Brandon v. District of Columbia Bd. of Parole

• Decision Date: 21 July 1987
• Docket Number: No. 86-5268,86-5268
• Citation: 262 U.S.App.D.C. 236,823 F.2d 644
• Parties: Roosevelt BRANDON, Appellant, v. DISTRICT OF COLUMBIA BOARD OF PAROLE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 644

823 F.2d 644

262 U.S.App.D.C. 236

Roosevelt BRANDON, Appellant, v. DISTRICT OF COLUMBIA BOARD OF PAROLE.

No. 86-5268.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 10, 1987.

Decided July 21, 1987.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-00007).

John D. Echeverria (Appointed by this Court), with whom Peter A. Barnes, Washington Edward E. Schwab, Asst. Corp. Counsel, with whom James R. Murphy, Acting Corp. Counsel, at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief for appellee. John H. Suda, Acting Corp. Counsel, Washington, D.C., entered an appearance for appellee.

D.C., (Appointed by this Court) was on the brief for appellant.

Before MIKVA, EDWARDS and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Appellant Roosevelt Brandon claims that the delay of the District of Columbia Board of Parole (the Board) in granting his application for reparole violated his due process and equal protection rights. On cross-motions for summary judgment, the district court granted appellees' motion and dismissed Brandon's complaint. The court held that there was no basis for Brandon's due process claims because he had no liberty interest in reparole. The court further held that the Board had not violated Brandon's constitutional right to equal protection of the law. We affirm.

I. BACKGROUND

In 1966, Brandon pleaded guilty to second-degree murder and was sentenced to a term of ten to thirty years. He was paroled in April of 1975. On November 11, 1975, while on parole, Brandon was arrested and charged with armed rape. As a result, the Board revoked Brandon's parole. Shortly thereafter, appellant pleaded guilty to the armed rape charge and received another sentence of ten to thirty years, to be served consecutively to his prior murder sentence. Brandon thus could not begin serving his second term until he had either served out his time or been reparoled on the first conviction.

Brandon came before the Board five times before he was finally granted reparole on his murder conviction; he was paroled not to the community but to begin serving his second sentence. The Board continued Brandon's first scheduled parole hearing in November of 1976 because the presentence report on his second conviction was not available; then, in an order issued on January 24, 1977, the Board denied Brandon's reparole application without a statement of reasons. In October of 1977, Brandon again appeared before the Board, which denied reparole because of Brandon's failure to involve himself fully in institutional academic and vocational programs. The Board requested the Forensic Psychiatry Office to conduct a psychiatric evaluation of Brandon prior to his next parole rehearing. No forensic psychiatry evaluation was performed between this request and Brandon's next reparole hearing in September of 1978. In denying appellant reparole for a third time, the Board explained that Brandon still refused to become involved in institutional programs. In February 1979, Brandon once again appeared before the Board. At this, Brandon's fourth parole hearing, the Board expressed concern about appellant's continued failure to participate in academic programs and vocational training. It also found that it lacked sufficient psychiatric information and therefore continued the hearing pending completion of the evaluation it had requested a year and a half earlier. In April of 1979, a physician from the Forensic Psychiatry Office examined Brandon, found him to be seriously disturbed, and recommended that reparole be denied and that appellant be admitted to a clinic. Acting on this recommendation, the Board denied reparole for the fourth time in May. Brandon began psychotherapy in August of 1979 and was granted reparole ten months later in February of 1980, 51 months after his parole had been revoked.

During the period in question, the unwritten policy of the Board was to request the Forensic Psychiatry Office to evaluate persons convicted of violent crimes before making a decision to grant parole to such inmates. In Brandon's case, the Board did not request a psychiatric evaluation until October of 1977, and the evaluation was not completed until April of 1979, 38 After the Board finally granted his application for reparole, Brandon filed a complaint pro se in the district court, challenging the Board's delay. Brandon alleged that the failure to reparole him before 1980 departed from the Board's rules, regulations, and policies. He asserted that the Board would have reparoled the average parole violator to a consecutive sentence within twenty-four months of his parole revocation, whereas he had been subjected to a four-year wait. He sought amendment of his Certificate of Reparole to reflect reparole after twenty-four months. Such an amendment would have shortened the time he served for murder by two years and three months and credited that time against the service of his armed rape sentence. Brandon also sought punitive and compensatory damages against the Board members.

months after Brandon's parole had been revoked. Throughout this same period, the Board's procedural regulations provided that the Board would ordinarily afford reparole hearings to parole violators, like Brandon, who had more than five years remaining to be served, within twelve months of their parole revocation. Brandon's first reparole hearing was held approximately twelve months after the revocation of his parole on his first conviction.

The district court dismissed the complaint sua sponte, and this court reversed. See Brandon v. District of Columbia Board of Parole, 734 F.2d 56 (D.C.Cir.1984), cert. denied, 469 U.S. 1127, 105 S.Ct. 811, 83 L.Ed.2d 804 (1985). We concluded that when construed under the liberal rules applicable to pro se pleadings, Brandon's complaint stated procedural due process claims as well as claims under equal protection principles. In remanding the case to the district court, we noted that Brandon's due process claims raised "substantial issues of first impression in this circuit," principally whether the District of Columbia parole system creates a liberty interest in parole release. Id. at 61.

On remand, the district court appointed counsel who subsequently filed an amended complaint and a petition for habeas corpus. In his amended complaint and petition, Brandon alleged that the Board had violated his due process and equal protection rights under the Fifth Amendment of the Constitution. Appellant further contended that the actions of the Board violated 42 U.S.C. Sec. 1983 and, prior to the statute's application to the District of Columbia, the principles set forth in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Specifically, Brandon argued that he had a liberty interest in reparole of which he was improperly deprived by the Board's failure to obtain a forensic evaluation in a timely fashion and by the Board's failure to grant reparole within two years, both of which allegedly diverged from Board policy and practice. Brandon further alleged that these same failures constituted a denial of equal protection of the law. In his prayer for relief, appellant again sought amendment of his Certificate of Parole.

Upon consideration of the record, and in reliance on the parties' stipulation of facts, the district court granted the Board's motion for summary judgment and denied Brandon's cross-motion. See Brandon v. District of Columbia Board of Parole, 631 F.Supp. 435 (D.D.C.1986). The court first examined Brandon's due process claim, which the court determined hinged on Brandon's ability to establish a protected liberty interest in reparole. The court noted that although the Constitution does not afford prisoners a liberty interest in parole or reparole, a state may create such a liberty interest if its parole system created an expectancy of release. See id. at 438 (citing Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979)). After careful examination, the court concluded that "the statutes, regulations, policies, and practices of the District of Columbia Board of Parole do not create a liberty interest in parole." Brandon, 631 F.Supp. at 440. Consequently, the court held that "there is no basis for the plaintiff's due process claims in this case." Id. Turning to Brandon's equal protection claim the court held that even if appellant's allegations

                that he was treated differently from other inmates were true, Brandon's criminal record and lack of institutional progress gave the Board "more than ample reason for not reparoling [Brandon], and these reasons furthered the legitimate interests of the District of Columbia in operating a secure prison system which served to rehabilitate inmates and protecting the general public."   Id. at 441.  Accordingly, the court held that the Board had not violated Brandon's right to equal protection of the law.  This appeal followed
                

II. DISCUSSION

A. Brandon's Due Process Claim

Not all interests are protected by the Due Process Clause's prohibition on governmental deprivation of an individual's life, liberty, or property without due process of law. To ascertain whether governmental action affecting an individual's interest is violative of this provision, the court must first inquire whether the nature of the interest is within the contemplation of the Constitution's "liberty or property" language. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). A protectible liberty interest may arise from two sources--the Due Process Clause itself or the laws of the states. See Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983) (citing Meachum v....