govinfo:USCOURTS-dcd-1_22-cv-02182-1

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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
 
 
CHARLES LEWIS, et al., 
 
 Plaintiffs, 
 
 
 
v. 
 
 
Case No. 1:22-cv-2182-RCL 
UNITED STATES PAROLE 
COMMISSION, et al., 
 
 Defendants . 
 
 
 
 
 
MEMORANDUM OPINION 
This case involves troubling allegations that the U.S. Parole Commission has been derelict 
in its statutory obligation to schedule hearings for terminating its supervision over District of 
Columbia parolees, in violation of D.C. law.  Now before the Court is Plaintiffs’ motion for class 
certification and to appoint class counsel.  ECF No. 78. 
This motion is Plaintiffs’ second bite at the Rule 23 apple.  In an earlier round of motion 
practice, the Court concluded that Plaintiffs had satisfied many, but not all, class certification 
requirements, holding that further discovery would be necessary to determine whether the putative 
class was sufficiently numerous and that Plaintiffs should refine the class definition in light of that 
discovery.  The Court denied the motion without prejudice and ordered discovery. 
As set forth in P laintiffs’ renewed motion, discovery has surfaced disturbing facts 
concerning the number of parolees who have been denied timely termination hearings in recent  
years.  Acknowledging these failings, the Commission nevertheless moves to dismiss, insisting 
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that the problem is now solved because of a variety of actions the agency has taken to ensure that, 
going forward, such hearings will occur on time.  ECF No. 88.  But these actions are too little and 
too late for purposes of overcoming class certification. 
Accordingly, the Court will GRANT Plaintiffs’ motion for class certification and DENY 
the Commission’s motion to dismiss. 
I. BACKGROUND 
A. The U.S. Parole Commission 
The United States Parole Commission (the “Commission”) is a federal agency within the 
Department of Justice that oversees the parole system for people released from incarceration for 
violations of D.C.  law and, in limited cases, federal law.  As relevant to the named plaintiffs’ 
claims, federal and D.C. law tasks the Commission with deciding when a person’s term of parole 
should end. 
Under D.C. law, the Commission must terminate  parole “[f]ive years after a parolee’s 
release.”  D.C. Code § 24- 404(a-1)(3).  After that time,  parole may continue only if “the 
Commission determines, after a hearing, that legal custody of the parolee should not be terminated 
because there is a likelihood that the parolee will violate any criminal law.”  Id. (emphasis added).   
If the Commission determines that parole should extend beyond five years, the parolee may 
request a hearing each year thereafter “to determine whether to terminate legal custody,” id. § 24-
404(a-1)(4)(A), and even without a request by the parolee, the Commission must “conduct a 
hearing every [two] years to determine whether  to terminate” its supervision of the  parolee, id. 
§ 24-404(a-1)(4)(B).  The Commission’s regulations incorporate these requirements.  See 28 
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C.F.R. § 2.95( c). The parties refer to these hearings as “early termination hearings” or just 
“termination hearings,” and for purposes of this order, the Court will do the same.1 
The Commission oversees termination hearings for two categories of D.C. Code parolees.  
D.C. Code parolees residing within the District of Columbia are supervised by the Court Services 
Offender Supervision Agency (“CSOSA”), while parolees who live outside of D.C. are supervised 
by the U.S. Probation Office  (“USPO”).  The Commission itself schedules early termination 
hearings for both CSOSA- and USPO-supervised parolees. 
B. Named Plaintiffs 
Plaintiffs are D.C. parolees who allege that the Commission failed to hold timely 
termination hearings to determine whether they should remain on parole .  In the original class 
action complaint filed in July 2022, plaintiff Charles Lewis alleged that he had been on parole for 
eight years and six months without recieving an early termination hearing.  Compl. ¶ 1, ECF No. 
1.  In the operative amended complaint filed in September 2022, Plaintiff Anthony Mack allege s 
that at the time of filing,  he had not recei ved an early termination hearing since 2012 despite 
multiple requests.  Am. Compl. ¶¶  12–14, ECF No. 22.  In the same 2022 amended pleading, 
 
1 The Commission asserts that “[t]he  calculation of when a five- year early termination hearing is due to a parolee is 
not always as simple as adding five years to the parolee’s release date” because there are “many actions a parolee 
could take that would affect the calculation of the hearing due date by ‘stopping the clock’ on eligibility.”  Desrosiers 
Decl. ¶ 15, ECF No. 88-1.  For example, the Commission points out that in calculating the five-year period, regulations 
prohibit “includ[ing] any period of parole before the most recent release, or any period the parolee served in 
confinement on any other sentence.”   Combined Opp’n & Mot. Dismiss (“ Defs.’ Opp’n”) at 5 (quoting 28 C.F.R. 
§ 2.95(d)), ECF No. 88.  And “[e]ven when a parolee is due for an early termination hearing, the Commission typically 
does not provide such hearings to parolees with new pending criminal c harges,” Desrosiers Decl. ¶ 16, ECF No. 88 -
1, until they have had a revocation hearing that has resulted in release and reinstatement of parole.  See 28 C.F.R. 
§ 2.95(e)(2) (“The Commission shall not terminate supervision of a parolee until it determines the disposition of a 
pending criminal charge.”).  Plaintiffs argue that § 2.95(e)(2) contravenes the statutory text of D.C. Code § 24-404(a-
1) to the extent that it permits the Commission to prolong parole past the five -year or subsequent two- year marks 
without a termination hearing.  Combined Reply &  Opp’n to Mot. Dismiss (“Pls.’ Reply”) at 38, ECF No. 92.  As 
discussed infra Part III.B .2, Plaintiffs present the correct view of the relationship between §  2.95(e)(2) of the 
Commission’s regulations and § 24-404(a-1) of the D.C. Code. 
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Plaintiff Carlton Paige allege s that he had not received an early termination hearing since 2011.   
Id. ¶¶ 16–17, 19.  And plaintiff Darin Hagins alleges that he received no termination hearing after 
his 2008 release on parole until 2022, when the Commission held  a hearing and extended his 
parole.  Id. ¶¶ 20, 24.  Plaintiffs name the Commission and its acting chairman, Patricia K. Cushwa, 
as defendants (collectively, “the Commission”).  Am. Compl. ¶¶ 25–26. 
C. Previous Class Certification Litigation 
In April 2024, plaintiffs moved to certify a class consisting of “ [a]ll District of Columbia 
code parolees who . . . : (1) have not had their parole terminated after being on parole continuously 
for five years; (2) have not had a termination hearing once they reached five years; and (3) have 
not had a termination hearing every two years thereafter (where applicable).”  Lewis v. U.S. Parole 
Commission, 743 F. Supp. 3d 181, 190 (D.D.C. 2024).  In May 2024, the Commission opposed 
class certification and sought dismissal on mootness grounds and for failure to state a claim.  Id. 
In a July 2024 order, the Court denied the Commission’s motion to dismiss in all but one 
respect.  The “inherently transitory” exception to mootness supported subject-matter jurisdiction, 
and Plaintiffs had stated plausible claims for mandamus relief and under the Administrative 
Procedure Act.  Id. at 194–99.  However, the Court dismissed P laintiffs’ ultra vires claim.  Id. at 
199–201.  As to the motion for class certification, P laintiffs had met some, but not all, of Rule 
23(a)’s requirements.  P laintiffs satisfied the requirements of typicality  and adequacy, and had 
shown that final injunctive or declaratory relief would be appropriate to the whole class .  Id. at 
201.  Numerosity and commonality, however, were lacking on the record then before the Court.  
Id.  
Regarding numerosity, Plaintiffs had offered only a self-serving declaration from Rashida 
Edmondson, the c hief of the Parole Division at the D.C. Public Defender Service, that failed to 
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provide “non-conjectural evidence that a significant number  of . . . current or future parolees are 
or will be denied the hearings they are owed,” as would be necessary to meet the numerosity 
requirement.  Id. at 203.  The Court allowed discovery to “ascertain the approximate size of their 
putative class, or at least to give the Court confidence that it is large enough” to meet numerosity.  
Id. 
On commonality, the Court concluded that the question that bound the putative class  
together—“whether the defendants ha[d] unlawfully withheld their statutorily guaranteed early 
termination hearings”— was, “in fact, not common to the entire class as currently defined.”  Id. at 
203.  Recall  that, at the time, the putative class was defined as “[a]ll District of Columbia code 
parolees who . . . : (1) have not had their parole terminated after being on parole continuously for 
five years; (2) have not had a termination hearing once they reached five years; and (3) have not 
had a termination hearing every two years thereafter (where applicable).”  Id.  at 190.  That class 
definition would sweep in “parolees who are certainly not entitled to the potential injunctive relief 
of a court-ordered hearing,” for example, “those who were previously overdue for a hearing but 
have had their parole revoked, or who in the last two years received a late hearing at which their 
request for early termination was denied.”  Id.  at 203.  In light  of t he Court’s “lingering 
uncertainty” about the numerosity and composition of the class , it declined to make the required 
finding that “uninjured class mem bers” would constitute no more than “a small fraction of the 
class” on the then-existing record.  Id. at 204; see also In re Rail Freight Fuel Surcharge Antitrust 
Litig., 292 F. Supp. 3d 14, 135 (D.D.C. 2017) (explaining that a certifiable class should contain no 
more than a “de minimis number of uninjured members”).  Instead, the Court denied the motion 
without prejudice “to afford plaintiffs the opportunity to refine their class definition and take 
discovery as to the size of their putative class.”  Lewis, 743 F. Supp. 3d at 204. 
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Following three months of discovery between October 2024 and January 2025, Plaintiffs 
renewed their request for class certification  and appointment of class counsel .  Mot. Class 
Certification (“Mot.”), ECF No. 78. 2  In this motion, Plaintiffs present what discovery revealed 
about the size of the class and ask the Court to certify a narrower class of “[p]eople on parole for 
D.C. Code offenses who are overdue and owed, or will be overdue and owed, either termination 
of parole or a termination hearing as required by law.”  Pls.’ Mem. Supp. Mot. Class Certification 
(“Pls.’ Mem.”), ECF No 78-1. 
D. Recent Discovery 
Discovery was directed toward uncovering the size of the class and shed light on the 
Commission’s system for determining whether and when a parolee will be due for a termination 
hearing—and when different aspects of those systems were devised.  While it is clear that the 
Commission had a system, albeit a flawed one, for scheduling termination hearings before this 
litigation began, discovery shows that the Commission’s system for identifying overdue hearings 
was devised only in response to this lawsuit.  Helenihi Dep. 134:6–17, ECF No. 78-5 (Ex. D). 
1. Pre-Suit System 
Before this suit began, the Commission had been heavily reliant on the supervising 
agencies, CSOSA and USPO, to provide necessary information about parolees to determine when 
to schedule hearings.  See McDaniel Dep. 20:1–6, ECF No. 78-6 (Ex. E) (confirming that in order 
for the Commission to identify who is owed an early termination hearing, people who work for 
CSOSA have to take certain steps ); see also  Helenihi Dep. 45:18–22, ECF No. 78- 5 (Ex. D).  
 
2At the same time, Plaintiffs moved for summary judgment.  Mot. Summ. J., ECF No. 79.  However, the Court stayed 
the summary judgment briefing pending the resolution of the motion to certify a class.  March 10, 2025 Order, ECF 
No. 85. 
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Under the old regime, “the Commission [was] often not notified of the release and [did] not learn 
of the offender’s parole status” for “two years .”  Desrosiers Decl. ¶  13, ECF No. 88 -1.  That  is 
because under that system, the Commission only would learn that a parolee has been released when 
the supervising agency (CSOSA or USPO ) submits an “F-3” report, which contains information 
about the parolee’s conduct during supervision.  Id. ¶¶ 14, 42. 
F-3 reports are due to the Commission after two years of supervision and every year 
thereafter.  See  28 C.F.R. § 2.94.  But the Commission has historically failed to  maintain a 
comprehensive list of everyone on parole, and as a result, it had lacked key facts for tracking when 
CSOSA needed to—or  failed to—submit the report .  McDaniel Dep. 46:6–9, ECF No. 78- 6 (Ex. 
E); see also Helenihi Dep. 138:1–2, ECF No. 78 -5 (Ex. D) (describing “not getting the annual 
report” as the “most common” cause of overdue hearin gs).  What’s more, even when a timely  
submitted report arrived on the anniversary of someone’s parole date , the lengthy bureaucratic 
process for scheduling a hearing would begin at the five-year or subsequent two- year mark—all 
but guaranteeing a late hearing date.  Helenihi Dep. 96:8–22; 113:13–15, ECF No. 78- 5 (Ex. D); 
McDaniel Dep. 12:9–13, ECF No. 78-6 (Ex. E). 
Once the Commission received the annual report, the Commission’s staff would fill out an 
“early termination worksheet.”  Helenihi Dep. 67:4–6, ECF No. 78-5 (Ex. D).  But the Commission 
admits that “at least on one occasion, the Commission has inadvertently failed to schedule an 
overdue termination hearing following an internal recommendation that parole be continued.”  
Defs.’ Objs. & Resps. to Pls.’ First Set of Reqs. for Admis., ¶ 9, ECF No. 78- 4 (Ex. C).  Other 
times, when Commission staff had recommended that parole be terminated but  a Parole 
Commissioner disagreed, the Parole Commissioner would sometimes “not think to . . . schedule a 
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termination hearing” under these circumstances.   Helenihi Dep. 102:17–22; 103:1–16, ECF No. 
78-5 (Ex. D). 
And, historically, even when the Commission has decided to hold a termination hearing, 
internal failures have not been uncommon.  Upon determining that a parolee is owed a hearing, 
the Commission generates an “H-36” waiver form, which among other things allows an individual 
to “waive” their hearing.  See Helenihi Decl. ¶ 15, ECF No. 63-1; H-36 Form, ECF No. 67-3 (Ex. 
C).  The Commission sends the form to the individual’s supervision officer, who is then supposed 
to provide the form to the individual and return it to the  Commission.  According to one of the 
Commission’s hearing examiners, Frederick Helenihi, t he agency is “very unlikely to hold a 
hearing without having the H -36” form; rather, its practice is to not hold a hearing “unless” 
someone has requested a hearing via the H -36 form.  Helenihi Dep. 69:16 –22; 70:2–5, ECF No. 
78-5 (Ex. D); see also id. at 83:18–21 (explaining that the Commission is “not going to actually 
do the hearing . . . without the actual H-36”). 
But the Commission admits that parolees’ supervising officers sometimes fail to return the 
completed and signed H-36 form to the Commission, an issue that is “more common than it should 
be,” perhaps in part because of the staff’s persistent lack of understanding that these hearings are 
statutorily mandated.  Helenihi Dep. 65:14–15, 161:13–15, ECF No. 78-5 (Ex. D); Defs.’ Objs & 
Resps. to Pls.’ First Set of Reqs. for Admis., ¶  8, ECF No. 78-4 (Ex. C).  At the time of discovery, 
the Commission did not have a process for following up with the supervising officers when they 
failed to return the H-36 Form.  See Helenihi Dep. 68:18–20, ECF No. 78-5 (Ex. D). 
And still, a  variety of other procedural defects have contributed to overdue termination 
hearings in recent years.  For example, by the Commission’s own admission, many parolees have 
become overdue for their early termination hearings after arrests on erroneous or improper parole 
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violation warrants.  Desrosiers Decl. ¶  45, ECF No. 88- 1.  When an individual has his parole 
revoked because of a violation, the  early-termination clock starts over .  Id. ¶ 46.  B ut whe n 
someone’s parole violation instead results in a release and reinstatement of parole, the clock for 
early termination hearing eligibility does not restart and continues from the parolee’s original date 
of release.  Id.  The supervising agencies, however, have often failed to accurately account for the 
effect of a release and reinstatement on parolees ’ early termination hearing eligibility and has 
instead improperly considered the parolees’ eligibility clocks to have restarted at zero after a 
release and reinstatement.  Id. ¶ 47.  Relatedly, at times, the Commission’s hearing examiners have 
failed to flag, after recommending release and reinstatement, that the parolee would soon thereafter 
be eligible for an early termination hearing.  Id.3 
2. Manual Review Findings 
After this lawsuit began, the Commission conducted manual reviews of every parolee’s 
file in 2023, summer 2024, fall 2024, and early 2025, and these reviews uncovered many of the 
defects described above.  See Defs.’ Objs. & Resps. to Pls.’ First Set of Reqs. for Admis., ¶ 14, 
ECF No. 78-4 (Ex. C); Desrosiers Decl. ¶¶ 24, 27, ECF No. 88- 1.  The reviews were performed 
manually because the Commission did not maintain a “database or list” of parolees recording the 
information necessary to determine eligibility for a hearing, meaning that only through a parolee-
 
3 The Commission bemoans a variety of reasons why the actions of the parolee  may result in overdue termination 
hearings. These include: receiving new pending criminal charges  or being released  into the custody of another 
government or agency, “in which case[s] the individual is not on active supervision” and the early- termination clock 
has either not yet started  or has paused.  Desrosiers Decl. ¶¶  15–18, 46, ECF No. 88-1.  Similarly, the Commission 
points out that, by regulation, when a parolee absconds from supervision, the clock stops running on his sentence as 
of the date of his absconding, which prevents the expiration of his sentence and thereby tolls parole as well.  See id. 
¶ 18; 28 C.F.R.  § 2.85(d).  However, as discussed in Part III.A.1, unless parole has been revoked, the Commission 
must, by statute, either hold a timely termination hearing or terminate parole by the five-year and subsequent two-year 
marks.  See D.C. Code § 24-404(a-1) (“Five years after a parolee’s release on parole, the Commission shall terminate 
legal custody over the parolee unless  the Commission determines, after a hearing, that legal custody of the parolee 
should not be terminated because there is a likelihood that the parolee will violate any criminal law. ” (emphases 
added)).  The Commission makes no attempt to explain how the statute provides a basis for tolling parole.  
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by-parolee review could the Commission identify which parolees were entitled to a termination 
hearing—and when .  See Nov. 18, 2024 Email Corr., ECF No. 78- 17 (Ex. P); Helenihi Dep. 
118:18–19, 141:15–22, ECF No. 78-5 (Ex. D); McDaniel Dep. 49:17–22, 50:1–7, ECF No. 78- 6 
(Ex. E) .  When asked in his deposition whether the Commission tracked parolees whose 
supervision had been continued after a five -year termination hear ing—making them due for 
another hearing no more than two years later —Helenihi , the hearing e xaminer, testified that he  
“d[id]n’t believe” that the Commission’s record-keeping system “would be capable of doing that” 
as it “currently exists.”  Helenihi Dep. 171:18–20, ECF No. 78-5 (Ex. D). 
The manual review process began by obtaining a list of all D.C. Code parolees under 
CSOSA’s and USPO’s supervision.  Desrosiers Decl. ¶ 25, ECF No. 88 -1.  Bernard Desrosiers, 
the Commission’s acting chief of staff, declares that for the 2023 review, he reviewed each 
individual’s parole files to determine when a parolee’s next hearing was due and then took steps 
to either terminate supervision without a hearing or to schedule a hearing.  Id.   According to 
Desrosiers, this “review also allowed the Commission to begin internally tracking these parolees’ 
next hearing dates.”  Id.  The 2024 reviews were performed through similar means by Commission 
staff members.  Id. ¶ 26. 
The Commission’s manual reviews revealed figures about parolees whose termination 
hearings have been overdue during the pendency of this litigation.  In 2023, the Commission 
identified 42 parolees as overdue for a five -year or two-year termination hearing, which were on 
average 24.3 months late.  Defs.’ Resps . to Pls.’ Second Set of Interrogs . to Defs., ¶¶ 1–2, ECF 
No. 78-3 (Ex. B); Desrosiers Decl. ¶ 29, ECF No. 88- 1.  As for 2024, the Commission identified 
another 15 parolees then overdue for a five -year or two-year termination hearing.  Defs .’ Resps. 
to Pls.’ Second Set of Interrogs. to Defs., ¶ 3, ECF No. 78-3 (Ex. B); Desrosiers Decl. ¶ 30, ECF 
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No. 88-1.  On January 22, 2025—after discovery had closed 4—the Commission revealed  that of 
the D.C. Code parolees supervised by USPO  (i.e., those residing outside the D.C. area ), at least 
one was then 13 months overdue for a hearing.5  Desrosiers Decl. ¶ 33, ECF No. 88-1. 
The Commission also disclosed data revealing that terminations and termination hearings 
were overdue in more than 90% of cases from the period of 2022 to 2024.  See Defs.’ Resps. to 
Pls.’ First Set of Interrogs. to Defs., ECF No. 78 -2 (Ex. A).  During that period, 83 individuals 
received terminations or termination hearings an average of 24 months past the statutory deadlines, 
including 16 who were over 36 months late, and one whose hearing was overdue by 108 months .  
Id. 
E. The Commission’s Post-Discovery Reform Efforts 
By the Commission’s own admission, its reliance on CSOSA and USPO to schedule 
hearings, along with other aspects of its processes, created a “multitude” of “failure point[s]” 
within the Commission’s process.  Helenihi Dep. 137:19–22; 138:1–2, 18–21, ECF No. 78-5 (Ex. 
D); Opp’n to Mot. 10–13, ECF No. 88 (“Defs.’ Opp’n”).  But the Commission asserts that it has 
now implemented reforms to resolve the past issues uncovered in discovery going forward.  Defs.’ 
Opp’n at 10, 13–18.  Those reforms are detailed not in the Commission’s discovery responses or 
 
4 The Commission’s review of D.C. Code parolees supervised by the Probation Office occurred in January 2025, 
following the close of discovery.  Desrosiers Decl. ¶  3, ECF No. 88- 1.  The Commission states that the review of 
Probation Office supervisees occurred in January 2025 “due in part to the Commission’s understanding that USPO 
was in compliance with the Commission’s requirements for timely submission of supervision reports and that there 
were, therefore, unlikely to be parolees supervised by USPO who were overdue for their early termination hearings.”  
Id. ¶ 27.  That, of course, turned out not to be true, see id. ¶ 32, and in any case, is little excuse for disclosing material 
information related to numerosity only after the close of discovery. 
5 While the Commission eventually provided Plaintiffs with a list of 50 parolees who are supervised by USPO, this 
list did “not include a column for tracking the dates of termination hearings” that had already taken place, meaning 
that the list did not reveal whether and when a parolee would have required a two- year review after an initial 
continuance.  Pls.’ Mem. at 10 n.5, ECF No. 78-1.   
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in an administrative policy or other official document but, instead, in a declaration by Desrosiers 
that the Commission attached to its opposition filing.  See ECF No. 88-1. 
1. Lists for Eligibility Tracking 
Recall that the Commission’s longstanding practice has been to wait to schedule a parolee’s 
hearing until the supervising agency returned both the F-3 report and the H-36 form, even though 
CSOSA and USPO have routinely failed to provide these documents in a timely fashion—if at all.  
Desrosiers Decl. ¶¶ 43– 44, ECF No. 88- 1.  Now, the Commission  says, it has taken primary 
responsibility for tracking early termination hearing eligibility by curating its own lists of all 
current parolees on active supervision—one for CSOSA -supervised parolees and one for U.S. 
Probation Office-supervised parolees.  Id. ¶ 52.  
The Commission asserts that its lists include names and other identifying information for 
each parolee on active supervision; whether CSOSA or USPO is supervising each parolee; and the 
last release date for each parolee.  Id. ¶ 53.  The agency further represents that it now proactively 
requests from the supervising agency at least every six months an updated report on all individuals 
the agency is supervising under the Commission’s juris diction.  Id. ¶¶ 54–55.  According to the 
Commission, these reports are a means of double-checking its own lists without blindly relying on 
the supervising agencies’ F-3 reports as the sole source of information regarding early termination 
hearing eligibility.  Id. ¶ 55. 
Plaintiffs do not agree that the Commission now has a comprehensive list of everyone on 
parole, pointing out that the Commission’s list of 171 CSOSA -supervised parolees does not 
include all 283 individuals that CSOSA reported were on supervision as of January 15, 2025.  
Reply at 6, ECF No. 92 (citing Desrosiers Decl. ¶¶ 39–40, ECF No. 88-1).  While the Commission 
attributes this discrepancy to the fact that their list includes only “active” parolees, Plaintiffs find 
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this explanation to be problematic since those who are on inactive supervision could include  
individuals who have earned that status through success on parole and can become overdue for a 
termination hearing at any point.  Reply at 6, ECF No. 92; see also Desrosiers Decl. ¶ 30, ECF No. 
88-1 (indicating that, in 2024, three people who were not on the Commission’s active supervision 
list became overdue). 
The Commission attempts to clarify that by “active” status, it means to exclude those 
individuals for whom it has issued warrants (either because the parolees have absconded or because 
they have been arrested for a new offense).  Desrosiers Supp. Decl. ¶ 26, ECF No. 97-1.  According 
to the Commission, the practice of putting parolees on “inactive” status for good behavior has been 
discontinued and no individual remains in this category of parolees.  Id. ¶¶ 27–34.  However, the 
Commission does not go so far as to say that the 112 parolees who are on CSOSA’s list—but not 
the Commission’s—have all either absconded or committed new offenses.  What’s more, Plaintiffs 
cast serious doubt on the notion that nearly 40% of all CSOSA -supervised parolees have done so 
given the recidivism rates that CSOSA itself has reported .  See CSOSA Congressional Budget 
Justification for Fiscal Year 2025, March 11, 2024, at 31, ECF No. 78-18 (Ex. Q) (showing lower 
rates of rearrest). 
2. Manual Reviews 
As for instituting systems to make use of these lists, the Commission  has represented that 
it would, as of summer 2025, “complete a yearly manual review of these lists to ensure accuracy 
and catch any potential anomalies or clerical errors .”  Desrosiers Decl. ¶  57, ECF No. 88 -1.  
However, Plaintiffs point out that while Desrosiers  asserts that these yearly manual reviews are 
now a permanent fixture of the Commission’s system for calendaring termination hearings, 
Helenihi previously testified in his deposition that the reviews were “special projects” conducted 
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only in response to this litigation and that none were scheduled for the future.  Reply at 3, ECF 
No. 92; Helenihi Dep. 14:16–17, 134:6–17, 139:5–11, 174:4–5, ECF No. 78-5 (Ex. D). 
The Commission similarly states that it has instituted a monthly review of all release-and-
reinstatement decisions for D.C. Code  parolees to ensure that no early termination deadline 
implications were inadvertently missed.  Desrosiers Decl. ¶  64, ECF No. 88- 1.  These monthly 
reviews are meant to ensure that any individuals who were on inactive parole status (i.e., a warrant 
was out for their arrest) and who are then apprehended on that warrant can be flagged and added 
to the Commission’s lists of active parolees.  Id. ¶ 65.  Desrosiers declares that if an individual is 
released and reinstated after being on inactive status, this review is intended to catch that change, 
and the individual is added to the list of active parolees.  Id.  But Plaintiffs again argue that despite 
Desrosiers’s assurances, the Commission’s Case Services Administrator has testified that the 
Commission does not conduct monthly reviews.  Reply at 4; McDaniel Dep. 61:17–19; 62:12–20, 
ECF No. 78-6 (Ex. E). 
3. Automatic Calendaring 
Next, the Commission states that rather than waiting for CSOSA to submit the F-3 reports 
and H-36 forms to trigger the calendaring process for termination hearings, as of January 2025, 
the Commission now automatically calendars early termination hearings for D.C.-area D.C. Code 
parolees as soon as the parolee is six months away from his or her early termination hearing 
eligibility date.  Desrosiers Decl. ¶ 58, ECF No. 88- 1.  While the Commission still receives F -3 
reports and sends out H-36 forms, Desrosiers declares that the calendaring of these hearings is not 
contingent on receipt of these documents.  Id.  
Here again, however, Plaintiffs offer a different version of the facts.  They assert that 
months after the purported change in practice, the Commission was still requiring that the H -36 
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form be filled out and submitted before scheduling a hearing.  Reply at 4.  Specifically , Plaintiffs 
represent that parolee William Fox was eligible for an early termination hearing in February 2025, 
but the Commission would not schedule his hearing until his H-36 form had been returned.  Id.  It 
turns out that the Commission did initially schedule Fox’s hearing for February 27, 2025—without  
having received Fox’s H-36 form—but this hearing was canceled after a warrant was issued for 
his arrest due to a technical parole violation; the Commission subsequently required the return of 
Fox’s H-36 form before scheduling the termination hearing for the same date as his upcoming 
revocation hearing.  Desrosiers Supp. Decl. ¶ ¶ 10–11, 19, ECF No. 97 -1; see Email from Lisa 
Jones, U.S. Parole Commission Hearing Coordinator Specialist , to Natalie Epps, attorney for 
William Fox (Mar. 19, 2025), ECF No. 93-1 (Ex. A) (“Attached is parole form H-36 that Mr. Fox 
will need to complete if he desires an early termination hearing.”).6 
As for non-D.C.-area D.C. Code parolees, the Commission asserts that 90 days prior to the 
hearing eligibility date for these individuals , it coordinates with USPO  to schedule an early 
termination hearing for that parolee via video no later than  the month that their hearing is due.  
Desrosiers Decl. ¶ 59, ECF No. 88-1.  As with the scheduling process for D.C.-area parolees, the 
 
6 After scheduling Fox’s termination hearing for February 27, 2025, the Commission apparently reached out to Fox’s 
supervision officer several times for updates on the H -36 form but was eventually informed that he  had not reported 
to the supervision office since November 13, 2024, and that his supervising officer planned to request that a warrant 
be issued.  Desrosiers Supp. Decl. ¶ 12, ECF No. 71-1.  On February 12, 2025, CSOSA submitted an Alleged Violation 
Report to the Commission, alleging failure to report on several dates beginning in August 2024, failure to submit  to 
drug testing on several dates beginning in October 2024, and failure to cooperate in seeking and accepting treatment 
for drug dependency and abuse.  Id. ¶ 13.  On February 13, 2025, the Commission issued a warrant, which had the 
effect of canceling Fox’s scheduled early termination hearing .  Id. ¶ 14.   On February 20, 2025, the Commission 
executed the warrant, and on February 27, 2025, following a probable cause hearing, the Commission denied release 
and held Fox in custody for a revocation hearing, scheduled for April 7, 2025.  Id. ¶¶ 16–18.  On March 19, 2025, the 
Commission reached out to  Fox’s attorney from PDS regardi ng Fox’s eligibility for an early termination hearing, 
pending the outcome of his scheduled revocation proceedings.  Id. ¶ 19.  In this email, the Commission represented 
that Fox would need to complete the H -36 form to proceed with an early termination hearing.  See Email from Lisa 
Jones, ECF No. 93-1 (Ex. A). 
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Commission does not wait to receive the F -3 reports and H -36 forms before calendaring these 
video termination hearings.  Id. 
In addition to these improvements, as of the summer of 2024, the Commission has 
designated one of its employees as an early termination hearing specialist to oversee scheduling 
early termination hearings.  Id. ¶ 60.  This specialist is responsible for calendaring the hearings on 
eligible parolees’ dockets, receiving F-3 reports and H -36 forms from supervising agencies, and 
tracking the lists of people who will become due for a hearing months in advance.  Id. 
4. Issuing Guidance and Training 
Since January 2023, when the Commission began conducting manual reviews, the 
Commission has incorporated guidance into its regularly scheduled staff trainings about 
termination hearings, including reminding them of the importance of coordinating with the early 
termination hearing specialist on any parole case so that hearings are timely scheduled.  Id. ¶ 62–
63.  Similarly, as of mid -2024, the Commission began issuing guidance reminding supervising 
agencies, among other things, that “release and reinstate” decisions do not restart the clock for 
calculating eligibility for early termination hearings.  Id.  ¶ 61.  The Commission also now holds 
periodic training sessions with CSOSA and provides guidance to USPO.  Id. 
* * * 
Because of these reforms, the Commission asserts that the number of parolees  who were 
overdue for a hearing had fallen to six parolees at the time of their opposition.  Defs.’ Opp’n at 10, 
ECF No. 88.  In the Commission’s view, however, only five of these parolees come within the 
newly defined class (i.e., are overdue for and owed a hearing at this time ) because one of the 
parolees who is overdue for an early termination hearing will not have one scheduled due to 
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pending criminal charges.  Desrosiers Decl. ¶ 72, ECF No. 88-1.7  At the time of the Commission’s 
opposition, all five of the entitled parolees had been scheduled for an early termination hearing to 
occur between March 2025 and May 2025.  Id. 
F. Current Procedural Posture 
On January 23, 2025, Plaintiffs moved again to certify the class Rule 23(a) and (b)(2) and 
appoint class counsel and at the same time  moved for summary judgment.  Mot., ECF No. 78; 
Mot. Summ. J., ECF No. 79.  On January 30, 2025, the Commission moved to stay further briefing 
on Plaintiffs’ motion for summary judgment pending the outcome of Plaintiffs’ motion for class 
certification.  Mot. Stay, ECF No. 80.  The Court granted the Commission’s stay.  Order of Mar. 
10, 2025, ECF No. 85. 
In opposing Plaintiff’s class-certification motion, the Commission moved to dismiss since 
the Court had previously acknowledged that “[i]f the class is not certifiable after this discovery is 
complete, then the ‘inherently transitory’ exception will be inapplicable,” and the case would need 
to be dismissed as moot because the termination hearings of all the named plaintiffs have now 
occurred.  Lewis, 743 F. Supp. 3d at 196 n.6. 
Both motions have been ripe since  April 28, 2025.  Defs .’ Opp’n, ECF No. 88; Pls.’ 
Combined Reply and Opp’n to Mot. Dismiss (“Pls.’ Reply”), ECF No. 92; Defs.’ Reply to Mot. 
to Dismiss (“Defs.’ Reply”), ECF No. 96.  Shortly thereafter, however, the Commission moved 
for leave to file a sur -reply to the motion for class certification, attaching the brief to its  motion, 
ECF No. 97, and Plaintiffs filed an opposition, ECF No. 98. 
 
7 As discussed infra, whether this parolee is owed a  timely termination hearing turns on whether  the regulation that 
prohibits termination before a final disposition of pending criminal charges is consistent with the statutory requirement 
that parole can only be extended past the five -year mark if the Commission holds a hearing and makes a specific 
finding.  See D.C. Code § 24-404(a-1)(3). 
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II. LEGAL STANDARDS 
The class action is “an exception to the usual rule that litigation is conducted by and on 
behalf of the individual named parties only.”  Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 
(2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–701 (1979)).  The Federal Rules of Civil 
Procedure set forth the requirements for class  certification in Rule 23.  As a preliminary matter, 
the movant must show that (1) “the class is so numerous that joinder of all members is 
impracticable”; (2) “there are question s of law or fact common to the class ”; (3) “the claims or 
defenses of the representative parties are typical of the claims or defenses of the class”;  and (4) 
“the representative parties will fairly and adequately protect the interests of the class .”  See Fed. 
R. Civ. P. 23(a).  As relevant here, Rule 23(b)(2) allows certification if “the party opposing the 
class has acted or refused to act on grounds that apply generally to the class, so that final injunctive 
relief or corresponding declaratory relief is appropriate respecting the class as a whole.” 
The burden of demonstrating each requirement falls on the party seeking certification, see 
Wal-Mart, 564 U.S. at 350, and compliance with the rule must be shown by a preponderance of 
the evidence, see Lewis, 743 F. Supp. 3d at 194 & n.2.  Thus, because the movant must prove that 
each requirement is met “in fact,” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (emphasis 
omitted), class certification entails a “rigorous analysis” that “demands more of a plaintiff than is 
required to survive a motion to dismiss”  and may “entail some overlap with the merits,”  Lewis, 
743 F. Supp. 3d at 194 (quotation omitted). 
III. DISCUSSION 
The parties dispute the commonality  and numerosity requirements for class certification, 
which the Court will address in that order.  But first, the Court turns to whether it should consider 
the Commission’s sur-reply. 
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A. Sur-Reply 
“The decision to grant or deny leave to file a sur-reply is committed to the sound discretion 
of the Court.”  Clendenny v. the Architect of the Capitol, 236 F. Supp. 3d 11, 17 n.2 (D.D.C. 2017) 
(cleaned up) (quoting Akers v. Beal Bank, 760 F. Supp. 2d 1, 3 (D.D.C. 2011)).  While sur-replies 
“are generally disfavored,” Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De 
C.V., 247 F. Supp. 3d 76, 93 (D.D.C. 2017) , they may be appropriate when “ the movant raises 
arguments for the first time in [ its] reply to the non- movant’s opposition,” Imapizza, LLC v. At 
Pizza Ltd., No. 17-cv-2327, 2018 WL 6619852, at *1 (D.D.C. July 26, 2018) ( quoting Ying Qing 
Lu v. Lezell, 45 F. Supp. 3d 86, 91 (D.D.C. 2014)).  But they are generally not permitted when the 
movant’s “reply does not raise any new matters” but rather “merely respond[s] to . . . arguments 
contained in [the] opposition.”  Lightfoot v. D istrict of C olumbia, No. 0 4-cv-1280, 2006 WL 
54430, at *1 n.2 (D.D.C. Jan. 10, 2006).  W hen exercising its discretion to grant or deny leave to 
file, a court should also consider whether the nonmovant’s proposed sur-reply “would be helpful 
to the resolution of the pending motion[] and whether the movant would be unduly prejudiced 
were leave to be granted.”  Banner Health v. Sebelius, 905 F. Supp. 2d 174, 187 (D.D.C. 2012). 
The Commission contends that Plaintiffs raised new issues for the first time in their reply, 
including the assertion that the voluntary cessation doctrine precludes the Commission’s 
numerosity argument, and evidence suggesting that the Commission failed to timely calendar a 
termination hearing for William Fox. 8  In response, Plaintiffs assert that their brief merely 
 
8 The Commission also argues that Plaintiffs’ combined class -certification reply and motion -to-dismiss opposition 
exceeded the page limit under the local rules, which state that a memorandum “ in opposition to a motion shall not 
exceed 45 pages and  a reply memorandum shall not exceed 25 pages, without prior approval of the Court .”  D.C. 
LCvR 7(e); Defs.’ Sur-Reply at 3, ECF No. 97 -1.  Because all but one page of Plaintiffs’ 39- page brief is dedicated 
to class certification, not the motion to dismiss, see Pls.’ Reply, ECF No. 92, the Commission asserts that Plaintiffs’ 
brief exceeds the required page limit.  But the Court declines the invitation to parse Plaintiffs’ brief in this way since 
the motion to dismiss turns entirely on whether the class may be certified, meaning that the two issues are one and the 
same. 
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addresses the arguments made by the Commission’s opposition to class certification.  As Plaintiffs 
point out, the Commission spent much of the history of this case  opposing class certification on 
the grounds that its failure to timely schedule termination hearings did not extend past the named 
Plaintiffs in this case; yet in its opposition to class certification, the Commission asserts that it has 
now “taken a hard look” at its “widespread delays” and resolved its failures going forward.  See 
Defs.’ Opp’n at 23, ECF No. 88. 9  Of course, Plaintiffs are entitled an opportunity to respond to 
the purported reforms that the Commission has implemented and doing so does not introduce new 
issues into this litigation. 
However, the Court nevertheless finds that the Commission’s sur-reply is helpful to the 
resolution of the pending motions.  At this juncture, class certification largely turns on the efficacy 
of the purported reforms since the existence of future class members depends  on whether the 
Commission’s current system for scheduling termination hearings remains rife with failure points.  
The sur-reply, and Plaintiffs’ opposition to it, provides some clarity on this admittedly murky issue, 
and the Court will therefore consider it. 
B. Commonality 
Rule 23(a)(2) of the Federal Rules of Civil Procedure requires the existence of “questions 
of law or fact common to the class.”  “Commonality requires the plaintiff to demonstrate that the 
class members have suffered the same injury.”  Wal-Mart Stores, 564 U.S. at  349–50 (internal 
 
9 It remains fresh in judicial memory that prior to discovery, the Commission steadfastly denied that the failure to 
provide timely termination hearings was systemic (or even that the problem extended beyond the four named 
plaintiffs).  In its June 2024 reply supporting Rule 12(b)(6) dismissal, the Commission disclaimed whether there was 
“any evidence that a class even exists, or [that] any other plaintiffs remain.”  ECF No. 64 at 4.  During discovery, the 
staff person in charge of scheduling termination hearings refused to acknowledge that the belatedness of hearings 
affected more than just the four named plaintiffs.  McDaniel Dep. 78:12– 17, ECF No. 78-5 (Ex. D).  All the while—
as the Desrosier Declaration, deposition testimony by Commission employees, and the Commission’s interrogatory 
responses have now revealed—the Commission performed more than 80 overdue termination hearings.  See supra Pt. 
I.D.2. 
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quotation marks omitted). This requirement is met if “a single aspect or feature of the claim is 
common to all proposed class members,” Bynum v. District of Columbia , 214 F.R.D. 27, 33 
(D.D.C. 2003), and “determination of its truth or falsity will resolve an issue that is central to the 
validity of each one of the claims in one stroke,” Wal-Mart Stores, 564 U.S. at 350.  Commonality 
is typically satisfied when there exists “a uniform policy or practice that affects all class members.”  
DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013). 
This Court previously found that Plaintiffs’ prior class definition was overbroad because it 
included class members who have had their parole revoked or those who have been provided 
belated hearings .  Lewis , 743 F. Supp. 3d at  203–04.  For those putative class members, the 
question of whether the Commission has unlawfully withheld its statutorily guaranteed termination 
hearings was not common to the class members who are or will be owed termination hearings.  Id.  
The new class consists of people on parole for D.C. Code offenses who are overdue and owed, or 
will be overdue and owed, either termination of parole or a termination hearing as required by law.  
Pls.’ Mem. at 25, ECF No. 78-1. 
The Commission’s only argument against commonality is that Plaintiffs’ proposed class 
definition “would include those who are overdue and owed an early termination hearing but who 
are not entitled to one due to new pending criminal charges.”  Defs.’ Opp’n at 32, ECF No. 88.  In 
the Commission’s view, although a parolee “may have been on parole for five or two years, the 
existence of a pending criminal charge would not entitle the parolee to either early termination or 
an early termination hearing under ” the Commission’s regulations.  Id.  Plaintiffs, on the other 
hand, argue that if parolees with pending criminal charges are “owed” termination hearings by 
statute, and the Commission seems to concede that they are, then the Commission’s regulations 
cannot render these parolees “not entitled” to such hearings.  Pls.’ Reply at 37–38, ECF No. 93. 
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This dispute requires the Court to decide a question of statutory interpretation that affects 
the scope (and the size) of the newly defined class: Under § 24-404(a-1), does a parolee’s accrual 
of pending criminal charges justify continuing parole without a hearing past the five-year or two-
year mark?  By regulation, the Commission “ shall not terminate supervision of a parolee until it 
determines the disposition of a pending criminal charge.”  28 C.F.R. § 2.95(e)(2).  This means that, 
on occasion, a parolee who accrues a pending criminal charge before becoming due for a 
termination hearing may have that hearing delayed past the five -year or two -year mark until a 
revocation hearing is held first. 
Recall that, by statute, “[f] ive years after a parolee’ s release on parole, the Commission 
shall terminate legal custody over the parolee unless the Commission determines, after a hearing, 
that legal custody of the parolee should not be terminated because there is a likelihood that the 
parolee will violate any criminal law.”  D.C. Code § 24-404(a-1)(3) (emphases added).  And “[i]f 
the Commission does not terminate legal custody” after this hearing, it “[s]hall conduct a hearing 
every 2 years to determine whether to terminate legal custody of the parolee.”  Id. § 24-404(a-1)(4) 
(emphasis added).  While the accrual of pending criminal charges could quite reasonably support 
a likelihood that the parolee will violate a criminal law, §  24-404(a-1) unambiguously states that 
parole “shall” terminate at the five-year mark unless the Commission holds a hearing to make the 
requisite finding of likelihood, and similarly the Commission “shall” hold a hearing every two 
years thereafter to continue parole. 
In sum, reading § 24-404(a-1)’s mandatory and conditional language (“shall terminate . . . 
unless . . . a hearing”) in light of the fact that the statute provides no textual exception for pending 
charges or pending revocation hearings, the plain text leads  the Court to conclude that the five -
year and two -year deadlines remain mandatory even when new charges and revocation 
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proceedings remain pending.  Unless parole has been revoked, § 24- 404(a-1) requires the 
Commission to hold a timely termination hearing or terminate parole by the deadline, irrespective 
of the flexibility its own regulations might allow. 
That is not to say that a parole violation cannot subsequently result in a return to prison and 
additional term of parole even if the original term of parole terminates before the Commission 
holds a revocation hearing.  Rather, so long as a warrant issues for the parole violation before the 
expiration of the parole term, the Commission’s jurisdiction continues.  See  D.C. Code § 24-205 
(stating that the Parole Board may issue a warrant “at any time within the term or terms of the 
prisoner’s sentence” to retake a parole violation); id. § 24-206(a) (stating that, upon retaking and 
a hearing, the Board “may then, or at any time in its discretion ” require the parolee to “serve the 
remainder of the sentence originally imposed,” subject to re-parole discretion); cf. Rico v. United 
States, No. 24-1056, slip op. at 11 (U.S. Mar. 25, 2026) (holding that while the Sentencing Reform 
Act does not authorize extending a defendant’s term of supervised release when the defendant 
absconds, the Act does allow courts to impose additional imprisonment and supervised release for 
violation).  But this question is not before the Court.  For present purposes, what matters is that 
§ 24-404(a-1)’s textual requirement that termination hearings must be held before the Commission 
may extend parole applies equally to all class members.  Commonality is therefore met. 
C. Numerosity 
Federal Rule of Civil Procedure 23(a)(1) requires movants to show, by a preponderance of 
the evidence, that “joinder of all members is impracticable.”  Thus, t he numerosity requirement 
would more aptly be called “impracticability,” since w hether the size of a proposed class merits  
certification is not tethered to any numerical bright line.  Indeed, as this Court has explained, 
“numerosity is about much more than just the total number of class members.”  N.S. v. Hughes , 
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335 F.R.D. 337, 352 (D.D.C. 2020).  A “reasonable estimate,” rather than “the exact number of 
potential class members,” can often suffice.  Id. (alteration omitted) (quoting Lightfoot v. District 
of Columbia, 246 F.R.D. 326, 335 (D.D.C. 2007)).  T he dispositive question, far from a mere 
counting exercise, is whether “the difficulty or inconvenience of joining all members of the class 
make use of the class action appropriate.”  D.L. v. District of Columbia, 302 F.R.D. 1, 11 (D.D.C. 
2013), aff’d, 860 F.3d 713 (D.C. Cir. 2017); accord Coleman ex rel. Bunn v. District of Columbia, 
306 F.R.D. 68, 76 (D.D.C. 2015) (explaining that Rule 23(a)(1)’s “core requirement is that joinder 
be impracticable and numerosity merely provides an obvious situation in which” that may be so  
(quoting Newberg on Class Actions § 3:11 (5th ed. 2014) (internal quotation marks omitted))).   
Inherently fluid classes are those where “strict numerical threshold[s]” and “sheer 
numerical terms” take a backseat to Rule 23’s textual focus on the practicability of joinder.  N.S., 
335 F.R.D. at 352–53 (D.D.C. 2020).  In cases where membership in the claimant population may 
be in flux at any given moment, it may be “difficult to ascertain how many class members there 
will be, and the question simply becomes whether the existence of unknown and unnamed future 
class members would make joinder difficult.”  Id. at 352 (citing J.D. v. Azar, 925 F.3d 1291, 1322 
(D.C. Cir. 2019)). 
In all cases,  numerosity “requires examination of the specific facts of each case and 
imposes no absolute limitations.”  Gen. Tel. Co. of Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980).  
“Mere conjecture,” of course, “is insufficient to establish numerosity.”  Pigford v. Glickman, 182 
F.R.D. 341, 347 (D.D.C. 1998); see also Lewis, 743 F. Supp. 3d at 203 (denying Plaintiffs’ earlier 
certification motion for failure to “proffer[] any non-conjectural evidence that a significant number 
of these current or future parolees are or will be denied the hearings they are owed”).  “To hold 
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otherwise would be to render the numerosity requirement toothless and belittle Rule 23’s demand 
for a ‘rigorous analysis.’”  Lewis, 743 F. Supp. 3d at 203 (quoting Wal-Mart, 564 U.S. at 351). 
Plaintiffs contend that the class is numerous for largely the same reasons they asserted in 
their initial motion for class certification: namely, that they have identified multiple parolees who 
are currently “overdue for parole termination hearings,” and that the class is fluid, such that “the 
existence of future class members makes joinder impracticable.”  Id.  Based both on numerical and 
non-numerical information unearthed in discovery, the Court agrees that joinder of all class 
members would be impracticable and numerosity is therefore met. 
1. Existing Class Members 
Plaintiffs contend that the number of parolees currently overdue for termination hearings 
likely satisfies the numerosity requirement given the fluidity of the class.  Despite the transitory 
nature of the class, there were eight parolees overdue for hearings as of the filing of their motion, 
which satisfies the numerosity requirement in the case of “fluid” classes subject to “systemic” 
rights violations.  Pls.’ Mem. at 19, ECF No. 78-1 (quoting Clarkson v. Coughlin, 145 F.R.D. 339, 
348 (S.D.N.Y. 1993)).  That figure is based on data the Commission produced during discovery, 
but Plaintiffs say that “[t]he actual number of individuals overdue at this moment is likely larger” 
because “[t]he Commission does not possess a list of everyone on parole, or even have a firm grasp 
of how many people are on parole.”  Id. at 20.  In response, however, the Commission asserts that 
at the time of its opposition in March 2025, the true number of parolees eligible and overdue for a 
hearing was only five, Desrosiers Decl. ¶  72, ECF No. 88-1, and the Commission had scheduled 
hearings for all five of those parolees to take place by May 2025, meaning they would “no longer 
be part of the class after June 2025.”  Defs.’ Opp’n at 23, ECF No. 88. 
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Of course, a parolee with a scheduled hearing is still overdue  for that hearing until such 
hearing occurs, and the Commission has yet to substantiate that such hearings took place as 
asserted.  In other words, the Commission concedes that at the time of its opposition, there were 
at least five class members.  Why the Commission would not expedite the completion of those 
hearings before the latest round of class certification practice is anybody’s guess, but their failure 
gives little confidence in the reliability of its processes. 
However, although the known universe of existing class members is between five and eight, 
Plaintiffs contend that the actual number is likely higher for multiple reasons.  First, at the time 
the motion was filed in January 2025, the Commission had not yet compiled a comprehensive list 
of potential class members.  Pls.’ Reply at 13, ECF No. 93 (noting that the Commission anticipated 
completing its review of files “by the middle of April 2025” (quoting Defs.’ Opp’n at 30, ECF No. 
88)).  Second, the Commission’s count of class members is based on data from an agency, CSOSA, 
that “routinely fail[s]” to provide necessary information.  Id.  (quoting Defs.’ Opp’n at 11, ECF 
No. 88).  Third, the Commission and CSOSA produce widely varying numbers of the total number 
of parolees under the Commission’s supervision.  According to the Commission, 171 individuals 
are under its supervision, but CSOSA reported that there were 283 such individuals as of January 
2025.  Plaintiffs cite the 112-parolee disparity as undermining confidence that the Commission has 
accounted for the full universe of parolees under its remit, given that the Commission stated in 
discovery that it is “not able to explain” the difference between its own count of parolees and 
CSOSA’s.  Id. at 6 (quoting Defs.’ Opp’n at 30, ECF No. 88). 
The Court agrees that the Commission’s own declaration, to say nothing of the discovery 
record, casts significant doubt on whether the Court can  trust the Commission’s math.  For 
example, the Commission implicitly admits that at the time of its opposition, it did not actually 
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know the full universe of parolees on active supervision versus inactive supervision.  Although the 
Commission states that it was aware of 171 individuals supervised by CSOSA on active 
supervision as of December 4, 2024, it acknowledges that it does not know whether these figures 
remain accurate.  Defs.’ Opp’n at 30, ECF No. 88.  The Commission declares that as of January 
2025, “CSOSA reported having 283 individuals on supervision, only some of which are on active 
supervision.”  Desrosiers Decl. ¶ 40, ECF No. 88-1.  Critically, the Commission failed to tabulate 
how many were on active supervision at the time of its opposition, a process it said would only be 
complete “by the middle of April 2025” and a point on which it has yet to update the Court despite 
having submitted its sur-reply on April 28, 2025.  Id.; Defs.’ Sur-Reply, ECF No. 97-1 
Without an unambiguous explanation of why CSOSA’s list of supervised parolees includes 
283 people while the Commission’s list contains only 171, this Court has little confidence in the 
Commission’s accounting of parolees— especially since the Court finds it unlikely that nearly 40% 
of all CSOSA-supervised parolees have either absconded or committed new offenses.  See CSOSA 
Congressional Budget Justification Fiscal Year 2025, March 11, 2024, at 31, ECF No. 78- 18 
(reporting much lower percentages of parolees who face arrests for new criminal charges ).  And 
since the Commission’s proffered count of currently overdue parolees is derived from a list that, 
even at the time of its opposition, was not yet complete , the Court cannot take the Commission’s 
count at face value. 
And in any case, this practice of distinguishing between parolees who are actively or 
inactively supervised is problematic for the purposes of scheduling termination hearings because, 
as discussed above, under the plain text of § 24 -404(a-1), unless parole has been revoked, the 
Commission must, by statute, either hold a timely termination hearing or terminate parole by the 
five-year and subsequent two- year marks—irrespective of whether the parolee has absconded or 
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faces pending charges.  As mentioned, while the Court sees no reason why a violation of parole 
would not subsequently result in prison time or a new term of parole (assuming the warrant issues 
before the original term of parole terminates) , the Court finds no basis in the statutory text for 
extending parole absent a hearing—the statute simply does not contemplate tolling.   And because 
the Commission admits that it does not track parolees who are not “actively” supervised , these 
parolees slip the cracks of the Commission’s new system for scheduling hearings unless and until 
their parole has been reinstated. 
The Court has no way of knowing how many “inactively” supervised paroles may be 
currently overdue for a termination hearing.  But the issue of numerosity ultimately does not turn 
exclusively on the number of current class members.  After all, the Commission cannot disregard 
the “unambiguous statutory and regulatory deadline” fixed by law, even if it only learns that the 
deadline of a parolee’s hearing has passed as a result of this litigation.  Lewis, 743 F. Supp. 3d at 
197.  Indeed, throughout this litigation, the Commission has swiftly set termination hearings upon 
learning one is overdue.  This was true of the four named plaintiffs, who “ once named[,] . . . had 
their parole terminated within about six months ,” and two of whom “had their parole terminated 
in fewer than ten days.”  Id. at 194.  It was the case with the 83 parolees revealed to have received 
an overdue termination hearing through discovery.  Defs.’ Responses to Pls.’ First Set of Interrogs. 
to Defs., ECF No. 78- 2 (Ex. A).  And the Commission s ays it is so for the handful of parolees 
(whether five, eight, or some other figure) who were putative class members at the time plaintiffs 
renewed their motion for class certification.  This inescapable feature of the litigation —that the 
Commission, upon learning that a class member exists, has a legal duty to set a hearing, thereby 
negating class membership—is precisely what makes the putative class “fluid.”  As such, the Court 
now turns to the matter of future class members. 
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2. Future Class Members 
Ordinarily, a  class presently consisting of about five members would indeed present a 
numerosity challenge.  Coleman, 306 F.R.D. at 76 (“[A] class that encompasses fewer than 20 
members will likely not be certified absent other indications of impracticability of joinder.” 
(quoting Newberg on Class Actions § 3:11 (5th ed. 2014))).  But while Plaintiffs “cannot establish 
the exact number of class members,” they have “shown that there are likely more than just a 
handful of class members.”  N.S., 335 F.R.D. at 352.  And far from defeating class certification, 
the fluidity of the class is a telling indicator of impracticality.  E.g., J.D., 925 F.3d at 1323 
(describing the “fluidity” of a class as a “non- numerical consideration[] that might make joinder 
impracticable”). 
The Commission concedes that the pre -suit system for scheduling termination hearings 
suffered from deficiencies that resulted in preventable delays.  Defs.’ Opp’n at 10–13, ECF No. 
88.  Indeed, the Commission would be hard pressed to deny this, given the evidence that surfaced 
in discovery—such as the fact that from 2022 to 2024 terminations and termination hearings were 
overdue in more than 90% of cases.  Defs.’ First Supp. Objs. & Resps. to Pls.’ First Set of Interrogs. 
& Req. for Produc., ECF No. 78-2 (Ex. A).  Still, they insist that this historical data is irrelevant 
to the Court’s inquiry and that the Commission’s reform efforts have solved the problems that 
previously plagued its process for scheduling termination hearings.  Defs.’ Opp’n at 26–30, ECF 
No. 88.  The Court takes these arguments in turn. 
i. Historical Data 
The crux of the parties’ dispute on numerosity is whether the number of future  class 
members, in light of the Commission’s putative reforms, supports class certification.  As 
mentioned, more than 90% of the 83 hearings and terminations held during the pendency of this 
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case were held late.  Defs.’ First Supp. Objs. & Resps. to Pls.’ First Set of Interrogs. & Req. for 
Produc., ECF No. 78-2 (Ex. A).  And for these 83 individuals who received late early termination 
hearings between 2022 and 2024, hearings occurred, on average, nearly two years late.  Id .  
Nineteen of those were at least three years late, and one parolee’s hearing was overdue by nine 
years.  Id.  But every one of them eventually obtained a hearing or otherwise had their parole 
terminated on the record. 
Nonetheless, these historic numbers remain essential to the numerosity inquiry.  It is true 
that where the aforementioned hearings resulted in terminations, the former parolees are plainly 
not members of the class anymore, and the Commission seizes on this point.  Defs.’ Opp’n at 26, 
ECF No. 88.10  But the entire batch of overdue parolees, and their incidence as a percentage of the 
total D.C. code parolee population, remains relevant —not because they can be counted as class 
members, but because they “ inform [a] prospective determination of whether a sufficiently 
numerous” or otherwise impracticable “class — made up largely of future claimants —exists.”  
Hinton v. District of Columbia, 567 F. Supp. 3d 30, 54 n.13 (D.D.C. 2021). 
The Rule 23(a)(1) inquiry for f luid classes places less emphasis on a sheer counting 
exercise and focuses instead on a careful inquiry into the impracticability of joining the “unknown 
and unnamed future class members .”  N.S., 335 F.R.D. at 353 (applying the logic of J.D. to find 
“numerosity not because of the specific number of members, but because future class members 
were unknown and unnamed” and therefore could “[]not be joined” at the filing of the class action 
complaint).  When a class representative “seeks prospective relief for future class members, whose 
identities are currently unknown and who are therefore impossible to join,” joinder is “inherently 
 
10 Of course, to the extent any of the current class members, or the 83 parolees who received a hearing between 2022 
and 2024, had their parole continued after their hearing, they are still potentially future class members.  
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impracticable.”  DL v. District of Columbia, 302 F.R.D. 1, 11 (D.D.C. 2013) (quotation omitted); 
see also J.D. v. Azar, 925 F.3d 1291, 1322 (D.C. Cir. 2019) (“[C]lasses including future claimants 
generally meet the numerosity requirement due to the ‘ impracticality of counting such class 
members, much less joining them.’” (quoting 1 Rubenstein, Newberg on Class Actions § 3:15)). 
The incidence of overdue hearings in the past is strong evidence of what fortune awaits 
current and future parolees.  And used in that manner, this  data is the bread and butter of the 
numerosity inquiry, at least when a Court ventures an estimate of headcount as part of its analysis.  
For example, in Bynum v. District of Columbia, the Court found a proposed class satisfied the 
numerosity requirement based on data showing that “between May 2002 and January 2023, ninety-
seven inmates were detained for 48 hours or more after their scheduled release date.”  214 F.R.D. 
at 33.  And this case is not unique in its treatment of fluid classes.  See, e.g., P.J.E.S. ex rel. Escobar 
Francisco v. Wolf, 502 F. Supp. 3d 492, 531 (D.D.C. 2020) (historical data regarding deportation 
of unaccompanied minors); D.L., 302 F.R.D. at 11 (relying on data from 2008 to 2010 to calculate 
numerosity of four subclasses). 
Given this precedent, the Court sees no reason not to consider the historical data of overdue 
termination hearings as evidence of future class members, to the extent there also exists evidence 
that the problems with the Commission’s system have persisted.  It is this issue that the Court turns 
to next. 
ii. Effect of Reforms  
The Commission adamantly denies that class members will continue to exist following its 
recent modifications to its termination hearing process since the outset of this litigation.  Favoring 
the Desrosiers Declaration’s tale of reform over the troubling narrative contained in the discovery 
record, the Commission asserts its post-discovery reforms mean there is now “no reasonable basis 
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to conclude that the number of parolees who are or will be overdue will rise to any level to justify 
certification of a class.”  Defs .’ Opp’n at 23, ECF No. 88.  Plaintiffs assert a litany of defects in 
the Commission’s reliance on the Desrosiers Declaration.   
First, they discredit the declaration as containing self-serving descriptions of “compliance 
policies that were created and implemented during this litigation.”  D.L. , 187 F. Supp. 3d at 15  
(emphasis omitted).  Of course, the Commission owes P laintiffs and the potential class members 
a statutory duty to provide timely termination hearings, and upon learning of a newly identified 
parolee owed such a hearing, the Commission would be derelict not to attempt to improve its 
system.  That being said, the Court ha s not forgotten that it rejected Plaintiffs first attempt to 
establish numerosity after finding that their “ sole declarant’s vague say -so [was] not enough by 
itself to clear” their burden under Rule 23.  Lewis , 743 F. Supp. 3d at  203.  Now Plaintiffs have 
returned with ample evidence of a systemic failures  and the Commission attempts to rebut that 
evidence with the say-so of its own sole declarant. 
But m ore importantly, c ertain revelations cast serious doubt on the Commission’s 
representations that “the overall trajectory of the numbers of parolees that the Commission has 
identified for an early termination hearing has dropped dramatically since 2022.”  Defs.’ Opp’n at 
27, ECF No. 88.  Recall that the Commission still cannot assure the Court that it knows every 
member who might be eligible for a termination hearing, let alone every member overdue for one.  
Along with its failure to compile a complete list of all parolees, this failure is also  due to the 
Commission’s system for scheduling termination hearings that still require s ad hoc, manual 
reviews of data from a supervising agency that the Commission discredits as “routinely” 
unreliable.  Desrosiers Decl. ¶ 43, ECF No. 88-1.  Indeed, even the Commission’s own declaration 
acknowledges that the majority of the overdue parolees identified in the Commission’s Summer 
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2024 manual review “did not become overdue for an early termination hearing until after  [the 
2023] review.”  Id. ¶ 30 (emphasis added).  In other words, the agency’s 2023 manual review failed 
to account for parolees who would become overdue before its next review.  So long as the 
Commission’s only proposal is to review files by hand, human errors like these will continue to 
threaten parolees’ statutory right to a prompt termination hearing.11 
As for the Commission’s pre -suit “opt -in” practice of requiring parolees’ supervising 
officers to return the H-36 form before calendaring a hearing, the evidence is mixed as to whether 
the Commission has followed through on its promise to adopt an “opt-out” practice of scheduling 
hearings without having first received the H-36 form.  In the case of William Fox, the Commission 
did, to its credit, schedule a termination hearing for February 27, 2025, without having first 
received Fox’s H-36 form.  Desrosiers Supp. Decl. ¶ ¶ 10–12, ECF No. 97- 1.  Fox nevertheless 
became overdue for a termination hearing because his hearing was canceled after a warrant issued 
for his arrest due to a parole violation (putting him on “inactive” supervision status).  Id.  ¶¶ 14–
15.  When the Commission reached out to Fox’s counsel to reschedule his termination hearing for 
the date of his revocation hearing, the Commission indicated that it would not do so until his H-36 
form was returned.  Email from Lisa Jones, U.S. Parole Commission Hearing Coordinator 
Specialist, to Natalie Epps, attorney for William Fox (Mar. 19, 2025), ECF No. 93- 1 (Ex. A) 
(“Attached is parole form H -36 that Mr. Fox will need to complete if he desires an early 
termination hearing.”).  In the Court’s view, F ox’s case illustrates that the Commission is still 
working out the details of its reform efforts.  While the Court does not doubt that the Commission 
 
11 What’s more, there is evidence suggesting that these manual reviews were “special projects” conducted only in 
response to this litigation , raising questions about whether they will be regularly scheduled in the future.  Helenihi 
Dep. 14:16 –17, 174:4– 5, ECF. No. 78 -5 (Ex. D).  While the Desrosiers declaration may state otherwise, the 
Commission does not explain this discrepancy in the record. 
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has acted with the best of intentions, there is insufficient evidence to suggest the problems that 
have historically plagued its system for holding termination hearings are now remedied.   
iii. Voluntary Cessation 
The voluntary cessation doctrine provides a helpful lens for describing why the 
Commission’s reform efforts, as described in the Desrosiers declarations, come too little and too 
late to overcome the wealth of evidence presented by Plaintiffs.  “It is well settled that the voluntary 
cessation of allegedly unlawful conduct does not moot a case in which the legality of that conduct 
is challenged.”  Kifafi v. Hilton Hotels Ret. Plan , 701 F.3d 718, 724 (D.C. Cir. 2012)  (quotation 
omitted).  And while there is no  doubt that “[c]orrective action by an agency is one type of . . . 
development that can moot a previously justiciable issue,” Nat. Res. Def. Council v. U.S. Nuclear 
Regul. Comm’n, 680 F.2d 810, 814 (D.C. Cir. 1982), such action typically  needs to amount to 
near-permanent change in the status quo that makes it “impossible for a court to grant any effectual 
relief whatever to the prevailing party.”  Chafin v. Chafin, 568 U.S. 165, 172 (2013).  Desrosiers’ 
Declaration recites the Commission’s putative reforms in what amounts to little more than a 
“promise not to violate” Plaintiffs’ rights in the future, and that alone “is insufficient.”  Kifafi, 701 
F.3d at 724. 
For its part, the Commission observes that voluntary cessation formally operates as an 
exception to Article III mootness, and insists that it has not “argu[ed] mootness as a basis for the 
Court [to] deny[] class certification.”  Sur-Reply at 2, ECF No. 97-1.  But while the Commission 
cloaks its arguments in the garb of Rule 23’s numerosity requirement, its position sounds in the 
mootness doctrine.  See Ramirez v. U.S. Immigr. & Customs Enft , 568 F. Supp. 3d 10, 30–31 
(D.D.C. 2021) (observing that “while not explicitly framed as such, Defendants appear to invoke 
the doctrine of mootness by arguing that they have cured their previous statutory non-compliance, 
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so no irreparable injury remains ”).  In essence, the Commission says that irrespective of its past 
conduct, certification now would be improper because the Commission has engaged in an array of 
reforms that will “ensure that the number of potential class members is not likely to rise anywhere 
close to a sufficiently numerous level in the future.”  Defs.’ Opp’n at 26, ECF No. 88.  But as 
already explained, the Court is not confident that these reforms really do amount to a near -
permanent change in the status quo. 
Here’s the bottom line: at the time of the pending motion, (1) discovery had shown that 
nearly 90% of termination hearings have been overdue over the last several years, (2) at least five 
active class members existed; and (3) the Commission had not implemented permanent reforms to 
prevent future violations.  Faced with years of evidence of statutory violations, as well as evidence 
of ongoing violations, “pointing to the existence of compliance policies that were created and 
implemented during this litigatio n does not meaningfully contribute to a finding that future 
violations are unlikely to recur.”  D.L., 187 F. Supp. 3d at 15. 
Put simply, based on the evidence, the putative class will persist because of the ongoing 
deficiencies in the Commission’s system for holding the statutorily mandated termination 
hearings.  As such, the Commission’s efforts toward post -suit compliance with  its statutory 
obligations are insufficient to defeat class certification.  The Court holds that the existence of 
current class members, paired with the high likelihood of future class members as evidenced by 
the past rate of violations, along with the faults in the Commission’s reform efforts, makes joinder 
of all claims impracticable, satisfying Rule 23(a)(1).   
IV. CONCLUSION 
For the reasons given above, the Commission’s motion for leave to file a sur-reply will be 
GRANTED, Plaintiffs’ motion for class certification will be GRANTED, and the Commission’s 
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