[00:00:02] Speaker 00: Case number 15-5145, Jesse R. Redmond, Jr., Appellant vs. Isaac Fullwood, Jr., former chairman, United States Parole Commission. [00:00:11] Speaker 00: Mr. Wolfer and Miki Skurai, Mr. Fathom Roth for the appellate. [00:00:50] Speaker 04: Good morning. [00:00:54] Speaker 02: Good morning, your honor, and may it please the court. [00:00:57] Speaker 02: My name is David Wolf. [00:00:58] Speaker 02: I'm here as amicus appointed by the court in support of Jesse R. Redmond's position. [00:01:03] Speaker 02: I'd like to reserve two minutes for rebuttal. [00:01:05] Speaker 06: Thank you. [00:01:07] Speaker 02: The district court committed legal error in sui sponte dismissing the complaint on the assumption that absolute immunity applied to parole commissioners. [00:01:15] Speaker 02: This court should reverse. [00:01:18] Speaker 02: Absolute immunity should only be granted in, quote, exceptional circumstances, where it is demonstrated that it is essential for the conduct of the public business. [00:01:27] Speaker 02: Those circumstances are not present here, and this Court should not grant parole commissioners absolute immunity for three reasons. [00:01:34] Speaker 02: First, determinations made by parole commissioners for D.C. [00:01:37] Speaker 02: Code prisoners are not subject to agency or judicial review. [00:01:42] Speaker 02: Second, parole commissioners are at-will employees and thus susceptible to outside influence. [00:01:49] Speaker 02: And third, commissioners are free to ignore the results of any procedures governing the hearing and examiner process. [00:01:57] Speaker 02: Turning to our first issue. [00:02:00] Speaker 03: Before I get with that, do you have an argument that your client could prevail if we applied qualified immunity? [00:02:07] Speaker 02: Yes, ma'am, I think we do. [00:02:08] Speaker 02: I think read liberally, the client's complaint alleges a series of potential constitutional violations, including potentially a substantive due process argument that he was denied parole on the basis of an unwritten standard, the inability to admit guilt, a potential equal protection clause claim that he's been- It has to be not just a potential constitutional claim. [00:02:32] Speaker 03: It has to be clearly established constitutional violation. [00:02:35] Speaker 02: Yes, I think it would be clearly established that denying parole on the basis of arbitrary standards, for example, a unwritten standard that the parole board uses, that it says you will not be granted parole unless and until you admit guilt. [00:02:51] Speaker 02: which is not the standard in the regulation. [00:02:53] Speaker 02: The regulation is, have you committed any outside infractions? [00:02:56] Speaker 02: Or have you committed any infractions? [00:02:58] Speaker 02: Is there a reasonable probability that you will live and remain at liberty without violating the law? [00:03:02] Speaker 02: And that it's not, I think, prejudicial to society is the third term. [00:03:07] Speaker 04: Well, those are very broad standards, you would agree. [00:03:11] Speaker 02: Absolutely right. [00:03:11] Speaker 04: And under the second seems to me that's what the statement of reason suggested. [00:03:19] Speaker 02: I believe that they made the notice of action, which is the denial of parole in 2011, made that statement, said that there is a reasonable probability that he will not live and remain at liberty. [00:03:32] Speaker 04: Because we view that admission of guilt is [00:03:35] Speaker 04: Yes. [00:03:36] Speaker 04: Part of the rehabilitation program. [00:03:38] Speaker 02: Yes, it said it was on that basis. [00:03:40] Speaker 02: And it said a series of times that the admission of guilt was the sort of contingent factor and was essentially implicit in that. [00:03:48] Speaker 02: And it became explicit in the response brief in this proceeding where they attached the four-page internal memoranda, which was their denial of reopening. [00:03:56] Speaker 04: So let me just follow up on Judge Millett's question. [00:03:59] Speaker 04: I read both parties' briefs that [00:04:05] Speaker 04: Regarding qualified immunity, everyone would like a further opportunity to brief the issue or send it back to the district court. [00:04:14] Speaker 02: Yes, ma'am. [00:04:15] Speaker 02: I think that's the difference between this and, for example, Taylor, where at the district court level, there was both a complaint, a 12b6 motion, a response, and a reply. [00:04:25] Speaker 02: The Taylor court dismissed at the district level on the basis of best of absolute immunity. [00:04:31] Speaker 02: And this court found that it had enough information to dismiss on the basis of, sorry, the district court dismissed on absolute. [00:04:38] Speaker 02: This court said, we don't mean to reach that issue. [00:04:40] Speaker 02: We have enough evidence to dismiss on qualified, because there's no clearly established claim. [00:04:44] Speaker 02: Judge Kavanaugh, in that case and his concurrence, did reach absolute and did say that this court should reach the issue, should deny absolute, but should uphold qualified in that case, dismiss on qualified only. [00:04:57] Speaker 02: This is different. [00:04:58] Speaker 02: We don't have any underlying record. [00:05:00] Speaker 02: This case was dismissed to respond to prior to even service, as defendant Appelliate points out. [00:05:06] Speaker 03: Well, we can decide qualified immunity on pleadings. [00:05:08] Speaker 03: That's actually encouraged, based on the contours of the complaint. [00:05:16] Speaker 03: 12b6 motion based on qualified immunity. [00:05:20] Speaker 03: But if one can just tell by reading the face of the complaint that it doesn't establish a claim for a clearly established violation of constitutional rights, what would be the point of the remand? [00:05:33] Speaker 02: Yes, ma'am, you're right. [00:05:34] Speaker 02: On a screening mechanism, they can decide on the basis of what the complaint from the district court should do so for qualified or absolute. [00:05:42] Speaker 02: Here we would offer that the complaint alleges a series, and again, I went the arbitrary standard. [00:05:47] Speaker 02: I would say there's even an equal protection clause claim on the differential treatment between people who admit and don't admit guilt. [00:05:52] Speaker 02: Admittedly not a suspect class, but there's no rational basis in the record for that distinction. [00:05:57] Speaker 02: And finally, is there the potential, is it compelled speech to require somebody to admit guilt to get out of jail? [00:06:04] Speaker 02: And this court, that's not the standard in the regs. [00:06:08] Speaker 02: The regs require only the things we went over, in particular, the reasonable probability. [00:06:13] Speaker 02: And the commission has put forward a different standard internally and is evaluating people on that basis. [00:06:18] Speaker 04: So your position now before this court is that [00:06:23] Speaker 04: We could go ahead and decide the qualified immunity case issue now. [00:06:31] Speaker 02: Your Honor, I do not think so. [00:06:33] Speaker 02: I think you have sufficient information to decide absolute immunity, but you would need to remand for further development. [00:06:39] Speaker 02: I think we have put forward that there is, and I think, sorry, the appellant in whom we are supporting has put forward in his complaint sufficient plausible evidence that there is a clearly established constitutional violation. [00:06:54] Speaker 02: Presumably, defendant Appellee would like a chance to respond to that and further brief out those issues. [00:07:00] Speaker 02: Here, however, on the absolute immunity grounds, there's no need for further briefing. [00:07:04] Speaker 02: We've both substantially briefed that issue, and the record is sufficient. [00:07:07] Speaker 03: You don't need facts. [00:07:09] Speaker 03: You don't need facts to determine whether these allegations state clearly established violations of constitutional law. [00:07:17] Speaker 03: I suspect the defendants would be happy. [00:07:19] Speaker 03: with the case gone on whatever basis it's gone. [00:07:24] Speaker 02: I'm sure defendants will be happy to be dismissed on either basis. [00:07:28] Speaker 03: I thought you said we would just look at the complaint. [00:07:29] Speaker 03: We wouldn't go back and have to have discovery before we look at qualified immunity. [00:07:33] Speaker 03: You would decide it right up front on the basis of this complaint. [00:07:35] Speaker 03: So I'm just not sure what more is needed unless you mean briefing on whether this complaint states clearly established constitutional violations. [00:07:48] Speaker 03: Is that your legal question? [00:07:50] Speaker 02: Your Honor, yes, sir. [00:07:51] Speaker 04: I thought you were suggesting further briefing, but didn't necessarily have to go back to the district court. [00:07:57] Speaker 04: It could just, the way I read the government's brief is, I guess the only problem was the defendant had never been served. [00:08:06] Speaker 02: Yes, all right. [00:08:07] Speaker 04: But you could have a briefing in this court, supplemental briefing. [00:08:13] Speaker 04: on the qualified immunity issue. [00:08:15] Speaker 04: What I'm getting at is when I reread Morrissey Supreme Court's discussion, I thought qualified immunity to win on that seems to me it's going to be a difficult road unless you provide me with some more authority. [00:08:35] Speaker 02: Your Honor, and it may well be a difficult road. [00:08:38] Speaker 02: And you may be able to have additional briefing here. [00:08:42] Speaker 02: I will point out that the discovery that we never had, or that appellant never had, may have identified the basis of this standard that seemed implicit and is now explicit, that again, only came out in briefing at this court. [00:08:56] Speaker 02: So we could brief it here. [00:08:57] Speaker 02: I would suggest that this court do what it did, for example, in Atherton. [00:09:03] Speaker 02: denied the absolute immunity claim and in that discussion said, while clearly established was touched on, I think the word was scantily briefed, the preference was to remand that decision back to the district court on the basis of the qualified immunity claim. [00:09:18] Speaker 02: So I would suggest that that's the similar process here. [00:09:23] Speaker 02: Your Honor. [00:09:23] Speaker 04: Well, I noticed as to the absolute immunity claim, the district court cited two other district court cases that didn't provide any analysis. [00:09:33] Speaker 04: Absolutely. [00:09:36] Speaker 04: I'm not sure where that takes us. [00:09:39] Speaker 02: Absolutely. [00:09:39] Speaker 02: The district court cited two DC district court cases, no DC Circuit cases, no Supreme Court cases for its determination that the defendant was absolutely immune from suit. [00:09:51] Speaker 02: Even those other district court cases only cite to potentially persuasive authority from sister circuits. [00:09:58] Speaker 02: They don't cite to any binding authority. [00:10:00] Speaker 04: So what do you think our sister circuits have missed? [00:10:03] Speaker 02: I think your sister circuits have failed to address the binding requirements from first Butts and then Clevenger, that you look, the fact that a parole commissioner is acting in a quasi-judicial capacity is insufficient. [00:10:17] Speaker 02: There needs to be more. [00:10:18] Speaker 02: There needs to be a quasi-judicial capacity. [00:10:21] Speaker 02: It needs to be the potential for further litigation from disappointed litigants. [00:10:27] Speaker 02: And there needs to be safeguards in place. [00:10:29] Speaker 03: Do you agree that this is even, [00:10:32] Speaker 03: I guess is the question. [00:10:35] Speaker 03: If you don't have sort of a due process hearing here, people just send in papers. [00:10:42] Speaker 03: Precedent doesn't apply. [00:10:45] Speaker 03: They have this enormous range of discretion that's not [00:10:51] Speaker 03: Well, there's some factors given. [00:10:52] Speaker 03: At the end of the day, they have this, as they tell us, this is not reviewable, unreviewable discretion. [00:10:59] Speaker 03: So how do I know whether it really is quasi-judicial what they're doing, or they are really more like a clemency board? [00:11:10] Speaker 02: Your Honor, I don't have time to describe. [00:11:13] Speaker 02: Please respond. [00:11:15] Speaker 02: I agree. [00:11:16] Speaker 02: This is substantially different than a judicial hearing. [00:11:21] Speaker 02: The precedent looks and starts from Supreme Court level. [00:11:24] Speaker 02: OK, judges have immunity. [00:11:26] Speaker 02: OK, now we're going to work to people that are sort of involved or intrinsically involved, intimately involved in the judicial process. [00:11:31] Speaker 02: And out of that has come this sort of quasi-judicial immunity and tying it to the judicial process. [00:11:38] Speaker 02: Here, I think, we are several standard deviations from that process. [00:11:42] Speaker 02: not just on whether or not it's even a judicial act that they're making, evaluation of evidence, weighing of evidence and discretionary determination, but particularly importantly, whether there are any of the safeguards in place in a judicial process, whether any of the safeguards from a judicial process are in place in this process, to allow us to dispense with private money damages rights or actions to control unconstitutional conduct. [00:12:07] Speaker 02: And here, as you mentioned, there are no safeguards that you would get in a judicial process. [00:12:14] Speaker 04: Well, you don't necessarily have to have the same type of safeguards as in a judicial process, do you? [00:12:22] Speaker 02: Absolutely. [00:12:24] Speaker 02: You do not. [00:12:25] Speaker 02: And I don't think we never. [00:12:26] Speaker 04: So as I understand it, some circuits have viewed the parole board as an arm of the sentencing court that the members of the parole board would be [00:12:43] Speaker 04: subjected to all kinds of harassment by people whose parole is denied. [00:12:50] Speaker 04: I think even one of the cases says these are normally not people of great means and therefore you wouldn't want to have personal liability, things like that, even though the state or the federal government will pick that up. [00:13:13] Speaker 04: And then here you have the situation where a D.C. [00:13:17] Speaker 04: prisoner now is subject to the U.S. [00:13:27] Speaker 04: commission where U.S. [00:13:30] Speaker 04: prisoners do have an internal appeal, which D.C. [00:13:35] Speaker 04: prisoners do not have. [00:13:36] Speaker 04: So as the government says, what the D.C. [00:13:38] Speaker 04: prisoners have is [00:13:40] Speaker 04: Basically a rule 59e motion, if you have some new evidence or something of that ilk. [00:13:49] Speaker 04: that you could ask the parole board, parole commission, to reconsider its decision, which was done here at least once. [00:13:57] Speaker 02: Absolutely. [00:13:58] Speaker 02: So can I take each of those in turn? [00:13:59] Speaker 02: So on the first piece, which is what the other circuits have looked at and your sister courts have looked at, they've either just looked at whether it's quasi-judicial and ended it there or gone to the second piece, which is the sort of potential for harassment, disappointing litigants. [00:14:15] Speaker 02: Inmates are conceivably, I think even at a Supreme Court level, they've indicated [00:14:19] Speaker 02: quite likely to sue on the basis of being disappointed. [00:14:22] Speaker 02: This court's standard in Wongshall, and more importantly, the Supreme Court in Clevinger has said that's not enough. [00:14:29] Speaker 02: And in Clevinger, you had a case in which the disciplinary officials at a prison, so you have the same thing, you are doing adjudication. [00:14:38] Speaker 04: I know, but the Supreme Court, there's that language there contrasting a parole board. [00:14:45] Speaker 04: It's an independent body. [00:14:48] Speaker 02: Absolutely. [00:14:49] Speaker 02: But the parole board was not at issue in that case. [00:14:52] Speaker 04: I know, but just looking at a little dictum there. [00:14:54] Speaker 04: It's not even dictum. [00:14:56] Speaker 04: I mean, it's just contrasting the committee to a parole board. [00:15:00] Speaker 04: It's citing sellers with approval. [00:15:04] Speaker ?: Yep. [00:15:04] Speaker 02: So I would point to the holding in Clevinger which said that we're going to deny absolute immunity for these disciplinary officials despite the existence of factors one and two because the full APA protections that are existent in BOTS are not available. [00:15:20] Speaker 02: Interestingly, even the dissent in Clevinger accepts that line of argument, but says that it would have upheld absolute immunity because there were three internal administrative review and appellate rights available, which in fact they exercised. [00:15:35] Speaker 02: So both said that the procedural safeguards are critical. [00:15:39] Speaker 02: Here, we have neither any of the protections available under the APA, [00:15:43] Speaker 02: or the internal agency review right, which gets to your second point. [00:15:47] Speaker 02: On the second point, the notice of action that the prisoners receive is stamped in all capital letters, the above decision is not appealable. [00:15:56] Speaker 02: And the Department of Justice on its own website has confirmed that while certainly federal prisoners have a right to an appeal, D.C. [00:16:02] Speaker 02: Code prisoners do not. [00:16:04] Speaker 02: So we have no right to, or the appellant has no right to any form of appeal. [00:16:08] Speaker 02: It does have a right to a reopening, as defendant appellee points out. [00:16:12] Speaker 02: But that's on the basis of a very limited set of information, new and significant. [00:16:16] Speaker 04: So one question I had, would supplemental briefing to this court explore that aspect of you alluded to this equal protection notion. [00:16:28] Speaker 04: But would that be the nature? [00:16:30] Speaker 04: I know you can't commit, obviously. [00:16:34] Speaker 04: But I was just trying to think, what would supplemental briefing provide us? [00:16:40] Speaker 02: Your Honor, we, of course, have an admittedly inartfully pled complaint. [00:16:46] Speaker 02: And so I think we need to further elucidate the constitutional allegations. [00:16:52] Speaker 02: But then on the basis of those constitutional allegations, it would probably be exactly that. [00:16:57] Speaker 02: The clearly established law under which denial of parole on the basis of an unwritten standard, there's been no demonstration that's tied to the written standard that's in the regs. [00:17:06] Speaker 02: the basis of differentiating between people without any rational basis for doing so, and then whether the requirement to admit guilt despite having no regulatory opportunity or no regulatory requirement is itself potentially either compelled speech or some form of self-information. [00:17:22] Speaker 02: I think that's exactly to what the supplemental briefing would go. [00:17:27] Speaker 02: But if I may, just to quickly finish on the reopening point. [00:17:30] Speaker 02: The reopening is only available for new and significant factual and legal information. [00:17:34] Speaker 02: So if a mistake is made in application of the guidelines, if a mistake is made based on known facts, a mistake is made on the law, there's no recourse. [00:17:43] Speaker 02: Indeed, here, even the regulations point out the distinction. [00:17:46] Speaker 02: Look at the federal prisoners who have access to a reopening right, exact same standard as the D.C. [00:17:52] Speaker 02: Code prisoners do. [00:17:53] Speaker 04: They also have... You could file a petition for a writ of habeas? [00:17:58] Speaker 02: Yes, you could file a petition for a writ of habeas, and indeed, Redmond has done so. [00:18:02] Speaker 02: I believe it was denied. [00:18:04] Speaker 02: The habeas, however, as the Supreme Court is pointing out in Pryzer, is not the appropriate remedy for individuals seeking money damages. [00:18:11] Speaker 02: This is not attacking the fact or duration of his confinement. [00:18:14] Speaker 02: It is instead attacking the potential constitutional violations that occurred during that hearing. [00:18:19] Speaker 03: And it's not, yeah, the habeas, file a habeas petition. [00:18:25] Speaker 03: I guess you could see the cleric during injunction relief against [00:18:30] Speaker 03: Would you, could you say, get declaratory injunctive relief against the parole commission using things like failure to confess to their crimes? [00:18:43] Speaker 03: I don't believe that you could, but I could be wrong in that, and I'm happy to do additional research on that. [00:18:56] Speaker 04: Well, the question, you know, does habeas extend to the conditions of confinement, and it's normally been in a prison setting, and I don't know that it's ever been extended to the parole. [00:19:06] Speaker 02: There are very limited cases that we've been able to identify in which habeas has been extended to a parole setting and that's in which is there I think there's a California case in which [00:19:22] Speaker 02: is there some evidence to support the parole denial and interestingly there's a California public court case that says in that case the individual was reviewed against a the parole board in that case I think said 19 different times that he failed to admit guilt that wasn't a standard and the parole board and the [00:19:43] Speaker 02: California Appellate Court, the Middle East State Court says you have failed to provide even some evidence that that admission of guilt is itself an indication of a lack of sort of, I think the standard there was a reasonable probability they'll exist in society. [00:20:01] Speaker 02: It's of course not exactly the same as the D.C. [00:20:03] Speaker 02: Code standard. [00:20:04] Speaker 02: I think the court, the case is Henry Atherton. [00:20:07] Speaker 02: And I'm happy to provide this. [00:20:08] Speaker 02: I don't have it right in front of me. [00:20:10] Speaker 04: Well, we have had equal protection [00:20:13] Speaker 04: All right, why don't we hear from the government? [00:20:16] Speaker 02: Thank you, Your Honor. [00:20:28] Speaker 01: Good morning. [00:20:28] Speaker 01: May it please the Court, Peter Pfaffenroth, on behalf of former Chairman Fullwood. [00:20:33] Speaker 01: As the court appears to have recognized, the first few factors in the analysis here are easily satisfied, namely that the functions of the parole commission are comparable to those of a judge, and also that the probability, in fact, the certainty of vexatious litigation. [00:20:49] Speaker 03: How come in what way? [00:20:50] Speaker 01: I'm sorry? [00:20:51] Speaker 03: How come in what way? [00:20:52] Speaker 03: I mean, when you're on parole, you're still in governmental detention serving a sentence. [00:20:58] Speaker 03: It's just a different [00:21:01] Speaker 03: lighter form of detention, correct? [00:21:05] Speaker 03: You're on parole. [00:21:06] Speaker 03: You're still under the authority of the, uh, sure. [00:21:10] Speaker 03: And parole can be revoked, but it's not as though your prison sentence has been commuted or anything like that. [00:21:18] Speaker 03: It's just a question of this is the form of custody we think is appropriate for you now. [00:21:24] Speaker 03: almost like you imagine gradations saying you need solitary confinement, you need maximum security. [00:21:30] Speaker 03: No, you can go in a general prison population. [00:21:32] Speaker 03: No, you can actually go to a camp. [00:21:35] Speaker 03: Or you can go to a halfway house. [00:21:37] Speaker 03: You don't even need a halfway house. [00:21:38] Speaker 03: You can go on parole. [00:21:40] Speaker 03: These are all gradations of detention, correct? [00:21:45] Speaker 01: That is true, but a sentencing court can also suspend sentences, can make recommendations about the [00:21:53] Speaker 01: type of sentence that a person would... Sure. [00:21:56] Speaker 03: I'm just trying to understand what the nature of this decision making is that happens here. [00:22:01] Speaker 03: And it sounds like the nature of the decision making is this is, we're in the Justice Department, we're executive branch officials, and we are deciding what the proper form of detention is for this individual. [00:22:16] Speaker 01: Yeah, I think it's very telling that the Supreme Court, in contrasting the BOP [00:22:22] Speaker 01: disciplinary board at issue in Clevenger specifically points to parole boards and says, quotes favorably, the Ninth Circuit decision in Sellers, and characterizes the parole board member as an impartial professional serving essentially, quote, as an arm of the sentencing judge. [00:22:40] Speaker 01: That's pretty telling that they are, in fact, part of the judicial function. [00:22:45] Speaker 04: But it also cites Morrissey versus Brewer, where [00:22:51] Speaker 04: Court seems to take a different view. [00:22:54] Speaker 01: It does. [00:22:55] Speaker 01: I think it's also important to remember that in Forrester, a 1988 decision a few years after Clevenger, the Supreme Court reiterated that the assessment of whether or not an official is acting in a judicial capacity is informal. [00:23:11] Speaker 01: It can be an informal proceeding. [00:23:14] Speaker 01: They cited favorably the decision in stump, which was a 1970s decision by the Supreme Court. [00:23:20] Speaker 01: with frankly shocking facts involving a tubalization of a minor who didn't even know that she was going to be subject to that procedure and only discovered it years later. [00:23:32] Speaker 01: And the Supreme Court still found, notwithstanding the ex parte nature of that proceeding in which there was functionally no appeal possible, [00:23:41] Speaker 01: because she didn't even know until she got married years later that her tubes had been tied. [00:23:46] Speaker 03: That state judge nonetheless was acting in a judicial capacity and was absolutely immune. [00:24:07] Speaker 03: attached to your body. [00:24:09] Speaker 03: The parole board member has been described as an arm and sentencing [00:24:22] Speaker 03: to provide greater to process protection than is the institution discipline committee. [00:24:26] Speaker 03: So they were thinking about a sort of penalty context for parole boards, not this where should this person be housed while in our detention aspect of it. [00:24:37] Speaker 03: And look, it's powerful stuff. [00:24:39] Speaker 03: I was trying for it says, even if it's dicta, it's powerful stuff for me. [00:24:45] Speaker 03: Don't get me wrong, but it also just seems irreconcilable with the six factors that they lay out [00:24:51] Speaker 03: in their decision at 202, right? [00:24:56] Speaker 03: So harassment or intimidation, that's going to happen in every case. [00:25:00] Speaker 03: Presidents of safeguards, I don't know what the safeguards are here. [00:25:04] Speaker 03: Installation from political influence, I don't know where that is here. [00:25:08] Speaker 03: Importance of precedent, none in this situation. [00:25:12] Speaker 03: Adversary nature of the process, none in this situation. [00:25:15] Speaker 03: correctability of error on appeal. [00:25:17] Speaker 03: None in this situation. [00:25:20] Speaker 03: So what am I to do with the legal tests they lay out when I check those bounces parole loses? [00:25:27] Speaker 03: But then they've got language, although the language is ambiguous, but it's focused on the penalty context as opposed to this context. [00:25:34] Speaker 03: That's why I'm struggling with it. [00:25:35] Speaker 03: I'm just being honest with you. [00:25:36] Speaker 01: No, I hear you, Your Honor. [00:25:38] Speaker 01: First of all, that last sentence in the paragraph, I read the and in the penalty context to be a moreover in the penalty context. [00:25:46] Speaker 01: That's how I read it. [00:25:47] Speaker 01: Obviously, everyone can read it for themselves and conclude what they're going to conclude. [00:25:52] Speaker 01: I think that the takeaway from- Take some of the air out of the dick. [00:25:57] Speaker 01: I believe that the... What do I do with these factors? [00:26:01] Speaker 03: That's the legal holding, right? [00:26:02] Speaker 03: That's the test. [00:26:03] Speaker 03: And I know we've sort of grouped them now into three subcategories, but Longshall doesn't overturn the Supreme Court. [00:26:11] Speaker 03: So when it talks about safeguards and stuff, I have to march through these six factors, right? [00:26:15] Speaker 01: I don't believe you do, Your Honor. [00:26:16] Speaker 03: I believe that those... I don't have to follow if Longshall wasn't changing the Supreme Court rule, was it? [00:26:21] Speaker 01: No, it was not. [00:26:21] Speaker 03: So we have to look at these six factors the Supreme Court has laid out. [00:26:25] Speaker 01: The question is, are those factors that each box needs to be checked, or are they illustrative considerations that a court must determine? [00:26:34] Speaker 03: I'll get the latter. [00:26:34] Speaker 03: Let's just look at these things and factor them in. [00:26:37] Speaker 03: But which of these does parole board meet other than harassment or intimidation, which you also had in the disciplinary committee? [00:26:46] Speaker 03: Which of them does it meet? [00:26:51] Speaker 03: You agree there's no appeal on the face of the order. [00:26:55] Speaker 01: I do not agree with that. [00:26:56] Speaker 03: You don't agree. [00:26:56] Speaker 03: It says on the order, this is not appealable. [00:26:58] Speaker 01: I believe that the functional availability of the reopening mechanism, which is an opportunity for further review. [00:27:05] Speaker 01: That's not an appeal. [00:27:06] Speaker 03: That's an evidence. [00:27:07] Speaker 03: That's like a 60-B motion. [00:27:08] Speaker 03: We don't ever call a 60-B motion an appeal. [00:27:12] Speaker 03: Right? [00:27:13] Speaker 03: Correctability of error on appeal is not the same thing as ability to submit brand new law or evidence to the same decision makers. [00:27:20] Speaker 03: This is correctability of error on appeal. [00:27:24] Speaker 01: It would be a significant piece of information which is a basis for reopening if in fact a prisoner identified an error. [00:27:32] Speaker 03: Can errors be corrected by reopening? [00:27:35] Speaker 01: They can. [00:27:36] Speaker 03: Even if they don't have new evidence or new law, they just say, [00:27:40] Speaker 03: oh my gosh, you applied this standard that you're not supposed to apply. [00:27:44] Speaker 03: Like, innocence requirement. [00:27:45] Speaker 03: Could you do that? [00:27:46] Speaker 03: Could you get reopening? [00:27:47] Speaker 03: You've made a legal error here when you seem to make dispositive or weighty in your analysis the fact that I haven't confessed to this crime. [00:27:57] Speaker 03: That's legal error, which could certainly be raised on an appeal if you had an appeal. [00:28:01] Speaker 03: Is that a basis for reopening? [00:28:02] Speaker 01: It would be a basis for reopening. [00:28:03] Speaker 03: If they didn't rebrand his reopening here? [00:28:06] Speaker 01: because that is not what the reopening conclusion was. [00:28:10] Speaker 01: The reopening read, [00:28:13] Speaker 01: what had been offered and found, you know, there was this inconsequential error in the calculation. [00:28:19] Speaker 04: Right, so they did make a correction. [00:28:21] Speaker 01: It did. [00:28:21] Speaker 04: They acknowledged the error, made the correction, and went on. [00:28:26] Speaker 01: It did not change the outcome. [00:28:28] Speaker 01: Similarly, I do disagree, by the way, with the assertion by opposing counsel that there has been some new definitive requirement imposed for admission of guilt. [00:28:41] Speaker 01: To the contrary, [00:28:42] Speaker 01: The facts of this case are that the prisoner has definitively refused time and again to acknowledge that he committed the offense, and that is not a holding that thou must in all cases admit guilt. [00:28:58] Speaker 01: To the contrary, in the case of a sex offender who raped his 70-something neighbor, [00:29:02] Speaker 01: And the question for the parole board is, is this gentleman ready for release to society where he can exist safely? [00:29:11] Speaker 01: Somebody who has not been rehabilitated, that's a pretty strong power, powerful statement that this gentleman has not been rehabilitated. [00:29:26] Speaker 03: how errors can be advanced, even without arguments about new intervening facts. [00:29:33] Speaker 01: That would be significant, Your Honor, it would be significant if you pointed out an error. [00:29:39] Speaker 01: And it is new and significant information that is a basis. [00:29:43] Speaker 01: This is not parroting rule 59E, it is not parroting rule 60. [00:29:47] Speaker 01: It is its own standard, and as the facts of this case demonstrate, you can read the lengthy papers that were submitted to the Commission by opposing counsel, and they pointed out a lot of things, and pretty methodically, the reopening analysis went through each of those and said, at the end of the day, we've given these thoughtful consideration, but they don't change the outcome, because we don't believe that they really move the ball. [00:30:14] Speaker 03: And then, is it an adversary process? [00:30:21] Speaker 03: I'm pretty sure the parole said it's not an adversarial problem. [00:30:24] Speaker 01: It is not adversarial in the sense that, you know, the parole board has lawyers there and the prisoner has lawyers there, but the prisoner has a right to representation, the prisoner makes his case, and then the neutral parole commissioner, acting both through the parole commission and the hearing examiner, weighs all that evidence. [00:30:47] Speaker 01: Certainly, the ex parte proceeding in stump was not an adversary process either. [00:30:51] Speaker 01: That's the problem with stump. [00:30:53] Speaker 01: But nonetheless, that judge was entitled to absolute immunity. [00:30:57] Speaker 03: And then insulation from political influence. [00:31:01] Speaker 03: Go back. [00:31:02] Speaker 03: That's what I'm trying to understand. [00:31:03] Speaker 03: I know they're in the Justice Department, but then they're supposed to have a tradition of independence. [00:31:09] Speaker 03: But are they removable at will? [00:31:12] Speaker 01: There's no definitive ruling on that, Your Honor. [00:31:15] Speaker 01: There's an OLC opinion from 1996 that says they are. [00:31:19] Speaker 01: That OLC opinion came up in a very different context, namely whether or not the Appointment Clause, [00:31:29] Speaker 01: applied there, and there was an extension of some parole commissioners, and there was simply no consideration of how immunity issues would play in. [00:31:37] Speaker 01: And in the absence of a more thoughtful, more current analysis, it's not necessary for- I'm sorry, what? [00:31:44] Speaker 03: I'm talking about removable at will, or does the president have to have a higher standard to remove them? [00:31:50] Speaker 01: Right. [00:31:51] Speaker 01: I mean, there is simply no decision that is binding on this court about whether or not they are at-will employees. [00:31:59] Speaker 01: And I would invite the court's attention to the legislative history creating the United States Parole Commission, which I cited in the papers, which expressly points out they're supposed to be independent. [00:32:10] Speaker 01: I would also invite the court's attention to the Bowers decision, which the reply brief by the amicus mentions. [00:32:18] Speaker 01: It's an 11th Circuit decision from 2014, where [00:32:23] Speaker 01: The amicus misapprehends what was going on. [00:32:27] Speaker 01: In that case, there had been allegations, no proof, allegations that one parole commissioner had acted improperly. [00:32:35] Speaker 01: And so the 11th Circuit had tried to cure that problem by sending it back to the parole board and saying, you know, get this [00:32:43] Speaker 01: this one parole commissioner out of the process and then let's see what what happens and that on remand to the Northern District of Georgia Federal District Court there was very substantial discovery, lots of documents exchanged, numerous depositions of all sorts of parole commissioners and [00:33:00] Speaker 01: I'm happy to provide the citation to the court. [00:33:02] Speaker 01: There was a decision in June from the Northern District of Georgia, for which there has been a notice of appeal filed, but there have been no proceedings yet in the 11th Circuit, in which repeatedly, in that 37-page decision, the Northern District of Georgia found that after all that discovery, there was literally no evidence of political influence on the decision-making process. [00:33:22] Speaker 01: So in this case, there simply is no evidence [00:33:25] Speaker 01: Or from any other, that there is a political role on the parole board? [00:33:31] Speaker 04: I was thinking of situations where states have faced prison overcrowding. [00:33:39] Speaker 04: And so they've released prisoners. [00:33:42] Speaker 04: And during the war on drugs, parole was cut back. [00:33:49] Speaker 04: I mean, those are political decisions that are made. [00:33:54] Speaker 04: that can influence the parole board. [00:34:02] Speaker 04: So it's not, they don't have that total type of independence. [00:34:08] Speaker 01: There's no evidence that the United States Parole Commission is subject to those kinds of influences. [00:34:12] Speaker 04: One could also, frankly... It's part of the Department of Justice, right? [00:34:15] Speaker 04: It's pointed by the President, and where is it housed? [00:34:20] Speaker 01: Physically? [00:34:22] Speaker 04: As part of what? [00:34:24] Speaker 04: It's not part of the Bureau of Prisons. [00:34:26] Speaker 01: No, it's its own sub-component within the OTA. [00:34:29] Speaker 04: And it reports to whom, do you know, in the Justice Department? [00:34:32] Speaker 04: The Deputy Attorney General or the Deputy of the Criminal Division? [00:34:37] Speaker 01: I don't believe it reports. [00:34:39] Speaker 04: Anybody? [00:34:56] Speaker 04: Right, but you report to the Deputy Attorney General, and the Deputy Attorney General says we've got terrible prison overcrowding problems. [00:35:13] Speaker 01: There's simply no evidence. [00:35:14] Speaker 01: For instance, in the Bowers case in the 11th Circuit, Your Honor, the problem with that one wayward commissioner [00:35:21] Speaker 01: that the 11th Circuit said, get this person out of the process, was that she actually did go to the front office of the Department of Justice and said, oh, we think that you guys should weigh in here. [00:35:31] Speaker 01: This is a problem. [00:35:32] Speaker 01: And the 11th Circuit says that was, quote, unprecedented. [00:35:36] Speaker 04: Well, you could ask for their resignation. [00:35:39] Speaker 01: Yeah. [00:35:42] Speaker 04: I mean, they're just not. [00:35:45] Speaker 01: But Your Honor, in terms of political influence, to be honest, [00:35:49] Speaker 01: Obviously, federal judges are not elected, but there are numerous state court judges who are elected. [00:35:56] Speaker 01: Justice Rose Byrd was unelected from the California Supreme Court. [00:36:01] Speaker 04: That has to do with the death penalty. [00:36:03] Speaker 04: But let me just ask you a question, because I guess we don't need to pursue this, but I think US attorneys, they serve at will. [00:36:20] Speaker 04: and the department has a whole office devoted to making sure they're following whatever the Justice Department's policy is on bringing certain types of offenses, pursuing certain types of investigative strategies, et cetera. [00:36:41] Speaker 04: And yet, because they're viewed as very directly part of the judicial process, they have absolute immunity. [00:36:51] Speaker 01: They do. [00:36:53] Speaker 03: When performing in that capacity. [00:36:54] Speaker 04: In that capacity only, right. [00:36:57] Speaker 04: And I mean, judges only have absolute immunity when performing as judges, not as administrators. [00:37:06] Speaker 04: So as the Supreme Court says in Clevengers, it's a fuzzy line. [00:37:11] Speaker 04: It's not always that clear. [00:37:15] Speaker 04: They've got the warden calling the shots. [00:37:19] Speaker 04: It's one thing if you have [00:37:21] Speaker 04: As you pointed out, the contrast with this independent parole authority, it's different. [00:37:31] Speaker 01: It is fundamentally, one, we're looking at the role that the Parole Commission serves. [00:37:38] Speaker 01: It is most fundamentally equivalent to that of, as the Supreme Court says, an arm of the sentencing court. [00:37:45] Speaker 01: And the fact that every circuit has looked at this issue and has come to the same conclusion is telling. [00:37:51] Speaker 03: Well, I'm trying to figure out what it's telling us. [00:38:02] Speaker 03: the district court gives. [00:38:04] Speaker 03: And after that, it's really, it's housing. [00:38:07] Speaker 03: It's just like, should you be in, it's just like deciding whether you should be at a camp rather than maximum security. [00:38:12] Speaker 03: It's the exact same type of judgment about risk and safety. [00:38:17] Speaker 03: And I just don't know why at this parole, going from camp to parole, we decide it's, suddenly this executive branch agency that reports to the DAG is part of the sentencing court? [00:38:29] Speaker 03: I don't even understand that structurally. [00:38:35] Speaker 03: functionally what they're doing is anything like what courts do. [00:38:39] Speaker 01: Functionally what they're doing is they're overseeing hearings, they are making assessments about future dangerousness. [00:38:50] Speaker 03: Right, if you do that and decide whether to go to maximum security, general population, or camp, right, so that's an executive branch type determination. [00:39:01] Speaker 01: Yes, but also I mean it's not that judges in making sentencing decisions play no role in that. [00:39:10] Speaker 01: They play a role in recommending the appropriate... They play a role in the role? [00:39:15] Speaker 03: We don't play any... courts don't play any role... role in parole decisions? [00:39:18] Speaker 01: No, no, not in parole decisions. [00:39:19] Speaker 01: I'm sorry. [00:39:20] Speaker 01: But in equating the parole board's role to that of a sentencing court, a sentencing court certainly can make a recommendation to the Bureau of Prisons that, you know, the judge believes that this would be an appropriate outcome for this particular defendant. [00:39:33] Speaker 03: And they can ignore it completely because it's an executive judgment. [00:39:37] Speaker 03: Where to house somebody and what level of detention to apply. [00:39:42] Speaker 03: Right? [00:39:43] Speaker 01: That is true. [00:39:44] Speaker 03: It's up to the court to say. [00:39:45] Speaker 01: It is not a final decision. [00:39:48] Speaker 03: It's up to the court to say. [00:39:49] Speaker 01: But it's part of the district court's function to, in appropriate circumstances, make such recommendations. [00:39:55] Speaker 03: It's not a judicial function to say where someone should be asked. [00:39:58] Speaker 03: Can you explain to me how habeas? [00:40:01] Speaker 03: I mean, one, do you think there is habeas review of parole decisions? [00:40:04] Speaker 03: And two, how does it work? [00:40:06] Speaker 03: How might it work with the claims he's raising? [00:40:08] Speaker 03: Or just how does it work? [00:40:10] Speaker 03: I just haven't seen one of those habeas claims. [00:40:12] Speaker 01: There can be habeas review, as numerous circuits have recognized. [00:40:16] Speaker 01: In fact, the Bowers decision in the 11th Circuit is a habeas case against both the warden and the parole commissioners. [00:40:25] Speaker 03: What kind of claims are cognizable on habeas? [00:40:32] Speaker 03: Obviously not damages actions, but if someone thought [00:40:37] Speaker 03: make it much easier than this case, that the, not your parole commission, but some abstract parole commission was making decisions on the basis of race. [00:40:47] Speaker 03: That's certainly an argument. [00:40:49] Speaker 03: And so you could say that they're applying unconstitutional factors, and so the relief would be, in a habeas case, would it be to remand for the parole commission, or just how does it work, or does the court say, wow, that was a bad decision, [00:41:03] Speaker 03: The court can't grant parole on habeas, right? [00:41:06] Speaker 01: No, the court wouldn't be granting parole. [00:41:07] Speaker 01: That would be sending it back to the parole board to say, don't consider this unconstitutional consideration. [00:41:12] Speaker 03: OK, so that's how it works. [00:41:14] Speaker 04: Or modify your rules and regulations, something like that. [00:41:17] Speaker 01: Exactly. [00:41:17] Speaker 01: It depends on the kind of deficiency that's identified. [00:41:19] Speaker 01: That could happen on habeas. [00:41:21] Speaker 04: So let me ask you, maybe you can help us out on this supplemental briefing. [00:41:25] Speaker 04: Were the court interested in the qualified immunity issue? [00:41:30] Speaker 01: I don't – I'm happy to submit something if the court will find it helpful. [00:41:34] Speaker 01: I don't, frankly, find the idea that there's an equal protection clause problem here, or a substantive due process problem, particularly in light of this court's decision in Ellis, at all persuasive. [00:41:45] Speaker 01: I think this is a very easy decision on qualified immunity, and if – So there would be no point in supplemental briefing? [00:41:54] Speaker 04: Again, if it would be helpful to the court, we are happy to provide it, but I don't, I believe that the... I think Appellant, at least, not Appellant, but Amicus, was suggesting it would be helpful to their side, and obviously you would want a chance to respond, but... [00:42:12] Speaker 01: You know, if they have things, I think that these arguments are pretty out there and there's not clearly established law that I'm aware of that would have, that has been breached in this case. [00:42:26] Speaker 04: All right. [00:42:26] Speaker 04: Thank you. [00:42:27] Speaker 01: Thank you, Your Honor. [00:42:28] Speaker 01: We respectfully ask that the decision be affirmed. [00:42:36] Speaker 04: of court, amigas. [00:42:37] Speaker 02: Thank you, Your Honors. [00:42:39] Speaker 02: I'll try and be brief. [00:42:41] Speaker 02: Just a few quick points to follow up on what defendant and appellant argued. [00:42:45] Speaker 02: First, while admittedly the Clevinger Court listed a set of what it said were, I think it was six different factors, A through F, and said that others could be considered, this court in Simon said that there were three factors mandated by Butts. [00:43:00] Speaker 02: That's the distillation of the six down into the three. [00:43:04] Speaker 02: the third of which being safeguards. [00:43:06] Speaker 02: And so which of the safeguards is in place? [00:43:08] Speaker 02: Yes, you can look to a series of them, and defendant appellant has pointed out how judges may not have one of the safeguards, but of course they do have the safeguard of being part of a judicial process with all of the trappings of procedure and available appeals right. [00:43:21] Speaker 02: Here, as your honors pointed out, there are virtually no safeguards in place. [00:43:26] Speaker 02: And so regardless of which one you look at, it doesn't matter. [00:43:29] Speaker 02: The third factor that's mandated by the Supreme Court holding it as binding under circuit precedent is unavailable. [00:43:36] Speaker 02: Second, just to briefly address the point that the defendant appellee made that they had not established a new standard, just to briefly quote the language from the four-page internal memorandum, the commission has determined that until Redmond admits to the offense, he cannot understand what caused him to commit the crime in the first place and how to prevent himself from committing another offense in the future, which sounds a lot like a threshold. [00:43:58] Speaker 02: He has to admit it in order to understand and prevent himself, which is the standard in the reg. [00:44:02] Speaker 02: So they've converted the, [00:44:04] Speaker 02: responsibility and failure to do. [00:44:06] Speaker 03: What authority is there that's clearly unconstitutional? [00:44:09] Speaker 03: They are the parole board. [00:44:11] Speaker 03: They don't get to decide. [00:44:12] Speaker 03: The conviction has been determined through due and appropriate process, and that's nothing, he's not arguing about that now. [00:44:21] Speaker 03: And so they say, look, our job is that we have to take as a given that you did this and look for evidence that something has changed [00:44:32] Speaker 03: within you so that we can trust that you won't do it again. [00:44:35] Speaker 03: And when you go, I never did anything, that doesn't evidence that you can trust that you won't do it again. [00:44:43] Speaker ?: There are other prophecies for your innocence arguments, but it's just the price of parole. [00:44:51] Speaker 02: A couple of points, Your Honor. [00:44:52] Speaker 02: First, admittedly, the actual innocence motion is not before this Court. [00:44:57] Speaker 02: Indeed, there's actually one pending in the DC Superior Court. [00:45:00] Speaker 02: That's not what we're asking here. [00:45:02] Speaker 02: The standard here is whether there's any reasonable probability. [00:45:07] Speaker 02: And potentially, defendant and appellee could put forward an argument that admission of guilt is a factor in that consideration. [00:45:13] Speaker 02: But every single other piece of evidence put before the examiner, including the, quote, exemplary reviews that he got internally, the fact that he was sort of a trusted cadre member, which the examiner found was the most coveted spot for inmates, the fact that he had availability of both housing and job afterwards, the fact that he had at that point gone 19 years without any form of institutional [00:45:38] Speaker 02: incident, the fact that he was at that point 58 years old, there's a whole bunch of other factors weighing on the other side. [00:45:43] Speaker 04: I know, but I mean I think it's pretty clear that the parole board, I keep saying parole board, parole commission has to predict and make an evaluation and judgment and even if they're objective factors to the average person that might or indeed [00:46:06] Speaker 04: the direct supervisor of the prisoner. [00:46:11] Speaker 04: Nevertheless, the parole board, parole commission could decide, not in our judgment. [00:46:18] Speaker 02: Admittedly, the parole commission does have a substantial amount of discretion written into the standard. [00:46:24] Speaker 04: You have the former chief of police as the chairman of the commission. [00:46:31] Speaker 02: Yes. [00:46:32] Speaker 02: The standard in the, the only evidence introduced to the contrary of the reasonable probability was the executive reviewers determination based, and the only evidence introduced there which ultimately became this explicit threshold criteria was failure to take responsibility. [00:46:52] Speaker 02: There was no weighing of the other thing, it just said it's my belief. [00:46:53] Speaker 04: Well, I was a little more troubled by the notion that we will not grant you parole until you take a course [00:47:01] Speaker 04: which is unavailable at the facility in which we are housing you. [00:47:09] Speaker 02: Your Honor, I can't speak directly for him, but appellant and we on behalf of appellant are similarly troubled. [00:47:15] Speaker 04: You cannot make the legal argument. [00:47:16] Speaker 02: Yes, similarly troubled. [00:47:17] Speaker 02: I mean, he in the 2010 notice of action was instructed to take a course that addressed his instant defense behaviors was the term the commission used. [00:47:26] Speaker 02: He then went to the psychiatrist and said, what do you have? [00:47:29] Speaker 02: Do you have this cage the rage course? [00:47:31] Speaker 04: All I'm getting at is, would it be an argument [00:47:36] Speaker 04: even in a habeas context, that I am being unlawfully held on the basis of a condition that it is physically impossible for me to comply with. [00:47:56] Speaker 04: And the authorities who are holding me [00:48:01] Speaker 04: have at least so far refused to transfer me to a facility where this program is available so I can participate in it and hopefully demonstrate to the Commission that I should be placed on parole. [00:48:18] Speaker 02: Absolutely, Your Honor. [00:48:18] Speaker 02: If it were me making that argument, I would certainly make that argument and say, well, who are you here? [00:48:24] Speaker 04: You're amicus trying to help the court understand this issue. [00:48:29] Speaker 04: That's all I'm getting at. [00:48:31] Speaker 02: Yes. [00:48:32] Speaker 02: He certainly was put in a bind that he can't get himself out of. [00:48:36] Speaker 02: He did everything he could have. [00:48:37] Speaker 04: No, but I'm jumping and I'm not signaling. [00:48:41] Speaker 04: I'm focusing on what legal remedies. [00:48:46] Speaker 04: So in habeas. [00:48:49] Speaker 04: I've never seen that, but I know Judge Brown and I have sat on a case where an equal protection argument was made on behalf of the D.C. [00:49:00] Speaker 04: prisoners, that they were being treated in some manner differently than the federal prisoners. [00:49:11] Speaker 02: And if I may just very briefly on two last points the defendant and appellant made. [00:49:15] Speaker 02: First, the standard from Clevinger was not actual proof of political influence. [00:49:19] Speaker 02: It's whether they are, and I have the language right here, whether they are insulated from political influence. [00:49:24] Speaker 02: And so the absence of evidence of being politically influenced is not the standard, and here they are not so insulated. [00:49:30] Speaker 02: The OLC has in fact said that they do not have the, quote, independence that for cause removal protection entails. [00:49:36] Speaker 02: And finally, just on the point about Ellis, Ellis only holds that there's no liberty interest in a low salient factor score. [00:49:43] Speaker 02: That is not what Redmond would be asserting. [00:49:46] Speaker 02: Redmond would be asserting separate constitutional violations, so I would submit that Ellis is not controlling. [00:49:52] Speaker 02: Thank you very much for your time, and we respectfully request that you overturn and revamp. [00:49:55] Speaker 04: Well, counsel, we thank you very much for your assistance to the court. [00:49:59] Speaker 02: Thank you very much.