                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
____________________________________
                                      )
MELVIN J. TAYLOR,                     )
                                      )
               Plaintiff,             )
                                      )
            v.                        ) Civil Action No. 09-0749 (PLF)
                                      )
EDWARD F. REILLY, JR. et al.,         )
                                      )
               Defendants.            )
____________________________________)


                                   MEMORANDUM OPINION

               In this civil action brought pro se, plaintiff, a District of Columbia prisoner,

claims that the defendants – members of the United States Parole Commission ("USPC") and a

parole examiner – violated the Constitution’s ex post facto clause during his parole proceedings.

He seeks monetary damages, a declaration that his rights were violated and an injunction

compelling a new parole hearing under the proper guidelines. Defendants move to dismiss under

Rule 12(b)(2), (b)(4), (b)(5) and (b)(6) of the Federal Rules of Civil Procedure. Upon

consideration of the parties' submissions, the Court finds that plaintiff’s claims for declaratory

and injunctive relief are moot and his damages claim is foreclosed by defendants’ immunity. The

Court therefore will grant defendants' motion to dismiss under Rule 12(b)(6) for failure to state a

claim upon which relief can be granted.


                                        I. BACKGROUND

               Plaintiff is serving a 45-year prison sentence imposed in 1993 by the Superior

Court of the District of Columbia following his conviction for manslaughter and threatening to
injure a person. Compl. at 3. The conviction resulted from an incident on January 1, 1992. Id.

In December 2001 and February 2005, defendants, applying USPC guidelines established in

2000 for D.C. Code offenders, denied parole to plaintiff and scheduled a parole rehearing for

February 2010.1 Id. at 5. Plaintiff filed this action in April 2009 to prevent defendants from

applying the 2000 parole guidelines to him and to compel their use of guidelines that were in

effect at the time of the underlying crimes in 1992. On July 22, 2009, plaintiff appeared for a

parole hearing where defendants applied guidelines that were in effect in 1987 and 1991. The

USPC had yet to render a final decision at the conclusion of the parties’ briefing of the pending

motion. See Def.'s Reply at 2, n.1.


                                        II. DISCUSSION

               Plaintiff’s claims for declaratory and injunctive relief are moot because the parole

hearing conducted on July 22, 2009, provided the equitable relief sought from the complaint. See

Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir. 2009) (“A case is

moot when ‘the challenged conduct ceases such that there is no reasonable expectation that the

wrong will be repeated’ in circumstances where ‘it becomes impossible for the court to grant any

effectual relief whatever to the prevailing party.’ ” ) (quoting United States v. Philip Morris USA,

Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009)) (other citation omitted); Fletcher v. United States

Parole Commission, 550 F. Supp. 2d 30, 44 (D.D.C. 2008) (“A case is considered moot either


       1
          The USPC assumed authority over parole determinations of District of Columbia
prisoners in August 1998. See Franklin v. District of Columbia, 163 F.3d 625, 632 (D.C. Cir.
1998) (acknowledging new law transferring parole authority from the former D.C. Board of
Parole); Sellmon v. Reilly, 551 F. Supp. 2d 66, 68-73 (D.D.C. 2008) (discussing original and
revised regulations and guidelines).

                                                 2
when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in

the outcome.”) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)); see also Sellmon v.

Reilly, 551 F. Supp. 2d 66, 84 (D.D.C. 2008) (“Were these plaintiffs to prevail in their ex post

facto challenge, they would gain at most a new parole hearing. . . .”) (citation and internal

quotation marks omitted).

               As for the damages claim, defendants are absolutely immune from this lawsuit

predicated on acts taken in their “quasi-judicial” or “quasi-legislative” capacity. See Fletcher v.

United States Parole Commission, 550 F. Supp. 2d at 40 (“This Circuit has expressly held that

absolute immunity shields agency officials from a Bivens action that is based on the

promulgation of unconstitutional regulations.”) (citing Jayvee Brand, Inc. v. United States, 721

F.2d 385, 394-95 (D.C. Cir. 1983)); see also Atherton v. District of Columbia Office of Mayor,

567 F.3d 672, 682 (D.C. Cir. 2009) (“[A]bsolute immunity has been extended to cover executive

branch officials who perform either quasi-judicial functions that are " 'functionally comparable'

to th[ose] of a judge. . . . ") (quoting Butz v. Economou, 438 U.S. 478, 513 (1978) (citing hearing

examiners and administrative law judges)); Epps v. U.S. Atty. Gen., 575 F. Supp. 2d 232, 242,

n.13 (D.D.C. 2008) (noting cases granting quasi-judicial absolute immunity to probable cause

hearing examiners and parole commissioners); compare Atherton, 567 F.3d at 683-84 (rejecting

absolute immunity claim where court official “was not involved in the resolution of any factual

or legal issue; and her responsibilities did not involve handling any pleadings, disputes, or

controversies of law.”); with 28 C.F.R. § 2.80(o)(3)-(4) (“[A] hearing examiner shall first review




                                                  3
the case on the record [and] evaluate the prisoner's case using the 1987 Board guidelines. . . .”).2

               For the foregoing reasons, defendants’ motion to dismiss under Rule 12(b)(6) is

granted. A separate Order accompanies this Memorandum Opinion.


                                                      /s/_________________________
                                                      PAUL L. FRIEDMAN
                                                      United States District Judge
DATE: March 9, 2010




       2
           Plaintiff sues Parole Examiner Jacqueline Wynn for “apply[ing] the USPC’s
regulations and guidelines when examing [sic] Plaintiff for parole eligibility and release during
his last parole hearing in 2005.” Compl. at 6, ¶ 7. Even if Wynn’s functions are not quasi-
judicial, defendants argue correctly that she would be shielded by qualified immunity because it
was not clearly established in 2005–nor is it today– that the Commission’s retroactive application
of its guidelines violated the ex post facto clause. Rather, such a determination depends on the
facts of the particular case. See Sellmon v. Reilly, 551 F. Supp. 2d at 84 (“To prevail on an ex
post facto claim . . . plaintiffs [some of whom were granted relief] must demonstrate that as
applied to their individual cases, the ‘practical effect’ of the application of the federal parole
standards and/or the 2000 Guidelines was a ‘substantial risk’ of lengthier incarceration.”)
(following Fletcher v. Reilly, 433 F.3d 867, 877 (D.C. Cir. 2006)) (emphasis supplied); Taylor v.
Craig, 2009 WL 900048, at *3 (S.D.W.Va., Mar. 24, 2009) (Southern District of West Virginia
acknowledging in this plaintiff’s habeas action there that “[his] ex post facto argument presents a
thorny question for which there is no clear consensus among authorities.”) (footnote omitted).
