Edward Ford, Jr. v. Charles Massarone , 902 F.3d 309 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 26, 2018 Decided September 4, 2018
No. 16-5298
EDWARD J. X. FORD, JR.,
APPELLANT
v.
CHARLES MASSARONE, COMMISSIONER OF THE UNITED
STATES PAROLE COMMISSION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-02054)
Zachary C. Schauf, appointed by the court, argued the
cause and filed briefs as amicus curiae in support of appellant.
With him on the briefs was David W. DeBruin, appointed by
the court.
Edward J.X. Ford Jr., pro se, filed briefs for appellant.
Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Jessie K. Liu,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney. Fred E. Haynes and Alessio D. Evangelista,
Assistant U.S. Attorneys, entered appearances.
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Before: GARLAND, Chief Judge, and GRIFFITH and
SRINIVASAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
SRINIVASAN, Circuit Judge: Edward Ford, Jr. is a federal
prisoner serving several criminal sentences, including one for
murder in violation of federal law and another for a separate
murder in violation of D.C. law. In 2013, Ford sued the
members of the U.S. Parole Commission, alleging (among
other things) that the Commissioners had unlawfully delayed
his first hearing for parole from his D.C. sentence.
Generally, once a D.C. offender has served the minimum
term of his court-imposed sentence, he is eligible for parole and
has a parole hearing at that time. The rule is different, though,
for the small number of offenders like Ford who are serving
sentences for both a D.C. crime and a federal crime committed
before federal parole was abolished. In that situation, if an
offender’s eligibility for parole from his D.C. sentence comes
before his projected parole date on his federal sentence, a
federal regulation calls for delaying his first D.C. parole
hearing until shortly before his projected federal parole date.
The central question in this case is whether the federal
regulation’s mandate to delay the first D.C. parole hearing in
that situation conflicts with D.C. law.
The district court granted summary judgment to the
Commissioners on that claim as well as several others pressed
by Ford. We conclude that Ford’s first D.C. parole hearing was
unlawfully delayed. We therefore reverse and remand for entry
of summary judgment in Ford’s favor on that issue, but we
otherwise affirm the district court.
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I.
In 1980, Ford committed three murders in three
jurisdictions in the space of three months. Ford’s final victim
was an inmate at a federal prison in Northern Virginia, whom
Ford broke into the facility to kill.
Ford was first convicted of the prison murder and
conspiracy to commit that murder, both in violation of federal
law. He received concurrent sentences of life imprisonment for
the murder and 15 years for the conspiracy offense. Ford was
next convicted of murder while armed, kidnapping while
armed, and carrying a pistol without a license, all in violation
of D.C. law. He received a sentence of 20 years to life for the
murder, 10 years for the kidnapping, and an unspecified term
for the gun offense—all concurrent to each other, but
consecutive to his federal sentences.
Ford is currently serving his D.C. and federal sentences in
federal prison. If paroled, he will begin serving another life
sentence for a third murder he committed in Maryland.
Since 1997, when the D.C. Board of Parole was abolished,
the U.S. Parole Commission has conducted parole proceedings
for both D.C. and federal offenders. See Daniel v. Fulwood,
766 F.3d 57, 59 (D.C. Cir. 2014). In December 2001, the
Commission held Ford’s initial federal parole hearing.
The Commission applied the federal parole guidelines and
determined that, barring disciplinary infractions in prison, Ford
would be paroled from his federal sentence on November 22,
2005. The Commission also concluded that Ford would
become eligible for parole from his D.C. sentence before his
projected parole date for his federal sentence. Applying the
federal regulation that governs the timing of D.C. parole
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hearings for offenders serving both D.C. and federal sentences,
28 C.F.R. § 2.65, the Commission set the deadline for Ford’s
first D.C. parole hearing as July 22, 2005—four months before
his projected federal parole date.
Ford had his first D.C. parole hearing shortly after that
date, on August 10, 2005. He was denied parole. Since then,
Ford has had three rehearings—in October 2010, October
2012, and February 2016—and has been denied parole each
time. His next rehearing is scheduled for February 2019.
In 2013, before Ford’s most recent rehearing, he filed a pro
se complaint against the members of the Commission. Ford
raised claims under 42 U.S.C. § 1983, including a claim that
the Commissioners had violated the Ex Post Facto Clause by
delaying his first D.C. parole hearing until his projected federal
parole date (in 2005) instead of holding the hearing as soon as
he became eligible for parole from his D.C. sentence (in 2000).
The Commissioners argued in response that they had properly
applied 28 C.F.R. § 2.65(e) when setting the date of Ford’s first
D.C. parole hearing.
The district court agreed, and granted summary judgment
to the Commissioners on that issue and Ford’s remaining
claims. Ford v. Massarone, 208 F. Supp. 3d 91, 106, 108
(D.D.C. 2016). Ford appealed, and we appointed amicus
counsel to present arguments favoring Ford’s position.
II.
Before addressing the merits of the claims Ford has
preserved, we consider various threshold arguments advanced
by the Commissioners as to why we should decline to reach
some or all of Ford’s claims. On the merits of the properly
preserved claims, we hold that the Commissioners unlawfully
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delayed Ford’s first D.C. parole hearing. We rule in the
Commissioners’ favor on the remaining claims.
A.
As an initial matter, the Commissioners argue that Ford’s
action is barred by res judicata and by a federal statute
restricting second or successive habeas actions. The
Commissioners further contend that, insofar as Ford’s action
can proceed, he forfeited certain of his claims by failing to raise
them before the district court.
1. The Commissioners argue that res judicata bars Ford’s
action because, in 2001, he filed a habeas petition in which he
alleged (among other things) that the Commissioners had
unlawfully delayed his first D.C. parole hearing. Ford v.
Attorney General, No. 02-302 (D. Colo. Apr. 9, 2004). Res
judicata, however, is an “affirmative defense” that “must [be]
plead[ed] . . . in the answer to the complaint.” Brown v.
District of Columbia, 514 F.3d 1279, 1285 (D.C. Cir. 2008);
see also Fed. R. Civ. P. 8(c)(1). The Commissioners failed to
plead the defense here, so it is forfeited. And while we can
overlook forfeiture and consider an issue not raised before the
district court in “extraordinary circumstances,” see Lesesne v.
Doe, 712 F.3d 584, 588 (D.C. Cir. 2013), the Commissioners
identify no such circumstances here.
2. The Commissioners next contend that Ford’s action is
barred by 28 U.S.C. § 2244(a), which provides that “[n]o
circuit or district judge shall be required to entertain an
application for a writ of habeas corpus” filed by a federal
prisoner “if it appears that the legality” of his or her “detention
has been determined by [a federal court] on a prior application
for a writ of habeas corpus, except as provided in section
2255.” In turn, § 2255 provides that a prisoner cannot bring a
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“second or successive” habeas petition unless a federal court of
appeals certifies that the petition meets certain criteria not
relevant here. 28 U.S.C. § 2255(h); see also id. § 2244(b)(3).
The Commissioners’ argument based on § 2244(a) again
relies on Ford’s 2001 habeas petition. While Ford’s instant
action is styled as a § 1983 suit, the Commissioners contend
that it is subject to § 2244(a) because it is in substance a second
habeas suit. And because no court of appeals has certified that
the instant suit meets the criteria laid out in § 2255(h), the
Commissioners argue, the suit is barred by § 2244(a).
Although the Commissioners did not raise their § 2244(a)
argument in the district court, the argument cannot be forfeited
because the requirement to obtain authorization for a second or
successive habeas petition is a jurisdictional prerequisite. See
Burton v. Stewart, 549 U.S. 147, 153 (2007) (certification is a
jurisdictional requirement for state prisoners, under
§ 2244(b)(3)); United States v. Springer, 875 F.3d 968, 982
(10th Cir. 2017) (same for federal prisoners, under § 2255(h)).
The Commissioners’ § 2244(a) argument fails on the
merits, however. The Commissioners correctly note that
certain claims can be raised only in a habeas suit: those that, if
successful, “would necessarily demonstrate the invalidity of
[the prisoner’s] confinement or its duration.” Wilkinson v.
Dotson, 544 U.S. 74, 82 (2005). On the other hand, “claims
with only a probabilistic impact on custody” can be raised
through § 1983. Davis v. U.S. Sentencing Comm’n, 716 F.3d
660, 665 (D.C. Cir. 2013). And claims properly raised through
§ 1983 are not precluded by the bar against second or
successive habeas petitions. See Hill v. McDonough, 547 U.S.
573, 576 (2006); Nelson v. Campbell, 541 U.S. 637, 642-43
(2004).
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If Ford prevails here, then the only relief he will receive is
“a new parole hearing at which . . . parole authorities may, in
their discretion, decline to shorten his prison term.” Wilkinson,
544 U.S. at 82. Ford’s claims, then, have only a probabilistic
impact on his custody, which means they were properly raised
in a § 1983 suit. Section 2244(a) thus does not bar Ford’s
instant suit.
3. The Commissioners next contend that Ford forfeited
several arguments advanced by appointed amicus by failing to
raise them below. When a plaintiff represents himself in the
district court, we hold him to “less stringent pleading and
forfeiture standards.” Elliott v. USDA, 596 F.3d 842, 851 (D.C.
Cir. 2010). Still, “we will not consider for the first time on
appeal arguments that a [pro se] plaintiff entirely failed to
raise” below. Id.
The Commissioners initially set their sights on appointed
amicus’s primary argument: that the Commissioners violated
D.C. and federal statutes by holding Ford’s first D.C. parole
hearing in 2005 rather than 2000. In the district court, Ford
alleged that, by delaying his hearing, the Commissioners had
violated the Ex Post Facto Clause. To prevail on that claim, he
needed to prove that (i) the date of his hearing was set in
accordance with a legal rule established after he was convicted
of his D.C. offense, and (ii) the “retroactive application of [that
rule] create[d] a significant risk of prolonging his incarceration
as compared to application of the prior [rule].” Daniel v.
Fulwood, 766 F.3d 57, 61 (D.C. Cir. 2014) (formatting
modified); see Garner. v. Jones, 529 U.S. 244, 251 (2000).
With respect to the latter point, Ford’s complaint alleged
that, under the law as it stood when he was convicted, he
became eligible for parole from his D.C. sentence in May 2000.
Ford v. Massarone, No. 13-cv-02054, Complaint at ¶ ¶ 48, 77
8
(D.D.C. Dec. 26, 2013), ECF No. 1. The Commissioners read
that allegation as contending that Ford “should have received
[his initial] parole hearing . . . in 2000.” Id., Memorandum of
Law in Support of Motion for Summary Judgment at 3 (D.D.C.
Jan. 28, 2016), ECF No. 48. In response, Ford confirmed he
was alleging that he had been entitled to an initial hearing in
2000. Id., Declaration Attached to Response to Motion for
Summary Judgment at 3 (D.D.C. Feb. 19, 2016), ECF No. 51.
The legal bases for that entitlement, Ford claimed, were this
court’s “ruling in Chatman-Bey v. Meese, 797 F.2d 987 (D.C.
Cir. 1986)” (which, as explained below, interprets 18 U.S.C.
§ 4205 (1976), the federal statute on which appointed amicus
relies) and D.C.’s parole “statutes, regulations, guidelines,
policies[,] and practices” (which includes D.C. Code. § 24-409,
the D.C. statute on which appointed amicus principally relies).
Complaint at ¶ 48; see also Declaration at 3.
Reading the pleadings through the lens we normally apply
to pro se filings, Ford ultimately alleged that, under the D.C.
and federal statutes at issue, he was entitled to a parole hearing
years before he actually received one. He thereby sufficiently
preserved a claim that 28 C.F.R. § 2.65, the regulation that
delayed his parole hearing, unlawfully conflicts with 18 U.S.C.
§ 4205 and D.C. Code § 24-409. (While Ford sued under
§ 1983, which affords relief only for violations of federal law,
the government has not argued that Ford improperly alleged a
violation of D.C. law (§ 24-409) in a § 1983 suit.)
The Commissioners’ next (and final) forfeiture argument
fares better. That argument concerns appointed amicus’s
contention that the Commissioners violated the Ex Post Facto
Clause by using Ford’s three murder convictions as grounds for
both (i) delaying his parole rehearings and (ii) denying him
parole at those rehearings. Ford did not include that claim in
his complaint. And in response to the Commissioners’ motion
9
for summary judgment, Ford reiterated that he had never
argued “that the longer set-off[s]”—meaning the delays
between his rehearings—were “Ex Post Facto violation[s].”
Ford v. Massarone, No. 13-cv-02054, Memorandum of Law in
Support of Response to Motion for Summary Judgment at 13
(D.D.C. Feb. 19, 2016), ECF No. 51. The claim is therefore
forfeited.
B.
We now turn to appointed amicus’s primary merits
argument: that the Commissioners violated D.C. and federal
statutes by delaying Ford’s first D.C. parole hearing from 2000
until 2005.
1. To understand appointed amicus’s argument in that
regard, one must first identify when Ford would have received
his first D.C. parole hearing had he been convicted only of his
D.C. offense. When sentencing offenders for violating D.C.
law, D.C. courts set minimum and maximum terms of
incarceration. D.C. Code § 24-403(a). An offender becomes
eligible for parole “after having served [his] minimum
sentence.” Id.; see also id. § 24-404(a). And under the 1987
D.C. parole guidelines (which the parties agree are the relevant
ones), an offender is entitled to an initial parole hearing as soon
as he is eligible for parole. D.C. Mun. Regs. tit. 28, § 200.3(c)
(1987); id. § 199.1 (1987). In the district court, Ford alleged
(and the Commissioners agreed) that he finished serving his
minimum sentence on his D.C. conviction on May 22, 2000.
Complaint at ¶ 48; Memorandum of Law in Support of Motion
for Summary Judgment at 17. So if Ford had been convicted
only of his D.C. offense, he would have been due his first D.C.
parole hearing in May 2000.
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The central issue before us is whether Ford’s federal
conviction should affect the date of his first D.C. parole
hearing. While Congress “eliminated most forms of parole”
for federal offenses as of November 1, 1987, parole remains
available to offenders like Ford who committed federal crimes
before that date. Howard v. Caufield, 765 F.3d 1, 2 n.1. (D.C.
Cir. 2014) (quoting Johnson v. United States, 529 U.S. 694,
696-97 (2000)). The federal parole process begins with an
initial hearing, at which the Commission applies the federal
parole guidelines (codified at 28 C.F.R. § 2.20) to determine
the offender’s projected parole date for the federal sentence—
i.e., the date on which the offender will be released barring any
misconduct in prison. 28 C.F.R. § 2.12.
So what happens when an offender is serving both D.C.
and federal sentences? When do the D.C. parole hearings
commence in that circumstance? A federal regulation, 28
C.F.R. § 2.65, dictates the answer. Under sub-section (e) of
that regulation, the date of the first D.C. parole hearing is tied
to one of two dates, whichever comes later: (i) the projected
parole date for the federal sentence, as described above; or
(ii) the so-called “single parole eligibility date,” see 28 C.F.R.
§ 2.5—a date that takes into account the parole eligibility date
for the D.C. offense standing alone.
The single parole eligibility date, in particular, turns on an
application of 18 U.S.C. § 4205(a) (1976) to an offender’s
aggregated D.C. and federal sentences. Under that statute, the
general rule is that an offender is eligible for parole after
serving the lesser of one third of his aggregate sentence or 10
years. The statute makes an exception, however, for situations
in which a different eligibility date is “otherwise provided by
law.” The “otherwise provided by law” clause comes into play
if an offender’s D.C. parole eligibility date—that is, the date on
which he finishes serving his D.C. minimum sentence—is later
11
than the eligibility date otherwise prescribed by § 4205(a). In
such a case, the D.C. eligibility date controls. See
Chatman-Bey v. Meese, 797 F.2d 987, 993-94 (D.C. Cir. 1986),
vacated in part en banc, 864 F.2d 804 (D.C. Cir. 1988).
Consider, for example, an offender serving a federal
sentence of 20 years and a D.C. sentence of 20 to 50 years.
Based on his aggregate sentence of 70 years, § 4205(a)’s
general rule would produce a parole eligibility date 10 years
from the date of incarceration (which is less than one-third of
the aggregate sentence). But because the D.C. eligibility date
would be 20 years, the 20-year date for the D.C. offense would
supersede the 10-year date as the single parole eligibility date.
Now say that the Commission had set the offender’s projected
federal parole date as 15 years from the date of incarceration.
Because the 20-year single parole eligibility date is later than
the 15-year projected parole date for the federal sentence, then
under 28 C.F.R. § 2.65(e), the first D.C. parole hearing would
be tied to the 20-year single parole eligibility date. The result
is that the Commission would hold the offender’s first D.C.
parole hearing shortly before his parole eligibility date for the
D.C. offense, just as the Commission would have done if the
offender were serving only his D.C. sentence. D.C. Mun. Regs.
tit. 28, § 200.3(c) (1987); id. § 199.1 (1987).
Ford’s case presents the opposite scenario, in which the
projected federal parole date comes after the single parole
eligibility date. In that circumstance, the projected federal
parole date drives the date of the initial D.C. parole hearing, in
that the hearing is delayed until shortly before the projected
federal parole date. See 28 C.F.R. § 2.65(e). The D.C. parole
hearing, then, would wait until the offender could actually be
released from his federal sentence, rather than coming at a time
when a favorable resolution could not bring about an actual
release in light of the remaining federal time to be served.
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In Ford’s case, for instance, his single parole eligibility
date, of May 22, 2000, was the date he had served his minimum
D.C. sentence. Complaint at ¶ 48; Commissioners’ Motion for
Summary Judgment at 17. His projected federal release date,
of November 22, 2005, was later than the single parole
eligibility date. And because his federal parole date came after
his single parole eligibility date, the deadline to hold his first
D.C. parole hearing was tied to his federal parole date—in
particular, four months before that date, or July 22, 2005. 28
C.F.R. § 2.65(e). The Commission held Ford’s first D.C.
hearing shortly after that deadline, on August 10, 2005.
2. Appointed amicus does not contend that the
Commission misapplied 28 C.F.R. § 2.65(e) in scheduling
Ford’s first D.C. parole hearing for 2005 rather than 2000.
Instead, appointed amicus contends that the regulation itself is
unlawful because it conflicts with D.C. and federal statutes.
Appointed amicus’s first argument is that the regulation cannot
be squared with D.C. Code § 24-409. Because we agree with
that argument, we have no occasion to consider whether the
regulation also conflicts with other D.C. or federal statutes.
Section 24-409 provides that the Commission “shall have
and exercise the same power and authority” over D.C.
offenders housed in federal prisons as the (now-defunct) D.C.
Board of Parole once exercised over D.C. offenders housed in
D.C. prisons. (The statute refers to the Commission as the U.S.
Board of Parole, which was the agency’s title until 1976. See
Parole Commission and Reorganization Act, Pub. L. No.
94-233, § 12, 90 Stat. 219, 233 (1976)). As explained above,
if the D.C. Board of Parole had applied D.C. parole guidelines
to Ford’s case, without regard to his federal offense, the Board
would have been obligated to hold his first parole hearing as
soon as he served his minimum D.C. sentence—that is, in May
2000. D.C. Mun. Regs. tit. 28, § 200.3(c) (1987); see also id.
13
§ 199.1 (1987). So, appointed amicus argues, if the
Commission has the “same power” as the Board, then the
Commission was also obligated to hold Ford’s first parole
hearing in May 2000.
The Commissioners concede that § 24-409 covers
offenders serving aggregated D.C. and federal sentences, not
just those serving D.C. sentences in federal prisons. The
Commissioners also concede that § 24-409 requires that, when
they conduct D.C. parole proceedings, they apply the D.C.
guidelines governing whether an offender is suitable for parole.
Complaint at ¶ 32; Ford v. Massarone No. 13-cv-02054,
Answer at ¶ 32 (D.D.C. Apr. 3, 2015), ECF No. 26. The
Commissioners contend, however, that they can decide for
themselves when to hold the first hearing at which those D.C.
parole guidelines will be applied.
In support of that argument, the Commissioners point to
the Seventh Circuit’s decision in Thomas v. Brennan, 961 F.2d
612 (7th Cir. 1992). The offender there, like Ford here, was
serving both D.C. and federal sentences. Id. at 613. And like
Ford, the offender there alleged that the Commission’s
regulation (which would delay his first D.C. parole hearing by
seven years) clashed with D.C. Code § 24-409 and thus was
unlawful. Id. at 616.
The Seventh Circuit first reaffirmed its prior holdings that
§ 24-409 covers offenders serving aggregated D.C. and federal
sentences. Id. at 617 (citing Johnson v. Williford, 821 F.2d
1279, 1288 n.5 (7th Cir. 1987)). The court next reaffirmed that
§ 24-409 “requires the Commission to apply D.C. parole laws
to D.C. Code offenses.” Id. (citing 821 F.2d at 1284). That
includes not only the D.C. “guidelines [for] determining parole
suitability, but also the [D.C.] standards that set the time at
which [parole authorities] must apply those guidelines.” Id. at
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618. Were it otherwise, the court explained, § 24-409 “would
lose much of its force”; the statute’s mandate that the
Commission “apply D.C. parole suitability guidelines would
mean little if [the Commission] were permitted to delay [the
guidelines’] application in accordance with a federal
regulation.” Id. Thus, the court held that, as a general matter,
§ 24-409 requires the Commission to hold an offender’s
original D.C. parole hearing at (or shortly before) his D.C.
parole eligibility date. Id.
The court “carve[d] an exception,” however, for offenders
like Ford with projected federal parole dates later than their
D.C. parole eligibility dates. Id. In such cases, the court held,
the Commission can delay the offender’s first D.C. parole
hearing until shortly before his federal parole date. Id. That
delay is warranted, the court believed, for three reasons.
First, the court noted, regardless of when the first D.C.
parole hearing takes place, the offender would need to remain
in prison on his federal sentence until his federal parole date.
Id. Second, the court concluded that delaying an offender’s
first D.C. parole hearing until his federal parole date does not
substantially injure him; he would enjoy only an “incremental
benefit” if the hearing were held at his D.C. eligibility date. Id.
Finally, the court observed that, under our court’s decision in
Chatman-Bey, an offender’s single parole eligibility date as
prescribed by § 4205 can be later than his D.C. parole
eligibility date. And if an offender’s eligibility date can be
delayed beyond his D.C. eligibility date until the date set by
§ 4205, the court thought, then the D.C. hearing can be delayed
until the offender’s projected federal parole date. Id. at 618-
19.
3. We agree with the Seventh Circuit’s conclusion that
§ 24-409 generally requires the Commission to hold an
15
offender’s first D.C. parole hearing at his D.C. parole eligibility
date. But in our view, that rule also applies to offenders like
Ford who become eligible for D.C. parole before their
projected federal parole date.
The text of § 24-409 makes no exception for offenders in
that position. Instead, the text applies generally—and
equally—to all offenders “convicted in the District of
Columbia of crimes.” We perceive no basis in the terms of the
statute to draw a distinction between offenders who become
eligible for D.C. parole before their projected federal parole
date and those who become eligible for D.C. parole after their
projected federal parole date.
The Thomas court grounded its support of such a
distinction, not in the statutory text, but in other considerations.
Respectfully, we do not understand those considerations to
justify the distinction.
First, it is undoubtedly true that an offender in Ford’s
position cannot be released from prison until he is paroled from
both his D.C. and federal sentences. Thomas, 961 F.2d at 618.
But an offender can be paroled from one sentence first and still
remain incarcerated until he is paroled from the other. That is
Ford’s current situation; he was paroled from his federal
sentence in August 2005 but remains in prison serving his D.C.
sentence.
Second, an offender serving both D.C. and federal
sentences seemingly could gain more than an “incremental
benefit” if his D.C. parole hearings began at the time of his
D.C. parole eligibility instead of being delayed until his federal
parole date. Id. To see why, it is necessary to understand how
the relevant D.C. parole guidelines operate in an offender’s
first parole hearing and in any rehearings.
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In an offender’s first hearing, the Commission uses various
offender characteristics to calculate what is known as a “salient
factor score” (or SFS). D.C. Mun. Regs. tit. 28, § 204.4, app.
2-1 (1987). The Commission then considers a list of “pre-
incarceration factors”—including whether the offense was
violent or involved use of a gun—which can bump up the SFS.
Id. § 204.18, app. 2-1 (1987). Similarly, the Commission
considers a list of “post-incarceration factors”—including
whether the offender has committed disciplinary infractions or
participated in rehabilitative programs—which can move the
SFS in either direction. Id.
If the adjusted SFS is between 0 and 2, then “[p]arole shall
be granted”; if the score is between 3 and 5, then “[p]arole shall
be denied . . . and rehearing scheduled.” Id. § 204.19, app. 2-1
(1987). For an offender whose maximum sentence is five years
or longer, rehearings “shall ordinarily occur within twelve (12)
months,” though the Commission has broad discretion to delay
rehearings. Id. §§ 104.2, 104.11 (1988).
In a rehearing, the Commission takes the adjusted SFS
from the previous hearing and then accounts for the offender’s
interim “institutional record.” Id. § 204.21, app. 2-2 (1987).
The Commission adds a point if the offender has “committed
serious [disciplinary] infractions” since his previous hearing
and subtracts a point if he has “demonstrated sustained
achievement in . . . prison programs” in that time. Id. app. 2-2
(1987). The Commission then applies a different, rehearing-
specific point scale, under which “[p]arole shall be granted” if
the score is between 0 and 3, and denied if the score is 4 or 5.
Id. § 204.21, app. 2-2 (1987).
So how could an offender be injured if his D.C. parole
hearings are delayed until his projected federal parole date?
For one thing, even if an offender has just a single hearing
17
before his federal parole date, when he later has his first
rehearing, the more lenient, rehearing-specific point scale will
apply. For another, at that rehearing, the offender can obtain a
second deduction for rehabilitative efforts. Finally, if an
offender’s D.C. parole eligibility date is several years before
his projected federal parole date, then he could potentially have
several D.C. parole hearings before being paroled from his
federal sentence. That would give him the opportunity to
reduce his SFS over time and thereby obtain an earlier D.C.
release date.
Consider, for example, an offender with a D.C. eligibility
date six years before his federal parole date. Even if that
offender had an SFS of 5 at his first D.C. parole hearing, he
could, through persistent rehabilitative efforts, reduce his score
to 0 by the time of his federal parole date, provided the
Commission held rehearings each year as it “ordinarily” does.
D.C. Mun. Regs. tit. 28, § 104.2 (1988). He then could be
paroled from his D.C. and federal sentences simultaneously,
which would not be the case if his D.C. parole hearings were
delayed until his federal release. In light of those substantial
potential benefits from holding D.C. parole hearings as soon as
an offender is eligible for D.C. parole, we cannot write off the
inconsistency between the Commission’s regulation and
§ 24-409 as immaterial.
The Thomas court noted, finally, that under our decision
in Chatman-Bey, an offender’s single parole eligibility date
might be later than the D.C. eligibility date (i.e., the parole
eligibility date that would apply if the offender were serving a
D.C. sentence but not a federal one). See Thomas, 961 F.2d at
618-19. That would happen if the eligibility date dictated by
18 U.S.C. § 4205(a) were later than the D.C. eligibility date.
See supra § II.B.1. But while Chatman-Bey contemplates that
an offender’s single parole eligibility date in that situation
18
would be later than his D.C. eligibility date, this case involves
the date of a D.C. parole hearing, not the date of parole
eligibility. And for the reasons we have explained, Ford’s
initial D.C. parole hearing should have been in 2000, not 2005.
We recognize that, in reaching a different conclusion on
that issue than the Thomas court did, our decision could result
in the Commission’s applying different rules to offenders
serving aggregated D.C. and federal sentences depending on
where the offenders are incarcerated. But we must give effect
to the terms of D.C. Code § 24-409 as we understand them,
regardless of the implications for the Commission’s
administration of parole hearings in other jurisdictions.
Additionally, the burdens on the Commission from having to
keep track of distinct rules for different jurisdictions will
depend on the number of affected offenders; and as the
Commissioners acknowledged at oral argument, there are only
about a dozen parole-eligible offenders presently serving
aggregated D.C. and federal sentences in federal prison (and
that population will naturally dissipate over time).
In short, we hold that, under D.C. Code § 24-409, Ford
should have received his first parole hearing as soon as he
finished serving his D.C. minimum sentence—in May 2000.
As a remedy for that unlawful delay, appointed amicus
suggests an order requiring the Commission to (i) reconsider
each of its prior parole decisions, this time assuming that Ford
had received his first parole hearing in May 2000, and (ii) hold
a new parole hearing at which each of the reconsidered prior
decisions can be taken into account. We conclude that the
suggested remedy is appropriate. We of course express no
view about the outcome of the new parole hearing, a decision
that rests with the Commission alone in the first instance.
19
4. In addition to arguing that the delay in Ford’s initial
D.C. parole hearing violates D.C. and federal statutes,
appointed amicus also contends that the delay violates the Ex
Post Facto Clause. The remedy for that alleged constitutional
violation, appointed amicus says, should be the same as the
remedy for the alleged statutory violations.
This case, then, is one in which a party has raised both
constitutional and statutory claims, and, by winning on the
latter, has secured “all the relief [the party] seeks.” Nw. Austin
Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009).
In that situation, we have no occasion to decide the
constitutional issue. Id. We therefore do not reach appointed
amicus’s delay-related Ex Post Facto claim.
C.
Appointed amicus also advances two arguments
concerning the Commission’s decisions to deny Ford parole.
We find those arguments unpersuasive.
1. Appointed amicus contends that the Commissioners
violated the Ex Post Facto by repeatedly denying Ford parole
on the ground that he had three murder convictions. Again,
parole authorities violate the Ex Post Facto Clause when
(i) they apply parole guidelines promulgated after an offender
was convicted, and (ii) that “retroactive application . . . creates
a significant risk of prolonging [the offender’s] incarceration
as compared to application of the prior guidelines.” Daniel,
766 F.3d at 61 (formatting modified).
In the district court, Ford alleged (and the Commissioners
agreed) that, when he was convicted of his D.C. offense, the
parole guidelines in effect were those published in 1987.
Complaint at ¶ 16; Answer at 5. Under the 1987 guidelines, if
20
an offender’s adjusted SFS indicates that he should be released
but he has an “[u]nusually extensive and serious prior criminal
record ([meaning] at least five felony convictions),” then the
D.C. Board can depart from the SFS scale and deny him parole.
D.C. Mun. Regs. tit. 28, app. 2-1 (1987). In a 1991 Policy
Guideline, the D.C. Board interpreted that departure provision
to apply only when an offender’s five convictions were for
certain enumerated felonies. Joint App. 167-68. Under the
2000 guidelines, on the other hand, the Commission can deny
parole to any offender with a “[p]rior record of violence more
extensive or serious than that taken in account in the
guidelines”—regardless of how many convictions the offender
has, or the specific crimes of which he was convicted. 28
C.F.R. § 2.80(n)(2)(ii)(A) (2000).
Here, the Commission’s stated grounds for denying Ford
parole in 2005, 2012, and 2016 were his three murder
convictions. And in 2010, the Commission’s stated grounds
were the three murders, as well as his 1958 conviction for
housebreaking (which is not a qualifying felony under the 1991
Policy Guideline) and his 1965 conviction for robbery (which
is a qualifying felony). According to appointed amicus, each
of those four denials was impermissible under the 1987
guidelines as interpreted by the 1991 policy guideline. That is
so, appointed amicus says, because three murders—or three
murders and a robbery—do not five felony convictions make.
On the other hand, appointed amicus notes, Ford’s three
murder convictions were a permissible reason to deny him
parole under the 2000 guidelines. Thus, appointed amicus
concludes, when the Commission explicitly relied on Ford’s
three murder convictions, it revealed it was retroactively
applying the 2000 guidelines, which worked to Ford’s
detriment.
21
Assuming arguendo that the Commission did apply the
2000 guidelines at Ford’s parole hearings, appointed amicus’s
argument still fails. We have held that, when the Commission
applies the 1987 guidelines, it can “depart from [the
guidelines’] numerical system” anytime it wishes, “as long as
it ‘specifies in writing those factors which it used.’” Bailey v.
Fulwood, 793 F.3d 127, 132 (D.C. Cir. 2015) (formatting
modified) (quoting McRae v. Hyman, 667 A.2d 1356, 1360
(D.C. 1995)). And “the 1991 Policy Guideline does not limit
the [Commission’s] discretion.” Bailey, 793 F.3d at 133. The
guidelines in effect when Ford was convicted, then, would have
posed no obstacle if the Commission wished to deny Ford
parole based on his three murder convictions. Hence the
retroactive application of the 2000 guidelines—which would
also permit the Commission to deny Ford parole because of his
three murder convictions—would not pose a significant risk of
increasing Ford’s prison term.
2. Appointed amicus additionally contends that, by
repeatedly denying Ford parole because he had three murder
convictions, the Commission violated the Due Process Clause.
Parole authorities deprive an offender of due process only if
their decisions are “either totally lacking in evidentiary support
or [are] so irrational as to be fundamentally unfair.” Duckett v.
Quick, 282 F.3d 844, 847 (D.C. Cir. 2002). Ford committed
three murders in three months, breaking into prison to commit
one of them. Given those facts, we cannot consider the
Commission’s decisions to deny Ford parole to have been
irrational.
D.
Ford advances various additional arguments in his pro se
briefs. We find those arguments to be without merit.
22
The Commission delayed Ford’s rehearing scheduled for
October 2015 until February 2016. Ford contends the decision
to delay his hearing was arbitrary and capricious, in violation
of the Administrative Procedure Act. 5 U.S.C. § 706(2)(a).
When the rehearing was held in February, though, the
Commission again denied Ford parole. And unlike the
five-year delay in Ford’s original hearing—which, as explained
above, might have prejudiced him—the four-month delay from
October 2015 to February 2016 could not have hurt him
because it had no effect on his score under the parole
guidelines. Cf. Phillips v. Fulwood, 616 F.3d 577, 582 (D.C.
Cir. 2010) (holding that an offender’s Ex Post Facto challenge
was moot in part because, under either set of parole guidelines
at issue, the offender’s guideline score was the same).
Ford also contends that the Commission violated the
Double Jeopardy Clause by using his murder convictions (i) as
grounds for departing upward from the federal parole
guidelines when setting his projected federal parole date, and
(ii) as grounds for denying him parole from his D.C. sentence.
Among other things, the Double Jeopardy Clause “prohibits the
government from punishing [an offender] twice . . . for the
same offense.” United States v. Ursery, 518 U.S. 267, 273
(1996) (formatting modified). When parole authorities deny an
offender parole, however, they do not impose a new
punishment; rather, they decline to relieve the offender from
the original punishment that is his sentence. Alessi v. Quinlan,
711 F.2d 497, 501 (2d Cir. 1983); Averhart v. Tutsie, 618 F.2d
479, 483-84 (7th Cir. 1980). Nor do parole authorities impose
a new punishment when they set a parole date later than that
recommended by the relevant parole guidelines, so long as
departing from the guidelines does not increase the offender’s
sentence. Kell v. U.S. Parole Comm’n, 26 F.3d 1016, 1020
(10th Cir. 1994). Because neither of the acts on which Ford
bases his double jeopardy claim was an imposition of
23
punishment for purposes of the Double Jeopardy Clause, the
two acts together were not “multiple punishments . . . for the
same offense.” Ursery, 518 U.S. at 273 (formatting modified).
* * * * *
For the foregoing reasons, we affirm in part, reverse in
part, and remand for entry of summary judgment in Ford’s
favor on his claim that the Commissioners unlawfully delayed
his first D.C. parole hearing.
So ordered.