bases for denial of pro-
posed residence locations contained in section 72.09.340(3)(a) are, in
effect, specific variations of the same more general formulations set forth
for denial of release plans in section 9.94A.728(2)(d). Section
72.09.340(3)(a) provides:
[T]he department shall not approve a residence location if the
proposed residence: (i) Includes a minor victim or child of sim-
ilar age or circumstance as a previous victim who the depart-
ment determines may be put at substantial risk of harm by the
offender’s residence in the household; or (ii) is within close
proximity of the current residence of a minor victim, unless the
whereabouts of the minor victim cannot be determined or
unless such a restriction would impede family reunification
efforts ordered by the court or directed by the department of
social and health services. The department is further authorized
to reject a residence location if the proposed residence is
within close proximity to schools, child care centers, play-
grounds, or other grounds or facilities where children of simi-
lar age or circumstance as a previous victim are present who
the department determines may be put at substantial risk of
harm by the sex offender’s residence at that location.
These bases for denial of a proposed residence, which take into account
whether the residence includes or is near a past or potential victim, are
simply more specific examples of the final two criteria that serve as legiti-
mate bases for denial under § 9.94A.728(2)(d), whether the “proposed res-
idence location and living arrangements . . . place the offender at risk to
reoffend, or present a risk to victim safety or community safety.” WASH.
REV. CODE § 72.09.340(3)(a).
 CARVER v. LEHMAN 6523
Spaulding, 881 F.2d 719, 721 (9th Cir. 1989) (“A board
charged with deciding a prisoner’s early release may be dele-
gated significant discretion in making its decision, and yet be
constrained by legal standards in exercising that discretion
. . . . that scheme may give rise to a liberty interest in early
release.”) (internal citation omitted).

[5] That the Washington statute governing transfer to com-
munity custody does not use the more traditional mandatory
language formula used in other early release statutes, i.e. stat-
ing that the DOC “shall” grant release “unless” certain find-
ings are made, does not require a contrary result. See Allen,
482 U.S. at 378 (rejecting the argument that a statute must
contain the “shall/unless” formula in order to create a liberty
interest). Although we have accorded significance to the use
of the term “shall” in assessing whether early release statutes
create a liberty interest, we have never held that use of this
term is required in order to satisfy the mandatory language
rule set forth in Greenholtz and Allen. Nor do we here.
Despite the absence of the word “shall,” we conclude that the
language of section 9.94A.728(2)(d) is mandatory. Section
9.94A.728(2)(d) provides that the department “may deny
transfer to community custody . . . if” any one of four criteria
is met. By establishing criteria under which release may be
denied, section 9.94A.728(2)(d) creates the presumption that,
absent the existence of one those criteria, release will be
granted. The repetition of the criteria, albeit in more specific
form, in section 72.09.340(3)(a) and in Policy Directive
350.200 confirms our understanding of the mandatory nature
of the statute.

The “may deny . . . if” formula operates in precisely the
same manner and has precisely the same effect as a “shall
grant . . . unless” clause. Under the “may deny . . . if” for-
mula, the provision sets forth the conditions under which the
agency may deny release. Otherwise, it must grant it. This is
distinguishable from state statutes that provide that a decision-
maker “may grant . . . if” certain criteria are met. Under the
6524 CARVER v. LEHMAN
“may grant . . . if” formula, the agency may only grant release
if the relevant criteria are met, but it is not required to do so.12
Therefore, under the “may deny . . . if” formula, as under a
“shall grant . . . unless” clause, there is an expectation that
release will be granted unless one of the specified conditions
exists.

Our conclusion is supported by Washington state court
decisions finding a limited liberty interest in transfer to com-
munity custody in lieu of early release, as well as interpreting
the statutory provisions governing such transfers. The Wash-
ington Court of Appeals has consistently found a “limited lib-
erty interest in early release into a community custody
program . . . .” In re Crowder, 985 P.2d at 944-45 (holding
inmate had liberty interest in grant or denial of community
custody placement upon earning of early release, but that the
minimum level of due process required to protect this interest
was provided). See also In re Dutcher, 60 P.3d at 636 (“An
inmate’s interest in his earned early release credits is a lim-
ited, but protected, liberty interest.”); In re Liptrap, 111 P.3d
1227, 1231 (Wash. Ct. App. 2005) (same).13
12
For this reason, courts have routinely held that the “may grant . . . if”
formulation does not create a liberty interest. See, e.g., Barna v. Travis,
239 F.3d 169, 171 (2d Cir. 2001) (New York parole statute); Dace v.
Mickelson, 797 F.2d 574, 577 (8th Cir. 1986) (South Dakota parole stat-
ute); Gale v. Moore, 763 F.2d 341, 343 (8th Cir. 1985) (Missouri parole
statute); Parker v. Corrothers, 750 F.2d 653, 656-657 (8th Cir. 1984)
(Arkansas parole statute); Dock v. Latimer, 729 F.2d 1287, 1288 (10th Cir.
1984) (Utah parole statute); Irving v. Thigpen, 732 F.2d 1215, 1217 (5th
Cir. 1984) (Mississippi parole statute); Candelaria v. Griffin, 641 F.2d
868, 869-70 (10th Cir. 1981) (New Mexico parole statute); Williams v.
Briscoe, 641 F.2d 274, 276-77 (5th Cir. 1981) (Texas parole statute);
Schuemann v. Colo. State Bd. of Adult Parole, 624 F.2d 172, 174 n.2 (10th
Cir. 1980); Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979) (New
York parole statute); Shirley v. Chestnut, 603 F.2d 805, 806-07 (10th Cir.
1979) (Oklahoma parole statute); Wagner v. Gilligan, 609 F.2d 866, 867
(6th Cir. 1979) (Ohio parole statute).
13
The concurrence contends that we read too much into the use of the
word “liberty interest” in these cases. It first argues that the liberty interest
 CARVER v. LEHMAN 6525
Moreover, in interpreting the statutory scheme governing
early release into community custody, the state Court of
Appeals has on two occasions discussed the mandatory nature
of the law. In Dutcher, an inmate similarly situated to Carver
challenged the DOC’s failure to review his plan for release
into community custody pursuant to the Department’s policy
of categorically denying the plans of those offenders who
appeared to be sexually violent predators and who were
referred for civil commitment. 60 P.3d at 635-36. The court
held that the DOC’s policy violated the statutory mandate,
explaining that “the statute compels DOC to require offenders
to develop a release plan, and requires DOC to base its com-

recognized by the Washington Court of Appeals is merely procedural,
rather than substantive, in nature. Conc. Op. at 6533 (“In both Liptrap and
Dutcher, the Washington court’s holding concerned only the inmate’s pro-
cedural right to have his proposal considered on the merits, rather than a
substantive right to transfer.”). To the contrary, the Washington court
explained: “An inmate’s interest in his earned early release credits is a
limited, but protected, liberty interest. Likewise, the department’s compli-
ance with requirements of statutes affecting his release is a protected lib-
erty interest.” See In re Liptrap, 111 P.3d at 1231 (quoting In re Ducther,
60 P.3d at 636) (emphasis added). As this language makes clear, the
Washington court recognizes a liberty interest in both the substantive right
to earned early release (here, in the form of transfer to community cus-
tody) and the distinct procedural right to have the DOC comply with the
requirements of the statutes governing such release.
The concurrence next suggests that “the Washington Court of Appeals
is using ‘liberty interest’ far more broadly than the term of art of federal
Due Process jurisprudence . . . encompassing any right cognizable at law
with some bearing on whether one receives liberty.” Conc. Op. at 6534
n.3. That the Washington court had the federal Due Process Clause—and
not an ambiguous right otherwise recognized at law—in mind when ana-
lyzing section 9.94A.728(2) is, again, evidenced by the plain language of
its decision in Liptrap, where the court framed its discussion of the interest
at stake in the familiar terms of federal due process jurisprudence. See In
re Liptrap, 111 P.3d at 1231 (explaining that “ “[d]ue process protects
against the deprivation of life, liberty, or property” and finding that “ “[a]n
inmate’s interest in his earned early release credits is a limited, but pro-
tected, liberty interest”).
6526 CARVER v. LEHMAN
munity custody eligibility decisions on the merits of the
release plan.” 60 P.3d at 638 (emphasis added).

Our conclusion that requiring a decision on the merits of a
release plan permits the Department to deny such a plan only
if it finds one of the statutory criteria listed in section
9.94A.728(2)(d) is bolstered by the state court’s interpretation
of the statute in In re Liptrap. In Liptrap, inmates challenged
the DOC’s policy of refusing to review release plans of sex
offenders until a forensic psychological evaluation had been
completed. Id. at 1229. In finding that the Department’s pol-
icy violated inmates’ due process rights, the court explained
that “[t]he provisions in subsections [9.94A.728(2)] (c) and
(d), spell[ ] out what is required in a release plan and stat[e]
reasons why the department may deny a release[.]” Id. at
1232 (emphasis added). Accordingly, the Liptrap court found
that “the department [does not have] unlimited discretion to
decide whether and when to consider an offender for transfer
to community custody.” Id. Rather, the DOC’s failure to
“state[ ] a legitimate reason” for the denial of a release plan,
the court concluded, “deprived [the inmates] of earned early
release credits in violation of due process.” Id. at 1234
(emphasis added).14 This holding is consistent with our con-
clusion that Washington law requires that the DOC’s denial
of a release plan be based on a “legitimate reason,” and that
such reasons are enumerated in section 9.94A.728(2)(d).

[6] In sum, we hold that the Washington statutory scheme
governing transfer to community custody of those inmates
who have earned early release time creates a liberty interest
that is protected under the Due Process Clause of the Four-
14
The Liptrap court specifically noted section 72.09.340’s provision for
denial of a release plan because the proposed residence is near young chil-
dren as a “legitimate statutory reason for disapproving a release plan for
a sex offender.” In re Liptrap, 111 P.3d at 1233 & n.6 (citing WASH. REV.
CODE § 72.09.340(3)). For the reasons set forth in footnote 11 supra, this
provision is simply a specific example of the more general bases for denial
set forth in section 9.94A.728(2)(d).
 CARVER v. LEHMAN 6527
teenth Amendment.15 Our next step is to determine “whether
15
We acknowledge that our holding is inconsistent with two non-
precedential dispositions of this court, as well as the unpublished decisions
of several federal district courts that have addressed this question. See
Dutcher v. Lehman, No. 06-35043, 2007 WL 1742794 (9th Cir. June 14,
2007); Chaney v. Lehman, No. 05-36116, 2007 WL 870358 (9th Cir. Mar.
22, 2007); Duncan v. Lehman, No. C04-5633RBL, 2006 WL 1548820
(W.D. Wash. June 2, 2006); Garcia v. Lehman, No. C04-5893FDB, 2006
WL 827957 (W.D. Wash. Mar. 23, 2006). The district court dispositions
are in no way binding and, for the reasons set forth above, we do not
believe that they reach the correct result.
The contrary dispositions of our own court do give us pause, although
when the panel involved deliberately chooses to make its views non-
precedential we would be disregarding our duty to exercise our indepen-
dent judgment if we treated those views as controlling on the court. See
9TH CIR. R. 36-3. Still we examine the less formal views of our colleagues
with some deference, while bearing in mind the ultimate status our col-
leagues have chosen to have us and all future panels afford those views.
In Chaney, one of the two non-precedential dispositions filed by our col-
leagues, Washington inmates held beyond the date that they were or would
be eligible for release into community custody appealed the denial of their
release without a prior hearing. 2007 WL 870358, at *1. In affirming the
district court’s dismissal of their section 1983 claim, the Chaney panel
reached two alternative holdings. One, with only the cursory observation
that “[t]he Washington statute grants a significant degree of discretion to
the DOC[,]” the panel found that state law did not create a liberty interest
in release into community custody. Id. However, as the Supreme Court
explained in Allen, “the presence of general or broad release criteria—
delegating significant discretion to the decisionmaker . . . . is not incom-
patible with the existence of a liberty interest.” Allen, 482 U.S. at 375-76
(emphasis added). Two, acknowledging that Washington state courts have
found a limited liberty interest, the panel concluded that even assuming
the existence of such an interest, the process demanded by the Chaney
plaintiffs—a hearing—was not required. 2007 WL 870358, at *2. In the
present case, Carver argues only that he was entitled to some form of pro-
cess before his release plan was summarily rejected, not that he was enti-
tled to a full hearing. Thus, the alternative Chaney holding is in no way
inconsistent with the conclusion we reach here. In Dutcher, the second of
the two non-precedential dispositions, the panel’s conclusion that Wash-
ington law does not create a liberty interest in early release into commu-
nity placement was supported only by a citation to Greenholtz. Dutcher,
2007 WL 1742794, at *1. For the reasons set forth above, we believe that
Greenholtz supports the existence of a liberty interest. The Dutcher
panel’s failure to provide any reasoning in its disposition makes it impos-
sible for us to address the merits of its conclusion to the contrary.
6528 CARVER v. LEHMAN
the procedures attendant upon th[e] deprivation [of Carver’s
liberty interest] were constitutionally sufficient[.]” Thompson,
490 U.S. at 460. Carver’s release plan was denied under a cat-
egorical policy that provided him with no process at all; it
simply rejected all plans of offenders who, like Carver,
appeared to fall under the definition of a sexually violent
predator and who were referred for civil commitment.
Accordingly, we conclude that the complete absence of proce-
dures deprived Carver of his liberty interest in transfer to
community custody without due process of law.

B. Qualified Immunity

[7] Qualified immunity protects “government officials . . .
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Our qualified immunity
analysis proceeds in two parts. First, we consider whether
“the facts alleged show that [Lehman’s] conduct violated a
constitutional right[.]” Galen, 477 F.3d at 658-59 (citing Sau-
cier v. Katz, 533 U.S. 194, 200-02 (2001)). For the reasons
discussed above, we answer this question in the affirmative.
Second, we ask if “the right [Lehman is] alleged to have vio-
lated [was] clearly established such that a reasonable [official]
would have understood that he was violating that right[.]” Id.
We conclude that the answer to this question is no.

[8] In determining whether the right alleged to have been
violated was clearly established, we must consider the right
“in light of the specific context of the case, not as a broad
general proposition[.]” Saucier, 533 U.S. at 201. “ ‘The con-
tours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.’ ” Saucier, 533 U.S. at 202 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Here, because section
9.94A.728(2)(d) does not use the more common mandatory
term “shall,” a reasonable correctional official might not have
 CARVER v. LEHMAN 6529
understood that the Washington statutory scheme created a
liberty interest in early release into community custody. Cer-
tainly, the question was highly debatable at the time that Leh-
man was required to act. Carver’s plan was denied before the
Washington Court of Appeals had issued its decisions in Dut-
cher and Liptrap, which clarified that not only does a limited
liberty interest exist under state law, but that the DOC’s dis-
cretion to deny release into community custody is limited to
rejection of a plan on the basis of the legitimate statutory
criteria set forth in section 9.94A.728(2)(d).

[9] Because we conclude that the right at issue here was not
sufficiently clear at the time of the facts giving rise to this
case such that a reasonable official would understand that
denying a release plan without providing a legitimate statu-
tory reason for that denial would violate due process, we
affirm the district court’s grant of qualified immunity.

III. Conclusion

Washington state law creates a liberty interest in an
inmate’s early release into community custody that is pro-
tected under the Due Process Clause of the Fourteenth
Amendment. Carver was denied his due process right by the
state officials’ refusal to approve his release plan without
reviewing it on its merits. At the time, however, the due pro-
cess right arising from the existence of his liberty interest was
not sufficiently clearly established to meet the Saucier stan-
dard. We therefore affirm the district court’s determination
that Lehman is entitled to qualified immunity.

AFFIRMED.

MILAN D. SMITH, JR., Circuit Judge, concurring in the
judgment:

I respectfully part ways with the majority. I do not believe
that Washington State law creates a Fourteenth Amendment
6530 CARVER v. LEHMAN
liberty interest in early release into community custody. The
majority erroneously conjures a statutory liberty interest, pro-
tected by the Due Process Clause, out of Wash. Rev. Code
§ 9.94A.728(2) only by confusing “may” and “shall” and by
reading “if” to mean “only if.”

I.

“The preeminent canon of statutory construction requires
us to presume that the legislature says in a statute what it
means and means in a statute what it says there.” BedRoc Ltd.
v. United States, 541 U.S. 176, 183 (2004) (internal quotation
marks and alterations omitted). Far from using “the more tra-
ditional mandatory language formula used in other early
release statutes,” Maj. Op. at 6523, section 9.94A.728(2)(d)
instead uses traditional permissive “may . . . if” language used
in statutes that create no liberty interest. Had the Washington
State Legislature meant to write a statute limiting the discre-
tion of the DOC, it could easily have said so. Section
9.94A.728(2)(d) states that the DOC “may deny” convicted
sex offenders transfer to community custody “if” it makes
certain determinations about the offender’s proposed release
plan. It says nothing about the criteria for granting the
request, let alone detailing circumstances under which the
DOC must do so.

The majority overcomes the legislature’s failure to specify
any criteria for granting a request by holding that the determi-
nations mentioned in section 9.94A.728(2)(d) are the only
conditions on which the DOC may deny transfer, and there-
fore requiring that it grant in all other cases. Maj. Op. at
6523-24. One searches the statute in vain, however, for any
indication that those determinations are the exclusive reasons
that the DOC “may deny” transfer. The criteria of section
9.94A.728(2)(d) are sufficient to deny sex offenders transfer,
but are not necessary. Had the legislature wished to make
 CARVER v. LEHMAN 6531
them necessary, it would have used not “if” but “only if,” or
some semantic equivalent.1

In some cases, a court may read the word “if” to mean
“only if.” The canon of construction expressio unius est exclu-
sio alterius stands for the proposition that, when the legisla-
ture provides a list of related items, it impliedly means to
exclude other items. See Norman J. Singer, 2A Sutherland
Statutes and Statutory Construction § 47:23 (7th Ed. 2007).
Such a result obtains, however, only where there is some rea-
son to believe that the legislature intended that the enumera-
tion be exclusive—or at the very least in the absence of
evidence to the contrary. “The maxim expressio unius est
exclusio alterius is an aid to construction, not a rule of law.
It can never override clear and contrary evidences of [legisla-
tive] intent.” Neuberger v. Comm’r, 311 U.S. 83, 88 (1940);
see also Wash. State Labor Council v. Reed, 65 P.3d 1203,
1209 (Wash. 2003) (“[T]he rule of expressio unius est exclu-
sio alterius d[oes] not necessarily apply without considering
1
It is true that there are no magic words necessary for the legislature to
create a liberty interest. Bd. of Pardons v. Allen, 482 U.S. 369, 378 (1987).
There are any number of other ways the legislature might have accom-
plished the result the majority reads into section 9.94A.728(2)(d). It might
have said the DOC “shall” grant release “unless” the criteria are met or
“if” they are not; it might have said that it “may” deny release “only if”
the criteria are met, or “except in the event” they are not; it might have
come up with another formulation that means substantially the same thing.
The distinction between “if” and “only if,” however, is not a mere quib-
ble over vocabulary—it goes right to the heart of whether the criteria of
section 9.94A.728(2)(d) are necessary or sufficient conditions for transfer,
and therefore whether transfer is mandatory or entirely discretionary.
“May . . . only if” would be effectively identical to “shall . . . unless ”;
“may . . . if” is not. Contra Maj. Op. at 6523-24. In formal terms, the
majority commits the fallacy of denying the antecedent: from the premise
“if P, then Q,” it does not follow from “not P” that “not Q.” See generally
Ruggero J. Aldisert, Logic for Lawyers 160-61 (3d ed. 1997); Bruce N.
Waller, Critical Thinking 112-13 (5th ed. 2005); Wikipedia, Denying the
antecedent, available at http://en.wikipedia.org/wiki/Denying_the_
antecedent (Last accessed May 30, 2008).
6532 CARVER v. LEHMAN
other factors which may persuade the court that legislative
intent was the opposite of what the statutory construction rule
would require.”). In this case, however, the majority uses the
technique sub silentio to override the unambiguously discre-
tionary language in the statute (“may”).

The language of Wash. Rev. Code section 9.94A.728(2)(d)
makes it clear that the provision’s purpose is to expand the
discretion of the DOC. This makes the majority’s implicit
expressio unius reading especially inappropriate. The statute
states: “The department’s authority under this section is inde-
pendent of any court-ordered condition of sentence or statu-
tory provision regarding conditions for community custody or
community placement.” Wash. Rev. Code § 9.94A.728(2)(d).
That language makes the function of section 9.94A.728(2)(d)
apparent: to preserve to the DOC the discretion to deny trans-
fer in the event that it makes one of the four determinations,
notwithstanding what other legal sources might otherwise
require. The majority’s reading of the statute, however, turns
that meaning on its head, transmuting a non obstante provi-
sion written to preserve or expand discretion into one with the
effect of limiting it.

II.

I might still concur with this misreading of section
9.94A.728(2)(d), however, if the Washington State courts had
similarly misread the statute. See Bergen v. Spaulding, 881
F.2d 719, 721 (9th Cir.1989) (“Whether a state statute pro-
vides such a protectable entitlement depends on the structure
and language of the statute, as well as the state courts’ inter-
pretation of the scope of the interest.”) (emphasis added). But,
notwithstanding the majority’s characterization of state prece-
dent, they have not.

The majority quotes language from Washington intermedi-
ate appellate courts recognizing a “limited liberty interest” in
early release. Maj. Op. at 6524 (quoting In re Liptrap, 111
 CARVER v. LEHMAN 6533
P.3d 1227, 1231 (Wash. Ct. App. 2005); In re Dutcher, 60
P.3d 635, 636 (Wash. Ct. App. 2002); In re Crowder, 985
P.2d 944, 944-45 (Wash. Ct. App. 1999)). What the majority
omits is the nature of that state “liberty interest.” In both Lip-
trap and Dutcher, the Washington court’s holding concerned
only the inmate’s procedural right to have his proposal con-
sidered on the merits, rather than a substantive right to transfer.2
Liptrap, 111 P.3d at 1234; Dutcher, 60 P.3d at 638. This was
based, in large part, on the only truly mandatory language
found in section 9.94A.728(2), mandating that the DOC “shall
. . . require the offender to propose a release plan.” Wash.
Rev. Code § 9.94A.728(2)(c); see Dutcher, 60 P.3d at 638.
Unfortunately, “expectation of receiving process is not, with-
out more, a liberty interest protected by the Due Process
Clause” of the Fourteenth Amendment. Olim v. Wakinekona,
461 U.S. 238, 250-51 n.12 (1983); see also In re Cashaw, 866
P.2d 8, 12 (Wash. 1994) (“The United States Supreme Court
and the Ninth Circuit have clearly held that procedural laws
do not create liberty interests; only substantive laws can
create these interests.”). Washington State law permits prison-
ers to challenge DOC violations of parole procedures, but it
grounds this right to process in state law, not in the federal con-
stitution.3 While the DOC has, therefore, no “discretion to
2
Crowder, decided in 1999, predated the 2002 enactment of the statute
supposedly creating the liberty interest at issue in this case. Liptrap, 111
P.3d at 1232 & n.3.
3
See Cashaw, 866 P.2d 8, 13 (Wash. 1994) (“The Court of Appeals was
correct in concluding the Board had violated its own procedural rules for
parolability hearings . . . . Where the Court of Appeals erred was in taking
the additional step of concluding this violation was of constitutional mag-
nitude.”). Cashaw instead held that the inmate’s right to challenge his
restraint because of procedural error is grounded in Washington Rule of
Appellate Procedure 16.4. Id. at 13-14. Notwithstanding the holding of
Cashaw, Dutcher refers to an inmate’s “protected liberty interest” in “the
department’s compliance with requirements of statute affecting his
release,” citing Cashaw itself for the proposition. 60 P.3d at 636 & n.3
(citing Cashaw, 866 P.2d at 11).
As the majority notes, Dutcher “recognizes a liberty interest in both the
substantive right to early release . . .and the distinct procedural right to
6534 CARVER v. LEHMAN
decide whether or when to consider an offender for transfer
to community custody,” Liptrap, 60 P.3d at 638 (emphasis
added), Washington’s courts have given no indication that its
discretion is substantially limited in how it makes that consid-
eration.

None of the cases cited by the majority implies that the
criteria in section 9.94A.728(2)(d) are the exclusive reasons
that the DOC may deny transfer to community custody. Lip-
trap notes that the statute “stat[es] reasons why the depart-
ment may deny a release plan,” 111 P.3d at 1232, but those
“reasons” are kept in the indefinite: they are just “reasons”—
not the reasons, let alone the only reasons—for denial. Simi-
larly, Dutcher held that “the statute . . . requires DOC to base
its community custody eligibility decisions on the merits of
the release plan,” 60 P.3d at 638, but does not imply that sec-
tion 9.94A.728(2)(d) provides the sole rubric by which those
“merits” are to be evaluated.

have the DOC comply with the requirements of the statutes governing
such release.” Maj. Op. at 6524-25 n.13 (emphasis added). Because Dut-
cher’s holding concerns only the latter, procedural right, its description of
the former can only be described as dicta. As with much dicta, it risks
imprecision, using the same term, “liberty interest,” to refer both to the
substantive interest in transfer, which could conceivably be a Fourteenth
Amendment “liberty interest,” and the procedural right to compliance with
regulation, which cannot. If a chef announces that the dessert will consist
of “fruit,” but in the very next breath lists “herring” and “quartz” as other
kinds of “fruit,” one might be forgiven in beginning to doubt that the
dish’s ingredients have necessarily been plucked off a tree.
Notwithstanding its use of traditional Due Process Clause terminology
and concepts, therefore, the only charitable reading of Dutcher, not
squarely foreclosed by both United States and Washington State Supreme
Court precedent, is that the Washington Court of Appeals is using “liberty
interest” far more broadly than the term of art of federal Due Process juris-
prudence that the majority contemplates, encompassing any right cogniza-
ble at law with some bearing on whether one receives liberty. No other
reading is possible in light of precedent that has held that a right to process
is no more a Fourteenth Amendment “liberty interest” than a herring is a
fruit. Olim, 461 U.S. at 250-51 n.12; Cashaw, 866 P.2d at 12.
 CARVER v. LEHMAN 6535
Washington courts have implied only one limit on the sub-
stance of the DOC’s exercise of discretion: its reasons for
denial must be “legitimate.” Id. But contrary to the majority’s
assertions, there is no indication that a reason may acquire
“legitimacy” only by its enumeration in section
9.94A.728(2)(d). Indeed, there is every indication to the con-
trary: it was Crowder, a decision predating the enactment of
section 9.94A.728(2)(d) by three years, that first mentioned
“legitimate reasons” for denial of community custody. 985
P.2d at 946. Moreover, Crowder specified the petitioner’s
“own withdrawal of a suggested placement plan” as among
the “legitimate reasons” for denying him transfer, id.—a rea-
son which certainly seems legitimate, but appears nowhere in
section 9.94A.728(2)(d). Neither Dutcher nor Liptrap hint
that subsequent codification of certain legitimate reasons has
somehow narrowed the range of legitimacy, and no Washing-
ton case has provided a general definition for what makes a
reason “legitimate,” which could be as broad as “any reason
not otherwise proscribed by law.”4 This ill-defined “right” to
transfer only in the absence of some “legitimate” reason to
deny is hardly sufficient to produce the “legitimate expecta-
tion of release” required of a protected liberty interest under
Greenholtz v. Inmates of the Nebraska Penal and Corr. Com-
plex, 442 U.S. 1, 12 (1979). Washington case law, in short,
provides no reason for us to disregard the text and manifest
purpose of section 9.94A.728(2).

* * *

For the reasons set forth above, I would join the two district
courts and two panels of this court, see Maj. Op. at 6526 n.14,
that have all held that section 9.94A.728(2) does not create a
liberty interest protected by the Due Process clause of the
Fourteenth Amendment. I would therefore not reach the issue
4
Under such a reading, the DOC, for example, could not deny transfer
to someone on account of his race or religion. Such a condition may limit
the DOC’s discretion, but scarcely enough to give rise to any “expecta-
tion” of transfer.
6536 CARVER v. LEHMAN
of whether the “right” announced today was “clearly estab-
lished.”