 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 12, 2013                 Decided May 28, 2013

                         No. 11-5264

                       BRIAN A. DAVIS,
                         APPELLANT

                               v.

         UNITED STATES SENTENCING COMMISSION,
                       APPELLEE


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:11-cv-01433)


     Robert S. Silverblatt, Student Counsel, argued the cause as
amicus curiae in support of appellant. With him on the briefs
were Steven H. Goldblatt, appointed by the court, Nilam A.
Sanghvi and Rita K. Lomio, Supervising Attorneys, and Roshni
J. Patel, Student Counsel.

    Brian A. Davis, pro se, filed the brief for appellant.

    Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
                                2

    Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,
and GINSBURG, Senior Circuit Judge.

     GRIFFITH, Circuit Judge: Appellant Brian Davis was
sentenced to prison for crimes involving powder and crack
cocaine before Congress and the Sentencing Commission took
steps to reduce the disparity in sentencing ranges between the
two. Unfortunately for Davis, these efforts were directed at
crimes involving lesser amounts of cocaine than his. In a suit
that seeks declaratory relief and possibly damages, Davis
claims that these efforts violate the Equal Protection Clause
because they do not reach his crimes. This appeal does not take
up the merits of Davis’s claims, but their form. The district
court dismissed his suit on the ground that the only relief
available to Davis is in habeas. For the reasons set forth below,
we reverse.

                                 I

     For years, the Sentencing Guidelines treated one gram of
cocaine base, commonly known as “crack cocaine,” the same
as one hundred grams of powder cocaine. See Dorsey v. United
States, __ U.S. __, 132 S. Ct. 2321, 2327-28 (2012). This
100-to-1 ratio came in for heavy criticism from many quarters,
and both Congress and the Sentencing Commission took steps
to reduce the sentencing disparities it created. Id. at 2328-29. In
2007, the Commission issued Amendment 706, which lowered
base offense levels for crimes involving less than 4.5 kg of
crack cocaine. U.S. SENTENCING GUIDELINES MANUAL amend.
706 (2011). Then, in response to the Fair Sentencing Act of
2010, Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372, the
Commission issued Amendment 750, which reduced the ratio
to 18-to-1 for crimes involving less than 8.4 kg of crack
cocaine. U.S. SENTENCING GUIDELINES MANUAL app. C,
amend. 748 (temporarily reducing the ratio); id., amend. 750
                               3

(making Amendment 748 permanent). The Commission made
both amendments retroactive, U.S.S.G. § 1B1.10(c), allowing
inmates convicted based on the old sentencing ranges to seek
discretionary sentence reductions under 18 U.S.C.
§ 3582(c)(2).

    In 1993, Davis was convicted of conspiracy to possess
with intent to distribute and the distribution of powder and
crack cocaine. The sentencing court assigned him a base
offense level of 42, which at the time applied to offenses
involving 15 kg or more of crack cocaine. The court sentenced
Davis to life imprisonment. Davis has sought relief from this
sentence, but because neither Amendment 706 nor
Amendment 750 applies to offenses involving 15 kg or more of
crack cocaine, they are of no help to him. In fact, a district
court has twice denied his attempts to reduce his sentence
under Amendment 706. He did find some relief elsewhere. In
2008, the district court reduced his sentence from life to 360
months based on an unrelated amendment to the Guidelines.

     In 2011, Davis brought this pro se lawsuit seeking relief
under the Declaratory Judgment Act, 28 U.S.C. § 2201(a), and
Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). This latest resort to the courts
differs from his previous efforts. Davis does not request a
sentence modification pursuant to 18 U.S.C. § 3582(c)(2).
Instead, he seeks a declaration that Amendments 706 and 750
deny him equal protection of the laws because they fail to
reduce the sentencing disparity for defendants convicted of
crimes involving higher quantities of crack cocaine. Only if
Davis succeeds on the merits will the sentencing reductions in
Amendments 706 and 750 be made applicable to his offense,
allowing him to seek a discretionary reduction of his sentence
under 18 U.S.C. § 3582(c)(2).
                               4

      The question before us is whether he has selected the
proper vehicles for his equal protection challenges. Neither the
Declaratory Judgment Act nor Bivens has carried Davis far.
Even before the Commission had answered Davis’s complaint,
the district court dismissed his claims for lack of jurisdiction
under Federal Rule of Civil Procedure 12(h)(3). Davis v. U.S.
Sentencing Comm’n, 812 F. Supp. 2d 1, 1 (D.D.C. 2011).
Declaratory relief was unavailable, the court held, because “an
adequate remedy is available by petitioning the sentencing
court for a writ of habeas corpus.” Id. at 2 (citations omitted).
And Davis’s Bivens action was “patently insubstantial”
because he neither sued an individual nor requested damages.
Id. (internal quotation marks omitted). Davis appealed, and we
appointed an amicus to brief and argue the case on his behalf.1
We have jurisdiction under 28 U.S.C. § 1291, and review the
district court’s dismissal de novo. Doe v. Metro. Police Dep’t,
445 F.3d 460, 465 (D.C. Cir. 2006).

                               II

     We first consider whether Davis must bring his equal
protection challenge by means of a habeas petition. The answer
turns on whether his claim for relief is at the “core of habeas.”
The Supreme Court has held that Congress has channeled state
prisoners’ claims for relief – however styled – into habeas
alone if the prisoners seek a remedy that is at the “core of
habeas.” See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)
(quoting Preiser v. Rodriguez, 411 U.S. 475, 487 (1973)). In
order to determine whether Davis, a federal prisoner, must
bring his equal protection challenge by means of a habeas

    1
      From this point forward, references to Davis’s arguments
mean those made by the amicus on his behalf. We appreciate the
amicus counsel’s able assistance in this case.
                                5

petition, this court must resolve two interrelated questions:
Does the scope of the habeas-channeling rule differ for federal
and state prisoners? And is the rule for federal prisoners so
broad that it includes equal protection challenges to Guidelines
amendments?

     The modern habeas-channeling rule emerged in Preiser v.
Rodriguez, when the Supreme Court held that a prisoner may
not challenge “the fact or duration of his confinement” by
means of an action brought under 42 U.S.C. § 1983. 411 U.S.
at 489. The state prisoners in Preiser alleged that their period
of incarceration had been unlawfully extended when the New
York State Department of Correctional Services revoked their
good-conduct credits towards early release. Id. at 476-77. The
Court held that Congress set out the procedures prisoners must
follow to attack their confinement in the habeas statute. To
allow them to pursue release by other means would frustrate
the intent of Congress. Id. at 489-90.

     We applied Preiser’s habeas-channeling rule fifteen years
later in Chatman-Bey v. Thornburgh, 864 F.2d 804, 808-10
(D.C. Cir. 1988) (en banc). That case was distinguishable from
Preiser in two ways. First, it involved a federal, not state,
prisoner. Id. at 808-09. Second, that prisoner would not
necessarily secure an earlier release if he succeeded on the
merits of his claim. Success on the merits would have won him
nothing more than an earlier appointment with the parole
board, which retained discretion to deny him parole. Id. at 809.
We saw no legal significance in either distinction. With regard
to the first distinction, we noted that channeling federal
prisoners’ claims into habeas raised even fewer concerns than
channeling state prisoners’ claims because federal prisoners
have greater access to federal courts. Id. (citing Preiser, 411
U.S. at 501 (Brennan, J., dissenting)). Regarding the second
distinction, we explained that “Preiser cannot . . . be limited to
                               6

[claims that] would result in immediate release or a definite
reduction in the actual amount of time to be spent in prison.”
Id. Preiser taught us that “Congress’ provision of an express
remedy for unlawful detentions means” that it intended
prisoners to rely on that remedy exclusively. Id. This intention
covered all claims relating to terms of detention, we reasoned,
including Chatman-Bey’s claim “that he [was] being deprived
of the chance to secure his release.” Id.

     Both Heck v. Humphrey, 512 U.S. 477 (1994), and
Edwards v. Balisok, 520 U.S. 641 (1997), the next two
Supreme Court cases to apply Preiser’s habeas-channeling
rule, involved state prisoners whose successful claims would,
like those of the prisoners in Preiser, result in earlier or
immediate release. Heck, 512 U.S. at 479-80; Balisok, 520 U.S.
at 648. Each decision described the rule in terms that cast doubt
on our view, expressed in Chatman-Bey, that its scope
extended beyond claims for immediate release or a definite
reduction in the length of imprisonment. In both cases, the
Court stated that a prisoner must bring his claim in habeas if “a
judgment in [his] favor . . . would necessarily imply the
invalidity of his conviction or sentence . . . .” Heck, 512 U.S.
at 487 (emphasis added); Balisok, 520 U.S. at 643 (quoting
Heck, 512 U.S. at 487).

     In Anyanwutaku v. Moore, we relied on the fact that the
plaintiffs in Heck and Balisok were state prisoners to hold that
prisoners in the custody of the District of Columbia are
required to bring their claims in habeas only when success on
the merits would “necessarily imply, or automatically result in,
a speedier release from prison.” 151 F.3d 1053, 1056 (D.C. Cir.
1998) (internal quotation marks omitted). The Anyanwutaku
habeas-channeling rule for District prisoners was narrower
than the Chatman-Bey rule for federal prisoners. It channeled
into habeas only claims that would guarantee a speedier release
                                7

from prison. The Anyanwutaku panel distinguished
Chatman-Bey on the basis that it “dealt expressly with federal
prisoners.” Id. at 1057. In light of this distinction, the panel
declined to “decide whether Chatman-Bey ha[d] any
continuing vitality after Heck and Balisok.” Id. As a result, we
were left with a narrow habeas-channeling rule for state and
District prisoners and a broad rule for federal prisoners.

     Two years later, we were required to confront the issue
Anyanwutaku “left open” – Chatman-Bey’s “‘continuing
vitality after Heck and Balisok.’” Razzoli v. Fed. Bureau of
Prisons, 230 F.3d 371, 375 (D.C. Cir. 2000) (quoting
Anyanwutaku, 151 F.3d at 1057). Razzoli involved a federal
prisoner who brought an action challenging the decision of the
United States Parole Commission to delay his eligibility for
parole by two years. Razzoli, 230 F.3d at 373. Because success
on the merits would entitle Razzoli to earlier consideration for
parole, but not necessarily earlier release from prison, the rule
in Chatman-Bey required him to seek relief in habeas, but the
rule in Anyanwutaku did not. Deciding that Heck and Balisok
had not “flatly contradict[ed]” the Chatman-Bey holding, id. at
375, we held that a federal prisoner must still bring his claim in
habeas even when success on the merits “would have a merely
probabilistic impact on the duration of custody.” Id. at 373.

     Davis does not dispute that, under our decision in Razzoli,
he must bring his equal protection challenge by means of a
habeas petition even though his claim has only a “probabilistic
impact on the duration of custody.” If his equal protection
challenge succeeds, Davis is at best one step closer to an earlier
release from prison. A victory would not secure his immediate
release or even a reduction in his time served because the
district court would retain discretion to deny him any sentence
reduction under § 3582(c)(2) even if he were to prevail on his
equal protection challenge. See Dillon v. United States, __ U.S.
                               8

__, 130 S. Ct. 2683, 2691-92 (2010). Under Razzoli, that
makes no difference for federal prisoners. Razzoli channels
their claims into habeas based on the possibility of an earlier
release, not on its certainty. See Razzoli, 230 F.3d at 373.

     Seeking to avoid the force of Razzoli, Davis argues instead
that two Supreme Court decisions – Wilkinson and Skinner –
have undermined its reasoning. As Davis points out, we are not
bound by circuit precedent that has been “eviscerated by
subsequent Supreme Court cases.” Dellums v. U.S. Nuclear
Regulatory Comm’n, 863 F.2d 968, 978 n.11 (D.C. Cir. 1988).

     The Razzoli court offered four reasons for its decision to
retain Chatman-Bey’s broader habeas-channeling rule for
federal prisoners instead of taking direction from Heck and
Balisok. 230 F.3d at 375-76. First, both Heck and Balisok
involved claims that would have a definite impact on the
duration of custody, and the Supreme Court had yet to decide
whether a “probabilistic” claim like Razzoli’s “need be
brought in habeas.” Id. at 375. Second, the Razzoli panel
reasoned that habeas cannot be exclusive if it is not available,
and habeas is at least available for “probabilistic” claims. Id.
Third, the Seventh Circuit had interpreted Preiser, Heck, and
Balisok to call for habeas-channeling even of “probabilistic”
claims. Id. at 376. Fourth, the Supreme Court had yet to decide
a habeas-channeling case that involved federal prisoners,
leaving the panel without guidance on whether the distinction
between federal and state prisoners was significant. The panel
decided it was significant because extending Anyanwutaku’s
narrower rule to federal prisoners might lead to congestion in
the D.C. Circuit. The habeas statutes require prisoners to bring
their petitions in the places they are imprisoned or were
sentenced. This works to distribute prisoners’ cases across the
nation. By contrast, many other federal prisoner causes of
action could be brought in the D.C. Circuit, where many of the
                               9

federal agencies that might be defendants, like the
Commission, are found. Id.

     Because three of these four reasons are no longer sound,
we overturn Razzoli. Like Razzoli, the state prisoners in
Wilkinson v. Dotson challenged their parole eligibility dates,
and success on the merits of their claims would not necessarily
have resulted in earlier release. Wilkinson, 544 U.S. at 76-77.
Confronting such “probabilistic” claims for the first time, the
Supreme Court held that they need not be brought in habeas.
Claims that “will not necessarily imply the invalidity of
confinement or shorten its duration” are not at the “core” of
habeas and therefore may be pursued through other causes of
action. Id. at 82 (emphasis added). After Wilkinson, the
Seventh Circuit no longer channels “probabilistic” claims into
habeas. See, e.g., Grennier v. Frank, 453 F.3d 442, 444 (7th
Cir. 2006).

     In Skinner v. Switzer, the Supreme Court suggested that
habeas might not even be available for “probabilistic” claims,
undercutting another reason for the Razzoli rule. __ U.S. __,
131 S. Ct. 1289, 1299 (2011) (“Switzer has found no case . . . in
which the Court has recognized habeas as the sole remedy, or
even an available one, where the relief sought would neither
terminat[e] custody, accelerat[e] the future date of release from
custody, nor reduc[e] the level of custody.” (quoting
Wilkinson, 544 U.S. at 86 (Scalia, J., concurring)) (alterations
in original)). In other words, “probabilistic” claims may not
even lie within the bounds of habeas, much less at its core. If
habeas is not even “proper” for claims with only a probabilistic
impact on custody, see Razzoli, 230 F.3d at 375, it could not be
the case that Congress intended that prisoners asserting such
claims should be limited to habeas.
                              10

     Because they involve state prisoners, Wilkinson and
Skinner leave untouched the Razzoli panel’s final reason for
adopting a broad habeas-channeling rule for federal prisoners:
the concentration in the D.C. Circuit of the agencies commonly
named in federal prisoner actions. See Razzoli, 230 F.3d at 376.
We hold that this reason is not strong enough, standing alone,
to support the continued use of the Razzoli rule. Statutes and
rules governing venue are adequate to protect the interests of
justice in other cases. See Starnes v. McGuire, 512 F.2d 918,
929–33 (D.C. Cir. 1974) (en banc). We see no reason they
cannot work just as well here. Anxiety over case congestion
cannot foreclose a remedy created by Congress, as with the
Declaratory Judgment Act, or by the Constitution, as with
Bivens.

     Acknowledging the weakness of the venue consideration,
Appellee’s Br. 30, the Commission insists that there is another
distinction between state and federal prisoners that justifies
Razzoli’s broader habeas-channeling rule for federal prisoners:
They have readier access to federal courts. Appellee’s Br.
19-30. The Commission argues that Razzoli’s broader rule
would not be appropriate for state prisoners because the high
procedural barriers of the habeas statute would undermine
§ 1983’s policy of providing access to federal courts for
victims of state abuses of civil rights. This argument does not
amount to much. It might be true that a broad
habeas-channeling rule would be inappropriate for state
prisoners, but this argument does not explain why a narrow
habeas-channeling rule is not also appropriate for federal
prisoners. Our decision in this case will neither advance nor
inhibit § 1983’s policy. Federal prisoners are unlikely to bring
claims arising from their imprisonment by means of this
statute, which creates a cause of action against individuals
acting under color of state or District of Columbia law. The
                                  11

Commission’s reasoning does not justify perpetuating
Razzoli’s distinction between state and federal prisoners.

       Because the Supreme Court has knocked out three of the
pillars on which Razzoli rests, we now allow that holding to
fall. 2 Adopting Wilkinson’s habeas-channeling rule, we hold
that a federal prisoner need bring his claim in habeas only if
success on the merits will “necessarily imply the invalidity of
confinement or shorten its duration.” Wilkinson, 544 U.S. at
82. Otherwise, he may bring his claim through a variety of
causes of action. 3 And so it is with Davis. Success with his
equal protection challenges to Amendment 706 or Amendment
750 will not “necessarily imply the invalidity of [his]
confinement or shorten its duration.” Id. Success would do no
more than allow him to seek a sentence reduction, which the
district court retains the discretion to deny. 18 U.S.C.
§ 3582(c)(2). His claim for declaratory relief avoids the
habeas-channeling rule we announce today, and its dismissal
was improper. In so holding, we take no position on whether

     2
       In so doing, we acknowledge that a prior panel of this court
reaffirmed Razzoli in the wake of Wilkinson. See Davis v. Fed.
Bureau of Prisons, 334 Fed. App’x 332 (D.C. Cir. 2009). Because it
was unpublished, while that decision is precedential, it is not binding
on this panel. See In re Grant, 635 F.3d 1227, 1232 (D.C. Cir. 2011).
Moreover, it issued before the Supreme Court’s decision in Skinner
further undermined Razzoli.
     3
       Our decision to reject the distinction between state and federal
prisoners for the purposes of habeas-channeling is consistent with
the congruity the Supreme Court has generally recognized in the area
of habeas. For example, in Davis v. United States, the Court held that
the grounds for habeas relief are the same for state and federal
prisoners. 417 U.S. 333, 344 (1974); see also Wilkinson, 544 U.S. at
87 (Scalia, J., concurring) (expressing concerns about creating
habeas incongruity between state and federal prisoners).
                               12

dismissal for failure to state an equal protection claim might
otherwise be proper.

                               III

     The district court also dismissed Davis’s Bivens action for
lack of subject matter jurisdiction because it found the claim
“patently insubstantial.” Davis, 812 F. Supp. 2d at 2. We
disagree with that finding. We have cautioned that “patently
insubstantial” presents an especially high bar for dismissing a
claim for lack of subject matter jurisdiction and is no substitute
for a dismissal on the merits under Rule 12(b)(6). Best v. Kelly,
39 F.3d 328, 330-31 (D.C. Cir. 1994). Patently insubstantial
claims must be “essentially fictitious,” consisting of such
things as “bizarre conspiracy theories, . . . fantastic
government manipulations of [the claimant’s] will or mind,
[or] supernatural intervention.” Id. at 330.

     Davis’s complaint is admittedly flawed under Bivens, and
possibly fatally so. He does not identify an individual federal
officer, and he does not request damages. See Correctional
Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (stating that
Bivens recognizes a cause of action for damages against federal
officers in their personal capacity). But Davis’s claim, flawed
though it may be, is not based on plainly fictitious allegations,
and his pleading errors may be corrected through the liberal
construction or amendment we are accustomed to providing a
pro se prisoner. Of course, his claim might also be dismissed
for failure to state a claim. We take no view on that matter.
What we do determine, however, is that the district court had
jurisdiction to take up the merits of his inartfully pled Bivens
claim.
                             13

                             IV

    For the foregoing reasons, we reverse the district court’s
dismissal of Davis’s complaint and remand for further
proceedings consistent with this opinion.

                                                  So ordered.
