Ari Bailey v. Isaac Fulwood, Jr.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 12, 2015 Decided July 14, 2015

No. 13-5177

ARI BAILEY,

APPELLANT

v.

ISAAC FULWOOD, JR., CHAIRMAN OF U.S. PAROLE

COMMISSION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00498)

Matthew A. Seligman, appointed by the court, argued the

cause and filed the briefs for appellant.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause

for appellees. With her on the brief were Ronald C. Machen,

Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney.

Before: HENDERSON, ROGERS and BROWN, Circuit

Judges.

Opinion for the court filed by Circuit Judge BROWN.

2

Opinion concurring in part and dissenting in part filed by

Circuit Judge ROGERS.

BROWN, Circuit Judge: Appellant challenges the United

States Parole Commission’s (USPC) denial of his 2010 and

2012 applications for parole. In particular, he asserts the

USPC violated the Constitution’s prohibition on ex post facto

laws, U.S. CONST. art. I, § 9, cl. 3, by incorrectly applying the

regulations in place at the time of appellant’s underlying

offense. The district court dismissed appellant’s complaint

for failure to state a claim. On review, we find that the

USPC’s denial of appellant’s requests for parole was a valid

exercise of parole authority as it existed at the time of his

offense. In addition, the USPC did not rely on the retroactive

application of any law, regulation, or guideline to justify its

decisions, and therefore could not have violated the Ex Post

Facto Clause. See Fletcher v. District of Columbia (Fletcher

II), 391 F.3d 250, 251 (D.C. Cir. 2004). Accordingly, we

affirm the judgment of the court below.

I.

Ari Bailey is currently serving a fifteen- to forty-five-year

sentence for a rape he committed in December 1993. In 2004,

after Bailey had served ten years of his sentence, he became

eligible for parole. After an initial parole hearing before the

USPC in September 2004, Bailey was denied parole. In 2007,

2010, and 2012, Bailey again applied for parole. 1 After

rehearings, the USPC denied each of Bailey’s applications.

Between the time Bailey committed his crime and the time

he became eligible for parole, the law governing parole for

individuals convicted of criminal violations of the D.C. Code

1

Bailey’s 2007 application for parole is not at issue here.

3

underwent several changes. In 1993, at the time of Bailey’s

offense, the D.C. Parole Board (“Board”) made parole

determinations for D.C. offenders. D.C. CODE §§ 24-201.1 –

201.3 (1989), superseded by § 24-131 (2001). The Board

exercised its authority pursuant to section 24-204 of the D.C.

Code, which provided:

Whenever it shall appear to the Board of Parole that

there is a reasonable probability that a prisoner will

live and remain at liberty without violating the law,

that his release is not incompatible with the welfare of

society, and that he has served the minimum sentence

imposed or the prescribed portion of his sentence, as

the case may be, the Board may authorize his release

on parole upon such terms and conditions as the

Board shall from time to time prescribe.

Id. § 24-204(a) (1989), superseded by § 24-404(a) (2009).

In 1987, the Board promulgated guidelines to govern its

evaluation of a prisoner’s suitability for parole. See D.C.

MUN. REGS. tit. 28, §§ 100, et seq. (1987) (“1987 Guidelines”),

superseded by 28 C.F.R. §§ 2.70, et seq. (“2000 Guidelines”).

The 1987 Guidelines created a point system focused on

offender history, offense characteristics, and behavior while in

prison. The resulting point total determined whether parole

would be granted. Id. § 204.19. However, the Guidelines

also allowed the Board to override the point-based

determination in “unusual circumstances.” Id. § 204.22. See

Daniel v. Fulwood, 766 F.3d 57, 59 (D.C. Cir. 2014). In

1991, in an effort to “facilitate consistency in Guideline

application,” the Board also issued an unpublished policy

guideline that provided definitions of criteria, parameters, and

terms used in the 1987 Guidelines. Policy Guideline, D.C.

Board of Parole (Dec. 16, 1991) (“1991 Policy Guideline”).

4

In 1997, Congress abolished the Board and directed the

USPC to conduct parole hearings for D.C. offenders.

National Capital Revitalization and Self-Government

Improvement Act, Pub. L. No. 105-33, § 11231 (a)–(c), 111

Stat. 712, 745 (1997), codified at D.C. CODE § 24-131 (2001).

Like the Board it replaced, the USPC was given authority to

grant parole “where there is a reasonable probability that a

prisoner will live and remain at liberty without violating the

law, [and where] . . . his or her release is not incompatible with

the welfare of society.” D.C. CODE § 24-404 (2009). In

2000, the USPC promulgated its own parole guidelines, the

2000 Guidelines, which initially applied to all D.C. offenders

who became eligible for parole on or after August 5, 1998. 28

C.F.R. §§ 2.70, et seq.

In Fletcher v. Reilly (Fletcher III), 433 F.3d 867 (D.C. Cir.

2006), this Court recognized that the 1987 Guidelines and the

2000 Guidelines were “substantially different.” Id. at 877–78.

As a result, the Court warned, retroactive application of the

2000 guidelines could give rise to a violation of the Ex Post

Facto Clause. Id. at 878–79. Subsequently, in Sellmon v.

Reilly, 551 F. Supp. 2d 66 (D.D.C. 2008), the district court

ruled in favor of four prisoner-plaintiffs who argued they

“faced a significantly increased risk of lengthier incarceration

due to the [retroactive application of the] 2000 Guidelines.”

Id. at 91. The district court therefore ordered the USPC to

reevaluate the prisoner-plaintiffs’ parole applications under the

1987 Guidelines. Id. at 99.

In light of these rulings and others, the USPC promulgated

a new rule—sometimes referred to as the Sellmon Rule—to

address retroactive applications of the 2000 Guidelines. 28

C.F.R. § 2.80(o). Under the Sellmon Rule, the USPC applies

the 1987 Guidelines when reviewing parole applications filed

by a D.C. offender who committed his offense between March

5

4, 1985 and August 4, 1998. Id.; see also, e.g., Taylor v.

Reilly, 685 F.3d 1110, 1112 (D.C. Cir. 2012). Accordingly,

the 1987 Guidelines governed appellant’s 2010 and 2012

parole rehearings—the two rehearings at issue in this case.

See March 1, 2010 Notice of Action, J.A. 74; March 19, 2012

Notice of Action, J.A. 79.

On March 1, 2010, the USPC informed Bailey that his

request for parole was denied. As the Commission explained:

The Commission has applied the D.C. Board of

Parole’s 1987 guidelines to . . . your case. You have

a total point score of 2 under the guidelines for D.C.

offenders. The guidelines indicate that parole should

be granted at this time. However, a departure from

the guidelines at this consideration [sic] is found

warranted because the Commission finds there is a

reasonable probability that you would not obey the

law if released and your release would endanger the

public safety.

March 1, 2010 Notice of Action, J.A. 74. Specifically, the

Commission provided that its decision was based on the fact

that (1) Bailey had “not completed any programs that address

the underlying cause of [his] criminal conduct of rape;” (2) he

“continued to deny the offense conduct;” (3) he “never

expressed an interest in participating in relevant programming

to address [his] criminal conduct;” (4) in the two prior years he

had “completed no other rehabilitative programs that would

indicate [his] risk to the community has been lessened;” and (5)

he “continued to incur incident reports for threatening and

assaultive conduct.” Id.

In 2012, after another rehearing, the USPC again denied

appellant parole. March 19, 2012 Notice of Action, J.A. 79.

6

As in 2010, the Commission concluded there was “a

reasonable probability [he] would not obey the law if released

and [his] release would endanger public safety.” Id. The

Commission explained its denial was based on the fact that (1)

Bailey had “not completed any programs that address the

underlying cause of [his] criminal conduct of rape;” (2) at the

time he committed rape in DC “there was an outstanding

warrant for [his] arrest on another rape [charge] in Baltimore,

Maryland;” and (3) he had “been confined to a closed prison

setting in the past two years based on [his] prior institution

misconduct” and had not “continued significant programming

since that time.” Id.

On March 30, 2012, appellant filed a complaint arguing

the 2010 and 2012 parole decisions violated his rights under

the Ex Post Facto Clause. On May 20, 2013, the district court

granted the government’s motion to dismiss after concluding

that “[t]here is no ex post facto violation where, as here, the

USPC applied the regulations that were in effect at the time the

plaintiff committed the underlying criminal offense.” Bailey

v. Fulwood (Bailey I), 945 F. Supp. 2d 62, 63 (D.D.C. 2013).

Thereafter, Bailey filed a timely notice of appeal.

II.

Appellant contends the USPC “violated the Ex Post Facto

Clause of the Constitution . . . by denying Mr. Bailey parole on

the basis of factors that were impermissible under the Board’s

1987 Guidelines and 1991 Policy Guideline but are permissible

under the Commission’s [2000] Guidelines.” Opening Brief

of Court-appointed Amicus Curiae in Support of Appellant at

15. This argument fails in two respects. First, the USPC’s

decisions were a permissible exercise of its statutory

discretion, which was cabined neither by the 1987 Guidelines

nor by the 1991 Policy Guideline. Second, a violation of the

7

Ex Post Facto Clause requires retroactive application of a law,

regulation, or guideline. Here, the USPC did not base its

denial on an application of the 2000 Guidelines. Rather, it

explicitly relied on the 1987 Guidelines as the basis for its

actions. Accordingly, the USPC did not violate the Ex Post

Facto Clause.

A.

It is clearly established under D.C. law that the factors set

forth in the 1987 Regulations and the definitions articulated in

the 1991 Policy Guideline never constrained the discretion of

the Board or the USPC. As the D.C. Court of Appeals

explained in McRae v. Hyman, 667 A.2d 1356 (D.C. 1995), our

analysis of this issue must begin with the governing statute, id.

at 1359, which provides that “the Board may authorize [a

prisoner’s] release on parole” if it determines “there is a

reasonable probability that a prisoner will live and remain at

liberty without violating the law . . . [or endangering] the

welfare of society.” D.C. Code § 24-204(a) (1989) (emphasis

added). As the Court observed in McRae, this statute is

phrased “in discretionary terms.” 667 A.2d at 1360. In turn,

the 1987 Guidelines “incorporate this discretionary approach,”

id. at 1359, and set forth a system “to guide the Board in

making the decision whether to grant or deny the parole”—not

to limit it, id. at 1360 (emphasis added). Where the Board

exercises its discretion to depart from this numerical system, it

may do so as long as it “specif[ies] in writing those factors

which it used. Departures must be explained, but they are not

proscribed.” Id. (emphasis added). As the McRae Court

concluded, the Board need not render a decision based on a

strict application of the system set forth in the 1987

Regulations. Rather, it must simply adhere to “the words of

the governing statute, § 24-204(a), [and determine whether a

prisoner is able to] live and remain at liberty without violating

8

the law such that release would be compatible with the welfare

of society.” Id. at 1361; see also id. at 1360–61 (holding the

Board “is not required to either grant or deny parole based

upon the score attained” and it may “ignore the results of the

scoring system and either grant or deny parole in the individual

case” so long as it specifies the reasons in writing).

The holding in McRae does not stand alone. In two prior

cases, the D.C. Court of Appeals had already explained the

broad discretion retained by the Board under the 1987

Regulations. Davis v. Henderson, 652 A.2d 634 (D.C. 1995);

White v. Hyman, 647 A.2d 1175, 1180 (D.C. 1994) (“[T]he

statute and Regulation vest in the Board substantial discretion

in granting or denying parole.”). In Davis, the Court

compared the Board’s discretion under the 1987 Regulations to

its extensive discretion under the 1980 Regulations prior to the

introduction of the formalized scoring system and concluded

“[t]he discretion conferred by the 1980 guidelines . . . survived

in the 1987 revisions.” 652 A.2d at 635. Read together,

these cases compel the conclusion that the 1987 Guidelines did

not diminish the broad discretion to deny parole afforded to the

Board under section 24-204(a) of the D.C. Code. 2

2

At oral argument, appellant’s court-appointed amicus argued that,

in a footnote, the McRae Court held that the 1987 Guidelines

constrained the Board’s discretion. McRae, 667 A.2d at 1361 n.15;

Oral Argument at 10:30–11:28. We disagree. The footnote simply

clarifies that where the Board’s denial of parole is a reasonable

exercise of its discretion under the statute, then it is necessarily a

reasonable exercise of its discretion under the 1987 Guidelines. In

the paragraph to which the footnote pertains, the Court explained

that, based on the reasons it set forth, “the Board could readily

determine, in the words of the governing statute, § 24-204(a), that

there was no reasonable probability that McRae would ‘live and

remain at liberty without violating the law’ or that release would be

compatible ‘with the welfare of society.’” Id. at 1361 (emphasis

9

This conclusion is further bolstered by our own

“independent review of the regulations” in Ellis v. District of

Columbia, which concluded that even section 204.1 of the

1987 Guidelines does not constrain the Board’s discretion. 84

F.3d 1413, 1419 (D.C. Cir. 1996). Section 204.1 provides:

“Any parole release decision falling outside the numerically

determined guideline shall be explained by reference to the

specific aggravating or mitigating factors as stated in

Appendices 2-1 and 2-2.” 1987 Guidelines, § 204.1. Among

the factors listed in “Appendices 2-1 and 2-2” are “Other,” id.

app. 2-1, and “Other change in circumstances,” id., app. 2-2.

As this court explained, the inclusion of such “scarcely

constraining language” suggests that the “Board, in the

exercise of its discretion,” may deny a prisoner parole if it

“believes there is some . . . reason for not granting him parole.”

Ellis, 84 F.3d at 1419; see also id. (“Under § 204.22 of the

[1987 Guidelines], if the Board wished to disregard the results

of the scoring system it merely had to say so in writing.”)

(emphasis added); Phillips v. Fulwood, 616 F.3d 577, 582

(D.C. Cir 2010) (“The 2000 regulations permit the

Commission, in ‘unusual circumstances,’ to depart upward

based on a prisoner’s risk to society. But so too did the 1987

regulations.”). To emphasize the extent of this discretion, we

held that under D.C. law, “parole is never required”—even

where “the Board determines that [a prisoner meets] the

necessary prerequisites” for release. Ellis, 84 F.3d at 1420.

Thus, “a prisoner’s low total point score [under the 1987

added). Then, in the footnote in question, the Court specified, “[f]or

the same reasons we reject McRae’s contention that the denial of

parole was arbitrary and capricious. We also reject McRae’s

contention . . . that the Board violated [the 1987 Guidelines].” Id. at

1361 n.15 (emphasis added). In other words, the Board’s discretion

under the 1987 Guidelines is co-extensive with its discretion under

section 24-204(a).

10

Regulations] does not compel the Board to grant a prisoner

release.” Id.

To be sure, as Judge Tatel noted in his concurrence in

Ellis, one could read the 1987 Regulations differently. Ellis,

84 F.3d at 1427–28 (Tatel, J., concurring in part).

Specifically, we could interpret the 1987 Guidelines as

constraining the Board’s discretion by requiring it to “apply[] a

set of specified standards” in denying parole to prisoners with

qualifying scores. Id. at 1428. However, as Judge Tatel

ultimately concluded, in light of the rulings of the D.C. Court

of Appeals, we may not adopt such an interpretation. Id. at

1429; see also id. at 1420 (“Although we are not bound by the

D.C. Court of Appeals’s interpretation of the Constitution, we

must respect its construction of D.C. law.”). Accordingly, the

1987 Guidelines did not constrain the Board’s discretion, nor

do they now constrain the USPC’s.

Similarly, the 1991 Policy Guideline does not limit the

USPC’s discretion. First, though none of the opinions

mentioned expressly discuss the 1991 Policy Guideline, such

an omission is telling. 3 For judges, a significant change to a

legal regime is like an alligator in one’s bathtub; it cannot

prudently be ignored. If the 1991 Policy Guideline had

altered the scope of the Board’s discretion, the judicial

response would not have been silence. Second, in the context

of parole set-offs, the D.C. Court of Appeals has explained

“[t]he [1991 Policy] Guideline[] undoubtedly reflect[s], rather

than limit[s], the discretion that the District’s municipal

regulations and parole statute already vest in the Board’s

set-off determinations.” Hall v. Henderson, 672 A.2d 1047,

3

White, 647 A.32d at 1178, is an exception in this regard in that it

contains a brief discussion of the 1991 Policy Guideline. However,

its focus is on issues inapposite to the case at bar. Id.

11

1053 (D.C. 1996). There is no reason to believe this

conclusion, for which the Court cites both White and McRae as

authority, does not apply with the same force to parole

determinations themselves. Id. at 1054. Finally, it would be

somewhat unusual to deem that the unpublished 1991 Policy

Guideline trumps a statutory enactment or published

regulation. Cf. San Luis Obispo Mothers for Peace v. U.S.

Nuclear Regulatory Comm’n, 789 F.2d 26, 33 (D.C. Cir. 1986)

(“To accept petitioners’ argument, therefore, we would have to

hold that NUREG–0654, a staff document intended as

guidance, supersedes the regulation itself. The only virtue of

that approach is novelty.”); Edward v. D.C. Taxicab Comm’n,

645 A.2d 600, 603 n.10 (D.C. 1994) (“This court has often

applied federal administrative law principles to local

administrative agency proceedings.”).

Accordingly, we are bound to conclude that the 1987

Guidelines and the 1991 Policy Guideline do not constrain the

discretion of the USPC. Therefore, the USPC did not violate

either of them when it denied Bailey parole after finding “a

reasonable probability that [he] would not obey the law if

released and [that his] release would endanger the public

safety.” March 1, 2010 Notice of Action, J.A. 74; March 19,

2012 Notice of Action, J.A. 79.

B.

1.

Even if the USPC had failed in its effort properly to apply

the 1987 Regulations and 1991 Policy Guideline, such a

mistake could not be the basis for a claim under the Ex Post

Facto Clause. Indeed, the government did not rely on the

retroactive application of any statute, regulation, or guideline

to justify its denial of Bailey’s requests for parole.

12

As the Supreme Court explained in Garner v. Jones, 529

U.S. 244 (2000), “the Ex Post Facto Clause . . . bar[s]

enactments which, by retroactive operation, increase the

punishment for a crime after its commission . . . [and]

[r]etroactive changes in laws governing parole or prisoners, in

some instances, may be violative of this precept.” Id. at 249–

50 (emphasis added). Admittedly, such “[r]etroactive

changes in laws” can include changes to regulations and even

guidelines governing the parole process. Id. at 250, 252; see

also Fletcher II, 391 F.3d at 251 (“The Supreme Court [in

Garner] thus foreclosed our categorical distinction between a

measure with the force of law and guidelines [that] are merely

policy statements from which the Commission may depart in

its discretion.”). However, a necessary feature of any ex post

facto claim is a rule to which the government seeks to give

retroactive effect. See, e.g., Garner, 529 U.S. at 252 (“The

case turns on the [retroactive] operation of the amendment to

Rule 475-3-.05-2.”); Daniel, 766 F.3d at 61 (“In order to

prevail on the merits of an ex post facto claim with regard to

parole guidelines, a plaintiff must show that retroactive

application of new guidelines creates a significant risk of

prolonging his incarceration as compared to application of the

prior guidelines.”); Phillips, 616 F.3d at 578 (“Although he has

been eligible for parole since 2003, the United States Parole

Commission—applying regulations it issued in 2000—has

repeatedly found him unsuitable for release. Phillips contends

that the Commission should have applied the parole rules that

were in effect when he committed his crimes, and that its

failure to do so violated the Ex Post Facto Clause of the

Constitution.”); Fletcher III, 433 F.3d at 876 (“[Fletcher]

contends that the Commission’s retroactive application of the

new federal reparole regulations, rather than the Board’s

regulation, during his 2000 reparole hearing, creates a

significant risk of increased punishment, and is thus an

unconstitutional ex post facto law.”); see also Taylor, 685 F.3d

13

at 1112–13 (noting plaintiff did not contest his claim for

injunctive and declaratory relief under the Ex Post Facto

Clause became moot when the USPC agreed to grant him a

new parole hearing and apply the 1987 Guidelines). Here, the

USPC justified its decisions without invoking any retroactive

laws.

2.

Appellant’s court-appointed amicus calls into question

this bedrock principle of Ex Post Facto Clause

jurisprudence—that the clause only applies where the

government seeks to give retroactive effect to a legal rule.

Citing Sellmon, amicus argues that “[d]efendants may not

avoid a constitutional challenge simply by citing the correct

rules, while in fact following a federal practice that is

inapplicable to [Mr. Bailey].” Opening Brief of

Court-appointed Amicus Curiae in Support of Appellant at 34–

35 (quoting Sellmon, 551 F. Supp. 2d at 96) (second alteration

in original). According to amicus, “[a]llowing the

Commission to evade the requirements of the Ex Post Facto

Clause merely by asserting that it applied the 1987 Guidelines

while its analysis in practice applied the 2000 Guidelines

would eviscerate the protections afforded by the Clause.” Id.

at 35. However, despite amicus’ arguments to the contrary, as

the district court observed, the Ex Post Facto Clause asks

whether the USPC “applied the correct parole guidelines” and

not whether the USPC correctly applied the parole guidelines.

Bailey I, 945 F. Supp. 2d at 64.

The Ex Post Facto Clause constrains the government’s

ability to use retroactive legal rules to justify criminal

punishment. Where, as here, a prisoner believes the USPC

has mis-applied a prospective legal rule, the Clause simply

does not apply. Of course, this is not to say the prisoner has

14

no legal recourse to challenge an alleged mis-application of

law. Prisoners have avenues to challenge the unlawful denial

of a request for parole—even where this denial does not violate

the Ex Post Facto Clause. 4 See, e.g., Furnari v. U.S. Parole

Comm’n, 531 F.3d 241, 247–48 (3d Cir. 2008) (holding that in

reviewing a USPC decision to deny parole on a petition for a

writ of habeas corpus, a federal court inquires into “whether

there is a rational basis in the record for the [Parole

Commission’s] conclusions embodied in its statement of

reasons”); see also Doe v. U.S. Parole Comm’n, No. 13-5279,

2015 WL 233404 (D.C. Cir. Jan. 16, 2015) (unpublished per

curiam) (discussing various causes of action an offender may

assert to challenge USPC decisions). In fact, Bailey himself

has already made use of one such avenue by bringing a habeas

action in the Middle District of Pennsylvania. 5 See Bailey v.

4

In her opinion concurring in part and dissenting in part, our

colleague asks: “Would the majority hold that the Fourth

Amendment does not prohibit unreasonable searches and seizures

that can be challenged under state tort law?” Concurring Op. at 6.

Although the question is rhetorical, we provide the obvious answer:

The Fourth Amendment does prohibit unreasonable searches and

seizures, irrespective of state tort law. Nonetheless, a search that is

reasonable under the Fourth Amendment may violate state statutory

protections. Similarly, here, prisoners have avenues to challenge

the USPC’s mis-applications of prospective legal rules, even though

such actions do not violate the Ex Post Facto Clause.

5

In his habeas petition, Bailey advanced several legal theories.

One of them relied on the same Ex Post Facto Clause argument he

advances here. The government asserts the present action is

therefore barred on res judicata and collateral estoppel grounds.

However, we need not decide this issue to resolve the case before us

because neither collateral estoppel nor res judicata deprives the

court of subject-matter jurisdiction. See Smalls v. United States,

471 F.3d 186, 189 (D.C. Cir. 2006) (“[T]he defense of res judicata,

or claim preclusion, while having a somewhat jurisdictional

15

Fulwood, Civil No. 3:CV-11-435, 2012 WL 5938302 (M.D.

Pa. Nov. 26, 2012).

To extend the Ex Post Facto Clause to cases like the one at

bar would be deleterious to the proper functioning of the

criminal justice system. The Clause strikes a careful balance;

it prohibits retroactive application of parole regulations that

“create[] a significant risk of prolonging [an inmate’s]

incarceration,” Garner, 529 U.S. at 251, while preserving for

parole boards some flexibility in the way they exercise their

discretion prospectively. As the Garner Court explained:

The danger that legislatures might disfavor certain

persons after the fact is present even in the parole

context, and the Court has stated that the Ex Post Facto

Clause guards against such abuse. On the other hand,

to the extent there inheres in ex post facto doctrine

some idea of actual or constructive notice to the

criminal before commission of the offense of the

penalty for the transgression we can say with some

assurance that where parole is concerned discretion, by

its very definition, is subject to changes in the manner

in which it is informed and then exercised. The idea of

discretion is that it has the capacity, and the obligation,

to change and adapt based on experience. New

insights into the accuracy of predictions about the

offense and the risk of recidivism consequent upon the

character, does not affect the subject matter jurisdiction of the

district court.”); cf. Nat’l Treasury Emps. Union v. IRS, 765 F.2d

1174, 1176 n.1 (D.C. Cir. 1985) (recognizing that collateral estoppel,

or issue preclusion, is an affirmative defense under Fed. R. Civ. P.

8(c) that is subject to waiver and forfeiture—and therefore holding,

implicitly, that this defense is not an attack on the court’s

subject-matter jurisdiction).

16

offender’s release, along with a complex of other

factors, will inform parole decisions.

Id. at 253.

The rule suggested by the district court in Sellmon and

advocated by appellant would subject any change to a parole

board’s exercise of discretion to constitutional inquiry—even

where the change is explicitly made prospective. Any inmate

denied parole could point to a prospective policy that the board

did not rely on in justifying its decision and argue that this

policy violated his right to be free from “[r]etroactive changes

in laws.” Id. at 250. Parole boards would have no choice but

to “freeze in time” their discretion to insulate themselves from

such absurd challenges. Id. at 259 (Scalia, J., concurring). In

essence, courts would deprive parole boards of “the capacity,

and the obligation, to change and adapt based on experience.”

Id. at 253 (majority opinion). We decline to adopt such a rule.

3.

Here, the USPC did not rely on the 2000 Guidelines to

justify its 2010 and 2012 parole decisions. Rather, “[i]t is

apparent from the Court’s review of the record that the USPC

applied the Parole Board’s 1987 Regulations—not the 2000

Guidelines—in 2010 and again in 2012.” Bailey I, 945 F.

Supp. 2d at 63. As the district court aptly noted, “[t]here is no

[Ex Post Facto Clause] violation where, as here, the USPC

applied the regulations which were in effect at the time the

plaintiff committed the underlying criminal offense.” Id.

Accordingly, the judgment of the court below is

Affirmed.

ROGERS, Circuit Judge, concurring in part and dissenting in

part. This appeal and a related appeal1 arise as a result of

Congress’s transfer of parole responsibilities from the D.C.

Board of Parole to the U.S. Parole Commission in 1998. See

National Capital Revitalization and Self-Government

Improvement Act, Pub. L. No. 105-33, § 11231(a)–(c), 111 Stat.

712, 745 (1997), codified at D.C. Code § 24-131. These

plaintiffs, who sued under 42 U.S.C. § 1983, were convicted

when the D.C. Board was still in charge of parole decisions and

they contend on appeal that the U.S. Commission is carrying out

stricter parole practices than did the D.C. Board. Bailey

contends, adopting the brief of amicus curiae, that the U.S.

Commission violated the Ex Post Facto Clause of the Fifth

Amendment to the Constitution by denying him parole based on

factors that were impermissible under the D.C. Board’s policy

in place at the time of his offense, but permissible under the U.S.

Commission’s subsequent policy. Because the U.S.

Commission properly applied the D.C. Board’s earlier policy, I

concur in holding that Bailey’s ex post facto challenge fails.

Because that holding disposes of the issue Bailey has presented,

I dissent from the court’s alternative analysis prematurely

announcing a broader ex post facto principle for future cases.

I.

In interpreting the authority of the D.C. Board of Parole, the

District of Columbia Court of Appeals has held that when acting

pursuant to the 1987 Regulations, the Board retains discretion

under D.C. Code § 24-204(a) to depart from numerical

recommendations set forth in the regulations. See McRae v.

Hyman, 667 A.2d 1356, 1359–61 (D.C. 1995); Davis v.

Henderson, 652 A.2d 634, 635–38 (D.C. 1995); White v.

Hyman, 647 A.2d 1175, 1180 (D.C. 1994). This court has

adopted the D.C. Court of Appeals’s interpretation of D.C. Code

1

Gambrell, et al. v. Fulwood, No. 13-5239 (D.C. Cir. July 14,

2015).

2

§ 24-204(a) and the parole system established in the D.C.

regulations. See Phillips v. Fulwood, 616 F.3d 577, 582 (D.C.

Cir. 2010); Ellis v. Dist. of Columbia, 84 F.3d 1413, 1420 (D.C.

Cir. 1996). Although the cited D.C. cases either do not discuss

the Board’s 1991 Guideline or do so as to other issues, the

Guideline merely provided definitions for certain terms in the

1987 Regulations and did not purport to limit the D.C. Board’s

discretion under the 1987 Regulations.

Therefore, essentially for the reasons stated by the court, I

join the court in holding that because “the [U.S. Commission]’s

decisions were a permissible exercise of its statutory discretion,

which was cabined neither by the 1987 Guidelines nor by the

1991 Policy Guideline,” Op. 6–7, Bailey’s ex post facto

challenge fails.

II.

The court insists on going further, concluding alternatively

that a prisoner can never present a claim under the Ex Post

Facto Clause where a parole agency cites the correct regulation

or guidelines. See Op. 7, 11–16. The court normally “do[es] not

reach out to decide” constitutional issues when the appeal does

not require it. Pub. Citizen Health Research Grp. v. Tyson, 796

F.2d 1479, 1507 (D.C. Cir. 1986). The court’s reason for doing

so today is to express its view that Sellmon v. Reilly, 551 F.

Supp. 2d 66, 96 (D.D.C. 2008), misstates the law. Op. 13, 16.

In Sellmon, the district court was “unpersuaded that the

[Commission’s] reference to the 1987 Regulations, standing

alone, is sufficient to bar an ex post facto challenge.” 551 F.

Supp.2d at 96 (emphasis added). This court’s categorical

rejection of Sellmon goes far beyond the facts of Bailey’s case.

In denying parole, the Commission did not simply reference the

1987 Regulations, it correctly applied them. That conclusion

fully resolves the issue Bailey has presented in this appeal.

3

The court’s alternative conclusion is troubling for two

reasons. First, it may not be correct, and the factual record and

briefing in this case did not focus on the issue so as to allow for

careful consideration. Second, the policy considerations on

which the court relies are dubious at best. The more prudent

course would be to leave consideration of this issue for a case

that actually presented it.

1. The Ex Post Facto Clause prohibits the passing of an “ex

post facto Law.” U.S. CONST. art. I, § 9, cl. 3. In the parole

context, this prohibition applies to new regulations and policy

guidelines that “create[] a significant risk of prolonging [an

inmate’s] incarceration.” Garner v. Jones, 529 U.S. 244, 251

(2000); see Phillips, 616 F.3d at 580. The analysis involves two

questions: did the parole agency apply a retroactive policy (the

retroactivity question), and, if so, did the retroactive application

carry a significant risk of increased punishment (the risk

question). Answering the retroactivity question will generally

be easy when the parole agency states that it is applying a later

policy. In such cases, the court will only have to answer the risk

question, which requires the court to conduct “a searching

comparison of the old and new” policies to determine whether

application of the later policy “create[s] a significant risk” of

lengthier incarceration. Fletcher v. Reilly, 433 F.3d 867, 879

(D.C. Cir. 2006) (“Fletcher III”). The court’s alternative

analysis speaks to the opposite situation, in which the parole

agency denies parole using an analysis available under the new

policy but not the old (thereby demonstrating a “significant risk”

that applying the new policy will prolong incarceration) but

claims to be applying the prospective policy only. That situation

requires the court to answer the first question: which policy did

the parole agency, in fact, apply?

In addressing the risk question, the Supreme Court’s ex post

facto precedent has eschewed formalism. It has instructed

4

courts to look at an agency’s “policy statements, along with the

[agency’s] actual practices,” to determine “the manner in which

it is exercising its discretion” under both policies, looking to

“evidence drawn from the rule’s practical implementation.”

Garner, 529 U.S. at 256; see id. at 255. “The controlling inquiry

under Garner is how the Board or the Commission exercises

discretion in practice, and whether differences between the

exercise of discretion in [the] two systems actually” create a

significant risk of increased punishment. Fletcher III, 443 F.3d

at 876–77. “[T]he question is one of practical effect,” not labels.

Fletcher v. Dist. of Columbia, 391 F.3d 250, 251 (D.C. Cir.

2004) (“Fletcher II”). Thus, even if a later policy is facially

similar to the one in place at the time of offense, courts are to

scrutinize whether, in practice, the later policy reflects a stricter

implementation of statutory discretion. In Bailey’s case, the

court has effectively answered that question in the negative,

holding that, as exercised, the discretion is the same under both,

and consequently there is no difference in the risk of punishment

under the two regimes. See also Phillips, 616 F.3d at 582–83.

The court proceeds to answer the retroactivity question as

well. With virtually no analysis of the Ex Post Facto Clause

itself, the court opines that the parole agency’s characterization

of its action is conclusive on the question of which policy was,

in fact, applied. Thus, in the language of Sellmon, a simple

“reference” to the correct policy, “standing alone,” is sufficient

to bar an[y] ex post facto challenge. 551 F. Supp. 2d at 96

(emphasis added). But if, as the Supreme Court has instructed,

the risk question must take account of actual practice, then it is

not clear why the retroactivity question categorically may not.

The Ex Post Facto Clause prohibits “[e]very law that changes

the punishment, and inflicts a greater punishment, than the law

annexed to the crime, when committed.” Calder v. Bull, 3 U.S.

(3 Dall.) 386, 390 (1798) (Chase, C.J.); see Garner, 529 U.S. at

249–50. It “forbids the imposition of punishment more severe

5

than the punishment assigned by law when the act to be

punished occurred.” Weaver v. Graham, 450 U.S. 24, 30 (1981)

(emphasis added). When a parole agency prolongs incarceration

using policy considerations that were not adopted until after the

offense, it contravenes that prohibition regardless of the label it

affixes to its decision. As the Supreme Court has explained, the

Clause “safeguards a fundamental fairness interest in having the

government abide by the rules of law it establishes to govern the

circumstances under which it can deprive a person of his or her

liberty or life.” Peugh v. United States, 133 S. Ct. 2072, 2085

(2013) (quotation marks and alterations omitted). That purpose

is not satisfied by a bare disavowal of any ex post facto

violation.

Imagine a sentencing judge who considers aggravating

factors enacted after the defendant’s offense, but concludes by

stating “I applied the earlier sentencing law.” Or imagine a

parole agency that changes the factors it will consider from

A,B,C to X,Y,Z, then denies parole based only on the latter set

of factors, but states that it applied the earlier policy. In those

situations, it is unclear why mere averral of compliance with the

Ex Post Facto Clause should override clear facts of the case to

the contrary. The Clause “deals with substance, not shadows.

Its inhibition was levelled at the thing, not the name. It intended

that the rights of the citizen should be secure against deprivation

for past conduct by legislative enactment, under any form,

however disguised.” Weaver, 450 U.S. at 31 n.15 (quoting

Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1866)). If

the risk question requires an examination of “actual practices”

and “practical effect,” why should the retroactivity question be

blind to practical realities altogether? The court provides no

answer. With no need to reach the question, the court relegates

a core constitutional protection to an easily evaded formalism.

Granted, not every misapplication of a parole policy

6

constitutes an ex post facto violation. Plaintiffs in the

companion case, supra note 1, maintained that the improper

application of a permissible factor amounted to an “unwritten”

policy change, and thereby violated the Ex Post Facto Clause.

An incorrect application of a prospective policy is not

necessarily an ex post facto violation. But neither is the

prospective policy necessarily the one that was applied, for

purposes of the Clause, merely because of a statement to that

effect by the parole agency. In some cases (and again, neither

Bailey’s case nor the companion case require this court to decide

which ones), the facts may be sufficiently clear to establish that

a later rule was applied, despite an agency’s contrary statement.

2. How, then, does the court reach its conclusion that a bare

assertion cures any possible ex post facto violation? Two policy

reasons. First, the court suggests that the Clause is an

unnecessary prophylactic because prisoners have other “avenues

to challenge the unlawful denial of a request for parole.” Op.

14. The availability of other legal theories or causes of action is

irrelevant to the meaning of the Ex Post Facto Clause. The

Clause exists to prevent retroactive punishment, period. See

Peugh, 133 S. Ct. at 2081 (quoting Calder, 3 U.S. (3 Dall.) at

390). It does not exist merely to prevent retroactive punishment

that is not prevented by other means. Would the majority hold

that the Fourth Amendment does not prohibit unreasonable

searches and seizures that can be challenged under state tort

law? Moreover, the court’s premise may be wrong, as the

court’s citations cast doubt on the availability of other remedies.

See Op. 14 (citing Doe v. U.S. Parole Comm’n, No. 13-5279,

2015 WL 233404 (D.C. Cir. Jan. 16, 2015), where the court

highlights the barriers to bringing a direct appeal, federal

habeas, state habeas, and claims under 42 U.S.C. § 1983 and the

Administrative Procedure Act). Even if other legal theories are

available, the scope of relief may depend on whether or not a

claim is constitutional. See, e.g., 42 U.S.C. §§ 1983, 1988(b).

7

Second, the court is concerned that enforcing the Ex Post

Facto Clause despite absolving boilerplate might “freeze in

time” the Board’s discretion. Op. 16 (quoting Garner, 529 U.S.

at 259 (Scalia, J., concurring in part in the judgment)). It is not

clear what this means here. Surely the court does not mean to

suggest that a parole agency is free to apply a later policy when

doing so significantly increases the risk of incarceration. The

Supreme Court and this court have held that parole agencies

cannot retroactively apply stricter regulations or guidelines, even

when their statutory discretion is unchanged. See Peugh, 133 S.

Ct. at 2081, 2086; Garner, 529 U.S. at 253–55; Phillips, 616

F.3d at 580; Fletcher III, 433 F.3d at 876–77; Fletcher II, 391

F.3d at 251. In fact, the “freezing” concern comes from a

separate opinion criticizing that conclusion in Garner, see

Garner, 529 U.S. at 257–59 (Scalia, J., concurring in part in the

judgment); but as the court acknowledges, see Op. 12, that

bridge has been crossed. Perhaps the court’s “freezing” concern

is targeted at the “unwritten” policy theory advanced in the

companion case. But rejecting that theory does not require the

court’s broad alternative analysis. Where a parole agency

applies a later policy retrospectively, no concern for “freezing”

the agency’s discretion can overcome the Supreme Court’s

holding in Garner and our cases applying it.

The court has no reason to make new ex post facto law on

such a weak foundation. As a result of our holding that the D.C.

1987 Regulations and 1991 Guideline do not constrain the U.S.

Commission’s discretion, no prisoner could reasonably

anticipate success in filing an action like Bailey’s because it will

be clear that the U.S. Commission’s exercise of reasoned

discretion is not constrained under the earlier D.C. policy.

8

The court’s alternative analysis thus bears all the worst

hallmarks of an advisory opinion. See United States v.

Fruehauf, 365 U.S. 146, 157 (1961); Alabama State Fed’n of

Labor v. McAdory, 325 U.S. 450, 461–62 (1945) (collecting

cases). Lacking the focus that an actual controversy presents,

the court adopts an ill-considered position with implications well

beyond the facts of Bailey’s case and possibly beyond the parole

context altogether. The parties have barely briefed this issue,

instead treating the ex post facto question as turning on whether

the factors on which the U.S. Commission relied were

permissible under the D.C. Parole Board’s 1987 Regulations and

1991 Guideline. See McBride v. Merrell Dow & Pharm., Inc.,

800 F.2d 1208, 1211 (D.C. Cir. 1986). The court answered that

question in the affirmative, and I concur. Because the court’s

alternative analysis is unnecessary (and unpersuasive), I

respectfully dissent from Part II.B of the court’s opinion (and

the sentences introducing it on page 7) and would leave the

operation of the retroactivity question for another day.