 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 9, 2016               Decided July 28, 2017

                        No. 15-7153

                   MICHAEL D. HURD, JR.,
                       APPELLANT

                              v.

           DISTRICT OF COLUMBIA, GOVERNMENT,
                        APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:15-cv-00666)


     Eric C. Rowe argued the cause for appellant. With him on
the briefs was C. Allen Foster.

     Mary L. Wilson, Senior Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued
the cause for appellee. With her on the brief were Karl A.
Racine, Attorney General, Todd S. Kim, Solicitor General, and
Loren L. AliKhan, Deputy Solicitor General.

   Before: PILLARD, Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.

    Opinion for the Court filed by Circuit Judge PILLARD.
                              2
   Dissenting opinion filed by Senior Circuit Judge
RANDOLPH.

     PILLARD, Circuit Judge: In 2007, the Federal Bureau of
Prisons released Michael Hurd from prison after he had served
roughly 13 months of a 42-month sentence. If that release were
mistaken and quickly recognized as such, a prompt arrest and
re-incarceration would seem unproblematic. But the Bureau of
Prisons discharged Hurd under circumstances that he
reasonably believed reflected a deliberate sentence reduction.
Indeed, Hurd remained in the District of Columbia and for
three years submitted to supervision by the U.S. Parole
Commission and the Court Services and Offender Supervision
Agency (CSOSA) for the District of Columbia before the
Parole Commission recommended his release from federal
custody. Federal authorities discharged Hurd from supervised
release in March of 2010. In 2011, Hurd pleaded guilty to
marijuana possession in D.C. Superior Court and was
sentenced to three consecutive weekends in the D.C. jail. After
his second weekend duly serving this sentence, the D.C.
Department of Corrections—without explanation or
opportunity to be heard—disregarded the Superior Court order
specifying that Hurd was “to be released on Sunday, October
2, 2011, at 7 p.m.” and instead kept him imprisoned for an
additional 27 months, apparently the remainder of his original
sentence. Thus, more than four years after his release from
federal prison, Hurd’s weekend stint for marijuana possession
stretched into two years in jail.

     On November 16, 2011, Hurd filed a habeas petition
against the United States in the D.C. Superior Court
challenging his confinement as a violation of procedural and
substantive due process. The court denied his petition from the
bench in July 2012. Hurd appealed that decision to the D.C.
Court of Appeals, but the court failed to act for another year
                               3
and a half. By that point, Hurd had served the balance of his
initial sentence and been released. The Court of Appeals
dismissed his appeal as moot.

    Hurd then filed in federal district court this damages action
against the District of Columbia under 42 U.S.C. § 1983, again
pursuing both procedural and substantive due process claims.
The district court dismissed his substantive due process claim
as precluded by the D.C. Superior Court’s 2012 decision
denying his habeas petition against the United States, and
dismissed both claims under Federal Rule of Civil Procedure
12(b)(6). See Hurd v. D.C., 146 F. Supp. 3d 57 (D.D.C. 2015).

     We conclude that the Superior Court’s 2012 decision lacks
the preclusive effect the district court perceived. Because Hurd
was unable to obtain a decision on his habeas appeal once he
was no longer in custody, and because section 1983 claims
cannot be joined in a habeas proceeding, the Superior Court’s
unreviewed bench ruling was not the result of a full and fair
opportunity to litigate.

     On the merits, Hurd’s complaint states a legally actionable
procedural due process claim. His liberty interest sufficed to
require that he be afforded some kind of process before he was
locked up again. As for Hurd’s substantive due process claim,
the district court erred in dismissing that claim based on
material beyond the complaint, and not incorporated by
reference in it, without converting the motion to dismiss into
one for summary judgment as contemplated by Federal Rules
of Civil Procedure 12(d) and 56. We accordingly remand the
case to the district court for further proceedings.

                       I. Background

     On appeal from an order granting a motion to dismiss for
failure to state a claim under Federal Rule of Civil Procedure
                               4
12(b)(6), the relevant facts are those alleged in the complaint,
taken in the light most favorable to the plaintiff and with all
reasonable inferences drawn in his favor. Accordingly, except
as otherwise noted, this factual background is based on the
complaint.

     Hurd was an active duty Marine from 1997 to 2001, and a
Marine Corps reservist from 2001 to 2005. In 2006, after he
pleaded guilty to possessing cocaine and an unregistered
firearm in violation of D.C. law, the D.C. Superior Court
sentenced Hurd to 42 months’ imprisonment with a three-year
term of supervised release. Hurd began serving his sentence at
a federal prison in West Virginia on September 21, 2006. If
Hurd had served the entirety of that term, he would have been
released from prison in March of 2010.

     The federal prison released Hurd in June 2007 without
explanation. “At the time of his release, he apparently believed
that his motion for a sentence reduction had been successful.”
Hurd, 146 F. Supp. 3d at 59-60. Hurd then served his three-
year term of supervised release. During that period, as the
District acknowledges, Hurd remained in the District of
Columbia and regularly submitted to monitoring and drug tests.
Hurd failed several drug tests and he was arrested three times
but never convicted. Def.’s Mot. Dismiss Ex. 5, at 2, 27.
Despite those violations of the terms of supervised release, the
Parole Commission decided that letters of reprimand sufficed,
id. at 29, 37-39, and the court did not revoke Hurd’s supervised
release. The three-year period after Hurd’s June 2007
discharge from prison—years that all parties then believed
constituted his post-imprisonment term of supervision—
expired on July 18, 2010. By that time, the conduct of the
federal prison that released him, the halfway house where he
lived during his first few weeks out of prison, the Parole
Commission, and the Court Services and Offender Supervision
                                  5
Agency that regularly monitored him all reinforced Hurd’s
belief that he had been deliberately released from prison and
had fully served his 2006 sentence.

     Hurd pleaded guilty to possession of marijuana almost a
year later, in September 2011, when possession of less than two
ounces of marijuana was still a crime under D.C. law.
Compare D.C. Code Ann. § 48-904.01(d)(1) (2010) (making
marijuana possession a misdemeanor punishable by up to 180
days in jail), with D.C. Code Ann. § 48-904.01(a)(1)(A) (2015)
(legalizing possession of two ounces or less). The Superior
Court allowed Hurd, who had stable employment at the time,
to serve his nine-day sentence in a local jail over the course of
three weekends. He reported to D.C. jail on a Friday night and
was released two days later. He returned the following
weekend. But on Sunday, October 2, 2011, the D.C.
Department of Corrections refused to release him. Prison
personnel informed Hurd more than 50 months after his release
from prison that he had 27 months of imprisonment still to
serve on his 2006 sentence. 1 He was not given any prior notice
or opportunity for a hearing to contest his re-incarceration.
Without any assertion by federal authorities of an interest in
taking Hurd back into federal custody, the D.C. Department of
Corrections continued to hold Hurd for almost two years.

    Hurd spent the ensuing years challenging his
imprisonment. In November 2011, a few weeks after the
District re-imprisoned him, Hurd petitioned the D.C. Superior
Court on substantive and procedural due process grounds for
habeas corpus relief against the United States (on behalf of

1
  It is unclear why Hurd would have 27 months left on his 2006
sentence if he served only 13 months of a 42-month sentence. The
simple math would suggest he had 29 months remaining. The
District assures us, however, that the underlying sentence calculation
is not at issue in this dispute. Appellee Br. 7 n.1.
                               6
which the District appeared to be holding him). The Superior
Court sought and timely received responses from the United
States and the District of Columbia, but Hurd’s petition then
languished. After almost seven more months, Hurd filed a
second petition requesting emergency relief.

     The Superior Court held argument on the petition in July
2012. Hurd’s attorney attempted to put into evidence certain
D.C. Department of Corrections documents that, she claimed,
falsely stated that the Superior Court re-sentenced Hurd on
October 2 and gave him a hearing on October 3, 2011, i.e.,
when it kept him incarcerated at the end of the second weekend
of his marijuana sentence. Hurd’s counsel proffered the
documents as a fabrication, and evidence of the District’s
groundless, post hoc effort to paper over its error. See Suppl.
App. 39 (defense counsel arguing that “the jail then went back
into the record and made up that he had had another hearing on
October 3rd, 2011, which never occurred, and that he was
sentenced on October 2nd, 2011, which is not a date that . . .
appears anywhere on Mr. Hurd’s records”), id. at 54 (Court
asking the District to respond to proffered documents and to
“the argument . . . that the Department of Corrections
overstepped its bounds and did that which is the exclusive
purview of the Court”). When the prosecutor argued that the
documents were unauthenticated, id. at 56, Hurd’s attorney
requested an opportunity to authenticate them at an evidentiary
hearing, id. at 59. The Superior Court denied the request,
expressing its desire to conclude the matter that day. Id.; see
id. at 72 (stating that there was “no foundation” for the
documents and “no witness here to address” them, but that “the
Court is not going to delay this ruling in order to bring
[witnesses] into court”). At the close of the argument, the court
denied Hurd’s habeas petition from the bench. See id. at 65-
80.
                                7
     Hurd appealed, but the D.C. Court of Appeals did not act
for 17 months. Hurd’s appeal remained unresolved even after
he was released on September 30, 2013. 2 Hurd argued that he
retained a live interest in that appeal because a successful
habeas petition was a prerequisite to a civil claim challenging
his re-incarceration. Hurd v. United States, No. 12-CO-1364,
slip op. at 2 (D.C. Dec. 18, 2013) (available at Joint App. 128).
The Court of Appeals rejected that argument and dismissed
Hurd’s appeal as moot. Id. The Court of Appeals cited
passages of the Supreme Court’s decision in Spencer v. Kemna,
523 U.S. 1, 17 (1998), and Justice Souter’s concurring opinion,
id. at 20-21, both of which concluded that a person released
from prison before a ruling on his habeas petition would not
necessarily be foreclosed from pursuing a section 1983 claim.

     Hurd then filed this suit in the district court against the
District of Columbia under 42 U.S.C. § 1983, seeking damages
for a period of re-incarceration that he claimed violated both
procedural and substantive due process. The District moved to
dismiss, first on the ground that the Superior Court’s denial of
Hurd’s habeas petition was res judicata. The District argued
that the Superior Court had rejected the same constitutional
claims “on the merits” and that that decision was entitled to full
faith and credit, and thus preclusive of Hurd’s damages claim.
Alternatively, the District contended that Hurd’s complaint
failed plausibly to allege a violation of procedural or
substantive due process. In support of its motion, the District
attached as exhibits its brief and some of the accompanying



2
   Here too, the numbers do not add up. The Department of
Corrections re-incarcerated Hurd on October 2, 2011. The
Department told him he had 27 months remaining on his sentence,
but released him on September 30, 2013—just shy of 24 months
later. Nothing in the record explains that discrepancy.
                               8
sentencing and supervision documents that it had filed before
the Superior Court in opposition to Hurd’s habeas petition.

     The district court dismissed Hurd’s substantive due
process claim as precluded and rejected both the substantive
and procedural due process claims for failure to state a claim.
First, the district court determined that “the Superior Court
resolved the merits of [Hurd’s] substantive due process claim,”
precluding Hurd’s parallel section 1983 claim. Hurd, 146 F.
Supp. 3d at 63. Proceeding to the merits, the district court,
following the parties’ lead, considered Hurd’s substantive due
process claim with reference to United States v. Merritt, 478 F.
Supp. 804 (D.D.C. 1979). The district court gleaned from
Merritt and other cases four factors that help determine
“whether re-incarceration is so unfair as to implicate
[substantive] due process concerns.” Id. at 66. These factors
were “(1) the length of mistaken release; (2) the government’s
level of culpability; (3) the prisoner’s knowledge of, or
contribution to, the mistake; and (4) the prejudice caused by re-
incarceration, i.e., how well the prisoner has readjusted to
society.” Id. The district court found re-incarceration non-
prejudicial to Hurd on the ground that he had failed to readjust
to society, and therefore held that his complaint did not make
out a substantive due process violation under Merritt. Id. at 69-
70. Finally, the district court dismissed Hurd’s procedural due
process claim on the ground that he lacked any protected liberty
interest—even after the date on which his original sentence of
imprisonment, had it been served continuously, would have
expired—“because, unlike a parolee, a mistakenly released
prisoner does not have a ‘legitimate claim of entitlement’ to
freedom.” Id. at 71 (quoting Henderson v. Simms, 223 F.3d
267, 274 (4th Cir. 2000)) (alterations omitted); see also Jenkins
v. Currier, 514 F.3d 1030, 1035 (10th Cir. 2008) (“Appellant
had no due process right to a hearing when he was taken back
into custody to complete his previously imposed sentence.”).
                                9
                        II. Discussion

                   A. Standard of Review

     We review de novo the district court’s grant of the
government’s Rule 12(b)(6) motion to dismiss. Banneker
Ventures, LLC v. Graham, 798 F.3d 1119, 1128 (D.C. Cir.
2015). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim crosses from conceivable
to plausible when it contains factual allegations that, if proved,
would ‘allow the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.’” Banneker
Ventures, 798 F.3d at 1129 (alteration omitted) (quoting Iqbal,
556 U.S. at 678). The court must “accept all the well-pleaded
factual allegations of the complaint as true and draw all
reasonable inferences from those allegations in the plaintiff’s
favor.” Id. “In determining whether a complaint fails to state
a claim, [the court] may consider only the facts alleged in the
complaint, any documents either attached to or incorporated in
the complaint and matters of which [the court] may take
judicial notice.” EEOC v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624 (D.C. Cir. 1997). If the district court
considers other facts, it must convert the motion to dismiss into
a motion for summary judgment and “provide the parties with
notice and an opportunity to present evidence in support of
their respective positions.” Kim v. United States, 632 F.3d 713,
719 (D.C. Cir. 2011); see Fed. R. Civ. P. 12(d).

               B. Claim and Issue Preclusion

     The district court held that Hurd’s substantive due process
claim was precluded by the July 2012 decision of the D.C.
                               10
Superior Court, but we hold that neither claim nor issue
preclusion applies.

     Claim preclusion bars a party from re-litigating a claim
that was or should have been asserted in a prior action. See
Nat. Res. Defense Council v. EPA, 513 F.3d 257, 260 (D.C. Cir.
2008). Issue preclusion makes “the determination of a question
directly involved in one action . . . conclusive as to that
question in a second suit.” B & B Hardware, Inc. v. Harris
Indus., Inc., 135 S. Ct. 1293, 1302 (2015). The federal full faith
and credit statute requires federal courts to give a D.C. court’s
decision “the same full faith and credit” as a D.C. court would.
28 U.S.C. § 1738; see Marrese v. Am. Acad. of Orthopaedic
Surgeons, 470 U.S. 373, 380 (1985).

     As a preliminary matter, it bears mention that Hurd’s
habeas petition was against the United States, whereas the
current case is against the District of Columbia. Neither the
parties nor the district court discussed whether or why
preclusion could apply despite that non-mutuality. Because
that question was not briefed and we find the district court’s
application of preclusion doctrine was erroneous on other
grounds, we do not resolve it.

     1. Claim Preclusion. The district court limited its analysis
to claim preclusion, using the familiar inquiry for assessing
whether a claim is precluded by a prior judgment. That inquiry
“focuses on the following questions: (1) whether the claim was
adjudicated finally in the first action; (2) whether the present
claim is the same as the claim which was raised or which might
have been raised in the prior proceeding; and (3) whether the
party against whom the plea [of preclusion] is asserted was a
party or in privity with a party in the prior case.” Patton v.
Klein, 746 A.2d 866, 870 (D.C. 1999) (per curiam). The
district court held that the “only real question” was “whether
                                11
the Superior Court denied the habeas motion on the merits.”
Hurd, 146 F. Supp. 3d at 63. Because the Superior Court had
not issued any written opinion, the district court obtained the
audio recording of the Superior Court’s hearing to discern that
the court had ruled against Hurd on the merits of his substantive
due process claim. Id.

     On appeal, Hurd contends that his section 1983 damages
claim was not the same as his habeas claim, because the
damages claim was not and could not have been raised in the
habeas proceeding. We agree. Preclusion is designed to limit
a plaintiff to one bite at the apple, not to prevent even that
single bite. It thus precludes later theories or pleas for relief
arising out of the same claim only if they could have been
asserted in the earlier case. As the Supreme Court has
observed, “claim preclusion generally does not apply where
‘[t]he plaintiff was unable to rely on a certain theory of the case
or to seek a certain remedy because of the limitations on the
subject matter jurisdiction of the courts.’” Marrese, 470 U.S.
at 382 (quoting RESTATEMENT (SECOND) OF JUDGMENTS
§ 26(1)(c) (1982)); see Wilson v. Hart, 829 A.2d 511, 514 n.4
(D.C. 2003).

      Cases applying claim preclusion where a different amount
of damages was available in the second action compared to the
first, see Dissent at 4-5, can hardly support preclusion where
no damages whatsoever were available in the first action. And
it is far from clear that Hurd could have joined his damages
claim with his habeas petition. See Dissent at 3. Generally
speaking, the Supreme Court has reserved habeas for those
seeking release from confinement and section 1983 for those
seeking other relief, such as damages. See Skinner v. Switzer,
562 U.S. 521, 525 (2011); see also Wolff v. McDonnell, 418
U.S. 539, 554 (1974) (“[H]abeas corpus is not an appropriate
or available remedy for damages claims.”); Preiser v.
                                12
Rodriguez, 411 U.S. 475, 493 (1973) (“[D]amages are not
available in federal habeas corpus proceedings.”); Blair-Bey v.
Quick, 151 F.3d 1036, 1041 (D.C. Cir. 1998) (assuming that
damages claims “clearly cannot be heard in habeas corpus”);
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (damages
not available in New York state habeas proceedings). Thus,
the issue here is not whether a litigant may have two chances
to obtain damages for an allegedly unlawful incarceration, but
whether he is entitled to any. See Burgos, 14 F.3d at 790
(“[W]here a plaintiff was precluded from recovering damages
in the initial action by formal jurisdictional or statutory
barriers, not by plaintiff’s choice, a subsequent action for
damages will not normally be barred by res judicata even where
it arises from the same factual circumstances as the initial
action.”); see also Rhodes v. Hannigan, 12 F.3d 989, 991 (10th
Cir. 1993); Ward v. McCaughtry, 234 F.3d 1275 (7th Cir.
2000) (unpublished order).

     2. Issue Preclusion. The District alternatively defends the
district court’s judgment on the ground that Hurd’s due process
claims are issue precluded. Under D.C. law, issue preclusion
generally prevents parties from re-litigating issues of fact or
law decided in an earlier proceeding if “(1) the issue was
actually litigated and (2) determined by a valid, final judgment
on the merits; (3) after a full and fair opportunity for litigation
by the parties or their privies; (4) under circumstances where
the determination was essential to the judgment, and not merely
dictum.” Davis v. Davis, 663 A.2d 499, 501 (D.C. 1995).
According to the District, the Superior Court already
determined that Hurd’s re-incarceration did not give rise to a
substantive due process claim.

     Issue preclusion does not apply because the defense was
neither raised nor decided below and therefore is forfeited. See
Taylor v. Sturgell, 553 U.S. 880, 907 (2008) (both forms of
                                13
preclusion are affirmative defenses that must be pled and
proved by the defendant); cf. Canonsburg Gen. Hosp. v.
Burwell, 807 F.3d 295, 302 (D.C. Cir. 2015) (“[A]n agency’s
failure to raise issue preclusion in its answer in federal court
may constitute waiver.”) (emphasis omitted). In any event,
even if the matter were not forfeited, issue preclusion cannot
equitably apply here, where the Superior Court judge, in ruling
from the bench, refused to consider documents Hurd’s lawyer
proffered or to provide an evidentiary hearing, and where Hurd
was released and the appeal dismissed as moot before the D.C.
Court of Appeals reached any judgment on the merits of his
petition. It has been “the general view of courts and
commentators that among the most critical guarantees of
fairness in applying collateral estoppel,” a.k.a. issue preclusion,
“is the guarantee that the party to be estopped had not only a
full and fair opportunity but an adequate incentive to litigate
‘to the hilt’ the issues in question.” Haring v. Prosise, 462 U.S.
306, 311 (1983). Consistent with that “to the hilt” proviso,
issue preclusion does not apply if “[t]he party against whom
preclusion is sought could not, as a matter of law, have
obtained review of the judgment in the initial action.”
RESTATEMENT (SECOND) OF JUDGMENTS § 28(1); see Davis,
663 A.2d at 503; Ali Baba Co. v. Wilco, Inc., 489 A.2d 418,
425 n.17 (D.C. 1984). The Restatement’s commentary is
explicit that, when the earlier “controversy has become moot”
on appeal, the unreviewed lower court judgment cannot have
preclusive effect. RESTATEMENT (SECOND) OF JUDGMENTS
§ 28 cmt. a. That mooted-appeal exception, embraced by D.C.
law, applies here. We decline to treat the mooted-on-appeal
Superior Court decision as dispositive of common issues also
at stake in Hurd’s damages case.

    The District appears to concede that the mooted-appeal
exception to issue preclusion would normally apply here, but
argues that we should nevertheless treat the Superior Court
                               14
judgment as preclusive because Hurd did not specifically ask
the D.C. Court of Appeals to vacate the Superior Court’s
decision. For that point, the District relies on United States v.
Munsingwear, Inc., 340 U.S. 36 (1950). In Munsingwear, the
government argued—as Hurd does here—that issue preclusion
did not apply because the claim for injunctive relief became
moot before the government had a chance to overturn it on
appeal. Id. at 39. In rejecting that argument, the Court cited its
“established practice,” consistent with “the duty of the
appellate court,” to “reverse or vacate the judgment below”
when a case became moot while on appeal. Id. at 39-40. This
“clears the path for future relitigation of the issues between the
parties and eliminates a judgment, review of which was
prevented through happenstance.” Id. at 39-40. Here, because,
the D.C. Court of Appeals did not vacate the Superior Court’s
order but merely dismissed the appeal as moot, the District
argues that the Superior Court decision is preclusive.

     For two reasons, we disagree with the District’s argument
that Munsingwear overrides the mootness exception to issue
preclusion.     First, the D.C. courts have not followed
Munsingwear to hold the mooted-appeal exception
inapplicable merely because a lower court’s judgment was not
vacated. We recognize that the D.C. courts have cited
Munsingwear regarding courts’ power to vacate opinions when
the controversies that spawned them became moot. See, e.g.,
Lewis v. Hotel and Rest. Emps. Union, 727 A.2d 297, 299-300
(D.C. 1999) (despite rule disfavoring vacatur when sought by
parties who caused mootness by voluntary action, vacatur was
appropriate at government’s behest where new legislation
mooted claims); Wheeler v. Goulart, 623 A.2d 1177, 1177
(D.C. 1993); Howell v. United States, 455 A.2d 1371, 1372 n.1
(D.C. 1983) (en banc). But the District has pointed to no case,
nor are we aware of any, in which a D.C. court held that a
party’s failure to seek vacatur defeated the mootness exception
                               15
to issue preclusion.        See RESTATEMENT (SECOND) OF
JUDGMENTS § 28 Reporter’s Note (cautioning that the
Munsingwear rule “does not appear to have gained adherence
in the courts of the states”).

      Second, even if the D.C. courts embraced that aspect of
Munsingwear, we would not apply it here. The Munsingwear
rule involves “equitable” considerations and it gives way when
“fairness” requires. See U.S. Bancorp Mortg. Co. v. Bonner
Mall P’ship, 513 U.S. 18, 25 (1994). In Munsingwear, the
government had “acquiesced in the dismissal” yet failed to seek
vacatur. 340 U.S. at 40. The Court held that, “having slept on
its rights,” the government could not avoid the preclusive effect
of the district court judgment. Id. at 41. Hurd, in contrast,
never acquiesced in the dismissal of the habeas petition
asserting his due process claims, and he did not cause his own
appeal to be mooted by voluntary action. See Lewis, 727 A.2d
at 299-300 (noting that the “principal factor to be considered”
in whether to vacate mooted decision is “whether the party
seeking relief from the judgment below caused the mootness
by voluntary action”); U.S. Bancorp Mortg., 513 U.S. at 24
(same). Rather, Hurd urged the D.C. Court of Appeals to
decide his petition on its merits precisely to remove any bar
against a subsequent action for damages. In rejecting Hurd’s
concerns about the potential adverse effects of the Superior
Court’s order, the D.C. Court of Appeals cited the Supreme
Court’s opinion in Spencer v. Kemna, 523 U.S. 1, 17 (1993),
and Justice Souter’s concurrence, id. at 20-21, which held that
the prospect of a future damages action under section 1983
could not sustain a habeas claim otherwise mooted by the
prisoner’s release. See Hurd v. United States, No. 12-CO-
1364, slip op. at 2 (D.C. Ct. App. Dec. 18, 2013). In the cited
passages, the Spencer Court noted that it was “not certain . . .
that a § 1983 damages claim would be foreclosed” by the denial
of habeas, id. at 17, and the four concurring justices elaborated
                                 16
that “a former prisoner, no longer ‘in custody,’ may bring a
§ 1983 action . . . without being bound to satisfy a favorable-
termination requirement that it would be impossible as a matter
of law for him to satisfy.” Id. at 21.

     We see no reason to treat Hurd’s due process claims as
barred simply because he failed to take the added step of filing
a motion for vacatur—particularly where the point was neither
pressed nor passed on below. D.C. law does not appear to
require it, and the D.C. Court of Appeals’ dismissal of Hurd’s
appeal is reasonably read as so confirming. We therefore hold
that the Superior Court’s unreviewed denial of Hurd’s habeas
petition does not preclude him from asserting his section 1983
due process claims against the District of Columbia.

               C. Sufficiency of the Complaint

    The district court also held that Hurd’s complaint failed on
the merits to state a claim on which relief could be granted.
Hurd claimed that his re-incarceration violated his rights to
procedural and substantive due process. 3 We address the due
process arguments in turn below.




3
  The District contends that Hurd’s complaint did not include a
separate claim for damages for an alleged violation of procedural due
process. But Hurd claimed that he was “deprived of” both procedural
and substantive due process, see First Am. Compl. ¶¶ 65-66, and he
asserted a right “to notice and a hearing,” id. at ¶ 62. He sought
“damages for violation of his constitutional right to liberty” as well
as “[s]uch other and further relief as the Court may deem just and
proper.” Id. at ¶ 74.
                               17
                1.   Procedural Due Process

     It is “undisputed that the District failed to provide Hurd
with any prior notice or hearing,” and therefore “the only
question is whether he had a protected liberty interest” that
would entitle him to some procedure before re-incarceration.
Hurd, 146 F. Supp. 3d at 71. The district court concluded that
Hurd lacked a “protected liberty interest in his continued
freedom.”      Id. at 71-72.      Unlike a parolee, who is
constitutionally entitled to a revocation hearing, Morrissey v.
Brewer, 408 U.S. 471, 482 (1972), the district court concluded
that “a mistakenly released prisoner does not have a legitimate
claim of entitlement to freedom.” 146 F. Supp. 3d at 71. This
categorical proposition cannot be squared with established law.
A prisoner who is released from prison early does in certain
circumstances have a protected liberty interest entitling him to
some form of process before re-incarceration, and the facts as
plausibly pleaded here show such an interest.

     The Due Process Clause may itself confer a procedurally
protected liberty interest on someone living openly in society
for years after what, unbeknownst to him, was his premature
release from prison. The Due Process Clause protects liberty,
U.S. Const. amend. V, XIV, and “freedom from bodily
restraint” is at the very core of that protected interest. Bd. of
Regents v. Roth, 408 U.S. 564, 572 (1972); see also
Washington v. Glucksberg, 521 U.S. 702, 719 (1997) (referring
to “the absence of physical restraint” as the uncontested
baseline liberty the Due Process Clause protects). The freedom
of a person to conduct his life physically unconfined by the
government is among the most fundamental of constitutional
liberty interests. The Supreme Court has repeatedly held that
in at least some circumstances, a person who is in fact free of
physical confinement—even if that freedom is lawfully
revocable—has a liberty interest that entitles him to
                               18
constitutional due process before he is re-incarcerated. See
Young v. Harper, 520 U.S. 143, 152 (1997) (pre-parole
conditional supervision); Gagnon v. Scarpelli, 411 U.S. 778,
782 (1973) (probation); Morrissey, 408 U.S. at 482 (parole).

     In Morrissey, for instance, the Court recognized that a
person who is out of prison under criminal justice supervision,
even though subject to re-incarceration at any time for
noncompliance with parole conditions, has a personal liberty
interest sufficient to trigger procedural due process protection
before his parole may be revoked. 408 U.S. at 482-86. In
descriptive terms equally applicable to Hurd’s circumstances
between his 2007 release and 2011 re-incarceration, Morrissey
noted that the “liberty of a parolee enables him to do a wide
range of things open to persons who have never been convicted
of any crime.” Id. at 482. Once the Parole Commission
released him into the community, Hurd, like a parolee, was able
to be—and was— “gainfully employed and [] free to be with
family and friends and to form the other enduring attachments
of normal life.” Id. For released prisoners and parolees alike,
“[s]ociety has a stake in whatever may be the chance of
restoring [the individual] to normal and useful life within the
law,” so society also “has an interest in not having parole
revoked”—nor re-incarceration imposed—“because of
erroneous information.” Id. at 484. Morrissey therefore held
that re-incarcerating a parolee “calls for some orderly process,
however informal.” Id. at 482.

     The district court distinguished Morrissey on the ground
that the parole at issue there “is served in lieu of prison time,”
while supervised release, which Hurd successfully completed
between 2007 and 2010, “is served only after the prison term
is ended.” 146 F. Supp. 3d at 71. The distinction between
parole and supervised release is not dispositive of Hurd’s
procedural due process claim. Indeed, the character of
                               19
supervised release as a follow-on to a sentence of
imprisonment, together with Hurd’s fulfillment of his entire
term of supervised release, reinforces the reasonableness of his
expectation that he had completed his sentence, and
strengthens his liberty interest. When a person lives in society
at large for years, goes through a transition that, by all
appearances, marks the formal end of the last stage of his
sentence, and only then faces re-incarceration on the ground
that he was prematurely released, the prospect of re-
incarceration has implications both for him and the other
individuals in his life as substantial as those of the parolee in
Morrissey.

     Hurd alleges facts that support a liberty interest
crystallized sufficiently by the close of the period of
supervision to entitle him to some kind of process before re-
incarceration. As Hurd was aware, his original sentence did
not impose a mandatory minimum. Joint App. 47. The Federal
Bureau of Prisons released him from a 42-month prison
sentence after 13 months. As shown by his submission to and
successful completion of three years of supervised release,
Hurd reasonably thought the release was deliberate and lawful.
Indeed, if he had believed it was an error that might be
discovered and corrected, it is hard to see why he would have
remained in the District of Columbia, successfully (though
apparently not flawlessly) serving out his prescribed term of
supervised release.

     The government documented the terms, both temporal and
otherwise, of Hurd’s supervision. His Certificate of Supervised
Release recited July 18, 2007 as the date of his release from
prison, enumerated the conditions of supervision, and, on
behalf of the Parole Commission, stated that Hurd was “to be
released to supervised release for a term of 36 months upon
release from imprisonment.” Joint App. 85. Hurd complied by
                                20
reporting to CSOSA officers regularly for three years,
submitting urine samples for drug testing, and training for and
obtaining a well-paid job. During 2007-2010, which all parties
treated as his post-incarceration period of supervised release,
the Parole Commission monitored Hurd and at no point
expressed any governmental interest in revoking his release
and re-incarcerating him. By regulation, once Hurd’s term of
supervision was complete, it was no longer subject to
revocation.      28 C.F.R. § 2.211(d).          Hurd’s many
communications and interactions with the government
reinforced his reasonable understanding that he was continuing
to serve his sentence and that he was making progress toward
unconditional release from criminal justice supervision.

     Additional features of this case underscore the value of
pre-deprivation process before re-incarcerating someone in
Hurd’s situation. As the district court acknowledged, the D.C.
Department of Corrections unilaterally re-incarcerated Hurd
without a warrant or a detainer despite the fact that the authority
to detain him was statutorily committed to the Federal Bureau
of Prisons. Hurd, 146 F. Supp. 3d at 68; see D.C. Code § 24-
201.26 (prisoners convicted in the District of Columbia “shall
be committed, for their terms of imprisonment … to the
custody of the Attorney General of the United States or his
authorized representative”). If Hurd had received notice and a
hearing before his re-incarceration, he might have raised an
ultra vires challenge to the District’s authority to detain him.
See 146 F. Supp. 3d at 68-69. A timely hearing could also have
allowed Hurd to present his substantive claims against re-
incarceration. It is difficult to imagine how the highly fact-
specific nature of the analysis the district court and the parties
deemed applicable, hinging substantially on whether Hurd had
successfully “turned his life around,” id. at 70, could have been
fairly assessed without Hurd having had any chance to present
his own case.
                               21
                2.   Substantive Due Process

     The parties and the district court analyzed Hurd’s
substantive due process claim challenging his reimprisonment
under Merritt, 478 F. Supp. 804, which the court identified as
“one of the early, leading cases finding that a released prisoner
could not be re-incarcerated.” 146 F. Supp. 3d at 65. Merritt
held that it violated “fundamental principles of liberty and
justice” to re-incarcerate an individual who had been
discharged from state prison and lived openly for three years
before the government realized that it should have moved him
to federal prison rather than discharging him upon completion
of his state sentence. The Merritt court started from the
premise that “[a] convicted person will not be excused from
serving his sentence merely because someone in a ministerial
capacity makes a mistake” by releasing him early. 478 F. Supp.
at 807. “Several additional factors must be present” to make
out a violation of substantive due process: “the result must not
be attributable to the defendant himself; the action of the
authorities must amount to more than simple neglect; and the
situation brought about by defendant’s release and his re-
incarceration must be unequivocally inconsistent with
fundamental principles of liberty and justice.” Id.

      On Merritt’s federal habeas petition, the court found that
“[r]esponsibility for the defendant’s release from prison and his
subsequent at-large status rest[ed] entirely with the
governmental authorities.” Id. The court considered the lack
of fault on Merritt’s part, the responsibility of the government
for the error, and the “actual consequences” of an order
requiring him to serve his federal sentence. Id. at 808. Merritt
concluded that “[a]n order requiring service of defendant’s
sentence now would needlessly jeopardize his long-term
adjustment to society, disrupt both his family and his family
life, and destroy his economic base, all for no purpose other
                               22
than to secure blind obedience to the 1973 sentence as it was
then imposed.” Id.

     Here, the district court restated the relevant considerations
under Merritt as “(1) the length of mistaken release; (2) the
government’s level of culpability; (3) the prisoner’s knowledge
of, or contribution to, the mistake; and (4) the prejudice caused
by re-incarceration, i.e., how well the prisoner has readjusted
to society.” 146 F. Supp. 3d at 66. The district court described
Hurd’s case as closely analogous to or perhaps stronger than
Merritt in most respects; the claim’s dispositive weakness, in
the district court’s view, was that Hurd had not reintegrated
into society as successfully as had Merritt. Several factors
were neutral or favored Hurd: The district court thought the
length of Hurd’s time at large could support relief, id. at 67;
that federal authorities, not the District of Columbia or Hurd,
were at fault for the release, id.; and that the “questionable
authority” of the District as opposed to the federal government
to take Hurd back into custody was “concerning,” id. at 68. The
court noted that “the District itself seems to have
acknowledged its lack of authority”; the court thus thought it
“arguable that Hurd’s imprisonment was ultra vires”—a factor
that “does weigh in plaintiff’s favor in the due process
analysis.” Id. at 68-69. The court also held, for the purposes
of the motion to dismiss, that “there is no indication that Hurd
was aware of the mistake until he was re-incarcerated.” Id. at
69.

     The court deemed decisive, however, that Hurd had not
“successfully turned his life around” during his supervised
release. Id. at 70. In its view, re-incarceration “is really only
fundamentally unfair” where the prisoner has become “a
success story.” Id. at 69. Taking judicial notice of exhibits the
District filed with its motion to dismiss, the court recognized
that Hurd “successfully completed his three-year term of
                               23
supervision, worked as a sheet metal journeyman, completed
an anger management course, and re-established his ties to his
wife and children.” Id. at 70. The court decided, however, that
his arrests and drug-testing records “negate[d] any argument
that [he] successfully turned his life around.” Id. The court
reached that conclusion despite acknowledging that Hurd’s
only conviction after his 2007 release was for marijuana
possession (and that was after his supervised release had
ended); his other arrests resulted either in acquittals or
dismissals; and the Parole Commission had decided not to
revoke his supervised release, but determined after three years
that he had successfully completed it. Id. at 60.

     For purposes of this appeal, we merely assume, in accord
with the parties’ and district court’s approach in this case, that
Merritt applies. Treating as relevant “how well the [ex-]
prisoner has readjusted to society,” id. at 66, we hold that
abbreviation of procedure in the district court requires a
remand. The district court relied on material beyond the
pleadings to grant the motion to dismiss without permitting
discovery and summary judgment briefing on the substantive
due process claim and, in particular, on the element the district
court deemed determinative and on which Hurd’s own
evidence would necessarily be highly relevant: whether he had
“turned his life around.” Id. at 70. In concluding that Hurd
was not entitled to relief under Merritt, the court looked beyond
the allegations of the complaint to evidence the government
submitted. The court noted that after his release Hurd, an
acknowledged addict, had repeatedly tested positive for drugs
and was arrested four times, once resulting in a conviction. Id.
Those facts were neither alleged in Hurd’s complaint nor
included in documents that the complaint incorporated by
reference.     Instead, the District of Columbia attached
documentary evidence of Hurd’s drug tests and arrest records
to its motion to dismiss. When a moving party introduces
                               24
“matters outside the pleadings” in support of a motion to
dismiss, Rule 12(d) requires the district court either to ignore
that evidence in deciding the motion under Rule 12(b)(6), or to
convert the motion into one for summary judgment. The
district court did neither.

     The District of Columbia argues that the court
appropriately considered the District’s documentary evidence
because it was filed in Hurd’s Superior Court habeas case and
was subject to judicial notice. A federal court may take judicial
notice of “a fact that is not subject to reasonable dispute” if it
either “is generally known within the trial court’s territorial
jurisdiction” or “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b). This court has for various purposes taken
judicial notice of court records from other cases. For example,
in Jankovic v. International Crisis Group, 494 F.3d 1080 (D.C.
Cir. 2007), a defamation case, we drew on a filing in an
unrelated case as a record of what was said. Id. at 1088. But
we did not, and could not, rely on it for the truth of the matter
asserted. Id.; see 21B Fed. Prac. & Proc. Evid. § 5106.4 (2d
ed.) (“[A] court cannot take judicial notice of the truth of a
document simply because someone put it in the court’s files.”).

     That common-sense limitation on judicial notice is
particularly apt in a case where the court purports to treat a
noticed fact as preclusive. “If it were permissible for a court to
take judicial notice of a fact merely because it has been found
to be true in some other action, the doctrine of collateral
estoppel would be superfluous.” United States v. Jones, 29
F.3d 1549, 1553 (11th Cir. 1994). The District argues that
judicial notice was appropriate here because Hurd did not
dispute the authenticity of the documents that the district court
considered. But acquiescing to the authenticity of documents
introduced in an earlier case is a far cry from agreeing that
                               25
those documents present a full or fair picture of a matter a party
has a right to dispute in a later case. That is especially true
here, where the factual issues include the highly contextual,
case-specific question of whether Hurd’s post-release conduct
rendered him ineligible for relief.

     In order to go beyond testing the adequacy of the
allegations of the complaint, a district court must follow the
procedures for converting a motion to dismiss into one for
summary judgment. The Federal Rules prescribe the process
for doing so: The court must give the parties notice of the
court’s intention to convert the motion and a reasonable
opportunity to discover and present relevant evidence. Fed. R.
Civ. P. 12(d). The text of Rule 12(d) specifies that, “[i]f, on a
motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under
Rule 56. All parties must be given a reasonable opportunity to
present all the material that is pertinent to the motion.” See
also Kim, 632 F.3d at 719; 3M Co. v. Boulter, 842 F. Supp. 2d
85, 96-97 (D.D.C. 2012). As a leading treatise explains, “[t]he
court, sua sponte, may convert a motion under Rule 12(b)(6)
into one for summary judgment, but the conversion by the
district judge should be exercised with great caution and
attention to the parties’ procedural rights.” 5C FED. PRAC. &
PROC. § 1366, Conversion of a Rule 12(b)(6) Motion Into a
Summary Judgment Motion (3d ed.). The district court has
discretion whether to consider affidavits or other factual matter
outside the pleadings but, as Rule 12(d)’s use of the obligatory
“must” makes plain, a court that decides to consider extra-
pleading material is required to convert the motion to dismiss
into one for summary judgment, with attendant procedural
protections. In such a case, the motion is decided under Rule
56’s standard, keyed to legal and evidentiary sufficiency, see
Celotex Corp. v. Catrett, 477 U.S. 317 (1986), rather than the
                               26
Rule 12(b)(6) standard of plausible pleading, see Iqbal, 556
U.S. 662.

     The district court did not take the requisite steps for
looking beyond the complaint to consider the material the
District of Columbia proffered. To do so, it would have had to
notify Hurd of its intention to consider factual submissions and
give him the opportunity to discover and offer evidence of his
own—whether to rebut any facts or negative inferences the
district court might draw from the government’s exhibits or to
provide facts and context in his own support. See Fed. R. Civ
P. 12(d), 56. By casting the issue as one of the district court’s
authority to take judicial notice at the motion-to-dismiss stage,
the District sought to have documents supportive of its view of
potentially disputed issues of fact considered as if they were
part of the plaintiff’s own allegations. But a movant may not,
consistent with the Federal Rules of Civil Procedure, support a
12(b)(6) motion by pointing to the content of evidence in other
cases to rebut facts adequately stated in an opposing party’s
pleading. The reasoning set forth in the district court’s opinion
therefore fails to support dismissal, and the case must be
remanded for further proceedings.

     We close by emphasizing again that this court has not yet
had occasion to set forth a framework for analyzing a
prematurely released prisoner’s re-incarceration, and we
merely assume without deciding here that Merritt applies. This
is not the type of due process issue that the courts have
“reduced to detailed and nearly mechanical rules,” but rather
one in which “the precepts are very general, and everything
turns on the circumstances.” DeWitt v. Ventetuolo, 6 F.3d 32,
32 (1st Cir. 1993). Other jurisdictions have looked to Merritt
for guidance. See Lima-Marin v. Raemisch, No. 16-cv-31216,
slip op. at 72-75, 103-105 (Colo. D. Ct., Arapahoe County,
May 16, 2017) (placing Merritt in the context of the
                               27
development of state and federal law governing constitutional
challenges to re-incarceration after early release); United States
v. Martinez, 837 F.2d 861, 864 (9th Cir. 1988) (collecting
cases). But since Merritt was decided, the Supreme Court has
emphasized that “only the most egregious official conduct”—
that which “shocks the conscience”—“can be said to be
arbitrary in the constitutional sense,” Cty. of Sacramento v.
Lewis, 523 U.S. 833, 846 (1998), and some courts have relied
on this language to narrow if not eliminate the possibility of
relief for persons re-incarcerated after premature release, see
Hawkins v. Freeman, 195 F.3d 732, 742 (4th Cir. 1999) (en
banc) (suggesting that the fact that “erroneous release … is a
surprisingly widespread and recurring phenomenon” weighs
against a finding of arbitrariness); but see United States v.
Grant, No. 16-4258, 2017 WL 2871372, at *3 (4th Cir. July 6,
2017) (assuming “that in some circumstances, federal common
law offers prisoners the possibility of credit for time
erroneously spent at liberty”). Still, Lewis recognized that
when officials have “the luxury” of “time to make unhurried
judgments,” and “such extended opportunities to do better are
teamed with protracted failure even to care, indifference is truly
shocking.” 523 U.S. at 854. If this case were to return to this
court, we trust that the parties would focus on whether Merritt
should become the law of this circuit, factoring in the Lewis
“shocks the conscience” threshold while accounting for the
arguably non-exigent circumstances involved in deciding
whether or not a prisoner who was released early should be re-
incarcerated years later.

                          Conclusion

     For the foregoing reasons, we vacate the district court’s
judgment and remand for further proceedings consistent with
this opinion.

                                                     So ordered.
     RANDOLPH, Senior Circuit Judge, dissenting: Michael D.
Hurd, Jr.’s complaint for damages, brought under 42 U.S.C.
§ 1983, alleged that the District of Columbia deprived him of
due process in violation of the Fifth Amendment to the
Constitution when he was reimprisoned after District authorities
discovered that he had been prematurely released from prison.
Hurd brought this action after he finished serving the balance of
his original sentence.

    One of the problems with Hurd’s § 1983 complaint, and the
only one I need address, is that before he filed this action in
federal court he brought the same claims of procedural and
substantive due process in a habeas corpus petition in the
District of Columbia Superior Court, and lost.

     Here, the district court ruled that the Superior Court’s
habeas decision precluded Hurd’s substantive due process
claim,1 but not his procedural claim that he was entitled to a
hearing before being reimprisoned. Procedural claims, the
district court reasoned, are “largely irrelevant” to habeas
petitions, so Hurd “could not have raised” such a claim. Hurd
v. D.C., 146 F. Supp. 3d 57, 63 n.3 (D.D.C. 2015). The source
of the district court’s theory is unclear. In D.C. courts and
elsewhere, procedural due process affects the legality of
detentions. See, e.g., Wells v. Golden, 785 A.2d 641, 643 (D.C.
2001); Hill v. D.C. Bd. of Parole, 766 A.2d 497, 498-500 (D.C.
2000). That is why Hurd raised the procedural issue in the
Superior Court.




     1
       The district court properly reviewed the habeas decision in
deciding to dismiss Hurd’s § 1983 action. See, e.g., Covad Commc’ns
Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005); Stanton
v. D.C. Court of Appeals, 127 F.3d 72, 76-77 (D.C. Cir. 1997). See
also In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 16-20 (1st Cir.
2003).
                                  2

     On appeal, Hurd argues that because the District of
Columbia Court of Appeals dismissed Hurd’s habeas appeal as
moot, the Superior Court’s decision lacks preclusive effect. But
Hurd never asked the D.C. Court of Appeals to vacate the
judgment denying his habeas petition and the Court of Appeals
never did so. As a result, the habeas decision retained its
preclusive force. That is the holding of United States v.
Munsingwear, Inc., 340 U.S. 36, 39-41 (1950). District of
Columbia law controls the preclusive effect of the habeas
judgment against Hurd, see Migra v. Warren City Sch. Dist. Bd.
of Educ., 465 U.S. 75, 80-81 (1983), and the District of
Columbia’s highest appellate court has endorsed the law as set
forth in Munsingwear. See, e.g., Lewis v. Hotel & Rest.
Employees Union, Local 25, AFL CIO, 727 A.2d 297, 299-302
(D.C. 1999); Wheeler v. Goulart, 623 A.2d 1177, 1177 (D.C.
1993) (per curiam); Smith v. Town Ctr. Mgmt. Corp., 329 A.2d
779, 780 (D.C. 1974).2

      The majority rejects claim preclusion on different grounds.
It first states that Hurd could not have raised his damages claim


     2
       The majority says that “D.C. courts have cited Munsingwear
regarding courts’ power to vacate opinions when the controversies that
spawned them became moot,” but argues that no D.C. court – at least
in cases involving issue preclusion – has enforced the Munsingwear
vacatur requirement. Maj. Op. 14-15. When the D.C. Court of
Appeals has discussed Munsingwear, however, it has noted the
consequences of failing to vacate the decision under review. The
decision would “remain in force unreviewed” and would permit “a
judgment, unreviewable because of mootness,” to “spawn[] . . . legal
consequences.” Lewis, 727 A.2d at 302 (internal quotation marks
omitted). The available evidence thus suggests that given the
opportunity, and in light of Hurd’s failure to request vacatur of the
habeas judgment, the D.C. Court of Appeals would enforce
Munsingwear and find Hurd’s claims precluded. “If there is hardship
in this case, it was preventable.” Munsingwear, 340 U.S. at 39.
                                  3

in the habeas petition. That is accurate. But there is no reason
why he could not have joined the § 1983 damages claim with the
habeas petition. The majority relies on Restatement (Second) of
Judgments § 26(1)(c) (1982) (stating claim preclusion
inapplicable when the “plaintiff was unable to rely on a certain
theory of the case or to seek a certain remedy because of the
limitations on the subject matter jurisdiction of the courts”), but
that Restatement provision is inapposite.3 Hurd’s damages
claim would have likely been contingent on him prevailing in
his habeas petition, Heck v. Humphrey, 512 U.S. 477, 489
(1994), but D.C. Superior Court Rule of Civil Procedure 18(b)
allows the joinder of such claims. The federal rules allow the
same. See FED. R. CIV. P. 18(b). See also Wolff v. McDonnell,
418 U.S. 539, 554 (1974). And the Superior Court would have
had jurisdiction over the separate § 1983 claim. See Haywood
v. Drown, 556 U.S. 729, 731 (2009); Smith v. D.C., 882 A.2d
778, 780-81 (D.C. 2005). That the “Supreme Court has reserved
habeas for those seeking release from confinement and section
1983 for those seeking other relief,” Maj. Op. 11, misses the
point. In light of Superior Court Rule 18(b), Hurd could have
joined a § 1983 claim with his habeas claim.

     Even if that were not the case, the District of Columbia’s
definition of “claim” for preclusion purposes does not depend on
the available relief. Under D.C. law the “nature and scope of a

     3
        Even if the Restatement provision were relevant, we must
follow District of Columbia law, not the views of the Restatement
drafters. See Migra, 465 U.S. at 80-81; Kansas v. Nebraska, 135 S.
Ct. 1042, 1064 (2015) (Scalia, J., concurring in part and dissenting in
part). That is especially so when, as here, District of Columbia courts
have rejected the precise Restatement subsection on which the
majority opinion relies. See Maj. Op. 11. Compare Shin v. Portals
Confederation Corp., 728 A.2d 615, 620 (D.C. 1999), with id. at 620
(Ruiz, J., dissenting). Dicta from Wilson v. Hart, 829 A.2d 511, 514
n.4 (D.C. 2003), does not change the analysis. See Maj. Op. 11.
                                 4

‘cause of action’ is determined by the factual nucleus, not the
theory on which a plaintiff relies.” Faulkner v. Gov’t Employees
Ins. Co., 618 A.2d 181, 183 (D.C. 1992). Here, Hurd’s habeas
petition and his § 1983 action arose from the same factual
nucleus and thus constituted the same “claim” under D.C.
preclusion law.

     The majority’s contrary view – that in order to have
preclusive effect, the available relief in the first proceeding must
meet or exceed the available relief in the second – finds no
support in D.C. law. D.C. courts have repeatedly held the
opposite. In Osei-Kuffnor v. Argana, 618 A.2d 712 (D.C. 1993),
for instance, the D.C. Court of Appeals rejected the plaintiff’s
argument that res judicata did not apply when the prior action
took place in a jurisdictionally-limited court. “Res judicata is
based on the premises that the aggrieved party should be given
but one opportunity to allege that wrong,” the court wrote, “and
where the facts that give rise to a legal action are fully litigated
in one forum, there is no rationale for relitigating those facts
elsewhere.” Id. at 715 (quotation and alterations omitted). “The
fact that the jurisdictional amount of the D.C. Superior Court is
greater than the jurisdictional amount of the Prince Georges
County District Court,” the court continued, “does not
demonstrate that the underlying facts and claims in the instant
case have not already been adjudicated in the Maryland case.”
Id. The court therefore upheld the dismissal of the complaint on
res judicata grounds. Id. Other decisions have reaffirmed this
holding. See Shin v. Portals Confederation Corp., 728 A.2d
615, 619–20 (D.C. 1999) (“This court has held that such a
discrepancy in the amount of available damages is not relevant
to whether res judicata bars a claim.”); Molovinsky v. Monterey
Co-op., Inc., 689 A.2d 531, 533 (D.C. 1996). See also Williams
v. Ward, 556 F.2d 1143, 1154 (2d Cir. 1977) (Friendly, J.)
(“[T]he mere fact that the remedy sought in one action is
different from that sought in another does not alone suffice to
differentiate the underlying claims.”). That the precluded party
                                  5

did not choose “the first forum with limited jurisdiction” has not
mattered under D.C. law. See Shin, 728 A.2d at 621 n.4 (Ruiz,
J., dissenting).

     It is true, as the majority notes, that the above cases
involved actions for damages in both the first and second
forums. Maj. Op. 11. But the reasoning in the decisions directly
applies to this case. An “aggrieved party should be given but
one opportunity to allege” a particular wrong, the court wrote in
Molovinsky, so claim preclusion may apply even when the first
forum “lacked the jurisdictional competence” to provide the
relief sought in the second action. 689 A.2d at 533.

     To be sure, no D.C. court has squarely held that a prior
habeas decision can preclude a later § 1983 action. But no D.C.
court has held the opposite. Because we must apply D.C.
preclusion law, see Migra, 465 U.S. at 80-81, the relevant
question is how the D.C. Court of Appeals would decide this
question. In this way, the case mirrors Gonzales v. California
Department of Corrections, 739 F.3d 1226 (9th Cir. 2014). In
Gonzales, the court analyzed whether under California law, a
prior habeas adjudication precluded the § 1983 action before the
court. Id. at 1230-32. California state courts had not decided
that precise question, but because “California’s doctrine of claim
preclusion does not require identity in relief sought,” the Ninth
Circuit unanimously held that the habeas adjudication could
preclude the § 1983 action. Id. at 1232. So too here.4

     4
      The majority states that “Hurd’s habeas petition was against the
United States, whereas the current case is against the District of
Columbia.” Maj. Op. 10. Yet the District of Columbia may have also
been a party to the habeas case. The Superior Court asked the “United
State’s [sic] Attorney’s Office and/or the District of Columbia
Attorney General's Office, as respondent(s),” to file responses to the
habeas petition, and the District of Columbia filed a response
contesting its inclusion in the case and addressing the merits. See
                                   6

     The Gonzales decision is no outlier. In Preiser v.
Rodriguez, 411 U.S. 475, 497, 500 (1973), for example, the
Supreme Court’s holding that habeas provided the exclusive
federal remedy for the restoration of good-conduct-time credits
depended in part on the prospect of state habeas decisions
precluding later § 1983 actions. See Williams, 556 F.2d at 1153
n.4. Our court and many other courts of appeals have also
recognized that federal habeas decisions may have preclusive
effect in later civil rights actions. See, e.g., Monk v. Sec’y of
Navy, 793 F.2d 364, 366-67 (D.C. Cir. 1986); Reaves v.
Pennsylvania Bd. of Prob. & Parole, 580 F. App’x 49, 53-54
(3d Cir. 2014) (per curiam); Hawkins v. Risley, 984 F.2d 321,
323 (9th Cir. 1993) (per curiam); Warren v. McCall, 709 F.2d
1183, 1183 (7th Cir. 1983); Williams, 556 F.2d at 1153-54
(Friendly, J.). See also Stanton v. D.C. Court of Appeals, 127
F.3d 72, 78 n.4 (D.C. Cir. 1997).


Order to Show Cause, Hurd v. United States, No. 05-FEL-4391 (D.C.
Super. Ct. Nov. 21, 2011); Non-Party District of Columbia
Department of Correction’s Response to Plaintiff’s Motion for Writ of
Habeas Corpus at 1-3, Hurd v. United States, No. 05-FEL-4391
(D.C. Super. Ct. Dec. 21, 2011). The D.C. Superior Court apparently
did not resolve the question whether the District of Columbia was a
party.

      Even if the District of Columbia was not a party, it is in privity
with the United States for this action. “Traditional categories of
privies” include “those whose interests are represented by a party to
the action.” Patton v. Klein, 746 A.2d 866, 870 (D.C. 1999) (per
curiam) (internal quotation marks omitted). In this case, the District
of Columbia stated in its habeas response that the United States
represented its interests. See District of Columbia Habeas Response
at 2. The United States was also only a party to the habeas case
because of its unique role in enforcing District of Columbia law. See,
e.g., D.C. Code § 23-101 (prosecution responsibilities); D.C. Code
§ 24-131 (parole responsibilities).
                                   7

    These cases and others support the conclusion that Hurd’s
§ 1983 action is precluded.5 I would therefore affirm the
judgment of the district court dismissing Hurd’s § 1983
complaint.




     5
      I express no view on whether Heck v. Humphrey, 512 U.S. 477
(1994), may also warrant dismissal of part or all of Hurd’s claims.
The parties did not brief the issue and the circuits are split. See Cohen
v. Longshore, 621 F.3d 1311, 1315-17 (10th Cir. 2010).
