Edward Ford, Jr. v. Charles Massarone

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

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(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

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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.

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§ 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

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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.