                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 MIGUEL A. RIVERA,

                        Plaintiff,

                        v.                         Case No. 14-cv-1092 (CRC)

 PATTI B. SARIS, et al.,

                        Defendants.

                         MEMORANDUM OPINION AND ORDER

       Plaintiff Miguel Rivera, proceeding pro se, brings claims against the United States

Sentencing Commission (“the Commission”) and three current and former members of the

Commission. He contends that the Commission’s failure to make retroactive an amendment to

the United States Sentencing Guidelines—which, he contends, would have resulted in a

reduction to his sentence—violated his constitutional rights to due process and equal protection

of the laws. The Defendants move to dismiss Rivera’s Complaint on the grounds that his claims

are barred by claim preclusion, the Commission and its members are immune from suit, and his

constitutional challenges fail to state a claim upon which relief can be granted. Because the

Court finds that the Commission and its Commissioners are immune from suit—and will grant

the motion on that basis—it need not address Defendants’ other arguments.

       I.      Background

       Rivera is a federal prisoner serving a sentence stemming from a 1994 armed robbery of a

bank in Florida, for which he was convicted of three counts: armed bank robbery in violation of

18 U.S.C. § 2113; use of a firearm during commission of a crime of violence in violation of 18

U.S.C. § 924(c); and possession of a firearm by a convicted felon with at least three prior

qualifying convictions under the Armed Career Criminal Act, 18 U.S.C. §§ 922(g) and 924(e).
Rivera was sentenced to concurrent sentences of 300 months and 327 months on the first and

third counts, respectively, and a statutorily required, consecutive sentence of 60 months for the

second count.

       A criminal defendant who is convicted of being a felon in possession of a firearm under

18 U.S.C. § 922(g) faces a sentencing enhancement if he or she used the firearm “in connection

with another felony offense.” U.S. Sentencing Guidelines Manual (“U.S.S.G.”)

§ 2K2.1(b)(6)(B). If such a defendant is also convicted of using a firearm in furtherance of a

crime of violence, an additional mandatory consecutive sentence of at least five years applies.

See 18 U.S.C. § 924(c)(1)(A)(i). To address the potential for “double counting” in this

circumstance, Amendment 599 to the U.S.S.G. provides that the sentence of a defendant

convicted under both 18 U.S.C. § 922(g) and § 924(c) is not enhanced under U.S.S.G.

§ 2K2.1(b)(6)(B). See U.S.S.G. app. C, vol. II, amend. 599 (“This . . . amendment directs that no

guideline weapon enhancement should be applied when determining the sentence for the crime

of violence . . . offense underlying the 18 U.S.C. § 924(c) conviction . . . .”). Amendment 599

applies retroactively. See id. amend. 607.

       But Amendment 599 offers no relief to criminal defendants who, like Rivera, are

convicted under 18 U.S.C. § 924(c) and whose prior convictions under 18 U.S.C. § 922(g) render

them subject to a 15-year mandatory minimum sentence under the Armed Career Criminal Act.

See 18 U.S.C. § 924(e). Such defendants are subject to the provisions of U.S.S.G. § 4B1.4,

which pertain to armed career criminals, and which increase the applicable base offense level.

Amendment 674 addresses the potential for “double counting” in this context and provides that

defendants not be subjected both to an increased base offense level and application of the

criminal history category for use of a firearm in connection with a crime of violence. See



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U.S.S.G. app. C, vol. III, amend. 674. However, Amendment 674, which became effective in

2004—long after Rivera was sentenced—does not apply retroactively.

       Rivera contends that if the Commission had decided to designate Amendment 674 as

retroactive, his sentence would be eligible for reduction. He explains that his sentence was, in

part, the product of the double counting—an increased base offense level and an increased

criminal history category—that Amendment 674 is designed to prevent. And because, he

maintains, applying the Amendment retroactively would result in a reduction to his sentence, the

Commission’s decision not “to properly consider the retroactive [e]ffect of Amendment 674,”

Compl. 8, “demonstrat[es] prejudicial bias against defendants with higher Criminal histor[ies],”

id. at 6. This “prejudicial bias” in turn, Rivera asserts, violated his constitutional rights to due

process and equal protection of the law. He brings this action against the Commission and,

in their individual capacities, the Commission’s current Chair, the Honorable Patti B. Saris; its

former Chair and Vice-Chair, the Honorable Ricardo H. Hinojosa; and its former Vice-Chair,

William B. Carr, Jr. For these alleged violations of his constitutional rights, Rivera requests a

declaratory judgment that the failure to apply Amendment 674 retroactively violated the Equal

Protection Clause as well as compensatory and punitive damages. Id. at 10.

       II.     Standard of Review

       “When ruling on a defendant’s motion to dismiss, a judge must accept as true all of the

factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). And in

reviewing a motion to dismiss a pro se plaintiff’s complaint, a judge must construe the complaint

liberally, see id. (“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint,

however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted



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by lawyers.” (citations omitted)), “to afford all possible inferences favorable to the pleader on

allegations of fact,” Zaidi v. U.S. Sentencing Comm’n, No. 14-1308 (JDB), 2015 WL 4484172

(D.D.C. 2015), at *2 (D.D.C. July 22, 2015). But “even a pro se plaintiff . . . bears the burden of

establishing that the [c]ourt has subject matter jurisdiction.” Id. (alteration in original) (quoting

Rodriguez v. U.S. Citizenship & Immigration Serv., 605 F. Supp. 2d 142, 145 (D.D.C. 2009)).

          III.   Analysis

                 A.     Rivera’s Claims Against the Commission

                        1. Claim for Monetary Damages

          This suit is properly construed as a Bivens action because Rivera seeks damages for

alleged constitutional violations by federal officials. See Bivens v. Six Unknown Named Agents

of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing a damages cause of action for

violation of constitutional rights by federal officials); see also Papantony v. Hedrick, 215 F.3d

863, 865 (8th Cir. 2000) (broadly construing pro se petition alleging constitutional violation

against federal officials as a Bivens action). But Bivens recognized only a cause of action

against federal officials in their individual capacities. See Correctional Servs. Corp. v. Malesko,

534 U.S. 61, 66 (2001). Therefore, a Bivens claim cannot be brought against the Commission

itself.

          But Rivera’s claim against the Commission for monetary damages fails for a more

fundamental reason. Defendants argue that, “like all federal agencies,” the Commission “enjoys

the benefits of sovereign immunity.” Defs.’ Mem. Supp. Mot. Dismiss 11. The Court agrees

that the Commission is immune from suit in this case. “Absent a waiver, sovereign immunity

shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471,

475(1994). And “[s]overeign immunity is jurisdictional in nature.” Id. “If sovereign immunity



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has not been waived, a claim is subject to dismissal under [Federal Rule of Civil Procedure]

12(b)(1) for lack of subject matter jurisdiction.” Clayton v. District of Columbia, 931 F. Supp.

2d 192, 200 (D.D.C. 2013) (citing Meyer, 510 U.S. at 475).

       The United States “has not consented to be sued for damages based on constitutional

violations,” Morris v. U.S. Sentencing Comm’n, 62 F. Supp. 3d 67, 74 (D.D.C. 2014) (citing

Meyer, 510 U.S. at 476–78), or for “damages based on the ‘failure of the . . . [Sentencing]

Commission to ‘promulgate and distribute’ federal sentencing guidelines,” id. (citation omitted)

(quoting Hornbeck Offshore Transp., LLC v. United States, 569 F.3d 506, 510 (D.C. Cir. 2009)).

In addition, the Sentencing Reform Act “does not contain a ‘sue-and-be sued clause,’ which

might constitute a waiver of immunity by the Commission as an agency capable of being sued in

its own name.” Id. (citing Meyer, 510 U.S. at 481). Therefore, the Commission enjoys

sovereign immunity from suit, and Rivera’s claim against the Commission for monetary

damages must be dismissed for lack of subject matter jurisdiction.

                       2. Claim for Declaratory Relief

       Rivera also seeks declaratory relief from the Commission. But “[i]t is a ‘well-established

rule that the Declaratory Judgment Act is not an independent source of federal jurisdiction.’”

Morris, 62 F. Supp. 3d at 76 (alteration in original) (quoting Ali v. Rumsfeld, 649 F.3d 762, 778

(D.C. Cir. 2011)) (internal quotation marks omitted). Because Rivera’s claim for monetary

damages against the Commission will be dismissed for lack of subject matter jurisdiction, his

claim for declaratory relief against that body must also be dismissed for a lack of independent

basis for subject matter jurisdiction. See Zaidi, 2015 WL 4484172 (D.D.C. 2015), at *3

(dismissing for lack of subject matter jurisdiction a claim for declaratory relief against the

Sentencing Commission because there was no independent basis for such jurisdiction).



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               B.      Rivera’s Claims Against Individual Commissioners

                       1. Claim for Monetary Damages

       In addition to suing the Commission, Rivera also brings suit against current and former

Sentencing Commission members in their individual capacities. Even though Bivens actions

may be brought against federal officials in their individual capacities, the Commissioners, like

the Commission itself, are immune from suit for monetary damages—albeit on different grounds.

Courts have recognized that, although the Commission is not an agency for purposes of the

Administrative Procedure Act, Wash. Legal Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446,

1450 (D.C. Cir. 1994) (“Congress decided that the Sentencing Commission would not be an

‘agency’ under the APA when it established the Commission as an independent entity within the

judicial branch.” (citing 28 U.S.C. § 991(a)(1)), it is also not a court: “The Sentencing

Commission unquestionably is a peculiar institution within the framework of our Government.

Although placed by the [Sentencing Reform] Act in the Judicial Branch, it is not a court and does

not exercise judicial power,” Mistretta v. United States, 488 U.S. 361, 384–85 (1989).

       Rather, members of the Commission exercise nonadjudicatory, rulemaking power that is

“political or quasi-legislative” in nature. Id. at 393; see also id. at 390–93 (concluding that

Congress’s delegation of such power to the Judicial Branch does not run afoul of separation of

powers principles). And this Circuit “has expressly held that absolute immunity shields agency

officials from a Bivens action that is based on the promulgation of unconstitutional regulations.”

Fletcher v. U.S. Parole Comm’n, 550 F. Supp. 2d 30, 40 (D.D.C. 2008) (citing Jayvee Brand,

Inc. v. United States, 721 F.2d 385, 394–95 (D.C. Cir.1983)). This is so because “[l]egislation is

a function entitled to absolute immunity, . . . with the immunity following the function and not

the office.” Jayvee Brand, 721 F.2d at 395. As a result, “when an agency exercises quasi-



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legislative regulatory authority, action for money damages against agency members will not lie.”

Id. That principle squarely applies here. Rivera’s claim for monetary damages against the

Commissioners will therefore be dismissed as well.

                        2. Claim for Declaratory Relief

        Finally, Rivera presents a claim against the Commissioners for declaratory relief. But

like sovereign immunity, legislative immunity is jurisdictional in nature: This Circuit has held

that this type of immunity, arising from the Speech or Debate Clause of the Constitution, art. I,

§ 6, cl. 1, “operates as a jurisdictional bar when ‘the actions upon which [a plaintiff] s[eeks] to

predicate liability [a]re ‘legislative acts.’” Fields v. Office of Eddie Bernice Johnson, 459 F.3d

1, 13 (D.C. Cir. 2006) (en banc) (first alteration in original). And because immunity from

challenges to the performance of legislative acts “follow[s] the function and not the office,”

Jayvee Brand, 721 F.2d at 395, legislative immunity as a jurisdictional bar operating through the

Speech or Debate Clause, which explicitly protects members of Congress from suit, also serves

as a jurisdictional bar to suits against other federal officials predicated on their legislative acts.

Thus, for the same reason that Rivera’s claim for declaratory relief against the Commission must

be dismissed, so must his claim for declaratory relief against the individual Commissioners. See

Zaidi, 2015 WL 4484172 (D.D.C. 2015), at *3 (dismissing for lack of subject matter jurisdiction

a claim for declaratory relief where there was no independent basis for such jurisdiction).




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        III.   Conclusion

        For the foregoing reasons, it is hereby

        ORDERED that [6] Defendants’ Motion to Dismiss is GRANTED and that Plaintiff’s

Complaint is dismissed.




                                                       CHRISTOPHER R. COOPER
                                                       United States District Judge


Date:   September 18, 2015




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