UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARNOLD J. HILL,

Plaintiff, v. Civil Action No. 16-1476 (JEB) UNITED STATES PAROLE COMMISSION, et al.,

Defendants.

MEMORANDUM OPINION

Having spent the last thirty years locked up for strangling an ex-girlfriend, Plaintiff

Arnold Hill is eager to get out. In bringing this action, he asserts that the U.S. Parole

Commission has unfairly blocked his release in a number of ways, including by failing to give

him notice about testimony from the victim’s family, treating him (a District of Columbia

offender) differently from federal prisoners, and rescinding a prior parole grant. Although a

further rehearing is now set for November 2018, Hill is unwilling to linger any longer in limbo.

He has thus filed suit against the USPC and its three Commissioners in their official capacities,

seeking various forms of injunctive and declaratory relief.

Defendants now move to dismiss, contending that Plaintiff’s claims that the proceedings

violated due process and equal protection and reached an arbitrary result cannot break the parole

cycle. This is so. Because Hill’s only avenues to relief involve a further parole hearing or filing

a habeas petition, the Court will grant the Government’s Motion and dismiss the case.

1 I. Background

Hill is an inmate in his mid-sixties serving time for murdering his ex-girlfriend, Shelby

Teresa Duncan, in September 1987. See Mot., Exh. 1 (Sentence Monitoring Computation Data)

at 1. For that crime, the District of Columbia Superior Court sentenced him to an indefinite term

of imprisonment of twenty years to life. Id. Under the District’s old sentencing scheme, this

meant that Hill would first be eligible for parole after serving the bottom number — i.e., twenty

years — and could not serve longer than the top number, which, in this case, was redundant since

it was life. See Warren v. U.S. Parole Comm’n,

(D.C. Cir. 1981) (“Under the

penal theory behind the parole system, [a] sentence [i]s deliberately designed to be indeterminate

within a broad range so that the precise date of his release could be determined by the best

professional judgment [of parole authorities] available at the time of his release as to his

prospects for a law-abiding life, among other things.”). All told, Plaintiff has now been

incarcerated for this murder for almost thirty years. See Computation Data at 2.

Given his twenty-to-life term, Hill first became parole eligible in October 2007.

Although he had been sentenced in a D.C. court for a D.C. Code offense, the U.S. Parole

Commission handled his case, as Congress had abolished the D.C. Board of Parole, largely done

away with local parole, and transferred jurisdiction to the Commission for remaining offenders

by enacting the National Capital Revitalization and Self-Government Improvement Act of 1997,

,

, 745 (codified at

et seq.). Over

time, the Commission would consider Hill’s eligibility on numerous occasions, as it is required

to do. See

(a)(2)(i) (requiring hearings at least every five years where “offense

behavior resulted in the death of a victim”).

2 A. Hearings & Rehearings

The Commission initially conducted a hearing in July 2007 and denied release after

finding that Hill’s parole guidelines recommended at least 26 years’ imprisonment. See Mot.,

Exh. 3 (August 7, 2007, Notice of Action). The agency then scheduled a rehearing for July 2012.

Apparently realizing thereafter that it should have applied the D.C. Board of Parole’s so-

called “1987 Guidelines,” not the federal ones, the Commission conducted a rehearing earlier

than scheduled in November 2009.

Exh. 4 (December 17, 2009, Notice of Action); see ECF

No. 1 (Complaint), ¶¶ 33-34; see also

(o)(1) (making applicable “1987

guidelines of the former District of Columbia Board of Parole”). The correct Guidelines

recommended current parole, as opposed to at least several more years’ imprisonment, but the

Commission nonetheless denied release, instructed Hill to complete his GED and a 500-hour

drug-abuse program, and then set a further rehearing a year later. See 2009 Notice of Action.

That second rehearing took place in November 2010. See Mot., Exh. 5 (February 11,

2011, Notice of Action). This time, despite a Guidelines recommendation of release (again) and

his compliance with rehabilitative programs, the USPC again denied parole.

It informed Hill

that “there is a reasonable probability that you would not obey the law if released and your

release would endanger the public safety.”

More specifically, he was a “more serious parole

risk” than the Guidelines suggested because: he was “involved in the strangulation of the victim,

following [his] harassment of her due to the relationship ending,” “[t]he victims’ nude body was

discovered by her children,” and he had “two previous convictions which appear violent in

nature, Assault & Battery and Unlawful Wounding,” the details of which had not been fleshed

out in previous proceedings.

Another rehearing was then scheduled in one year’s time.

3 The third rehearing in November 2011 seemed, at first, to be the charm. The

Commission granted parole and set an effective release date of August 7, 2012.

Exh. 6

(January 11, 2012, Notice of Action). In doing so, it informed Hill that the “parole effective date

is contingent upon approval of your release plan by the Commission.”

(citing

); see

.

Would that it were so simple. Come February 2012, the USPC learned that Duncan’s

family members wished to testify.

Exh. 9 (July 25, 2012, Hearing Summary). When the

Commission receives “new and significant information concerning the prisoner,”

(e) (citing § 2.28), including “adverse information,” id. § 2.28(f), it may reopen any case

for a special reconsideration hearing. That process begins with one Commissioner’s

recommending reconsideration to the others; this referral “automatically retard[s] the prisoner’s

scheduled release date until a final decision is reached in the case.” Id. § 2.28(f). If two

Commissioners concur in a reopening, then a new hearing is set. Id. That is what happened

here. See Mot., Exh. 7 (February 15, 2012, Notice of Action).

In the subsequent, fourth rehearing in July 2012, an examiner heard testimony from

Duncan’s sister and eldest daughter. The sister mentioned how Hill had never given specifics

about how or why he killed Duncan. See 2012 Hearing Summary at 2. And the daughter

discussed how she and her two siblings (10, 6, and 4 years of age back then) were at home

during the crime and how the youngest one discovered their mother’s body the next morning. Id.

at 1, 3. She also testified that Hill had previously threatened to kill Duncan. Id. at 1. Finally,

she objected to his plan to live nearby, in the same Maryland county in which she resided, once

released. Id. at 1. Plaintiff was not represented, but apologized and testified that he did not

4 remember how or why he strangled Duncan, both because the events occurred some 25 years ago

and because he may have been on drugs. Id. at 2.

The hearing examiner recommended against release, or, in other words, he advocated for

rescinding the initial parole grant. He recounted how, at the hearing, Hill “never really displayed

any remorse” and was “very methodical,” and was “a bit evasive” about “remember[ing] details

of the offense” and “just did not want to bring them up.” Id. The examiner found it

“unimaginable to kill the mother of these young children and then to walk out and leave a lifeless

strangulated body in her apartment knowing full well that sometime the body would be

discovered by the three children who were residing in the bedroom next to the mother’s

bedroom.” Id. at 3. Given that this “total disregard for the victim in this case and the safety of

her children [wa]s so egregious,” he concluded that there is a “reasonable probability” he would

not obey the law and that release would “endanger public safety.” Id. (noting “level of violence

and the complete disregard for the victim’s children”). The Commission agreed and scheduled

the next rehearing in five years’ time — that is, in July 2017. Id., Exh. 8 (August 29, 2012,

Notice of Action).

Not even this settled things for long. In September 2015, Plaintiff’s counsel asked the

Commission to reopen the case once again. Id., Exh. 10 (September 30, 2015, Letter from

Chanale Fiebig to Hon. J. Patricia Wilson Smoot). In particular, Hill argued that he had not

received notice of the nature of the testimony from Duncan’s family (thereby impairing his

preparation and retention of legal representation), and he had recently developed an alternate

release plan to live in a different county in Maryland. Id. at 2-4. This was to no avail, as the

Commission rejected his plea. Id., Exh. 11 (February 2, 2016, Memorandum). It reasoned that,

“at the outset of the hearing, the Examiner asked Mr. Hill if was aware that victims would be

5 testifying and he said that he was” and that Hill “also informed the Examiner that he was aware

of his right to have a person of his choice represent him but did not want a representative.” Id.

The Commission then found that “the fact that he now has a release plan that is outside of the

county where the victims live” was not so “significant as to warrant earlier parole

reconsideration.” Id.

B. This Lawsuit & Another Rehearing

Hill responded by filing this lawsuit in July 2016. His Complaint states two

constitutional counts (due process and equal protection) brought under

and one

Administrative Procedure Act claim. See Compl., ¶¶ 58-83. It asks the Court to reverse the

Commission’s rescission of Plaintiff’s grant of parole (or, alternatively, to grant a parole

rehearing with the right to appeal) and to declare that D.C. Code offenders have the right to

appeal to the National Appeals Board (as federal offenders do).

Prayer for Relief, ¶¶ 1-2.

Still more has happened. Two months after the suit was filed, in September 2016, the

Commission notified Hill that it would “[r]eopen and remand for a reconsideration hearing on

the next available docket to determine whether the information presented at [the] special

reconsideration hearing on July 25, 2012 was sufficient to deny parole pursuant to the statutory

criteria set forth in

(a).” Mot., Exh. 12 (September 30, 2016, Notice of

Action). In reviewing the case, the Commission’s legal office found that it had “erred by failing

to consider reasons other than offense accountability when denying the offender parole,” as is

“the Commission’s policy with respect to D.C. Code offender[s].”

Exh. 2 (November 8,

2016, Hearing Summary) at 4 (citing

); see

(o)(4) (specifying

effective Guidelines and policies). That is, the parole rescission had focused exclusively, and

incorrectly, only on the circumstances of the murder. The Commission also let Plaintiff know

6 that it would “[n]otify victims of reconsideration hearing to be given an opportunity to present

further testimony.” September 2016 Notice of Action.

In what would be another special reconsideration hearing convened in November 2016 —

in effect, a fifth rehearing — an examiner heard testimony from Duncan’s eldest daughter and

two sisters, elicited statements by Hill himself (represented by an attorney), and received letters

from the victim’s son and uncle. See 2016 Hearing Summary at 1-3. After the proceedings, Hill

submitted a written apology, and his brother sent in a letter of support.

.

This time, the witnesses gave more details, first about Plaintiff’s relationship with

Duncan.

(noting “greater details of the events”). The victim’s daughter first discussed

how Hill had a history of attacking not only women but also children, including how he had

“assaulted her by slamming her face into a mirror, beating her with a weight belt and busting her

lip,” and had abused her and her brother.

. Duncan’s sister described “how the offender

repeatedly stalked” Duncan for a month before the murder and the “family’s futile attempts to

ensure her safety by closely monitoring the victim’s departures and returns to her residence.”

. The examiner also asked Plaintiff about a petition for a Civil Protection Order filed by

Duncan, discovered by the Commission’s staff, alleging that he “had attempted to suffocate her

with a pillow.”

. “[A]fter [he] choked her” on a separate occasion, in May 1987,

Duncan apparently “broke[] off the relationship.”

. Hill testified that he “was under the

influence of PCP when he committed the offense and did not provide any specific details

regarding the actual murder.”

.

In addition, Duncan’s sister also testified how Hill’s ex-wife (a different woman) was left

“permanently disfigured” after a “brutal attack.”

. Plaintiff admitted that his prior

convictions for Assault & Battery and Unlawful Wounding involved his “assaulting his ex-wife

7 by striking her in the face with the barrel of a pistol” and then shooting his mother-in-law after

she attempted to intervene.

; see

(characterizing incident, somewhat differently, as

“beating her with a rifle butt[,] shattering her face”). At the time, Hill had filed for divorce and

was refusing to let his ex-wife interact with their daughter.

.

The examiner recommended against parole. She discounted testimony that Hill had

abused Duncan’s children, as it lacked documentation.

. But the examiner reasoned that,

“[n]otwithstanding his [drug-abuse and anger-management] program participation, clear

conduct[,] and current age and health, the offender’s history of stalking his female victim [and]

history of vicious assaults against his female paramours and their family make his release

incompatible with public safety.”

(finding Government’s memorandum and Civil Protection

“very persuasive and indicative of the offender’s propensity for domestic violence”). The

Commission agreed, noting again a “reasonable probability” that Hill would not obey the law

and that release would “not [be] compatible with the welfare of society.”

Exh. 13 (December

15, 2016, Notice of Action). It considered, in particular, his repeated stalking and threatening of

Duncan, attempting to suffocate her with a pillow (leading to the Civil Protection Order),

choking her, beating his ex-wife, and shooting his ex-wife’s mother.

Given this “history of

domestic violence,” the USPC set a rehearing after Hill served two more years. Id.; see 2016

Hearing Summary at 5 (explaining two years, not five, warranted due to “age and health”).

Once it made this decision, the Government filed the present Motion to Dismiss, which is

now ripe.

8 II. Legal Standard

Under Rule 12(b)(1), the Court may dismiss a case if the plaintiff cannot show that it has

subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife,

(1992); U.S. Ecology, Inc. v. Dep’t of Interior,

(D.C. Cir. 2000). “Because

subject-matter jurisdiction focuses on the court’s power to hear the plaintiff’s claim, a Rule

12(b)(1) motion [also] imposes on the court an affirmative obligation to ensure that it is acting

within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v.

Ashcroft,

(D.D.C. 2001). In policing its jurisdictional borders, the Court

must scrutinize the complaint, treating its factual allegations as true and granting the plaintiff the

benefit of all reasonable inferences that can be derived from those facts. See Jerome Stevens

Pharms., Inc. v. FDA,

(D.C. Cir. 2005). The Court need not rely “on the

complaint standing alone,” however, but may also look to undisputed facts in the record or

resolve disputed ones. Herbert v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992).

Rule 12(b)(6), on the other hand, permits a Court to dismiss any count of a complaint that

fails “to state a claim upon which relief can be granted.” In evaluating the motion, the Court

must likewise “treat the complaint’s factual allegations as true and must grant plaintiff ‘the

benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air

Lines, Inc.,

(D.C. Cir. 2000) (quoting Schuler v. United States,

(D.C. Cir. 1979)) (citation omitted). The Court need not accept as true, however, “a

legal conclusion couched as a factual allegation” or an inference unsupported by facts set forth in

the Complaint. Trudeau v. FTC,

(D.C. Cir. 2006) (quoting Papasan v. Allain,

(1986)).

9 Rule 12(b)(6)’s pleading standard is “not meant to impose a great burden upon a

plaintiff,” Dura Pharm., Inc. v. Broudo,

(2005), as a count will survive so long

as there is a “‘reasonably founded hope that the [discovery] process will reveal relevant

evidence’ to support the claim.” Bell Atl. Corp. v. Twombly,

, 563 n.8 (2007)

(quoting Dura Pharm.,

). While “detailed factual allegations” are not necessary

to withstand a dismissal motion, id. at 555, the Complaint still “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal,

(2009) (quoting Twombly,

). In other words, a plaintiff

must put forth “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

A complaint may survive even if “‘recovery

is very remote and unlikely’” or the veracity of the claims are “doubtful in fact” if the factual

matter alleged in the complaint is “enough to raise a right to relief above the speculative level.”

Twombly,

-56 (quoting Scheuer v. Rhodes,

(1974)).

III. Analysis

No doubt the parole process has subjected Hill to his fair share of sturm und drang.

Twice the Commission realized it was misapplying the parole Guidelines or using the wrong set,

and once, notably, it set a release date before reversing course. To escape this endless cycle,

Plaintiff brings two constitutional challenges under § 1983 (against the Commissioners) and an

APA cause of action (against all Defendants).

In performing its analysis, the Court does not proceed count by count. As they often

overlap, the suit is better considered via the three challenged aspects of Plaintiff’s parole denial:

(1) the lack of notice of the testimony of Duncan’s family, (2) the absence of appeal rights to the

National Appeals Board for D.C. Code offenders, and (3) the arbitrariness and unreasonableness

10 of rescinding his grant of parole. Before addressing these issues sequentially, the Court takes

two detours and considers Defendants’ sovereign immunity and the officers’ potential liability

under § 1983.

A. Sovereign Immunity

“Sovereign immunity is the privilege of the sovereign not to be sued without its consent.”

Va. Office for Prot. & Advocacy v. Stewart,

, 253 (2011). It shields “the federal

government, its agencies, and federal officials acting in their official capacities.” Am. Rd. &

Transp. Builders Ass’n v. EPA,

(D.D.C. 2012), aff’d,

(D.C. Cir. Jan. 28, 2013). While Defendants embed only the slightest mention of the doctrine in

a block quote, see Mot. at 10, sovereign immunity is “‘jurisdictional in nature’ and may not be

waived by an agency’s conduct of a lawsuit.” Perry Capital LLC v. Mnuchin,

(D.C. Cir. 2017) (quoting FDIC v. Meyer,

(1994)). Here, Hill seeks

injunctive and declaratory relief against the Commission (a federal agency) and its three

Commissioners in their official capacities. See Compl., ¶¶ 10-13. While his APA claim names

each Defendant, his § 1983 counts are officer suits against the latter three only. Id., ¶¶ 58-78.

A brief analysis confirms that immunity does not apply. First and foremost, the APA’s

statutory waiver permits individuals to sue both federal agencies and their officers for non-

monetary relief. See

. This exception covers all of Plaintiff’s claims. See

Trudeau,

(holding waiver covers “any suit whether under the APA or not”).

Second, more specific to the officer suits is the judicially crafted doctrine that “official-capacity

actions for prospective relief are not treated as actions against the State” and thus not subject to

immunity. Will v. Mich. Dep’t of State Police,

, 71 n.10 (1989) (quoting Kentucky

11 v. Graham,

, 167 n.14 (1985)). This principle thus protects, in an additional

manner, Hill’s claims against the Commissioners.

The Government’s central position appears to concern the invalidity of Hill’s “claim

under

against USPC,” given a D.C. Circuit decision in Settles v. U.S. Parole

Commission,

(D.C. Cir. 2005). See Reply at 3. Yet, as just mentioned, there is

no such count against the Commission, only the officers. This argument is thus moot. No matter

how one looks at it, then, Plaintiff is safe at first base.

B. Section 1983 Liability

But wait. Even if Hill’s suit against individual officers is not barred by sovereign

immunity, can federal officials be sued under § 1983 at all? Indeed, the conventional wisdom is

that such claims should be brought under Bivens v. Six Unknown Named Agents,

(1971), not § 1983. See 1 Sheldon H. Nahmod, Civil Rights & Civil Liberties Litigation: The

Law of Section 1983 § 1:20 (2016) (“Section 1983 actions cannot ordinarily be maintained

against either the United States or its officials.”). The latter only permits suits against any

“person” acting “under color of any statute, ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia.”

. For its purposes, “any Act of

Congress applicable exclusively to the District of Columbia shall be considered to be a statute of

the District of Columbia.”

The Government thus seeks to dismiss the § 1983 counts outright

on the ground that the statute “cannot be used to proceed against employees of the federal

government, only against state officials.” Mot. at 9-10. This statement, it turns out, is somewhat

overbroad.

While there is some initial awkwardness in treating federal officers as acting under color

of D.C. law, the conclusion is inescapable here. As mentioned, the Revitalization Act

12 reorganized segments of the capital’s government, resulting in the U.S. Parole Commission’s

stepping into the D.C. Board of Parole’s shoes for the purposes of local parole. See Fletcher v.

District of Columbia,

(D.C. Cir. 2004). Commissioners are thus “amenable

to suit under § 1983 for actions taken pursuant to that Act.” Settles,

(quoting

Fletcher,

). It would indeed be strange if they could not be sued, as they are

fundamentally acting as the D.C. Board when applying D.C. parole standards to D.C. Code

offenders. See

(a) (citing

(a)). While Hill’s case thus

makes it to second base, he is still a long way from scoring. As it turns out, Plaintiff strikes out

on each of his three merits arguments.

C. Lack of Notice

Plaintiff’s opening bundle of substantive claims addresses the first, July 2012 special

reconsideration hearing that followed his initial grant of parole in November 2011, but before its

execution in August 2012. He contends that “USPC failed to provide sufficient notice

reasonably calculated to inform Mr. Hill of the nature of the reconsideration hearing,” as it did

not let him know “the form and substance of the victim’s family’s testimony.” Compl., ¶ 70.

This purported lack of notice affected his seeking of legal representation, organizing of

testimony, preparing of rebuttals, and securing of alternative release plans that would have

satisfied the family’s geographical concerns.

. Hill’s challenge not only has a

procedural-due-process gloss, but also implicates the APA.

.

Both due process and administrative law require that a person receive fair notice before

certain hearings are held. See GE Co. v. EPA,

(D.C. Cir. 1995). That

notice must be “reasonably calculated, under all the circumstances, to apprise interested parties

of the pendency of the action and afford them an opportunity to present their objections.”

13 Mullane v. Cent. Hanover Bank & Trust Co.,

(1950). This means that “an

agency setting a matter for hearing provide parties with adequate notice of the issues that would

be considered, and ultimately resolved, at that hearing.” Wallaesa v. FAA,

(D.C. Cir. 2016) (quoting Pub. Serv. Comm’n of Ky. v. FERC,

(D.C. Cir.

2005)); see

(b)(3) (“Persons entitled to notice of an agency hearing shall be timely

informed of . . . the matters of fact and law asserted.”).

This assertion of inadequate notice, however, falls flat. First, Plaintiff’s reliance on due

process fails to travel far absent some protectable liberty interest. See Trifax Corp. v. District of

Columbia,

(D.C. Cir. 2003) (noting a “deprivation of liberty . . . triggers the

procedural guarantees of the Due Process Clause”). Reasoning that a convicted person does not

have a “‘legitimate claim of entitlement’” to parole, the Supreme Court has held that there is “no

constitutional or inherent right of a convicted person to be conditionally released before the

expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex,

(1979) (quoting Board of Regents v. Roth,

(1972)). And though

“statutory language” can “create[] a protectible expectation of parole,” id. at 11, the District’s

statutes and regulations lack the “explicitly mandatory language” necessary to form that

expectation. Ellis v. District of Columbia,

(D.C. Cir. 1996) (quoting Ky.

Dep’t of Corrections v. Thompson,

(1989)); accord Blair-Bey v. Quick,

(D.C. Cir. 1998); Price v. Barry,

(D.C. Cir. 1995); see

McRae v. Hyman,

(D.C. 1995). The D.C. Code instead instructs that “the

Commission may authorize [a prisoner’s] release on parole” if certain conditions are met. See

(a) (emphasis added). (And while substantive due process might apply to

14 parole decisions even absent such a protectable interest, see Blair-Bey,

n.11,

the Court saves discussion of that doctrine until Section III.E, infra.)

Nor did a protectable interest germinate from the initial grant of parole. While revoking

parole for a person already released implicates due process, rescinding a parole grant prior to

release violates “no protected ‘liberty’ interest.” Jago v. Van Curen,

(1981);

accord Rogers v. Barry,

(D.C. Cir. 1997); Way v. Johnson,

(D.D.C. 2012); Johnson v. United States,

(D.D.C. 2008); Cole v.

Harrison,

(D.D.C. 2002); see Brown-Bey v. Hyman,

(D.C.

1994). Regulations indeed broadly provide that “the Commission may reopen any case for a

special reconsideration hearing” to review “new and significant information concerning the

prisoner.”

(e) (emphasis added). Further rules make clear that the front-end

grant is not so determinate; a mere referral for reopening “shall automatically retard the

prisoner’s scheduled release date until a final decision is reached in the case.”

§ 2.28(f)

(emphasis added). Indeed, the Commission makes clear to prisoners that the initial grant is only

a “contingent” one, subject to the development of satisfactory release plans and agency approval.

See January 2012 Notice of Action (citing

); see also

.

Second, and more broadly, both his due-process and APA objections to inadequate notice

of victims’ testimony are moot. See Compl., ¶¶ 70-72, 80. Hill alleges that he did not receive

notice of what Duncan’s family would say, but the relief he requests for this wrong is “a parole

rehearing at the earliest possible date.” Opp. at 10 (quoting Compl., Prayer for Relief, ¶ 1).

Since a rehearing already occurred in November 2016, “it is impossible for a court to grant any

effectual relief whatever to the prevailing party.” Decker v. Nw. Envtl. Def. Ctr.,

(2013) (quotation omitted). To recap, after this civil suit was filed, the Commission

15 again reopened the criminal case and informed Plaintiff in writing that it would “[n]otify victims

of [the first] reconsideration hearing” to again give them “an opportunity to present further

testimony.” September 2016 Notice of Action. Given this statement and his knowledge of the

Duncan family’s intentions, he certainly has no claim that he lacked notice prior to the

subsequent November 2016 rehearing that followed. See Moreau v. FERC,

, 569

(D.C. Cir. 1993) (“The Due Process Clause does not require notice where those claiming an

entitlement to notice already knew the matters of which they might be notified.”). In fact, Hill

even obtained an attorney to assist him in the preparation for and conduct of that hearing. He has

thus received complete procedural relief: a hearing with notice of who will testify and to what.

Plaintiff’s only retort is that the November 2016 proceeding was not “a full parole

rehearing,” Opp. at 11, because its subject matter was limited to “whether the information

presented at [the] special reconsideration [re]hearing on July 25, 2012 was sufficient to deny

parole pursuant to the statutory criteria set forth in

(a).” September 2016

Notice of Action. While the negative language — i.e., asking whether to “deny parole” — might

suggest a narrower scope, a fairer reading of the record is that the Commissioners holistically

reheard whether to grant parole under the cited D.C. Code eligibility criteria in light of the

victims’ testimony. This is indeed the issue that was explored, as the examiner broadly

considered all the available evidence and testimony. See 2016 Hearing Summary at 1

(considering Hill’s statements along with other witnesses). After all, the Commission’s lacking

of a reason to rescind parole functionally obtains the same result as its granting parole in the first

place.

Seeing that due process does not apply and that Hill later received a new hearing, his

constitutional and administrative claims of inadequate notice must be dismissed.

16 D. Absence of Appeal Rights

Hill next challenges the lack of administrative-appeal rights for D.C. Code offenders like

himself. The absence of those rights, he believes, violates equal protection and the APA given

that the Commission allows U.S. Code offenders, but not their D.C. counterparts, a layer of

appeals, see Compl., ¶¶ 58-67, 83, and also renders the hearing system procedurally inadequate.

. The Court examines the Commission’s role in federal and District cases before

addressing these two contentions.

U.S. Code vs. D.C. Code Parole Processes

Let’s start with the federal system. “For almost a century, the Federal Government

employed in criminal cases a system of indeterminate sentencing” — a term of imprisonment of

variable duration — which “was supplemented by the utilization of parole, by which an offender

was returned to society under the ‘guidance and control’ of a parole officer.” Mistretta v. United

States,

(1989) (quoting Zerbst v. Kidwell,

(1938)). That

process was overseen by the Commission. See

et seq.

This system was, for the most part, eliminated by the Sentencing Reform Act of 1984,

et seq., which made “all sentences basically determinate” and “prospectively

abolish[ed] the Parole Commission.” Mistretta,

. The Commission now manages

only those individuals convicted of federal offenses on or before November 1, 1987. See

Chatman-Bey v. Thornburgh,

, 808 n.3 (D.C. Cir. 1988).

For such federal offenders, parole decisions follow a three-step process. Ordinarily, an

examiner first conducts a hearing and makes a recommendation, see

, 2.14,

2.23; a single Commissioner may then adopt that recommendation (or reject it after obtaining

another Commissioner’s concurrence), id § 2.24; and finally, either party (the inmate or the

17 Government) may appeal to the National Appeals Board, which is simply the three-member

Commission acting on a majority vote. Id., §§ 2.1(c), 2.26.

Just like the feds, the District has shifted to a determinate scheme. The city largely

abandoned indeterminate sentencing and parole with the Revitalization Act. See Void v. U.S.

Parole Comm’n, No. 12-978,

, at *1 n.1 (D.D.C. Dec. 20, 2012); see also

(c) (requiring “definite term” sentences in most cases). That Act was also

passed to “relieve the district government of major financial and managerial responsibilities . . .

[and] help the city resolve its cash shortfall that stems from its accumulated deficit.” Banner v.

United States,

, 6 n.3 (D.D.C. 2004). To further that purpose, the District

“transfer[red] . . . parole authority over felony offenders convicted in Superior Court from the

D.C. Board to the U.S. Commission.” Gant v. Reilly,

(D.D.C. 2002); see

(a)(1), (a)(2), (b). As a result, the Commission now handles primarily those

D.C. Code felony offenders (like Hill) convicted before 2000.

Parole for these inmates typically has only two steps. The process also starts with an

initial hearing by an examiner, see

(a), but then the case proceeds directly to the

full Commission for a majority vote.

§ 2.74(a), (c). The USPC installed this procedure to

“replicate the voting procedures of the former DC Board.” Paroling, Recommitting, and

Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District

of Columbia Codes,

, 68,791 (Nov. 26, 2004); see Sellmon v. Reilly,

(D.D.C. 2008) (stating that Revitalization Act, § 11231(c), directed Commission

to follow “parole laws and regulations of the District of Columbia”).

There is one wrinkle. In 2004, the Commission modified its process for parole-

revocation decisions — i.e., for parolees who had already been released. In those cases, the

18 Commission decided to make the procedures for D.C. Code offenders essentially coterminous

with U.S. Code offenders. See 69 Fed. Reg. at 68,791-92; see

(c), (g). It

explicitly declined to extend federal procedures to D.C. Code offenders still incarcerated,

however, opting instead for “an incremental approach,” given the agency’s “[b]udget constraints

and the availability of sufficient staff and Commissioners to handle the appeals.” 69 Fed. Reg. at

68,792.

Disparate Appeal Rights

Plaintiff objects to this schema insofar as the Commission permits an administrative

appeal to the National Appeals Board for U.S. Code, but not D.C. Code, offenders. See Opp. at

11, 18. He alleges that this disparate treatment violates equal protection and thus also runs afoul

of the APA. See Compl., ¶¶ 61-67, 82. “To prevail on an equal protection claim, the plaintiff

must show that the government has treated it differently from a similarly situated party and that

the government’s explanation for the differing treatment does not satisfy the relevant level of

scrutiny.” Cannon v. District of Columbia,

(D.C. Cir. 2013) (quoting

Muwekma Ohlone Tribe v. Salazar,

(D.C. Cir. 2013)). Hill not only

misconstrues how the two systems differ, but also falters on both equal-protection elements.

a. Framing the Claims

An initial fog slows Plaintiff’s sailing. Hill states that “D.C. Code offenders cannot

appeal USPC parole decisions to any administrative adjudicatory body, while U.S. Code

offenders can appeal USPC parole decisions to the National Appeals Board.” Compl., ¶ 64. The

federal offender’s appeal to the National Appeals Board may sound somewhat majestic, but that

stately façade crumbles on inspection. The NAB is the three-member Commission, and local

offenders also have their cases heard by that Commission. See

(c), 2.74. In

19 other words, despite Hill’s assertion that he lacks an avenue to the “National Appeals Board,” the

final adjudicatory stage for both U.S. and D.C. offenders is essentially the same three-person

body acting on a majority vote. Compare

§ 2.26(b)(1) (requiring, federally, “concurrence of

two Commissioners”), with id. § 2.74(c) (requiring, locally, “concurrence of two

Commissioners”).

Whatever disparity exists instead lies in the fact that U.S. Code offenders have the right

to an intermediate decision by a single Commissioner (sometimes two Commissioners) before

proceeding to the three-member Commission. D.C. Code offenders have only the direct right to

a final decision by the Commission as a whole. Id. § 2.74. Plaintiff, however, barely addresses

how this extra buffer is procedurally meaningful. He suggests in a footnote only that it results in

a “more robust, detached appeal process [for] federal offenders,” presumably by adding an

intermediate opportunity to obtain a favorable parole decision (should the Government also not

appeal). See Opp. at 12 n.1; see also

(f). The Complaint, however, does not

even allege that the inequality is the lack of this middle procedural step.

b. Similarly Situated

Even if Hill had more persuasively set forth the federal-local parole-process disparity, his

equal-protection ship would still run aground. This is because D.C. Code offenders are not

similarly situated to their U.S. Code counterparts in the first place. “The Constitution does not

require [individuals] wh[o] are different in fact or opinion to be treated in law as though they

were the same.” Tigner v. Texas,

(1940). States may no doubt set up their

own unique parole systems without triggering equal-protection concerns. See United States v.

Greene,

(D.C. Cir. 1973) (noting that “[c]ertainly there would be no

constitutional objection” if, “say, Virginia” defined first-degree murder differently from the

20 District); see also Clements v. Fashing,

(1982) (noting states’

“considerable leeway”). Although the District’s governance makes it a bit of a constitutional

oddity, there is no reason to believe that the city may not be subjected to different rules than the

federal government.

It does not matter, for equal-protection purposes, that a single federal Commission

fashions two sets of parole rules. When it comes to legislative authority, this Circuit “has been at

pains to point out that ‘Congress . . . recognized the expediency of separate provisions’

pertaining to criminal justice applicable exclusively to the District of Columbia in

contradistinction to the [U.S.] Criminal Code governing offenses amenable to federal jurisdiction

elsewhere.” Coleman v. United States,

(D.C. Cir. 1964) (quoting Johnson v.

United States,

(1912)); see, e.g., Greene,

(“Congress was not

limited in the D.C. Code specification for first degree felony murder to the felonies set forth in

the Federal Code . . . .”). After all, Congress plays a wholly separate role when enacting

legislation locally as opposed to federally. See U.S. Const., art. I, § 8, cl. 17; Banner v. United

States,

(D.D.C. 2004) (“When Congress legislates for the District,

therefore, the differing treatment is the consequence not of legislative determinations but of

constitutional distinctions . . . .”) (quotation omitted). It follows that Congress has separately

delegated to the Commission rulemaking powers for each jurisdiction.

A quick peek at the respective local and federal laws confirms this. When acting for D.C.

Code offenders, the Commission expressly wields the authority of local law. See

. When acting for U.S. Code offenders, conversely, it is empowered by federal law.

See

. In other words, Hill was sentenced and seeks parole under the substantive

provisions of the D.C. Code, and federal offenders are sentenced and seek parole under the

21 substantive provisions of the U.S. Code. Compare

, with

.

Plaintiff, simply put, does not receive the federal treatment because he is not a federal offender.

It would indeed be anomalous if the mere fact of a single Commission for both local and

federal offenders rendered the two groups similarly situated. Before the Revitalization Act

abolished the D.C. Board of Parole, this Circuit had reasoned that a D.C. prisoner “is not

similarly situated to [federal] prisoners, because he is in the custody of a different agency of

government.” Noble v. U.S. Parole Comm’n,

(D.C. Cir. 1999). Two

decades ago, Hill would have utterly lacked a claim. He is essentially arguing that this mere

change in form — from Board to Commission — has far-reaching constitutional ramifications.

The legality of this setup was effectively decided in United States v. Cohen,

(D.C. Cir. 1984) (en banc) (Scalia, J.). That case asked whether Congress could — through

— require the federal judiciary to automatically commit individuals acquitted by

reason of insanity in the District while not providing a mechanism to do so nationally.

. In disposing of the case, the court noted that federal offenders “would not constitute a

proper reference class for equal protection purposes” when Congress enacted special local law.

at 137 n.15; see

(Mikva, J., concurring) (“Individuals within and without the

District of Columbia are not similarly situated with respect to congressional legislation enacted

in Congress’ role as local sovereign.”). Cohen thus stands for the proposition that District

offenders cannot be counted as so similar as to implicate equal-protection concerns.

c. Rational Basis

Hill’s equal-protection vessel also founders on a final reef. The disparate treatment of

federal and local offenders is unlawful only if the distinction lacks a rational basis. See Noble,

. “The general rule is that legislation is presumed to be valid and will be

22 sustained if the classification drawn by the statute is rationally related to a legitimate state

interest.” City of Cleburne v. Cleburne Living Ctr.,

(1985). Such a rational

basis is not hard to find here.

In considering disparities between District and federal law, the Circuit has stated that

“[a]chieving a particular legislative goal through the exercise of a single legislative authority is

almost the paradigm of the ‘one step at a time’ approach . . . and has been the basis for the

evolution of much of our law.” Cohen,

(quoting Williamson v. Lee Optical of

Okla., Inc.,

(1977)). The Commission likewise can choose to extend

privileges slowly, granting them to some but not others, in an effort to enact gradual reform. See

Williamson,

(stating that reform may “address[] itself to the phase of the

problem which seems most acute . . . [and] select one phase of one field and apply a remedy

there, neglecting the others”).

Exactly that seems to be what has been happening. After the Revitalization Act first

passed, the Commission sought to “replicate the voting procedures of the former DC Board.” 69

Fed. Reg. at 68,791. That makes some sense. Those procedures had already been in place for

D.C. Code offenders, and the Commission saw no need to upset the status quo. It so decided

because “the USPC does not have the staff resources at the present time to process a full

caseload of appeals from D.C. Code inmates along the same lines as appeals from federal

inmates.” Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving

Sentences Under the District of Columbia Code,

, 45,886 (July 26, 2000). In

rejecting the addition of an intermediate step, it noted the initial parole determination in the

District was already fairly robust.

(comparing, locally, “a concurrence of at least two

Commissioners” with, federally, “a single Commissioner”).

23 The Commission has since weighed whether to expand the process. In 2004, it added an

appeals layer for parole-revocation decisions for District offenders. See 69 Fed. Reg. at 68,791.

In doing so, it noted the importance of being “careful in apportioning its workload among the

Commissioners so as to avoid violations of decision-making time limits.” Id. at 68,792. But the

Commission limited the new procedures to revocation decisions, as it was “continuing to employ

an incremental approach in making appeals available to DC offenders and in modifying the

agency’s voting procedures.” Id. As the agency reasoned: “The Commission wants to see the

results of the changes made by these amendments before making any further modifications.

Budget constraints and the availability of sufficient staff and Commissioners to handle the

appeals are factors that affect the Commission’s ability to expand or maintain an appeal

procedure.” Id.

The incremental, rational narrative is easy to plot. The Commission long used a three-

step process for federal offenders. With the addition of District offenders to the agency’s docket,

it chose to wield its rulemaking power gradually, at first mirroring the D.C. Board of Parole’s old

procedures and then by offering new ones where it could. As these documented fiscal concerns

are quintessential reasons for proceeding piecemeal, the Court concludes that the procedures thus

derive from a rational root. See Harris v. Rosario,

(1980) (noting budgetary

considerations as rational basis).

Inadequate Procedures

Aside from his equal-protection claim, Hill also attacks the Commission’s District

procedures as, in themselves, inadequate. See Compl., ¶ 76-77. He asserts cursorily, without

reference to any due-process law, that “[f]ew procedural rights are as precious as the right to

appeal.” Opp. at 14.

24 On the contrary, there is nothing sacrosanct about administrative appeals. Even in

criminal cases, the Supreme Court “has never . . . required . . . avenues of appellate review.”

Rinaldi v. Yeager,

(1966). This is especially so with parole because due

process is not even implicated absent a protected interest. See supra Section III.C. The exact

“procedure to ascertain [parole], as well as the kind or amount of evidence upon which to base its

determination” “is a question of state policy exclusively for the state to decide.” Ughbanks v.

Armstrong,

(1908). In the District, by analogy, it is a matter solely of

congressional discretion.

Imposing additional procedures “in the name of due process [is] therefore unwarranted.”

Ellis,

. Similarly, the mere fact that the Government has chosen to set up a

hearing system does not mean that it must also provide for an added layer of administrative

review to make that process fair. See Franklin v. District of Columbia,

(D.C.

Cir. 1998) (rejecting that due process applies simply because there are hearings). In short, no

further process is required.

E. Arbitrary & Unreasonable Rescission

The final sliver of this case involves Plaintiff’s substantive-due-process and APA

challenges, which assert that “[t]he reasons cited by the USPC in rescinding Mr. Hill’s parole at

his reconsideration hearing failed to justify that rescission,” “USPC’s rescission of parole was

arbitrary and unreasonable,” and the agency “fail[ed] to rely on new or significant adverse

information in rescinding Mr. Hill’s parole.” Compl., ¶¶ 73-74, 80; see Opp. at 16 (citing Blair-

Bey,

n.11 (“There is some authority for the proposition that exceptionally

arbitrary governmental conduct may in itself violate the due process clause, whether or not a

liberty or property interest is at stake”)). As relief, he asks the Court to “revers[e] the August 29,

25 2012 Notice of Action rescinding Mr. Hill’s grant of parole and reinstat[e] Mr. Hill’s parole.”

Compl., Prayer for Relief, ¶ 1.

To be sure, Hill’s cause could elicit a modicum of sympathy. While he committed a

heinous murder and the Commission most recently found that there was a reasonable probability

that he would reoffend and jeopardize societal welfare, it appears undisputed that he has suffered

from various medical ailments (diabetes, back problems that resulted in surgery, stroke) that

require him to use a wheelchair or walker to move around. See 2016 Hearing Summary at 2, 5;

2015 Letter from Fiebig at 4. He has also racked up no prison disciplinary record and completed

educational and rehabilitative programs, and, of course, the Commission once thought him fit for

release.

The Government seemingly only seeks to dismantle Hill’s APA count — and omits any

mention of substantive due process — by arguing that its decisions are so discretionary as to be

unreviewable. See Mot. at 15-16; Reply at 7-8; see also

(a)(2). That may be so

for D.C. Code offenders. See generally

(d) (committing to agency discretion

certain actions for U.S. Code offenders under § 4203(b)(1)-(3)). But there is another reason why

the Court cannot review Hill’s claims. Whether they arise under § 1983 or the APA, counts

seeking early release must be brought as a petition for a writ of habeas corpus.

“[P]risoner cases challenging the ‘fact or duration’ of confinement . . . sound exclusively

in habeas.” Anyanwutaku v. Moore,

(D.C. Cir. 1998) (quoting Preiser v.

Rodriguez,

(1973)). A federal prisoner must bring a habeas petition if and

“only if success on the merits will ‘necessarily imply the invalidity of confinement or shorten its

duration.” Davis v. U.S. Sentencing Comm’n,

(D.C. Cir. 2013) (quoting

Wilkinson v. Dotson,

(2005)). While claims seeking further procedures (notice

26 and a rehearing or an administrative appeal) would not necessarily lead to freedom, see Ray v.

Smoot,

(D.D.C. 2016), Hill’s challenges to the rescission itself

would “automatically result in[] a speedier release from prison.” Anyanwutaku,

.

It is not difficult to see how this is so. Hill essentially contends that the Commission

lacked any justification for rescinding his parole and thus acted arbitrarily and unreasonably.

See Compl., ¶¶ 73-74, 80. But if it lacks cause to rescind parole, then it must grant parole. The

remedy he seeks is thus to reverse the rescission and reinstate his release.

Prayer for Relief,

¶ 1. Although the Commission could again seek rescission even if the Court granted this relief,

this vague future possibility matters not in the habeas calculus. See Dotson,

(holding that “the fact that the State may seek a new judgment (through a new trial or a new

sentencing proceeding) is beside the point”). Absent further Government action, nullifying the

rescission would spell Hill’s release.

Circuit precedents essentially confirm this. The very case that opened the door to a

substantive-due-process claim for arbitrary governmental conduct in parole cases noted that the

proper avenue was habeas. Blair-Bey,

. The fact that Hill’s claim is brought

under the guise of § 1983 does not change this fact. See Preiser,

(holding habeas

also displaces § 1983). As to the APA, a prisoner may bring a broad-based objection, claiming,

for instance, “that parole officials are apt to use incorrect rules when resolving a future

application.” Richmond v. Scibana,

(7th Cir. 2004) (emphasis added); see,

e.g., Settles,

(considering APA challenge to Commission’s rulemaking).

But any APA action to overturn a particular parole decision on essentially “abuse of discretion”

grounds must be brought under habeas. Wallace v. Christensen,

(9th Cir.

27 1986); see, e.g., Bethea v. Bureau of Prisons, No. 04-2269,

, at *2 (D.D.C.

Nov. 30, 2005) (treating claim as one falling under habeas); Cole v. Harrison,

(D.D.C. 2002) (same); see also Cole v. Fulwood,

(D.D.C. 2012)

(noting “several cases in which courts have reviewed USPC decisions for abuse of discretion in

habeas corpus cases, but none in which the same was done under the APA”). As Hill

challenges, in effect, the Commission’s substantive decision to rescind his parole, he must

instead seek the writ.

Habeas has its own parameters. It involves jurisdictional and statutory limitations,

including naming the prisoner’s custodian as the proper defendant (likely the warden of the

Federal Correctional Institution in Butner, North Carolina) and filing in the proper court (likely

the U.S. District Court for the Eastern District of North Carolina). See Thomas v. Fulwood,

(D.D.C. 2015) (citing Rumsfeld v. Padilla,

(2004); Braden

v. 30th Judicial Cir. Ct. of Ky.,

(1973); Stokes v. U.S. Parole Comm’n,

(D.C. Cir. 2004)). As none of these requirements seems satisfied here, the Court will not

address the merits of whether the Commission acted arbitrarily or unreasonably and instead will

dismiss the claims without prejudice.

IV. Conclusion

For these reasons, the Court will grant Defendants’ Motion to Dismiss. A separate Order

so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: June 2, 2017

28