230 F.3d 371 (D.C. Cir. 2000)
Kevin Razzoli, Appellantv.Federal Bureau of Prisons and United States Parole Commission, Appellees
No. 99-5289
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 2000Decided November 7, 2000

Appeal from the United States District Court for the District of Columbia(No. 99cv01711)
Anthony F. Shelley, appointed by the court, argued the  cause as amicus curiae for appellant.  With him on the briefs  was John D. Bates.
Kevin Razzoli, appearing pro se, was on the briefs for  appellant.
Madelyn E. Johnson, Assistant U.S. Attorney, argued the  cause for appellee.  With her on the brief were Wilma A.  Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.  Attorney.
Before:  Williams, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge:


1
This appeal puts in question the  relationship between an en banc decision of this court and two  recent Supreme Court cases.  The latter require a prisoner to  succeed in a habeas action before bringing a claim that  challenges, even indirectly, the duration of his custody--for  example a damages claim for due process violations made in  the course of a decision revoking good time credit.  See  Edwards v. Balisok, 520 U.S. 641 (1997).  Balisok has been  read as mandating the use of habeas only when the claim, if  successful, will inevitably necessitate invalidation of a decision  creating, extending, or refusing to curtail custody.  But in  Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988),  we found that habeas was the exclusive remedy even where a  claim's impact on custody was only probabilistic.  Chatman- Bey itself involved a decision on parole eligibility, a necessary  but not sufficient step toward the actual grant of parole. Concluding that there is no inescapable conflict between  Chatman-Bey and the later Supreme Court decisions, we  adhere to Chatman-Bey:  for a federal prisoner, habeas is  indeed exclusive even when a non-habeas claim would have a  merely probabilistic impact on the duration of custody.


2
*  *  *


3
Appellant Kevin Razzoli is a federal prisoner serving a  sentence for attempted murder.  He challenges an order by  the district court dismissing his claims against the Federal  Bureau of Prisons ("BOP") and the United States Parole  Commission for declaratory relief and damages under the  Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA").


4
Razzoli's current troubles started when a prison official at  the Allenwood Federal Correctional Institution claimed that  on July 23, 1995 he had found cocaine and a razor blade in  Razzoli's cell.  After a Unit Disciplinary Committee hearing,  Razzoli received a sanction that included the loss of 60 days  statutory good time credit.  A report on the incident was  forwarded to the FBI for investigation, but no new criminal  charges were brought against Razzoli.  After the Disciplinary  Committee action, but based on the same events, the United  States Parole Commission withdrew Razzoli's recommended  parole release date and established a new date twenty-four  months later, in effect delaying his eligibility for parole by  two years.


5
Razzoli filed a pro se complaint in district court here,  alleging that the BOP staged the incident on which the  actions of the Disciplinary Committee and Parole Commission  were based.  Although the complaint does not highlight the  difference, it suggests that the Disciplinary Committee found  him guilty only of possession and that the Parole Commission  found him guilty of possession with intent to distribute.  It  further alleges that the Parole Commission conspired with  the BOP and knowingly used false information against Razzoli.  The complaint says that Razzoli never received a copy of  any FBI report and suggests that the report must not have  supported the Parole Commission's determination.


6
Before the complaint was served on either of the federal  defendants, the district court dismissed the case sua sponte  for failure to state a claim on which relief could be granted. The court found that Razzoli's claims amounted to collateral  attacks on the actions of the Disciplinary Committee, and that  under Balisok and the key predecessor cases of Heck v.  Humphrey, 512 U.S. 477 (1994), and Preiser v. Rodriguez,  411 U.S. 475 (1973), "the sole federal remedy for challenging  the loss of good time credit is a petition for habeas corpus."Razzoli v. Federal Bureau of Prisons No. 99-1711 (D.D.C.  July 30, 1999).  Under Balisok, a non-habeas civil action by a  prisoner is not cognizable where " 'a judgment in favor of the  plaintiff would necessarily imply the invalidity of his conviction or sentence,' unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated."Balisok, 520 U.S. at 643 (quoting Heck, 512 U.S. at 487).


7
We review the district court's dismissal for failure to state  a claim de novo.  See Davis v. District of Columbia, 158 F.3d  1342, 1348 (D.C. Cir. 1998).  Dismissal under Rule 12(b)(6) is  proper if, taking all the material allegations of the complaint  as admitted and construing them in plaintiff's favor, we find  that he has failed to allege each of the material elements of  his cause of action.  See Taylor v. Federal Deposit Insurance  Corp., 132 F.3d 753, 761 (D.C. Cir. 1997);  see also Kowal v.  MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir.  1994).  In addition, we are bound to read the filings of a pro  se litigant liberally.  See Haines v. Kerner, 404 U.S. 519, 520  (1972);  Richardson v. United States, 193 F.3d 545, 548 (D.C.  Cir. 1999).  The application of Preiser, Heck, and Balisok  complicates our task, for we must find allegations that are not  only sufficient to make out claims under the statutes, but that  also do not trigger the habeas-channeling rule.  We appointed  amicus curiae to argue the issues for appellant.


8
The theory of Razzoli's Privacy Act claim is that BOP and  the Parole Commission violated 5 U.S.C. § 552a(e)(5) by  maintaining in their files and using a false record, the report  of the drug possession incident, even though they knew it to  be false.  We read the Privacy Act part of the complaint as  having two dimensions, one clearly running afoul of Balisok,  the other not so clearly.


9
What clearly runs afoul of Balisok is his apparent claim in  relation to the recision of good time.  If BOP knowingly  preserved and acted upon a totally invented record of drug  possession, plainly the recision of good time would have to be  overturned, thus accelerating Razzoli's release.  Indeed, Razzoli has already brought such a claim in the Middle District of  Pennsylvania in the form of an action under Bivens v. Six  Unknown Named Agents of Federal Bureau of Narcotics,  403 U.S. 388 (1971), and the Third Circuit has found it barred  under the Balisok doctrine.  See Razzoli v. Swinson, No.  97-7558, slip op. at 4-6 225 F.3d 650 (3rd Cir. June 1, 2000).


10
But the amicus contends that Razzoli frames a second  attack that implicates only the determination by the Parole  Commission to postpone his parole eligibility.  Under this  reading, Razzoli is arguing that the Parole Commission decision was based on addtional inaccuracies in his record--the  absence of the FBI report and the addition of "intent to  distribute" to the possesion charge.  The government resists  this interpretation, but we think it within the range of plausible interpretations given the alleged absence of the FBI  report from the record, the complaint's explicit attacks on the  decision of the Parole Commission, and the distinction (slightly submerged, to be sure) between the Disciplinary Committee's charge of possession and the Parole Commission's finding of possession with intent to distribute.


11
The Supreme Court's trilogy addressing the relation between petitions for habeas corpus and other prisoner claims  began with Preiser v. Rodriguez, 411 U.S. 475 (1973).  State  inmates who had been deprived of good time credit in prison  disciplinary proceedings brought actions under 42 U.S.C.  § 1983 seeking injunctive relief to compel restoration of the  credit.  The Court saw "the essence" and "traditional function" of habeas as being "to secure release from illegal  custody."  Id. at 484.  The Court found that an attack on  revocation of good time qualified as an attempt to secure such  release.  Such an attack is "just as close to the core of habeas  corpus as an attack on the prisoner's conviction, for it goes  directly to the constitutionality of his physical confinement  itself and seeks either immediate release from that confinement or the shortening of its duration."  Id. at 489.  More  critically, the Court found that the habeas remedy was exclusive.  Comparing the general language of § 1983 with the  specificity of the habeas statute and focusing on Congress's  clear intent to assure exhaustion of state remedies in the  latter, it found a congressional intent to provide only one  remedy for attacks on physical confinement.  Id. at 489-92.


12
In Heck v. Humphrey, 512 U.S. 477 (1994), the Court  extended Preiser to cover a prisoner's § 1983 claim for  damages for alleged constitutional violations in his arrest and  conviction, observing that "establishing the basis for the  damages claim necessarily demonstrates the invalidity of the conviction."  Id. at 481-82.  The Court went on to hold that  "in order to recover damages for allegedly unconstitutional  conviction or imprisonment, or for other harm caused by  actions whose unlawfulness would render a conviction or  sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been [overturned]."  Id. at 486-87.Finally, Balisok extended Preiser and Heck to cover a § 1983  damages action for procedural violations allegedly committed  in a prison disciplinary hearing that deprived the plaintiff  prisoner of good time credits.  The Court rejected any distinction between procedural and substantive claims, saying  that any such distinction "disregards the possibility, clearly  envisioned by Heck, that the nature of the challenge to the  procedures could be such as necessarily to imply the invalidity of the judgment."  Id. at 645.


13
In each of the cases of the trilogy, the plaintiff's establishment of his claim would itself have been sufficient to entitle  him to earlier release--subject, at least in the Balisok case, to  the possibility of renewed revocation of the good time credit  in a new hearing untainted by constitutional error.  See  Balisok, 520 U.S. at 647.  But in 1988 this court read Preiser  to require habeas for a federal prisoner's attack on a parole  eligibility decision, reversal of which would merely give him a  chance at earlier parole.  Chatman-Bey v. Thornburgh, 864  F.2d 804 (D.C. Cir. 1988).  We recognized both of the case's  arguable distinctions from Preiser:  first that Chatman-Bey  was a federal prisoner and second that success on his stated  claim would not lead either to immediate release or to a  definite reduction in sentence.  Id. at 808-10.  We also  rejected both, relying on the Preiser Court's finding of a  congressional determination that habeas be the exclusive  means for challenging the fact or duration of custody.  Id. at  808 n.4 ("in the most practical sense, parole eligibility 'implicates' the duration of confinement").  Application of  Chatman-Bey here funnels plaintiff's claim into habeas.


14
The amicus would have us hold that Chatman-Bey is no  longer controlling.  In Any anwutaku  v. Moore, 151 F.3d 1053  (D.C. Cir. 1998), we read the Preiser trilogy as not requiring  habeas for a District of Columbia prisoner's § 1983 attack on an adverse parole eligibility decision.  Instead, we saw it as  barring a § 1983 claim "only when, if successful, it would  'necessarily imply,' or automatically result in, a speedier  release from prison."  Id. at 1056.  We distinguished Chatman-Bey on the ground that it involved a federal prisoner,  and said that we need not consider whether it had any  "continuing vitality after Heck and Balisok."  Id. at 1057.Now we must.


15
Of course a Supreme Court decision flatly contradicting an  earlier circuit precedent would control.  See Dellums v. United States Nuclear Regulatory Comm'n 863 F.2d 968, 978 n.  11 (D.C. Cir. 1988).  But, faced with the issue Any anwutaku  left open, we find no such flat contradiction.  First, none of  the cases in the trilogy addressed claims with a merely  probabilistic impact on the duration of custody;  thus none  had occasion to rule definitely on whether such claims need  be brought in habeas.  Second, as we noted in Chatman-Bey,  the Supreme Court has made clear that habeas is proper for  such a claim.  See Braden v. 30th Judicial Circuit Court of  Kentucky, 410 U.S. 484 (1973), cited in Chatman-Bey, 864  F.2d at 807.  Third, although the Ninth Circuit has read  Balisok as inapplicable to attacks on parole eligibility decisions, saying that their success would not guarantee a reduction in confinement, Neal v. Shimoda, 131 F.3d 818, 824 (9th  Cir. 1997), the Seventh Circuit has given the trilogy a quite  different reading, saying that it calls for habeas exclusivity  whenever the proof necessary for a prisoner's claim "involves  the proof of a fact that would also be essential to a habeas  corpus action."  Clayton-EL v. Fisher, 96 F.3d 236, 242 (7th  Cir. 1996);  see also id. at 244.  Fourth, Chatman-Bey made  clear that a major implication of habeas exclusivity in cases  involving federal prisoners was its impact on venue.  See  Chatman-Bey, 864 F.2d at 805, 810-14.  In non-habeas federal prisoner actions, a plaintiff could almost always name a  defendant over whom the district court for the District of  Columbia would have personal jurisdiction.  But a habeas  challenge must be brought against the custodian, a rule that  channels such claims into the federal court with jurisdiction  over the claimant's prison.  Id.  That consequence is, of course, every bit as applicable here as in Chatman-Bey itself,  but had little or no relevance to Any anwutaku;  even if state  prisoners with probabilistic claims are relieved of the strictures of Balisok, the District of Columbia would generally not  be a possible site for litigation.


16
Finding Chatman-Bey alive and at worst only modestly  ailing, we conclude that Razzoli's Privacy Act claim--not only  in regard to the good time decision but also in regard to  parole eligibility--is not cognizable.  In one respect, however,  the district court erred on this claim:  it should have been  dismissed without prejudice.  If Razzoli is successful in overturning the Disciplinary Committee and Parole Committee  actions through a petition for habeas, he should be allowed to  bring his Privacy Act claim at that time.  See Fottler v.  United States, 73 F.3d 1064, 1065-66 (10th Cir. 1996).


17
There remains Razzoli's FOIA claim.  The district court  concluded that not only the Privacy Act but also the FOIA  claim was barred by Heck and Balisok.  We do not see the  logic.  A FOIA claim wins, generally speaking, if the plaintiff  has properly requested the document from the agency and no  exemption applies.  Razzoli evidently seeks the supposedly  exonerating FBI report.  Of course that report could possibly  be helpful in both his good time and his parole eligibility  claims.  But a judicial finding that some agency must deliver  this report to Razzoli would not itself establish some necessary element of those claims;  so Balisok would not apply  even under the comparatively broad reading that prevails in  the Seventh Circuit.  See Clayton-EL v. Fisher, 96 F.3d at  242.


18
Appellees contend that, quite apart from Heck and Balisok,  Razzoli has failed to state a claim on which relief can be  granted.  In reviewing the decision of a lower court, we "can  affirm a correct decision even if on different grounds than  those assigned in the decision under review." Danielsen v.  Burnside-Ott Aviation Training Center, Inc., 941 F.2d 1220,  1230 (D.C. Cir. 1991).  This court has found that rule particularly applicable when reviewing a dismissal for "failure to  state a claim,... a pure question of law which we review de novo."  See id. (citing Securities and Exchange Comm'n v.  Chenery Corp., 318 U.S. 80 (1943)).


19
Here, despite the efforts of the amicus to stretch our  imaginations, we find little more in the complaint than a bald  reference to the statute.  Appellant mentions in passing that  he did not receive the FBI report, but makes no reference to  requests for this document.  He later claims that he "has  exhausted all other remedies available to him to attempt to  correct the record, but was denied," but in the context of the  complaint this seems to be a reference to the entire record of  his cocaine possession.  Complaint at 4, Razzoli v. Federal  Bureau of Prisons, No. 99 CV 1711 (D.D.C. June 27, 1999)  Even giving the pro se plaintiff the benefit of every reasonable doubt, we cannot make out a FOIA claim from this  complaint.


20
The only question remaining is whether sua sponte dismissal without leave to amend was appropriate.  The Prisoner  Litigation Reform Act of 1995 not only allows but requires a  district court to dismiss a prisoner's claim before the defendant answers if it finds that the complaint fails to state a  claim.  See 28 U.S.C. 1915A(b)(1).  Even prior to the enactment of that statute, this court had approved of sua sponte  dismissals for failure to state a claim in some circumstances.See Baker v. Director, United States Parole Comm'n, 916  F.2d 725, 726 (D.C. Cir. 1990) (per curiam).  But nothing has  altered our long-standing rule that a sua sponte dismissal for  failure to state a claim without leave to amend is reversible  error unless "the claimant cannot possibly win relief."  See  Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir.  1998) (quoting Baker, 916 F.2d at 726).  This will be the case  either when "the facts alleged affirmatively preclude relief, or  because, even though plaintiff makes clear that he has facts to  add to his complaint, he would not have a claim upon which  relief could be granted even with those facts."  Id.  Neither  of these formulations applies to Razzoli.  Accordingly, although we agree with the judgment that Razzoli failed to  state a claim, we must remand and order the district court to  dismiss the complaint with leave to amend.


21
We vacate the order dismissing the Privacy Act claim with  prejudice and remand for the district court to do so without  prejudice.  We also vacate the order dismissing the FOIA  claim with prejudice and remand for the district court to  dismiss with leave to amend.


22
So ordered.

