United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 2000 Decided November 7, 2000
No. 99-5289
Kevin Razzoli,
Appellant
v.
Federal Bureau of Prisons and
United States Parole Commission,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 99cv01711)
Anthony F. Shelley, appointed by the court, argued the
cause as amicus curiae for appellant. With him on the briefs
was John D. Bates.
Kevin Razzoli, appearing pro se, was on the briefs for
appellant.
Madelyn E. Johnson, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: Williams, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: This appeal puts in question the
relationship between an en banc decision of this court and two
recent Supreme Court cases. The latter require a prisoner to
succeed in a habeas action before bringing a claim that
challenges, even indirectly, the duration of his custody--for
example a damages claim for due process violations made in
the course of a decision revoking good time credit. See
Edwards v. Balisok, 520 U.S. 641 (1997). Balisok has been
read as mandating the use of habeas only when the claim, if
successful, will inevitably necessitate invalidation of a decision
creating, extending, or refusing to curtail custody. But in
Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988),
we found that habeas was the exclusive remedy even where a
claim's impact on custody was only probabilistic. Chatman-
Bey itself involved a decision on parole eligibility, a necessary
but not sufficient step toward the actual grant of parole.
Concluding that there is no inescapable conflict between
Chatman-Bey and the later Supreme Court decisions, we
adhere to Chatman-Bey: for a federal prisoner, habeas is
indeed exclusive even when a non-habeas claim would have a
merely probabilistic impact on the duration of custody.
* * *
Appellant Kevin Razzoli is a federal prisoner serving a
sentence for attempted murder. He challenges an order by
the district court dismissing his claims against the Federal
Bureau of Prisons ("BOP") and the United States Parole
Commission for declaratory relief and damages under the
Privacy Act, 5 U.S.C. s 552a, and the Freedom of Informa-
tion Act, 5 U.S.C. s 552 ("FOIA").
Razzoli's current troubles started when a prison official at
the Allenwood Federal Correctional Institution claimed that
on July 23, 1995 he had found cocaine and a razor blade in
Razzoli's cell. After a Unit Disciplinary Committee hearing,
Razzoli received a sanction that included the loss of 60 days
statutory good time credit. A report on the incident was
forwarded to the FBI for investigation, but no new criminal
charges were brought against Razzoli. After the Disciplinary
Committee action, but based on the same events, the United
States Parole Commission withdrew Razzoli's recommended
parole release date and established a new date twenty-four
months later, in effect delaying his eligibility for parole by
two years.
Razzoli filed a pro se complaint in district court here,
alleging that the BOP staged the incident on which the
actions of the Disciplinary Committee and Parole Commission
were based. Although the complaint does not highlight the
difference, it suggests that the Disciplinary Committee found
him guilty only of possession and that the Parole Commission
found him guilty of possession with intent to distribute. It
further alleges that the Parole Commission conspired with
the BOP and knowingly used false information against Razzo-
li. The complaint says that Razzoli never received a copy of
any FBI report and suggests that the report must not have
supported the Parole Commission's determination.
Before the complaint was served on either of the federal
defendants, the district court dismissed the case sua sponte
for failure to state a claim on which relief could be granted.
The court found that Razzoli's claims amounted to collateral
attacks on the actions of the Disciplinary Committee, and that
under Balisok and the key predecessor cases of Heck v.
Humphrey, 512 U.S. 477 (1994), and Preiser v. Rodriguez,
411 U.S. 475 (1973), "the sole federal remedy for challenging
the loss of good time credit is a petition for habeas corpus."
Razzoli v. Federal Bureau of Prisons No. 99-1711 (D.D.C.
July 30, 1999). Under Balisok, a non-habeas civil action by a
prisoner is not cognizable where " 'a judgment in favor of the
plaintiff would necessarily imply the invalidity of his convic-
tion or sentence,' unless the prisoner can demonstrate that
the conviction or sentence has previously been invalidated."
Balisok, 520 U.S. at 643 (quoting Heck, 512 U.S. at 487).
We review the district court's dismissal for failure to state
a claim de novo. See Davis v. District of Columbia, 158 F.3d
1342, 1348 (D.C. Cir. 1998). Dismissal under Rule 12(b)(6) is
proper if, taking all the material allegations of the complaint
as admitted and construing them in plaintiff's favor, we find
that he has failed to allege each of the material elements of
his cause of action. See Taylor v. Federal Deposit Insurance
Corp., 132 F.3d 753, 761 (D.C. Cir. 1997); see also Kowal v.
MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994). In addition, we are bound to read the filings of a pro
se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520
(1972); Richardson v. United States, 193 F.3d 545, 548 (D.C.
Cir. 1999). The application of Preiser, Heck, and Balisok
complicates our task, for we must find allegations that are not
only sufficient to make out claims under the statutes, but that
also do not trigger the habeas-channeling rule. We appointed
amicus curiae to argue the issues for appellant.
The theory of Razzoli's Privacy Act claim is that BOP and
the Parole Commission violated 5 U.S.C. s 552a(e)(5) by
maintaining in their files and using a false record, the report
of the drug possession incident, even though they knew it to
be false. We read the Privacy Act part of the complaint as
having two dimensions, one clearly running afoul of Balisok,
the other not so clearly.
What clearly runs afoul of Balisok is his apparent claim in
relation to the recision of good time. If BOP knowingly
preserved and acted upon a totally invented record of drug
possession, plainly the recision of good time would have to be
overturned, thus accelerating Razzoli's release. Indeed, Raz-
zoli has already brought such a claim in the Middle District of
Pennsylvania in the form of an action under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), and the Third Circuit has found it barred
under the Balisok doctrine. See Razzoli v. Swinson, No.
97-7558, slip op. at 4-6 (3rd Cir. June 1, 2000).
But the amicus contends that Razzoli frames a second
attack that implicates only the determination by the Parole
Commission to postpone his parole eligibility. Under this
reading, Razzoli is arguing that the Parole Commission deci-
sion was based on addtional inaccuracies in his record--the
absence of the FBI report and the addition of "intent to
distribute" to the possesion charge. The government resists
this interpretation, but we think it within the range of plausi-
ble interpretations given the alleged absence of the FBI
report from the record, the complaint's explicit attacks on the
decision of the Parole Commission, and the distinction (slight-
ly submerged, to be sure) between the Disciplinary Commit-
tee's charge of possession and the Parole Commission's find-
ing of possession with intent to distribute.
The Supreme Court's trilogy addressing the relation be-
tween petitions for habeas corpus and other prisoner claims
began with Preiser v. Rodriguez, 411 U.S. 475 (1973). State
inmates who had been deprived of good time credit in prison
disciplinary proceedings brought actions under 42 U.S.C.
s 1983 seeking injunctive relief to compel restoration of the
credit. The Court saw "the essence" and "traditional func-
tion" of habeas as being "to secure release from illegal
custody." Id. at 484. The Court found that an attack on
revocation of good time qualified as an attempt to secure such
release. Such an attack is "just as close to the core of habeas
corpus as an attack on the prisoner's conviction, for it goes
directly to the constitutionality of his physical confinement
itself and seeks either immediate release from that confine-
ment or the shortening of its duration." Id. at 489. More
critically, the Court found that the habeas remedy was exclu-
sive. Comparing the general language of s 1983 with the
specificity of the habeas statute and focusing on Congress's
clear intent to assure exhaustion of state remedies in the
latter, it found a congressional intent to provide only one
remedy for attacks on physical confinement. Id. at 489-92.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Court
extended Preiser to cover a prisoner's s 1983 claim for
damages for alleged constitutional violations in his arrest and
conviction, observing that "establishing the basis for the
damages claim necessarily demonstrates the invalidity of the
conviction." Id. at 481-82. The Court went on to hold that
"in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a s 1983 plaintiff must prove that the con-
viction or sentence has been [overturned]." Id. at 486-87.
Finally, Balisok extended Preiser and Heck to cover a s 1983
damages action for procedural violations allegedly committed
in a prison disciplinary hearing that deprived the plaintiff
prisoner of good time credits. The Court rejected any dis-
tinction between procedural and substantive claims, saying
that any such distinction "disregards the possibility, clearly
envisioned by Heck, that the nature of the challenge to the
procedures could be such as necessarily to imply the invalidi-
ty of the judgment." Id. at 645.
In each of the cases of the trilogy, the plaintiff's establish-
ment of his claim would itself have been sufficient to entitle
him to earlier release--subject, at least in the Balisok case, to
the possibility of renewed revocation of the good time credit
in a new hearing untainted by constitutional error. See
Balisok, 520 U.S. at 647. But in 1988 this court read Preiser
to require habeas for a federal prisoner's attack on a parole
eligibility decision, reversal of which would merely give him a
chance at earlier parole. Chatman-Bey v. Thornburgh, 864
F.2d 804 (D.C. Cir. 1988). We recognized both of the case's
arguable distinctions from Preiser: first that Chatman-Bey
was a federal prisoner and second that success on his stated
claim would not lead either to immediate release or to a
definite reduction in sentence. Id. at 808-10. We also
rejected both, relying on the Preiser Court's finding of a
congressional determination that habeas be the exclusive
means for challenging the fact or duration of custody. Id. at
808 n.4 ("in the most practical sense, parole eligibility 'impli-
cates' the duration of confinement"). Application of
Chatman-Bey here funnels plaintiff's claim into habeas.
The amicus would have us hold that Chatman-Bey is no
longer controlling. In Anyanwutaku v. Moore, 151 F.3d 1053
(D.C. Cir. 1998), we read the Preiser trilogy as not requiring
habeas for a District of Columbia prisoner's s 1983 attack on
an adverse parole eligibility decision. Instead, we saw it as
barring a s 1983 claim "only when, if successful, it would
'necessarily imply,' or automatically result in, a speedier
release from prison." Id. at 1056. We distinguished Chat-
man-Bey on the ground that it involved a federal prisoner,
and said that we need not consider whether it had any
"continuing vitality after Heck and Balisok." Id. at 1057.
Now we must.
Of course a Supreme Court decision flatly contradicting an
earlier circuit precedent would control. See Dellums v. Unit-
ed States Nuclear Regulatory Comm'n 863 F.2d 968, 978 n.
11 (D.C. Cir. 1988). But, faced with the issue Anyanwutaku
left open, we find no such flat contradiction. First, none of
the cases in the trilogy addressed claims with a merely
probabilistic impact on the duration of custody; thus none
had occasion to rule definitely on whether such claims need
be brought in habeas. Second, as we noted in Chatman-Bey,
the Supreme Court has made clear that habeas is proper for
such a claim. See Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484 (1973), cited in Chatman-Bey, 864
F.2d at 807. Third, although the Ninth Circuit has read
Balisok as inapplicable to attacks on parole eligibility deci-
sions, saying that their success would not guarantee a reduc-
tion in confinement, Neal v. Shimoda, 131 F.3d 818, 824 (9th
Cir. 1997), the Seventh Circuit has given the trilogy a quite
different reading, saying that it calls for habeas exclusivity
whenever the proof necessary for a prisoner's claim "involves
the proof of a fact that would also be essential to a habeas
corpus action." Clayton-EL v. Fisher, 96 F.3d 236, 242 (7th
Cir. 1996); see also id. at 244. Fourth, Chatman-Bey made
clear that a major implication of habeas exclusivity in cases
involving federal prisoners was its impact on venue. See
Chatman-Bey, 864 F.2d at 805, 810-14. In non-habeas feder-
al 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
challenge must be brought against the custodian, a rule that
channels such claims into the federal court with jurisdiction
over the claimant's prison. Id. 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 relieved of the stric-
tures of Balisok, the District of Columbia would generally not
be a possible site for litigation.
Finding Chatman-Bey alive and at worst only modestly
ailing, we conclude that Razzoli's Privacy Act claim--not only
in regard to the good time decision but also in regard to
parole eligibility--is not cognizable. In one respect, however,
the district court erred on this claim: it should have been
dismissed without prejudice. If Razzoli is successful in over-
turning the Disciplinary Committee and Parole Committee
actions through a petition for habeas, he should be allowed to
bring his Privacy Act claim at that time. See Fottler v.
United States, 73 F.3d 1064, 1065-66 (10th Cir. 1996).
There remains Razzoli's FOIA claim. The district court
concluded that not only the Privacy Act but also the FOIA
claim was barred by Heck and Balisok. We do not see the
logic. A FOIA claim wins, generally speaking, if the plaintiff
has properly requested the document from the agency and no
exemption applies. Razzoli evidently seeks the supposedly
exonerating FBI report. Of course that report could possibly
be helpful in both his good time and his parole eligibility
claims. But a judicial finding that some agency must deliver
this report to Razzoli would not itself establish some neces-
sary element of those claims; so Balisok would not apply
even under the comparatively broad reading that prevails in
the Seventh Circuit. See Clayton-EL v. Fisher, 96 F.3d at
242.
Appellees contend that, quite apart from Heck and Balisok,
Razzoli has failed to state a claim on which relief can be
granted. In reviewing the decision of a lower court, we "can
affirm a correct decision even if on different grounds than
those assigned in the decision under review." Danielsen v.
Burnside-Ott Aviation Training Center, Inc., 941 F.2d 1220,
1230 (D.C. Cir. 1991). This court has found that rule particu-
larly applicable when reviewing a dismissal for "failure to
state a claim,... a pure question of law which we review de
novo." See id. (citing Securities and Exchange Comm'n v.
Chenery Corp., 318 U.S. 80 (1943)).
Here, despite the efforts of the amicus to stretch our
imaginations, we find little more in the complaint than a bald
reference to the statute. Appellant mentions in passing that
he did not receive the FBI report, but makes no reference to
requests for this document. He later claims that he "has
exhausted all other remedies available to him to attempt to
correct the record, but was denied," but in the context of the
complaint this seems to be a reference to the entire record of
his cocaine possession. Complaint at 4, Razzoli v. Federal
Bureau of Prisons, No. 99 CV 1711 (D.D.C. June 27, 1999)
Even giving the pro se plaintiff the benefit of every reason-
able doubt, we cannot make out a FOIA claim from this
complaint.
The only question remaining is whether sua sponte dismiss-
al without leave to amend was appropriate. The Prisoner
Litigation Reform Act of 1995 not only allows but requires a
district court to dismiss a prisoner's claim before the defen-
dant answers if it finds that the complaint fails to state a
claim. See 28 U.S.C. 1915A(b)(1). Even prior to the enact-
ment of that statute, this court had approved of sua sponte
dismissals for failure to state a claim in some circumstances.
See Baker v. Director, United States Parole Comm'n, 916
F.2d 725, 726 (D.C. Cir. 1990) (per curiam). But nothing has
altered our long-standing rule that a sua sponte dismissal for
failure to state a claim without leave to amend is reversible
error unless "the claimant cannot possibly win relief." See
Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir.
1998) (quoting Baker, 916 F.2d at 726). This will be the case
either when "the facts alleged affirmatively preclude relief, or
because, even though plaintiff makes clear that he has facts to
add to his complaint, he would not have a claim upon which
relief could be granted even with those facts." Id. Neither
of these formulations applies to Razzoli. Accordingly, al-
though we agree with the judgment that Razzoli failed to
state a claim, we must remand and order the district court to
dismiss the complaint with leave to amend.
We vacate the order dismissing the Privacy Act claim with
prejudice and remand for the district court to do so without
prejudice. We also vacate the order dismissing the FOIA
claim with prejudice and remand for the district court to
dismiss with leave to amend.
So ordered.