Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2003 Decided June 18, 2004

No. 02-5228

THADDEUS FLETCHER,

APPELLANT

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv601)

D. Allison Baker, appointed by the court, argued the cause

as amicus curiae in support of appellant. With him on the

briefs were William B. Schultz and David Reiser.

Thaddeus Fletcher, appearing pro se, was on the briefs for

appellant.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Beverly M. Russell, Assistant U.S. Attorney, argued the

cause for appellee United States Parole Commission. With

her on the brief were Roscoe C. Howard, Jr., U.S. Attorney,

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

Edward E. Schwab, Acting Deputy Corporation Counsel,

and Mary L. Wilson, Assistant Corporation Counsel, were on

the brief for appellee the District of Columbia.

Before: GINSBURG, Chief Judge, and RANDOLPH and

ROBERTS, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Thaddeus Fletcher challenges the

district court’s dismissal of his claim, brought pursuant to 42

U.S.C. § 1983, that the United States Parole Commission

exceeded its authority and violated the Ex Post Facto Clause

of the Constitution of the United States by determining his

parole eligibility date on the basis of parole regulations and

guidelines promulgated after the crime for which he was

incarcerated. Although we conclude the district court erred

in holding Fletcher’s claim must be brought as a petition for

habeas corpus, we affirm the judgment of the district court

because Fletcher’s claims fail on their merits.

I. Background

In 1978 Fletcher was convicted of rape in District of

Columbia Superior Court and was sentenced to a term of 12–

36 years in prison. He was released on parole in 1990, after

having served the minimum of 12 years. In 1995 he was

convicted in Maryland of assault with intent to commit murder and was sentenced to five years in prison. The District

of Columbia Board of Parole then issued a warrant against

Fletcher for violation of his parole. The warrant was executed upon Fletcher’s release from custody in Maryland in

August 1998. After affording him a hearing, the Board

revoked Fletcher’s parole in October of that year and imposed a 24–month ‘‘set-off’’ before he could be considered

again for parole.
3

In August 2000, pursuant to § 11231 of the National Capital Revitalization and Self–Government Improvement Act of

1997, Pub. L. 105–33, 111 Stat. 712 (D.C. Revitalization Act),

the D.C. Board was dissolved and its responsibility for the

release of prisoners incarcerated under D.C. law was transferred to the United States Parole Commission. That body

was vested with ‘‘authority to amend or supplement any

regulation interpreting or implementing the parole laws of

the District of Columbia.’’ D.C. Code § 24–131(a)(1). Pursuant to that authority, the Commission promulgated a regulation in which it applied to D.C. prisoners its existing guidelines for the reparole of federal prisoners. See 28 C.F.R.

§ 2.80.

In December 2000 the Commission considered and denied

Fletcher reparole. Pursuant to its regulations, the Commission gave Fletcher a ‘‘presumptive’’ reparole date of October

29, 2010.* Fletcher, who was then confined at D.C.’s Lorton

Correctional Facility, filed a pro se complaint in district court

against the District of Columbia, the D.C. Department of

Corrections, the D.C. Board, and the Commission,** seeking

compensatory and punitive damages under 42 U.S.C. § 1983.

He alleged the Commission exceeded its statutory authority

and violated the Ex Post Facto Clause by applying its 1998

regulations and guidelines to him. As the foundation for his

constitutional claim, Fletcher asserted he would have been

eligible for parole sooner under the D.C. Board guidelines in

effect when he was convicted in 1978.

The district court granted the defendants’ motion to dismiss on the ground that Fletcher could not seek damages via

§ 1983 ‘‘for alleged constitutional errors by the paroling

authorities in setting a release date.’’ The district court

concluded that, because a judgment in Fletcher’s favor

* After Fletcher filed suit in the district court the Commission,

realizing it ‘‘may have’’ erred, gave Fletcher a new presumptive

reparole date of October 29, 2007.

** We affirm the district court’s dismissal of Fletcher’s claims

against the District of Columbia defendants because they had

nothing to do with the decision of which he complains.
4

‘‘would be equivalent to a decision that his detention until the

parole date set by the [Commission] would be unlawful,’’ his

claim must be brought as a petition for habeas corpus.

Noting that Fletcher had filed a habeas petition alleging the

same constitutional violation, the district court further held

that, under Heck v. Humphrey, 512 U.S. 477 (1994), the

present action for damages was premature.

On appeal Fletcher argues he is challenging neither the

validity of his conviction or sentence nor the Commission’s

denial of his reparole. Rather, he challenges only the ‘‘procedures used TTT in determining whether or not he is eligible

for parole,’’ a claim he asserts may be brought under § 1983.

The District and the Commission argue that Fletcher’s case

falls under the Preiser trilogy as interpreted in this circuit

and it therefore must be brought as a petition for habeas

corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)

(habeas is exclusive remedy for state prisoner’s attack on

revocation of good-time credits because he ‘‘is challenging the

very fact or duration of his physical imprisonment, and the

relief he seeks is TTT immediate release or a speedier release

from that imprisonment’’); Heck, 512 U.S. at 487 (claim for

damages under § 1983 not available where ‘‘a judgment in

favor of the plaintiff would necessarily imply the invalidity of

his conviction or sentence’’ unless ‘‘plaintiff can demonstrate

that the conviction or sentence has already been invalidated’’);

Edwards v. Balisok, 520 U.S. 641, 646–48 (1997) (claim that

good-time credits were revoked without due process not

cognizable under § 1983 because success would ‘‘necessarily

imply’’ the invalidity of continued imprisonment); Razzoli v.

Federal Bureau of Prisons, 230 F.3d 371, 374–76 (D.C. Cir.

2000) (habeas is exclusive vehicle for federal prisoner’s challenge to postponement of parole eligibility).

II. Analysis

In Chatman-Bey v. Thornburgh, we held that habeas is the

exclusive means by which a federal prisoner may challenge a

parole eligibility decision, even though success on such a

claim would lead neither to his immediate release nor to a
5

definite reduction in his sentence. See 864 F.2d 804, 808–10

(D.C. Cir. 1988). A decade later, with the benefit of the

Supreme Court’s decisions in Heck and Balisok and in accord

with the decisions of the other circuits that had addressed the

issue, see, e.g., Gwin v. Snow, 870 F.2d 616, 624–25 (11th Cir.

1989); Serio v. Members of La. State Bd. of Pardons, 821

F.2d 1112, 1119 (5th Cir. 1987), we held a ‘‘challenge[ ] to

state parole procedures whose success would not necessarily

result in immediate or speedier release need not be brought

in habeas corpus, even though the prisoners filed their suits

for the very purpose of increasing their chances of parole.’’

Anyanwutaku v. Moore, 151 F.3d 1053, 1055–56 (D.C. Cir.

1998). In that case we distinguished Chatman-Bey as having

concerned a federal prisoner, see id. at 1057, of which more

below.

Contrary to the Government’s argument, our subsequent

decision in Razzoli v. Federal Bureau of Prisons — which

also involved a federal prisoner — left Anyanwutaku intact.

Razzoli brought a claim under § 1983 challenging the Parole

Commission’s decision to postpone the date on which he

would become eligible for parole. 230 F.3d at 374. In

keeping with our decision in Chatman-Bey v. Thornburgh, we

held his claim must be brought in habeas. See id. at 376.

Because the Supreme Court had not ‘‘had occasion to rule

definitively’’ upon whether ‘‘claims with a merely probabilistic

impact on the duration of custody’’ could be brought under

§ 1983, id. at 375, we concluded there was no conflict between

Chatman-Bey and the Preiser trilogy. We confined our

holding in Razzoli, however, to claims brought by federal

prisoners:

Chatman-Bey made clear that a major implication of

habeas exclusivity in cases involving federal prisoners

was its impact on venue. In non-habeas federal prisoner

actions, a plaintiff could almost always name a defendant

over whom the district court for the District of Columbia

would have personal jurisdiction. But a habeas challenge must be brought against the custodian, a rule that

channels such claims into the federal court with jurisdic-
6

tion over the claimant’s prison. That consequence is, of

course, every bit as applicable here as in Chatman-Bey

itself, but had little or no relevance to Anyanwutaku;

even if state prisoners with probabilistic claims are relieved of the strictures of Balisok, the District of Columbia would generally not be a possible site for litigation.

Id. at 376 (emphasis in original).

A ruling in favor of Fletcher on the merits of his challenge

to the procedures pursuant to which the Commission denied

his parole would not be, in the words of the district court,

‘‘equivalent to a decision that his detention until the parole

date set by the Parole Commission would be unlawful.’’ Such

a ruling would affect only the date on which he becomes

eligible for parole, not necessarily the date on which he is in

fact paroled. This case is therefore controlled by our holding

in Anyanwutaku v. Moore that a D.C. prisoner’s § 1983 claim

‘‘must first be brought in habeas only when, if successful, it

would ‘necessarily imply,’ or automatically result in a speedier

release from prison.’’ 151 F.3d at 1056. Hence, Fletcher

may bring his claim pursuant to § 1983.

* * *

The Commission takes the position that it is not amenable

to suit under 42 U.S.C. § 1983 because ‘‘it does not act under

color of state law.’’ Not so with respect to a D.C. prisoner.

Fletcher challenges actions taken by the defendants pursuant

to the D.C. Revitalization Act. Section 1983 provides for

recovery against any person who deprived the plaintiff of a

constitutional right ‘‘under color of any statute TTT of any

State or Territory or the District Columbia,’’ including ‘‘any

Act of Congress applicable exclusively to the District of

Columbia.’’ 42 U.S.C. § 1983. Because the D.C. Revitalization Act is such a statute, we have no doubt the defendant

members of the United States Parole Commission are amenable to suit under § 1983 for actions taken pursuant to that

Act.*

* The Commission also argues it cannot be sued under 42 U.S.C.

§ 1983 because it is not a ‘‘person.’’ We construe Fletcher’s
7

With regard to the merits of his claim, Fletcher first

argues the Commission exceeded its statutory authority by

applying to him its own parole regulations and guidelines

rather than the guidelines of the defunct D.C. Board of

Parole. This argument is without merit. As the Commission

points out, under D.C. Code § 24–131(c), the Commission

may ‘‘amend or supplement’’ the rules of the D.C. Board of

Parole. Pursuant to this authority, the Commission promulgated a regulation making its guidelines regarding reparole

applicable to D.C. Code offenders. See 28 C.F.R. § 2.81(a).

Fletcher also argues that application to him of the Commission’s guidelines offends the Ex Post Facto Clause because

the guidelines were promulgated by the Commission and

made applicable to D.C. Code offenders after the conduct for

which he was convicted. This claim is also without merit.

The Ex Post Facto Clause provides: ‘‘No TTT ex post facto

Law shall be passed’’ by the Congress. U.S. Const. Art. I,

sec. 9. Although we have twice reserved the issue, see Blair–

Bey v. Quick, 151 F.3d 1036, 1049 n.12 (D.C. Cir. 1998);

Warren v. U.S. Parole Comm’n, 659 F.2d 183, 197 n.57 (D.C.

Cir. 1981), we think it perfectly clear, and we now hold, a

parole guideline is not a ‘‘law’’ within the proscription of the

Ex Post Facto Clause; the Commission’s guidelines are

merely policy statements, from which the Commission may

depart in its discretion. We join the Second, Seventh, Ninth,

and Eleventh Circuits in so holding. See Wallace v. Christensen, 802 F.2d 1539, 1553 (9th Cir. 1986) (Parole Commission’s

guidelines ‘‘are procedural guideposts without the characteristics of laws’’); Prater v. U.S. Parole Comm’n, 802 F.2d 948,

954 (7th Cir. 1986) (‘‘guides may be discarded where circumstances require; laws may not’’); DiNapoli v. Northeast

Regional Parole Comm’n, 764 F.2d 143, 147 (2d Cir. 1985);

Dufresne v. Baer, 744 F.2d 1543, 1550 (11th Cir. 1984).

complaint to have named the individual members of the Commission, in accordance with the general rule that, upon a motion to

dismiss, the complaint — particularly a complaint filed by a pro se

prisoner — should be construed liberally. See, e.g., Warren v.

District of Columbia, 353 F.3d 36, 37 (D.C. Cir. 2004).
8

III. Conclusion

For the foregoing reasons, the judgment of the district

court is

Affirmed.