
    159 F.3d 591
    Clarence E. BLAIR-BEY, Appellant, v. Margaret QUICK, Chairperson, District of Columbia Board of Parole, et al., Appellees.
    No. 96-5280.
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 11, 1998.
    Decided July 24, 1998.
    Filed Oct. 16, 1998.
    Before: WALD, WILLIAMS and TATEL, Circuit Judges.
   Opinion for the Court filed by Circuit Judge WALD.

On Petition for Rehearing

WALD, Circuit Judge:

Appellees’ petition for rehearing raises an issue with resped to Blair-Bey’s ex post facto daim. We remanded that part of his case to allow him to attempt to make out his daim that the Distrid d Cdumbia’s current parde system, which was adopted after he committed his crimes, amounts to an ex post facto law as applied to him because it more stridly constrains the Distrid of Cdumbia Board of Parde’s (“DCBOP” or “Board”) discretion to release prisoners by providing for the use of “salient fad or scores” which give particular weight to certain fadora We said that “the drcuit easel aw poses something of a problem for Blair-Bey” in that Warren v. United States Parole Commission, 659 F.2d 183 (D.C.Cir.1981) rejeded a similar challenge to a 1976 federal parde system revision. We held, however, that on remand Blair-Bey might be able to distinguish his case from Warren “in any of three ways,” by showing (1) that the Board’s revisions “impose a sufficiently great risk of disadvantaging a particular category of inmates” to which Blair-Bey belongs, titing California Dep’t of Corrections v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); (2) that the 1987 revision was mdivated by a punitive desire to punish a certain type of prisoner, see Miller v. Florida, 482 U.S. 423, 433-34, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); or (3) that the Board “does nd in pradice ever ignore its own guidelines?’ so that they effedively exercise no discretion at all. One or a combination of these fadors, we said, “could suffice to establish that Blair-Bey has been deprived of his ‘entitlement to have [the Board’s] discretion exerdsed,’ ” but we were careful to refrain from “dedd[ing] now what kind of showing would suffice.” Blair-Bey v. Quick, 151 F.3d 1036, 1049 (D.C.Cir.1998) (quoting Warren, 659 F.2d at 196). Because Blair-Bey’s petition had been dismissed sua sponte without any opportunity on his part to develop arguments or present evidence, we remanded for reconsideration of his daim.

Appellees argue that we underestimated the precedential effect of Warren, which based its dismissal of the ex post facto daim against the federal guidelines independently on the retention of the discretion in the Board to deviate from the guidelines in worthy cases:

Thus, while it is uncertain that the guidelines in fad work to Warren’s detriment, and while the fundiona! basis of the ex post fado dause is not substantially implicated in Warren’s case, we do nd rest our decision on those grounds alone. What dinches the case is that Warren was sentenced to be held in federal prison at the discretion — howsoever exerdsed — d the parde authorities, so that guidelines which merely rationalize the exerdse d that discrdion do nd offend the ex post fado dause.

Warren, 659 F.2d at 195.

Announdng that “[a] change merely in the manner in which the Board, now the Commission, exerdses its discrdion ... cannd offend the ex post fado dause,” Warren still insisted that “[i]t is important to pdnt out that, predseiy because Warren was sentenced to be held at the discrdion d the parde authorities, under the ex post fado dause he is entitled to an opportunity to have that discrdion exerdsed; anything less would impermissibly augment his penalty.” Id. at 195-96. In Warren, however, the court dismissed the pdition without affording the petitioner a chance to develop any record cm lack d discrdion in the DCBOP, stating that “we deem counsel’s oblique references to inflexible application d the guidelines, unaccompanied by any prdession d ability to produce at least some acceptable evidence thered, insuffirient ground for a remand____” Id. at 197 n. 57. Then-Judge Ruth Bader Ginsburg dissented on the ground that the prisoner’s daim d “rigid dedsionmaking” should be explored on remand; she would “await the development d some kind d record ... before reaching the merits d Warren’s daim.” Id. at 199 (Ginsburg, J., dissenting).

I n sum, appellees would have us now dedare that Warren condusively bars any ex post facto daim based upon the DCBOP guidelines unless suffident fads are alleged in the original pdition to demonstrate that no discrdion was being exerdsed by the Board in making parde dedsions.

At this pdnt in time — almost 20 years after Warren was dedded — we tend to agree with Judge Ginsburg’s comment that “the shut out comes too soon.” Id. at 198. This is nd to say, however, that the appdlees do nd make out a fair case that we have nd hewn dose enough to the grounds for Warren’s hdding on the ex post facto daim. Although we cautioned that “If the 1987 revision [d the DCBOP guiddines] undertook to codify past parde practices, in the way that the 1976 federal guidelines revision did, and if the DCBOP in pradice retains discretion to ignore the guidelines, then his case will fall under Warren,” 151 F.3d at 1049, we take the opportunity now to reinforce our caution that in order to prevail Blair-Bey would have to demonstrate on remand at a minimum that the DCBOP’s discrdion under the guidelines is tdally or very substantially drcumscribed in law or in fad, and yidds results materially harsher than those ordinarily occurring under the prior regime:

Unlike Warren, however, we do nd bdieve that he should be denied that opportunity altogether. There is no doubt his burden is a heavy, if nd a near-impossible one, but there is no federal precedent to bar his attempt. Cf. Davis v. Henderson, 652 A.2d 634, 636 (D.C.1995) (DCBOP guiddines “merdy formalize the manner in which the Board exerdses the discrdion” previously conferred on it). Since Warren was dedded, the Supreme Court has said that, given the possible res judicata efferi d dismissing a complaint as frivdous, “a court d appeals reviewing a § 1915(d) disposition should consider whdher the distrid court abused its discrdion by dismissing the complaint with prejudice or without leave to amend.” Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). The faduai allegations Blair-Bey makes are nd “fantastic,” id. at 33, 112 S.Ct. 1728, and, although they may be lacking in ddail, they are nd so obviously legally inadequate as to foreclose any possibility that Blair-Bey could submit a nonfrivolous amended complaint. See Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (holding that the test for legal frivolity is less stringent than that applied under Rule 12(b)(6)). Thus, we think it is appropriate to allow Blair-Bey leave to amend his complaint on remand, despite Warren’s contrary approach.

Thus, although we acknowledge Warren’s requirement of a lack of discretion in the DCBOP as a sine qua non of an ex post facto claim is a stricter one than our original opinion may have suggested, we do not alter our decision that Blair-Bey should be allowed to present his case on remand. I f he fails to do so, and his claim is rejected, the District will have its precedent and be adequately protected from any onslaught of future frivolous petitions based on the same grounds:  