Hill v. United States Parole Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ARNOLD J. HILL,
Plaintiff,
v. Civil Action No. 16-1476 (JEB)
UNITED STATES PAROLE
COMMISSION, et al.,
Defendants.
MEMORANDUM OPINION
Having spent the last thirty years locked up for strangling an ex-girlfriend, Plaintiff
Arnold Hill is eager to get out. In bringing this action, he asserts that the U.S. Parole
Commission has unfairly blocked his release in a number of ways, including by failing to give
him notice about testimony from the victim’s family, treating him (a District of Columbia
offender) differently from federal prisoners, and rescinding a prior parole grant. Although a
further rehearing is now set for November 2018, Hill is unwilling to linger any longer in limbo.
He has thus filed suit against the USPC and its three Commissioners in their official capacities,
seeking various forms of injunctive and declaratory relief.
Defendants now move to dismiss, contending that Plaintiff’s claims that the proceedings
violated due process and equal protection and reached an arbitrary result cannot break the parole
cycle. This is so. Because Hill’s only avenues to relief involve a further parole hearing or filing
a habeas petition, the Court will grant the Government’s Motion and dismiss the case.
1
I. Background
Hill is an inmate in his mid-sixties serving time for murdering his ex-girlfriend, Shelby
Teresa Duncan, in September 1987. See Mot., Exh. 1 (Sentence Monitoring Computation Data)
at 1. For that crime, the District of Columbia Superior Court sentenced him to an indefinite term
of imprisonment of twenty years to life. Id. Under the District’s old sentencing scheme, this
meant that Hill would first be eligible for parole after serving the bottom number — i.e., twenty
years — and could not serve longer than the top number, which, in this case, was redundant since
it was life. See Warren v. U.S. Parole Comm’n, 659 F.2d 183, 196 (D.C. Cir. 1981) (“Under the
penal theory behind the parole system, [a] sentence [i]s deliberately designed to be indeterminate
within a broad range so that the precise date of his release could be determined by the best
professional judgment [of parole authorities] available at the time of his release as to his
prospects for a law-abiding life, among other things.”). All told, Plaintiff has now been
incarcerated for this murder for almost thirty years. See Computation Data at 2.
Given his twenty-to-life term, Hill first became parole eligible in October 2007. Id.
Although he had been sentenced in a D.C. court for a D.C. Code offense, the U.S. Parole
Commission handled his case, as Congress had abolished the D.C. Board of Parole, largely done
away with local parole, and transferred jurisdiction to the Commission for remaining offenders
by enacting the National Capital Revitalization and Self-Government Improvement Act of 1997,
Pub. L. No. 105-33, § 11231, 111 Stat. 712, 745 (codified at D.C. Code §§ 24-101 et seq.). Over
time, the Commission would consider Hill’s eligibility on numerous occasions, as it is required
to do. See 28 C.F.R. § 2.75(a)(2)(i) (requiring hearings at least every five years where “offense
behavior resulted in the death of a victim”).
2
A. Hearings & Rehearings
The Commission initially conducted a hearing in July 2007 and denied release after
finding that Hill’s parole guidelines recommended at least 26 years’ imprisonment. See Mot.,
Exh. 3 (August 7, 2007, Notice of Action). The agency then scheduled a rehearing for July 2012.
Id.
Apparently realizing thereafter that it should have applied the D.C. Board of Parole’s so-
called “1987 Guidelines,” not the federal ones, the Commission conducted a rehearing earlier
than scheduled in November 2009. Id., Exh. 4 (December 17, 2009, Notice of Action); see ECF
No. 1 (Complaint), ¶¶ 33-34; see also 28 C.F.R. § 2.80(o)(1) (making applicable “1987
guidelines of the former District of Columbia Board of Parole”). The correct Guidelines
recommended current parole, as opposed to at least several more years’ imprisonment, but the
Commission nonetheless denied release, instructed Hill to complete his GED and a 500-hour
drug-abuse program, and then set a further rehearing a year later. See 2009 Notice of Action.
That second rehearing took place in November 2010. See Mot., Exh. 5 (February 11,
2011, Notice of Action). This time, despite a Guidelines recommendation of release (again) and
his compliance with rehabilitative programs, the USPC again denied parole. Id. It informed Hill
that “there is a reasonable probability that you would not obey the law if released and your
release would endanger the public safety.” Id. More specifically, he was a “more serious parole
risk” than the Guidelines suggested because: he was “involved in the strangulation of the victim,
following [his] harassment of her due to the relationship ending,” “[t]he victims’ nude body was
discovered by her children,” and he had “two previous convictions which appear violent in
nature, Assault & Battery and Unlawful Wounding,” the details of which had not been fleshed
out in previous proceedings. Id. Another rehearing was then scheduled in one year’s time. Id.
3
The third rehearing in November 2011 seemed, at first, to be the charm. The
Commission granted parole and set an effective release date of August 7, 2012. Id., Exh. 6
(January 11, 2012, Notice of Action). In doing so, it informed Hill that the “parole effective date
is contingent upon approval of your release plan by the Commission.” Id. (citing 28 C.F.R.
§ 2.82); see 28 C.F.R. § 2.83.
Would that it were so simple. Come February 2012, the USPC learned that Duncan’s
family members wished to testify. Id., Exh. 9 (July 25, 2012, Hearing Summary). When the
Commission receives “new and significant information concerning the prisoner,” 28 C.F.R.
§ 2.75(e) (citing § 2.28), including “adverse information,” id. § 2.28(f), it may reopen any case
for a special reconsideration hearing. That process begins with one Commissioner’s
recommending reconsideration to the others; this referral “automatically retard[s] the prisoner’s
scheduled release date until a final decision is reached in the case.” Id. § 2.28(f). If two
Commissioners concur in a reopening, then a new hearing is set. Id. That is what happened
here. See Mot., Exh. 7 (February 15, 2012, Notice of Action).
In the subsequent, fourth rehearing in July 2012, an examiner heard testimony from
Duncan’s sister and eldest daughter. The sister mentioned how Hill had never given specifics
about how or why he killed Duncan. See 2012 Hearing Summary at 2. And the daughter
discussed how she and her two siblings (10, 6, and 4 years of age back then) were at home
during the crime and how the youngest one discovered their mother’s body the next morning. Id.
at 1, 3. She also testified that Hill had previously threatened to kill Duncan. Id. at 1. Finally,
she objected to his plan to live nearby, in the same Maryland county in which she resided, once
released. Id. at 1. Plaintiff was not represented, but apologized and testified that he did not
4
remember how or why he strangled Duncan, both because the events occurred some 25 years ago
and because he may have been on drugs. Id. at 2.
The hearing examiner recommended against release, or, in other words, he advocated for
rescinding the initial parole grant. He recounted how, at the hearing, Hill “never really displayed
any remorse” and was “very methodical,” and was “a bit evasive” about “remember[ing] details
of the offense” and “just did not want to bring them up.” Id. The examiner found it
“unimaginable to kill the mother of these young children and then to walk out and leave a lifeless
strangulated body in her apartment knowing full well that sometime the body would be
discovered by the three children who were residing in the bedroom next to the mother’s
bedroom.” Id. at 3. Given that this “total disregard for the victim in this case and the safety of
her children [wa]s so egregious,” he concluded that there is a “reasonable probability” he would
not obey the law and that release would “endanger public safety.” Id. (noting “level of violence
and the complete disregard for the victim’s children”). The Commission agreed and scheduled
the next rehearing in five years’ time — that is, in July 2017. Id., Exh. 8 (August 29, 2012,
Notice of Action).
Not even this settled things for long. In September 2015, Plaintiff’s counsel asked the
Commission to reopen the case once again. Id., Exh. 10 (September 30, 2015, Letter from
Chanale Fiebig to Hon. J. Patricia Wilson Smoot). In particular, Hill argued that he had not
received notice of the nature of the testimony from Duncan’s family (thereby impairing his
preparation and retention of legal representation), and he had recently developed an alternate
release plan to live in a different county in Maryland. Id. at 2-4. This was to no avail, as the
Commission rejected his plea. Id., Exh. 11 (February 2, 2016, Memorandum). It reasoned that,
“at the outset of the hearing, the Examiner asked Mr. Hill if was aware that victims would be
5
testifying and he said that he was” and that Hill “also informed the Examiner that he was aware
of his right to have a person of his choice represent him but did not want a representative.” Id.
The Commission then found that “the fact that he now has a release plan that is outside of the
county where the victims live” was not so “significant as to warrant earlier parole
reconsideration.” Id.
B. This Lawsuit & Another Rehearing
Hill responded by filing this lawsuit in July 2016. His Complaint states two
constitutional counts (due process and equal protection) brought under 42 U.S.C. § 1983 and one
Administrative Procedure Act claim. See Compl., ¶¶ 58-83. It asks the Court to reverse the
Commission’s rescission of Plaintiff’s grant of parole (or, alternatively, to grant a parole
rehearing with the right to appeal) and to declare that D.C. Code offenders have the right to
appeal to the National Appeals Board (as federal offenders do). Id., Prayer for Relief, ¶¶ 1-2.
Still more has happened. Two months after the suit was filed, in September 2016, the
Commission notified Hill that it would “[r]eopen and remand for a reconsideration hearing on
the next available docket to determine whether the information presented at [the] special
reconsideration hearing on July 25, 2012 was sufficient to deny parole pursuant to the statutory
criteria set forth in D.C. Code § 24-404(a).” Mot., Exh. 12 (September 30, 2016, Notice of
Action). In reviewing the case, the Commission’s legal office found that it had “erred by failing
to consider reasons other than offense accountability when denying the offender parole,” as is
“the Commission’s policy with respect to D.C. Code offender[s].” Id., Exh. 2 (November 8,
2016, Hearing Summary) at 4 (citing 28 C.F.R. § 2.73); see 28 C.F.R. § 2.80(o)(4) (specifying
effective Guidelines and policies). That is, the parole rescission had focused exclusively, and
incorrectly, only on the circumstances of the murder. The Commission also let Plaintiff know
6
that it would “[n]otify victims of reconsideration hearing to be given an opportunity to present
further testimony.” September 2016 Notice of Action.
In what would be another special reconsideration hearing convened in November 2016 —
in effect, a fifth rehearing — an examiner heard testimony from Duncan’s eldest daughter and
two sisters, elicited statements by Hill himself (represented by an attorney), and received letters
from the victim’s son and uncle. See 2016 Hearing Summary at 1-3. After the proceedings, Hill
submitted a written apology, and his brother sent in a letter of support. Id. at 7.
This time, the witnesses gave more details, first about Plaintiff’s relationship with
Duncan. Id. at 5 (noting “greater details of the events”). The victim’s daughter first discussed
how Hill had a history of attacking not only women but also children, including how he had
“assaulted her by slamming her face into a mirror, beating her with a weight belt and busting her
lip,” and had abused her and her brother. Id. at 1. Duncan’s sister described “how the offender
repeatedly stalked” Duncan for a month before the murder and the “family’s futile attempts to
ensure her safety by closely monitoring the victim’s departures and returns to her residence.” Id.
at 2, 6. The examiner also asked Plaintiff about a petition for a Civil Protection Order filed by
Duncan, discovered by the Commission’s staff, alleging that he “had attempted to suffocate her
with a pillow.” Id. at 3, 5. “[A]fter [he] choked her” on a separate occasion, in May 1987,
Duncan apparently “broke[] off the relationship.” Id. at 6. Hill testified that he “was under the
influence of PCP when he committed the offense and did not provide any specific details
regarding the actual murder.” Id. at 3.
In addition, Duncan’s sister also testified how Hill’s ex-wife (a different woman) was left
“permanently disfigured” after a “brutal attack.” Id. at 2. Plaintiff admitted that his prior
convictions for Assault & Battery and Unlawful Wounding involved his “assaulting his ex-wife
7
by striking her in the face with the barrel of a pistol” and then shooting his mother-in-law after
she attempted to intervene. Id. at 3; see id. at 6 (characterizing incident, somewhat differently, as
“beating her with a rifle butt[,] shattering her face”). At the time, Hill had filed for divorce and
was refusing to let his ex-wife interact with their daughter. Id. at 3.
The examiner recommended against parole. She discounted testimony that Hill had
abused Duncan’s children, as it lacked documentation. Id. at 5. But the examiner reasoned that,
“[n]otwithstanding his [drug-abuse and anger-management] program participation, clear
conduct[,] and current age and health, the offender’s history of stalking his female victim [and]
history of vicious assaults against his female paramours and their family make his release
incompatible with public safety.” Id. (finding Government’s memorandum and Civil Protection
“very persuasive and indicative of the offender’s propensity for domestic violence”). The
Commission agreed, noting again a “reasonable probability” that Hill would not obey the law
and that release would “not [be] compatible with the welfare of society.” Id., Exh. 13 (December
15, 2016, Notice of Action). It considered, in particular, his repeated stalking and threatening of
Duncan, attempting to suffocate her with a pillow (leading to the Civil Protection Order),
choking her, beating his ex-wife, and shooting his ex-wife’s mother. Id. Given this “history of
domestic violence,” the USPC set a rehearing after Hill served two more years. Id.; see 2016
Hearing Summary at 5 (explaining two years, not five, warranted due to “age and health”).
Once it made this decision, the Government filed the present Motion to Dismiss, which is
now ripe.
8
II. Legal Standard
Under Rule 12(b)(1), the Court may dismiss a case if the plaintiff cannot show that it has
subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992); U.S. Ecology, Inc. v. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). “Because
subject-matter jurisdiction focuses on the court’s power to hear the plaintiff’s claim, a Rule
12(b)(1) motion [also] imposes on the court an affirmative obligation to ensure that it is acting
within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v.
Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). In policing its jurisdictional borders, the Court
must scrutinize the complaint, treating its factual allegations as true and granting the plaintiff the
benefit of all reasonable inferences that can be derived from those facts. See Jerome Stevens
Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The Court need not rely “on the
complaint standing alone,” however, but may also look to undisputed facts in the record or
resolve disputed ones. Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
Rule 12(b)(6), on the other hand, permits a Court to dismiss any count of a complaint that
fails “to state a claim upon which relief can be granted.” In evaluating the motion, the Court
must likewise “treat the complaint’s factual allegations as true and must grant plaintiff ‘the
benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d
605, 608 (D.C. Cir. 1979)) (citation omitted). The Court need not accept as true, however, “a
legal conclusion couched as a factual allegation” or an inference unsupported by facts set forth in
the Complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)).
9
Rule 12(b)(6)’s pleading standard is “not meant to impose a great burden upon a
plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), as a count will survive so long
as there is a “‘reasonably founded hope that the [discovery] process will reveal relevant
evidence’ to support the claim.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)
(quoting Dura Pharm., 544 U.S. at 347). While “detailed factual allegations” are not necessary
to withstand a dismissal motion, id. at 555, the Complaint still “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In other words, a plaintiff
must put forth “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. A complaint may survive even if “‘recovery
is very remote and unlikely’” or the veracity of the claims are “doubtful in fact” if the factual
matter alleged in the complaint is “enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
III. Analysis
No doubt the parole process has subjected Hill to his fair share of sturm und drang.
Twice the Commission realized it was misapplying the parole Guidelines or using the wrong set,
and once, notably, it set a release date before reversing course. To escape this endless cycle,
Plaintiff brings two constitutional challenges under § 1983 (against the Commissioners) and an
APA cause of action (against all Defendants).
In performing its analysis, the Court does not proceed count by count. As they often
overlap, the suit is better considered via the three challenged aspects of Plaintiff’s parole denial:
(1) the lack of notice of the testimony of Duncan’s family, (2) the absence of appeal rights to the
National Appeals Board for D.C. Code offenders, and (3) the arbitrariness and unreasonableness
10
of rescinding his grant of parole. Before addressing these issues sequentially, the Court takes
two detours and considers Defendants’ sovereign immunity and the officers’ potential liability
under § 1983.
A. Sovereign Immunity
“Sovereign immunity is the privilege of the sovereign not to be sued without its consent.”
Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011). It shields “the federal
government, its agencies, and federal officials acting in their official capacities.” Am. Rd. &
Transp. Builders Ass’n v. EPA, 865 F. Supp. 2d 72, 79 (D.D.C. 2012), aff’d, 2013 WL 599474
(D.C. Cir. Jan. 28, 2013). While Defendants embed only the slightest mention of the doctrine in
a block quote, see Mot. at 10, sovereign immunity is “‘jurisdictional in nature’ and may not be
waived by an agency’s conduct of a lawsuit.” Perry Capital LLC v. Mnuchin, 848 F.3d 1072,
1099 (D.C. Cir. 2017) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)). Here, Hill seeks
injunctive and declaratory relief against the Commission (a federal agency) and its three
Commissioners in their official capacities. See Compl., ¶¶ 10-13. While his APA claim names
each Defendant, his § 1983 counts are officer suits against the latter three only. Id., ¶¶ 58-78.
A brief analysis confirms that immunity does not apply. First and foremost, the APA’s
statutory waiver permits individuals to sue both federal agencies and their officers for non-
monetary relief. See 5 U.S.C. § 702. This exception covers all of Plaintiff’s claims. See
Trudeau, 456 F.3d at 186 (holding waiver covers “any suit whether under the APA or not”).
Second, more specific to the officer suits is the judicially crafted doctrine that “official-capacity
actions for prospective relief are not treated as actions against the State” and thus not subject to
immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989) (quoting Kentucky
11
v. Graham, 473 U.S. 159, 167 n.14 (1985)). This principle thus protects, in an additional
manner, Hill’s claims against the Commissioners.
The Government’s central position appears to concern the invalidity of Hill’s “claim
under 42 U.S.C. § 1983 against USPC,” given a D.C. Circuit decision in Settles v. U.S. Parole
Commission, 429 F.3d 1098 (D.C. Cir. 2005). See Reply at 3. Yet, as just mentioned, there is
no such count against the Commission, only the officers. This argument is thus moot. No matter
how one looks at it, then, Plaintiff is safe at first base.
B. Section 1983 Liability
But wait. Even if Hill’s suit against individual officers is not barred by sovereign
immunity, can federal officials be sued under § 1983 at all? Indeed, the conventional wisdom is
that such claims should be brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), not § 1983. See 1 Sheldon H. Nahmod, Civil Rights & Civil Liberties Litigation: The
Law of Section 1983 § 1:20 (2016) (“Section 1983 actions cannot ordinarily be maintained
against either the United States or its officials.”). The latter only permits suits against any
“person” acting “under color of any statute, ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia.” 42 U.S.C. § 1983. For its purposes, “any Act of
Congress applicable exclusively to the District of Columbia shall be considered to be a statute of
the District of Columbia.” Id. The Government thus seeks to dismiss the § 1983 counts outright
on the ground that the statute “cannot be used to proceed against employees of the federal
government, only against state officials.” Mot. at 9-10. This statement, it turns out, is somewhat
overbroad.
While there is some initial awkwardness in treating federal officers as acting under color
of D.C. law, the conclusion is inescapable here. As mentioned, the Revitalization Act
12
reorganized segments of the capital’s government, resulting in the U.S. Parole Commission’s
stepping into the D.C. Board of Parole’s shoes for the purposes of local parole. See Fletcher v.
District of Columbia, 370 F.3d 1223, 1127 (D.C. Cir. 2004). Commissioners are thus “amenable
to suit under § 1983 for actions taken pursuant to that Act.” Settles, 429 F.3d at 1104 (quoting
Fletcher, 370 F.3d at 1227). It would indeed be strange if they could not be sued, as they are
fundamentally acting as the D.C. Board when applying D.C. parole standards to D.C. Code
offenders. See 28 C.F.R. § 2.73(a) (citing D.C. Code § 24-404(a)). While Hill’s case thus
makes it to second base, he is still a long way from scoring. As it turns out, Plaintiff strikes out
on each of his three merits arguments.
C. Lack of Notice
Plaintiff’s opening bundle of substantive claims addresses the first, July 2012 special
reconsideration hearing that followed his initial grant of parole in November 2011, but before its
execution in August 2012. He contends that “USPC failed to provide sufficient notice
reasonably calculated to inform Mr. Hill of the nature of the reconsideration hearing,” as it did
not let him know “the form and substance of the victim’s family’s testimony.” Compl., ¶ 70.
This purported lack of notice affected his seeking of legal representation, organizing of
testimony, preparing of rebuttals, and securing of alternative release plans that would have
satisfied the family’s geographical concerns. Id., ¶¶ 71-72. Hill’s challenge not only has a
procedural-due-process gloss, but also implicates the APA. Id., ¶ 80.
Both due process and administrative law require that a person receive fair notice before
certain hearings are held. See GE Co. v. EPA, 53 F.3d 1324, 1328-29 (D.C. Cir. 1995). That
notice must be “reasonably calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present their objections.”
13
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). This means that “an
agency setting a matter for hearing provide parties with adequate notice of the issues that would
be considered, and ultimately resolved, at that hearing.” Wallaesa v. FAA, 824 F.3d 1071, 1083
(D.C. Cir. 2016) (quoting Pub. Serv. Comm’n of Ky. v. FERC, 397 F.3d 1004, 1012 (D.C. Cir.
2005)); see 5 U.S.C. § 554(b)(3) (“Persons entitled to notice of an agency hearing shall be timely
informed of . . . the matters of fact and law asserted.”).
This assertion of inadequate notice, however, falls flat. First, Plaintiff’s reliance on due
process fails to travel far absent some protectable liberty interest. See Trifax Corp. v. District of
Columbia, 314 F.3d 641, 643 (D.C. Cir. 2003) (noting a “deprivation of liberty . . . triggers the
procedural guarantees of the Due Process Clause”). Reasoning that a convicted person does not
have a “‘legitimate claim of entitlement’” to parole, the Supreme Court has held that there is “no
constitutional or inherent right of a convicted person to be conditionally released before the
expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S.
1, 7 (1979) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). And though
“statutory language” can “create[] a protectible expectation of parole,” id. at 11, the District’s
statutes and regulations lack the “explicitly mandatory language” necessary to form that
expectation. Ellis v. District of Columbia, 84 F.3d 1413, 1417 (D.C. Cir. 1996) (quoting Ky.
Dep’t of Corrections v. Thompson, 490 U.S. 454, 463 (1989)); accord Blair-Bey v. Quick, 151
F.3d 1036, 1048 (D.C. Cir. 1998); Price v. Barry, 53 F.3d 369, 370-71 (D.C. Cir. 1995); see
McRae v. Hyman, 667 A.2d 1356, 1357 (D.C. 1995). The D.C. Code instead instructs that “the
Commission may authorize [a prisoner’s] release on parole” if certain conditions are met. See
D.C. Code § 24-404(a) (emphasis added). (And while substantive due process might apply to
14
parole decisions even absent such a protectable interest, see Blair-Bey, 151 F.3d at 1048 n.11,
the Court saves discussion of that doctrine until Section III.E, infra.)
Nor did a protectable interest germinate from the initial grant of parole. While revoking
parole for a person already released implicates due process, rescinding a parole grant prior to
release violates “no protected ‘liberty’ interest.” Jago v. Van Curen, 454 U.S. 14, 21 (1981);
accord Rogers v. Barry, 107 F.3d 923 (D.C. Cir. 1997); Way v. Johnson, 893 F. Supp. 2d 15, 23
(D.D.C. 2012); Johnson v. United States, 590 F. Supp. 2d 101, 109 (D.D.C. 2008); Cole v.
Harrison, 271 F. Supp. 2d 51, 53 (D.D.C. 2002); see Brown-Bey v. Hyman, 649 A.2d 8, 9 (D.C.
1994). Regulations indeed broadly provide that “the Commission may reopen any case for a
special reconsideration hearing” to review “new and significant information concerning the
prisoner.” 28 C.F.R. § 2.75(e) (emphasis added). Further rules make clear that the front-end
grant is not so determinate; a mere referral for reopening “shall automatically retard the
prisoner’s scheduled release date until a final decision is reached in the case.” Id. § 2.28(f)
(emphasis added). Indeed, the Commission makes clear to prisoners that the initial grant is only
a “contingent” one, subject to the development of satisfactory release plans and agency approval.
See January 2012 Notice of Action (citing 28 C.F.R. § 2.82); see also 28 C.F.R. § 2.83.
Second, and more broadly, both his due-process and APA objections to inadequate notice
of victims’ testimony are moot. See Compl., ¶¶ 70-72, 80. Hill alleges that he did not receive
notice of what Duncan’s family would say, but the relief he requests for this wrong is “a parole
rehearing at the earliest possible date.” Opp. at 10 (quoting Compl., Prayer for Relief, ¶ 1).
Since a rehearing already occurred in November 2016, “it is impossible for a court to grant any
effectual relief whatever to the prevailing party.” Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct.
1326, 1335 (2013) (quotation omitted). To recap, after this civil suit was filed, the Commission
15
again reopened the criminal case and informed Plaintiff in writing that it would “[n]otify victims
of [the first] reconsideration hearing” to again give them “an opportunity to present further
testimony.” September 2016 Notice of Action. Given this statement and his knowledge of the
Duncan family’s intentions, he certainly has no claim that he lacked notice prior to the
subsequent November 2016 rehearing that followed. See Moreau v. FERC, 982 F.2d 556, 569
(D.C. Cir. 1993) (“The Due Process Clause does not require notice where those claiming an
entitlement to notice already knew the matters of which they might be notified.”). In fact, Hill
even obtained an attorney to assist him in the preparation for and conduct of that hearing. He has
thus received complete procedural relief: a hearing with notice of who will testify and to what.
Plaintiff’s only retort is that the November 2016 proceeding was not “a full parole
rehearing,” Opp. at 11, because its subject matter was limited to “whether the information
presented at [the] special reconsideration [re]hearing on July 25, 2012 was sufficient to deny
parole pursuant to the statutory criteria set forth in D.C. Code § 24-404(a).” September 2016
Notice of Action. While the negative language — i.e., asking whether to “deny parole” — might
suggest a narrower scope, a fairer reading of the record is that the Commissioners holistically
reheard whether to grant parole under the cited D.C. Code eligibility criteria in light of the
victims’ testimony. This is indeed the issue that was explored, as the examiner broadly
considered all the available evidence and testimony. See 2016 Hearing Summary at 1
(considering Hill’s statements along with other witnesses). After all, the Commission’s lacking
of a reason to rescind parole functionally obtains the same result as its granting parole in the first
place.
Seeing that due process does not apply and that Hill later received a new hearing, his
constitutional and administrative claims of inadequate notice must be dismissed.
16
D. Absence of Appeal Rights
Hill next challenges the lack of administrative-appeal rights for D.C. Code offenders like
himself. The absence of those rights, he believes, violates equal protection and the APA given
that the Commission allows U.S. Code offenders, but not their D.C. counterparts, a layer of
appeals, see Compl., ¶¶ 58-67, 83, and also renders the hearing system procedurally inadequate.
Id., ¶¶ 76-77. The Court examines the Commission’s role in federal and District cases before
addressing these two contentions.
U.S. Code vs. D.C. Code Parole Processes
Let’s start with the federal system. “For almost a century, the Federal Government
employed in criminal cases a system of indeterminate sentencing” — a term of imprisonment of
variable duration — which “was supplemented by the utilization of parole, by which an offender
was returned to society under the ‘guidance and control’ of a parole officer.” Mistretta v. United
States, 488 U.S. 361, 363 (1989) (quoting Zerbst v. Kidwell, 304 U.S. 359, 363 (1938)). That
process was overseen by the Commission. See 18 U.S.C. § 4201 et seq.
This system was, for the most part, eliminated by the Sentencing Reform Act of 1984, 18
U.S.C. § 3551 et seq., which made “all sentences basically determinate” and “prospectively
abolish[ed] the Parole Commission.” Mistretta, 488 U.S. at 367. The Commission now manages
only those individuals convicted of federal offenses on or before November 1, 1987. See
Chatman-Bey v. Thornburgh, 864 F.2d 804, 808 n.3 (D.C. Cir. 1988).
For such federal offenders, parole decisions follow a three-step process. Ordinarily, an
examiner first conducts a hearing and makes a recommendation, see 28 C.F.R. §§ 2.13, 2.14,
2.23; a single Commissioner may then adopt that recommendation (or reject it after obtaining
another Commissioner’s concurrence), id § 2.24; and finally, either party (the inmate or the
17
Government) may appeal to the National Appeals Board, which is simply the three-member
Commission acting on a majority vote. Id., §§ 2.1(c), 2.26.
Just like the feds, the District has shifted to a determinate scheme. The city largely
abandoned indeterminate sentencing and parole with the Revitalization Act. See Void v. U.S.
Parole Comm’n, No. 12-978, 2012 WL 6633850, at *1 n.1 (D.D.C. Dec. 20, 2012); see also D.C.
Code § 24-403.01(c) (requiring “definite term” sentences in most cases). That Act was also
passed to “relieve the district government of major financial and managerial responsibilities . . .
[and] help the city resolve its cash shortfall that stems from its accumulated deficit.” Banner v.
United States, 303 F. Supp. 2d 1, 6 n.3 (D.D.C. 2004). To further that purpose, the District
“transfer[red] . . . parole authority over felony offenders convicted in Superior Court from the
D.C. Board to the U.S. Commission.” Gant v. Reilly, 224 F. Supp. 2d 26, 34 (D.D.C. 2002); see
D.C. Code § 24-131(a)(1), (a)(2), (b). As a result, the Commission now handles primarily those
D.C. Code felony offenders (like Hill) convicted before 2000.
Parole for these inmates typically has only two steps. The process also starts with an
initial hearing by an examiner, see 28 C.F.R. § 2.72(a), but then the case proceeds directly to the
full Commission for a majority vote. Id. § 2.74(a), (c). The USPC installed this procedure to
“replicate the voting procedures of the former DC Board.” Paroling, Recommitting, and
Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District
of Columbia Codes, 69 Fed. Reg. 68,791, 68,791 (Nov. 26, 2004); see Sellmon v. Reilly, 551 F.
Supp. 2d 66, 68 (D.D.C. 2008) (stating that Revitalization Act, § 11231(c), directed Commission
to follow “parole laws and regulations of the District of Columbia”).
There is one wrinkle. In 2004, the Commission modified its process for parole-
revocation decisions — i.e., for parolees who had already been released. In those cases, the
18
Commission decided to make the procedures for D.C. Code offenders essentially coterminous
with U.S. Code offenders. See 69 Fed. Reg. at 68,791-92; see 28 C.F.R. § 2.105(c), (g). It
explicitly declined to extend federal procedures to D.C. Code offenders still incarcerated,
however, opting instead for “an incremental approach,” given the agency’s “[b]udget constraints
and the availability of sufficient staff and Commissioners to handle the appeals.” 69 Fed. Reg. at
68,792.
Disparate Appeal Rights
Plaintiff objects to this schema insofar as the Commission permits an administrative
appeal to the National Appeals Board for U.S. Code, but not D.C. Code, offenders. See Opp. at
11, 18. He alleges that this disparate treatment violates equal protection and thus also runs afoul
of the APA. See Compl., ¶¶ 61-67, 82. “To prevail on an equal protection claim, the plaintiff
must show that the government has treated it differently from a similarly situated party and that
the government’s explanation for the differing treatment does not satisfy the relevant level of
scrutiny.” Cannon v. District of Columbia, 717 F.3d 200, 207 (D.C. Cir. 2013) (quoting
Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C. Cir. 2013)). Hill not only
misconstrues how the two systems differ, but also falters on both equal-protection elements.
a. Framing the Claims
An initial fog slows Plaintiff’s sailing. Hill states that “D.C. Code offenders cannot
appeal USPC parole decisions to any administrative adjudicatory body, while U.S. Code
offenders can appeal USPC parole decisions to the National Appeals Board.” Compl., ¶ 64. The
federal offender’s appeal to the National Appeals Board may sound somewhat majestic, but that
stately façade crumbles on inspection. The NAB is the three-member Commission, and local
offenders also have their cases heard by that Commission. See 28 C.F.R. §§ 2.1(c), 2.74. In
19
other words, despite Hill’s assertion that he lacks an avenue to the “National Appeals Board,” the
final adjudicatory stage for both U.S. and D.C. offenders is essentially the same three-person
body acting on a majority vote. Compare id. § 2.26(b)(1) (requiring, federally, “concurrence of
two Commissioners”), with id. § 2.74(c) (requiring, locally, “concurrence of two
Commissioners”).
Whatever disparity exists instead lies in the fact that U.S. Code offenders have the right
to an intermediate decision by a single Commissioner (sometimes two Commissioners) before
proceeding to the three-member Commission. D.C. Code offenders have only the direct right to
a final decision by the Commission as a whole. Id. § 2.74. Plaintiff, however, barely addresses
how this extra buffer is procedurally meaningful. He suggests in a footnote only that it results in
a “more robust, detached appeal process [for] federal offenders,” presumably by adding an
intermediate opportunity to obtain a favorable parole decision (should the Government also not
appeal). See Opp. at 12 n.1; see also 28 C.F.R. § 2.26(f). The Complaint, however, does not
even allege that the inequality is the lack of this middle procedural step.
b. Similarly Situated
Even if Hill had more persuasively set forth the federal-local parole-process disparity, his
equal-protection ship would still run aground. This is because D.C. Code offenders are not
similarly situated to their U.S. Code counterparts in the first place. “The Constitution does not
require [individuals] wh[o] are different in fact or opinion to be treated in law as though they
were the same.” Tigner v. Texas, 310 U.S. 141, 147 (1940). States may no doubt set up their
own unique parole systems without triggering equal-protection concerns. See United States v.
Greene, 489 F.2d 1145, 1151 (D.C. Cir. 1973) (noting that “[c]ertainly there would be no
constitutional objection” if, “say, Virginia” defined first-degree murder differently from the
20
District); see also Clements v. Fashing, 457 U.S. 957, 962-63 (1982) (noting states’
“considerable leeway”). Although the District’s governance makes it a bit of a constitutional
oddity, there is no reason to believe that the city may not be subjected to different rules than the
federal government.
It does not matter, for equal-protection purposes, that a single federal Commission
fashions two sets of parole rules. When it comes to legislative authority, this Circuit “has been at
pains to point out that ‘Congress . . . recognized the expediency of separate provisions’
pertaining to criminal justice applicable exclusively to the District of Columbia in
contradistinction to the [U.S.] Criminal Code governing offenses amenable to federal jurisdiction
elsewhere.” Coleman v. United States, 334 F.2d 558, 566 (D.C. Cir. 1964) (quoting Johnson v.
United States, 225 U.S. 405, 418 (1912)); see, e.g., Greene, 489 F.2d at 1151 (“Congress was not
limited in the D.C. Code specification for first degree felony murder to the felonies set forth in
the Federal Code . . . .”). After all, Congress plays a wholly separate role when enacting
legislation locally as opposed to federally. See U.S. Const., art. I, § 8, cl. 17; Banner v. United
States, 303 F. Supp. 2d 1, 16 (D.D.C. 2004) (“When Congress legislates for the District,
therefore, the differing treatment is the consequence not of legislative determinations but of
constitutional distinctions . . . .”) (quotation omitted). It follows that Congress has separately
delegated to the Commission rulemaking powers for each jurisdiction.
A quick peek at the respective local and federal laws confirms this. When acting for D.C.
Code offenders, the Commission expressly wields the authority of local law. See D.C. Code
§ 24-131. When acting for U.S. Code offenders, conversely, it is empowered by federal law.
See 18 U.S.C. § 4202. In other words, Hill was sentenced and seeks parole under the substantive
provisions of the D.C. Code, and federal offenders are sentenced and seek parole under the
21
substantive provisions of the U.S. Code. Compare D.C. Code § 24-404, with 18 U.S.C. § 4206.
Plaintiff, simply put, does not receive the federal treatment because he is not a federal offender.
It would indeed be anomalous if the mere fact of a single Commission for both local and
federal offenders rendered the two groups similarly situated. Before the Revitalization Act
abolished the D.C. Board of Parole, this Circuit had reasoned that a D.C. prisoner “is not
similarly situated to [federal] prisoners, because he is in the custody of a different agency of
government.” Noble v. U.S. Parole Comm’n, 194 F.3d 152, 154-55 (D.C. Cir. 1999). Two
decades ago, Hill would have utterly lacked a claim. He is essentially arguing that this mere
change in form — from Board to Commission — has far-reaching constitutional ramifications.
The legality of this setup was effectively decided in United States v. Cohen, 733 F.2d 128
(D.C. Cir. 1984) (en banc) (Scalia, J.). That case asked whether Congress could — through D.C.
Code § 24-301 — require the federal judiciary to automatically commit individuals acquitted by
reason of insanity in the District while not providing a mechanism to do so nationally. Id. at
129-32. In disposing of the case, the court noted that federal offenders “would not constitute a
proper reference class for equal protection purposes” when Congress enacted special local law.
Id. at 137 n.15; see id. at 142 (Mikva, J., concurring) (“Individuals within and without the
District of Columbia are not similarly situated with respect to congressional legislation enacted
in Congress’ role as local sovereign.”). Cohen thus stands for the proposition that District
offenders cannot be counted as so similar as to implicate equal-protection concerns.
c. Rational Basis
Hill’s equal-protection vessel also founders on a final reef. The disparate treatment of
federal and local offenders is unlawful only if the distinction lacks a rational basis. See Noble,
194 F.3d at 154. “The general rule is that legislation is presumed to be valid and will be
22
sustained if the classification drawn by the statute is rationally related to a legitimate state
interest.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Such a rational
basis is not hard to find here.
In considering disparities between District and federal law, the Circuit has stated that
“[a]chieving a particular legislative goal through the exercise of a single legislative authority is
almost the paradigm of the ‘one step at a time’ approach . . . and has been the basis for the
evolution of much of our law.” Cohen, 733 F.2d at 138 (quoting Williamson v. Lee Optical of
Okla., Inc., 348 U.S. 483, 489 (1977)). The Commission likewise can choose to extend
privileges slowly, granting them to some but not others, in an effort to enact gradual reform. See
Williamson, 348 U.S. at 489 (stating that reform may “address[] itself to the phase of the
problem which seems most acute . . . [and] select one phase of one field and apply a remedy
there, neglecting the others”).
Exactly that seems to be what has been happening. After the Revitalization Act first
passed, the Commission sought to “replicate the voting procedures of the former DC Board.” 69
Fed. Reg. at 68,791. That makes some sense. Those procedures had already been in place for
D.C. Code offenders, and the Commission saw no need to upset the status quo. It so decided
because “the USPC does not have the staff resources at the present time to process a full
caseload of appeals from D.C. Code inmates along the same lines as appeals from federal
inmates.” Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving
Sentences Under the District of Columbia Code, 65 Fed. Reg. 45,885, 45,886 (July 26, 2000). In
rejecting the addition of an intermediate step, it noted the initial parole determination in the
District was already fairly robust. Id. (comparing, locally, “a concurrence of at least two
Commissioners” with, federally, “a single Commissioner”).
23
The Commission has since weighed whether to expand the process. In 2004, it added an
appeals layer for parole-revocation decisions for District offenders. See 69 Fed. Reg. at 68,791.
In doing so, it noted the importance of being “careful in apportioning its workload among the
Commissioners so as to avoid violations of decision-making time limits.” Id. at 68,792. But the
Commission limited the new procedures to revocation decisions, as it was “continuing to employ
an incremental approach in making appeals available to DC offenders and in modifying the
agency’s voting procedures.” Id. As the agency reasoned: “The Commission wants to see the
results of the changes made by these amendments before making any further modifications.
Budget constraints and the availability of sufficient staff and Commissioners to handle the
appeals are factors that affect the Commission’s ability to expand or maintain an appeal
procedure.” Id.
The incremental, rational narrative is easy to plot. The Commission long used a three-
step process for federal offenders. With the addition of District offenders to the agency’s docket,
it chose to wield its rulemaking power gradually, at first mirroring the D.C. Board of Parole’s old
procedures and then by offering new ones where it could. As these documented fiscal concerns
are quintessential reasons for proceeding piecemeal, the Court concludes that the procedures thus
derive from a rational root. See Harris v. Rosario, 446 U.S. 651, 652 (1980) (noting budgetary
considerations as rational basis).
Inadequate Procedures
Aside from his equal-protection claim, Hill also attacks the Commission’s District
procedures as, in themselves, inadequate. See Compl., ¶ 76-77. He asserts cursorily, without
reference to any due-process law, that “[f]ew procedural rights are as precious as the right to
appeal.” Opp. at 14.
24
On the contrary, there is nothing sacrosanct about administrative appeals. Even in
criminal cases, the Supreme Court “has never . . . required . . . avenues of appellate review.”
Rinaldi v. Yeager, 384 U.S. 305, 310 (1966). This is especially so with parole because due
process is not even implicated absent a protected interest. See supra Section III.C. The exact
“procedure to ascertain [parole], as well as the kind or amount of evidence upon which to base its
determination” “is a question of state policy exclusively for the state to decide.” Ughbanks v.
Armstrong, 208 U.S. 481, 488 (1908). In the District, by analogy, it is a matter solely of
congressional discretion.
Imposing additional procedures “in the name of due process [is] therefore unwarranted.”
Ellis, 84 F.3d at 1420. Similarly, the mere fact that the Government has chosen to set up a
hearing system does not mean that it must also provide for an added layer of administrative
review to make that process fair. See Franklin v. District of Columbia, 163 F.3d 625, 634 (D.C.
Cir. 1998) (rejecting that due process applies simply because there are hearings). In short, no
further process is required.
E. Arbitrary & Unreasonable Rescission
The final sliver of this case involves Plaintiff’s substantive-due-process and APA
challenges, which assert that “[t]he reasons cited by the USPC in rescinding Mr. Hill’s parole at
his reconsideration hearing failed to justify that rescission,” “USPC’s rescission of parole was
arbitrary and unreasonable,” and the agency “fail[ed] to rely on new or significant adverse
information in rescinding Mr. Hill’s parole.” Compl., ¶¶ 73-74, 80; see Opp. at 16 (citing Blair-
Bey, 151 F.3d at 1048 n.11 (“There is some authority for the proposition that exceptionally
arbitrary governmental conduct may in itself violate the due process clause, whether or not a
liberty or property interest is at stake”)). As relief, he asks the Court to “revers[e] the August 29,
25
2012 Notice of Action rescinding Mr. Hill’s grant of parole and reinstat[e] Mr. Hill’s parole.”
Compl., Prayer for Relief, ¶ 1.
To be sure, Hill’s cause could elicit a modicum of sympathy. While he committed a
heinous murder and the Commission most recently found that there was a reasonable probability
that he would reoffend and jeopardize societal welfare, it appears undisputed that he has suffered
from various medical ailments (diabetes, back problems that resulted in surgery, stroke) that
require him to use a wheelchair or walker to move around. See 2016 Hearing Summary at 2, 5;
2015 Letter from Fiebig at 4. He has also racked up no prison disciplinary record and completed
educational and rehabilitative programs, and, of course, the Commission once thought him fit for
release.
The Government seemingly only seeks to dismantle Hill’s APA count — and omits any
mention of substantive due process — by arguing that its decisions are so discretionary as to be
unreviewable. See Mot. at 15-16; Reply at 7-8; see also 5 U.S.C. § 701(a)(2). That may be so
for D.C. Code offenders. See generally 18 U.S.C. § 4218(d) (committing to agency discretion
certain actions for U.S. Code offenders under § 4203(b)(1)-(3)). But there is another reason why
the Court cannot review Hill’s claims. Whether they arise under § 1983 or the APA, counts
seeking early release must be brought as a petition for a writ of habeas corpus.
“[P]risoner cases challenging the ‘fact or duration’ of confinement . . . sound exclusively
in habeas.” Anyanwutaku v. Moore, 151 F.3d 1053, 1055 (D.C. Cir. 1998) (quoting Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973)). A federal prisoner must bring a habeas petition if and
“only if success on the merits will ‘necessarily imply the invalidity of confinement or shorten its
duration.” Davis v. U.S. Sentencing Comm’n, 716 F.3d 660, 666 (D.C. Cir. 2013) (quoting
Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). While claims seeking further procedures (notice
26
and a rehearing or an administrative appeal) would not necessarily lead to freedom, see Ray v.
Smoot, 168 F. Supp. 3d 111, 112-13 (D.D.C. 2016), Hill’s challenges to the rescission itself
would “automatically result in[] a speedier release from prison.” Anyanwutaku, 151 F.3d at
1056.
It is not difficult to see how this is so. Hill essentially contends that the Commission
lacked any justification for rescinding his parole and thus acted arbitrarily and unreasonably.
See Compl., ¶¶ 73-74, 80. But if it lacks cause to rescind parole, then it must grant parole. The
remedy he seeks is thus to reverse the rescission and reinstate his release. Id., Prayer for Relief,
¶ 1. Although the Commission could again seek rescission even if the Court granted this relief,
this vague future possibility matters not in the habeas calculus. See Dotson, 544 U.S. at 83
(holding that “the fact that the State may seek a new judgment (through a new trial or a new
sentencing proceeding) is beside the point”). Absent further Government action, nullifying the
rescission would spell Hill’s release.
Circuit precedents essentially confirm this. The very case that opened the door to a
substantive-due-process claim for arbitrary governmental conduct in parole cases noted that the
proper avenue was habeas. Blair-Bey, 151 F.3d at 1039. The fact that Hill’s claim is brought
under the guise of § 1983 does not change this fact. See Preiser, 411 U.S. at 489 (holding habeas
also displaces § 1983). As to the APA, a prisoner may bring a broad-based objection, claiming,
for instance, “that parole officials are apt to use incorrect rules when resolving a future
application.” Richmond v. Scibana, 387 F.3d 602, 605 (7th Cir. 2004) (emphasis added); see,
e.g., Settles, 429 F.3d at 1108-09 (considering APA challenge to Commission’s rulemaking).
But any APA action to overturn a particular parole decision on essentially “abuse of discretion”
grounds must be brought under habeas. Wallace v. Christensen, 802 F.2d 1539, 1550 (9th Cir.
27
1986); see, e.g., Bethea v. Bureau of Prisons, No. 04-2269, 2005 WL 3244195, at *2 (D.D.C.
Nov. 30, 2005) (treating claim as one falling under habeas); Cole v. Harrison, 271 F. Supp. 2d
51, 53 (D.D.C. 2002) (same); see also Cole v. Fulwood, 879 F. Supp. 2d 60, 68 (D.D.C. 2012)
(noting “several cases in which courts have reviewed USPC decisions for abuse of discretion in
habeas corpus cases, but none in which the same was done under the APA”). As Hill
challenges, in effect, the Commission’s substantive decision to rescind his parole, he must
instead seek the writ.
Habeas has its own parameters. It involves jurisdictional and statutory limitations,
including naming the prisoner’s custodian as the proper defendant (likely the warden of the
Federal Correctional Institution in Butner, North Carolina) and filing in the proper court (likely
the U.S. District Court for the Eastern District of North Carolina). See Thomas v. Fulwood, 128
F. Supp. 3d 341, 345-46 (D.D.C. 2015) (citing Rumsfeld v. Padilla, 542 U.S. 426 (2004); Braden
v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484 (1973); Stokes v. U.S. Parole Comm’n, 374 F.3d
1235 (D.C. Cir. 2004)). As none of these requirements seems satisfied here, the Court will not
address the merits of whether the Commission acted arbitrarily or unreasonably and instead will
dismiss the claims without prejudice.
IV. Conclusion
For these reasons, the Court will grant Defendants’ Motion to Dismiss. A separate Order
so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 2, 2017
28