United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 20, 2011                 Decided July 17, 2012

                         No. 10-5153

                     MELVIN J. TAYLOR,
                       APPELLANT

                              v.

      EDWARD F. REILLY, JR., CHAIRMAN, U.S. PAROLE
                  COMMISSION, ET AL.,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:09-cv-00749)



    Doug Keller, Supervising Attorney, Georgetown University
Law Center Appellate Litigation Program, argued the cause as
amicus curiae in support of appellant. With him on the briefs
were Steven H. Goldblatt, Director, Nilam A. Sanghvi,
Supervising Attorney, and Blake Holleman and Ana Olarte del
Castillo, Student Counsel.

     Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellees. With her on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Kenneth A. Adebonojo, Assistant U.S. Attorney, entered an
appearance.
                               2


   Before: GARLAND and KAVANAUGH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge GARLAND.

    Concurring opinion filed by Circuit Judge KAVANAUGH.

     GARLAND, Circuit Judge: Plaintiff Melvin Taylor alleges
that U.S. Parole Commission officials violated his rights under
the Ex Post Facto Clause by applying the Commission’s parole
regulations at his parole hearings. We conclude that application
of those regulations did not violate any clearly established
constitutional right of which a reasonable official would have
known at the time of the hearings. Accordingly, we affirm the
district court’s dismissal of Taylor’s damages suit on the ground
of qualified immunity.

                                I

     In 1993, Taylor was convicted in District of Columbia
Superior Court of the crimes of threatening to injure a person
and manslaughter, and he was sentenced to a maximum of 45
years in prison. Under that sentence, Taylor would become
eligible for parole after serving one-third of the maximum
period, minus any good-time credits. At the time of Taylor’s
conviction, the District of Columbia had its own parole board
that relied on regulations published in 1987. See Taylor v.
Craig, 2009 WL 900048, at *1 (S.D. W. Va. Mar. 24, 2009);
D.C. MUN. REGS. tit. 28, §§ 204.1-.22 (1987) (“1987
Regulations”). In 1997, Congress brought the D.C. parole
system under the jurisdiction of the U.S. Parole Commission
(USPC). See National Capital Revitalization and Self-
Government Improvement Act, Pub. L. No. 105-33, § 11231,
111 Stat. 712, 745-46 (codified at D.C. CODE § 24-131). And in
                                3

2000, the USPC adopted its own regulations regarding
suitability for parole, 28 C.F.R. §§ 2.70-.107 (“2000
Regulations”), which it made applicable to D.C. Code offenders
like Taylor, 65 Fed. Reg. 45,885 (July 26, 2000); see 28 C.F.R.
§ 2.70(a).

     At Taylor’s first parole hearing in 2001, the USPC applied
the 2000 Regulations and denied him parole. Taylor v. Craig,
2009 WL 900048, at *2. Taylor came up for parole again in
2005, but, again based on the 2000 Regulations, the Commission
found that Taylor would not be suitable for parole for several
more years. Id.

     In 2005, Taylor filed a petition for a writ of habeas corpus
in the United States District Court for the Southern District of
West Virginia, the district in which he was then incarcerated.
The petition alleged that application of the 2000 Regulations,
rather than the 1987 Regulations, at both his 2001 and 2005
hearings violated his rights under the Ex Post Facto Clause of
the Constitution. Taylor relied principally upon Garner v.
Jones, in which the Supreme Court held that retroactive
application of parole guidelines may violate the Ex Post Facto
Clause if it creates a “significant risk” of longer incarceration.
529 U.S. 244, 251-52, 255 (2000). After engaging in a detailed
analysis that compared the USPC’s 2000 Regulations to D.C.’s
1987 Regulations as they might have applied to Taylor, the
habeas court concluded: “It appears that Petitioner may have a
meritorious claim that the USPC violated the Ex Post Facto
Clause when it retroactively applied the 2000 regulations to his
parole hearings.” Taylor v. Craig, 2009 WL 900048, at *13.
Nonetheless, the court held that “[a]lthough the USPC’s actions
may have created a significant risk of an increased period of
incarceration,” that was “by no means certain” because the
Board had “ample discretion to depart from the parole decision
suggested by a strict application of the [1987] regulations.” Id.
                                   4

Thus, the court said, a victory for Taylor would have “[a]t
best . . . entitled [him] to a new parole hearing with instructions
to the USPC to exercise its discretion within the framework
created by [D.C.’s] 1987 Regulations.” Id. Concluding that the
only kind of relief available for such a claim was a change in
“the procedures of parole-granting entities” rather than release,
the court dismissed Taylor’s petition for habeas corpus under 28
U.S.C. § 2241, but suggested that a claim for relief might have
been appropriate had Taylor sued under 42 U.S.C. § 1983. Id.
at *13-15 (citing Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)).

     Thereafter, Taylor filed the instant Section 1983 complaint
against four Parole Commissioners who served on the USPC at
the time of his hearings, and against one Parole Examiner who,
he alleged, presided over his 2005 parole hearing.1 Taylor
sought a declaratory judgment that the defendants’ application
of the 2000 Regulations violated the Ex Post Facto Clause, an
injunction barring the defendants from relying on those
regulations at his future parole proceedings, an injunction
ordering them to hold a new hearing applying the 1987
Regulations, and compensatory and punitive damages. In the
summer of 2009, responding to similar lawsuits, the USPC
adopted a rule entitling inmates like Taylor to new parole
hearings in which the 1987 D.C. rules would be applied.
Appellees’ Br. 6; see 74 Fed. Reg. 34,688 (July 17, 2009)
(interim rule); 74 Fed. Reg. 58,540 (Nov. 13, 2009) (final rule)
(codified at 28 C.F.R. § 2.80(o)). After a new hearing at which
the 1987 Regulations were applied, Taylor’s parole was again



     1
      See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C.
Cir. 2005) (noting that “a cause of action under § 1983 will lie against
the individual members of the [United States Parole] Commission”
when, “pursuant to the [National Capital] Revitalization Act,” they
preside in matters involving D.C. Code offenders).
                                 5

denied. Parole Hearing Summary (July 28, 2009) (J.A. 36-40);
Oral Arg. Recording at 25:50.

     The defendants moved to dismiss Taylor’s complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted. The motion argued that
Taylor’s claims for declaratory and injunctive relief were moot
in light of the new hearing he had been accorded, and that the
defendants were protected against Taylor’s damages claims by
absolute immunity or, in the alternative, qualified immunity.
Agreeing with all of the defendants’ arguments, the district court
granted the motion the dismiss. Taylor v. Reilly, 2010 WL
891276 (D.D.C. Mar. 9, 2010). In upholding the defense of
qualified immunity, the court found: “[I]t 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” because “such a determination depends on the facts of
the particular case.” Id. at *2 n.2.

     Thereafter, Taylor appealed, and we appointed amicus
curiae to present arguments on his behalf.2 Taylor does not
contest the district court’s finding that his claims for declaratory
and injunctive relief are moot. He does, however, maintain his
quest for damages, arguing that neither absolute nor qualified
immunity protects the defendants. Because we conclude that the
defendants are entitled to qualified immunity, we do not address
the issue of absolute immunity.

                                 II

     We review a dismissal for failure to state a claim under
Rule 12(b)(6) de novo. Muir v. Navy Fed. Credit Union, 529


    2
     For purposes of this opinion, we will attribute to Taylor the
arguments made by amicus.
                                6

F.3d 1100, 1108 (D.C. Cir. 2008). In so doing, we “‘accept as
true all of the factual allegations contained in the complaint.’”
Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

     The Supreme Court has held that “[q]ualified immunity
shields federal and state officials from money damages unless a
plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was
‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The courts
“have discretion to decide which of the two prongs of
qualified-immunity analysis to tackle first.” Id. (citing Pearson
v. Callahan, 555 U.S. 223, 236 (2009)). Exercising that
discretion, we begin (and end) with an examination of whether
the right the plaintiff asserts was “clearly established” at the
time of his 2001 and 2005 parole hearings.

     The operation of the “clearly established” standard
“depends substantially upon the level of generality at which the
relevant ‘legal rule’ is to be identified.” Anderson v. Creighton,
483 U.S. 635, 639 (1987). The Court has explained, for
example, that although “the right to due process of law is quite
clearly established by the Due Process Clause,” that level of
generality is too high for purposes of qualified immunity
because “there is a sense in which any action that violates that
Clause (no matter how unclear it may be that the particular
action is a violation) violates a clearly established right.” Id.
The same can “be said of any other constitutional or statutory
violation.” Id. Instead, “the right the official is alleged to have
violated must have been ‘clearly established’ in a more
particularized, and hence more relevant, sense: The contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Id.
at 640. This does “not require a case directly on point, but
                                7

existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft, 131 S. Ct. at
2083; see Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012). In
determining whether the state of the law was “clearly
established” at the time of the action complained of, “‘we look
to cases from the Supreme Court and this court, as well as to
cases from other courts exhibiting a consensus view’ -- if there
is one.” Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011)
(quoting Johnson v. District of Columbia, 528 F.3d 969, 976
(D.C. Cir. 2008)).

     Taylor’s complaint is based upon an alleged violation of the
Ex Post Facto Clause, which “bar[s] enactments which, by
retroactive operation, increase the punishment for a crime after
its commission.” Garner, 529 U.S. at 249; see U.S. CONST. art.
I, § 9, cl. 3; id. § 10, cl. 1. “Retroactive changes in laws
governing parole of prisoners, in some instances, may be
violative of this precept.” Garner, 529 U.S. at 250 (emphasis
added). But retroactive changes do not always violate the
Clause. “The question,” the Court held in Garner, “is whether
the [new law] creates a significant risk of prolonging [the
prisoner’s] incarceration.” Id. at 251.

     As Garner explained, “[w]hether retroactive application of
a particular change in parole law respects the prohibition on ex
post facto legislation is often a question of particular difficulty
when the discretion vested in a parole board is taken into
account.” Id. at 250. “When the rule does not by its own terms
show a significant risk, the [prisoner] must demonstrate, by
evidence drawn from the rule’s practical implementation by the
agency charged with exercising discretion, that its retroactive
application will result in a longer period of incarceration than
under the earlier rule.” Id. at 255 (emphasis added). In such a
case, the prisoner “must show that as applied to his own
sentence the law created a significant risk of increasing his
                                   8

punishment.” Id. (emphasis added). This requires a “rigorous
analysis of the level of risk created by the change in law.” Id.

     In this case, whether retroactive application of the 2000
Regulations violates the Clause is “a question of particular
difficulty,” id. at 250. The 2000 Regulations instruct the USPC
to calculate a Total Guideline Range to determine the number of
months a prisoner should serve before he is suitable for parole.
See Phillips v. Fulwood, 616 F.3d 577, 578-79 (D.C. Cir. 2010);
28 C.F.R. § 2.80(f)-(l). The first step is to ascertain the
minimum number of months the prisoner must serve before he
becomes eligible for parole, a determination based on the
maximum sentence imposed by the court and the prisoner’s
good-time credits. See Taylor v. Craig, 2009 WL 900048, at *5.
Next, a “Base Point Score” is determined by assessing three
categories: risk of recidivism, current or prior violence, and
whether the crime involved the death of a victim or a high level
of violence. 28 C.F.R. § 2.80(f). The first category alone
involves application of six factors. See Taylor v. Craig, 2009
WL 900048, at *5; 28 C.F.R. § 2.20 Items A-F. The Base Point
Score yields a base guideline range, which is added to the
minimum number of months the prisoner must serve before
becoming eligible for parole. 28 C.F.R. § 2.80(h)-(m). The
result is then adjusted, based on the presence of specified
aggravating or mitigating factors, to produce the Total Guideline
Range. See id. (methods for determining minima and maxima).3

    As the district court in Taylor’s habeas case noted, although
“most of the factors” considered under the 2000 Regulations
were incorporated from the 1987 Regulations, Taylor v. Craig,


     3
     The adjustment factors include: disciplinary infractions incurred
during the prisoner’s incarceration; the gravity of such infractions; and
superior achievement in areas such as educational, vocational, and
counseling programs. 28 C.F.R. § 2.80(j)-(k); see id. § 2.36.
                                  9

2009 WL 900048, at *9, “the two sets of regulations
substantially differ in how they structure the discretion to grant
or deny parole,” id. at *7. The discrepancy arises in part from
the fact that the 2000 Regulations produce a guideline range of
time during which an inmate becomes suitable for parole (i.e.,
after 100-120 months), whereas the 1987 Regulations produce
a point scale in which those with a lower point score are deemed
suitable for parole. Id. at *7. Both sets of regulations allow for
departures from their guidelines.

     The 2000 Regulations do not, on their face, show a
significant risk of prolonged incarceration over the 1987
Regulations for every prisoner to whom they may be applied.
Certainly no case has so held. In Fletcher v. District of
Columbia (Fletcher I), 391 F.3d 250 (D.C. Cir. 2004), this court
did not even attempt to determine whether application of the
2000 rather than the 1987 Regulations constituted an Ex Post
Facto violation, instead remanding to the district court for a fact-
specific analysis. In a parallel habeas case, Fletcher v. Reilly
(Fletcher II), 433 F.3d 867 (D.C. Cir. 2006), we again remanded
without making a determination. Indeed, although we found
“facial distinctions” between the regulations that were
potentially significant for the petitioner’s case, we held only that
those distinctions were “sufficient to warrant factual
development . . . in order to determine whether” application of
the later regulations constituted an Ex Post Facto violation. Id.
at 879.4 And in Sellmon v. Reilly, the district court found that


     4
      None of those “facial distinctions” are present here. The
reference in Fletcher II was to regulations regarding reparole
decisions (that is, decisions to parole individuals who had previously
been paroled and were returned to prison after violating parole or
committing further offenses). For that category of prisoners, Fletcher
II found facial differences between the 1987 and 2000 Regulations, in
that the latter did not take account of a prisoner’s rehabilitative
                                10

application of the 2000 rather than the 1987 Regulations did not,
in fact, lead to an increased sentence for one of the prisoner
plaintiffs. 551 F. Supp. 2d 66, 93 (D.D.C. 2008); see also
Phillips, 616 F.3d at 582 (concluding that application of the
2000 Regulations did not produce a longer period of
incarceration for the plaintiff in light of the Board’s upward
departure from the guidelines).

     Nor is it apparent on the face of the 2000 Regulations that,
“as applied to [Taylor’s] own sentence,” those regulations
“created a significant risk of increasing his punishment.”
Garner, 529 U.S. at 255. Taylor insists that it is apparent, citing
the decision of the district court in his habeas case. But that
court held no more than that “[i]t appears that Petitioner may
have a meritorious claim” of a violation of the Ex Post Facto
Clause. Taylor v. Craig, 2009 WL 900048, at *13 (emphasis
added). Even that qualified verdict was reached only after the
court conducted a five-page, “searching comparison” of the
manner in which the two sets of regulations applied to Taylor --
including an analysis of the nature of Taylor’s offenses, his
background, and his conduct subsequent to conviction. See id.
at *7-11; see also id. at *3 (stating that Taylor’s Ex Post Facto
argument presents a “thorny question”). In part, this is because
applying the two sets of regulations requires an apples-to-
oranges comparison: as noted above, while the 2000
Regulations generate ranges of time, the 1987 Regulations
generate a point scale on which those with fewer points are
deemed presumptively suitable for parole. See id. at *7.

    In short, there is no sense in which the new “rule . . . by its
own terms show[s] a significant risk” of increased incarceration.
Garner, 529 U.S. at 255. Accordingly, if there were a violation
here, it was not a violation that any “reasonable official would


accomplishments between his two incarcerations. Id. at 877-79.
                               11

[have] underst[oo]d” at the time he applied the 1987 Regulations
to Taylor’s case. Anderson, 483 U.S. at 640; cf. Garner, 529
U.S. at 255 (finding, in light of the prisoner’s criminal history,
that it was “difficult to see how” a new parole rule “increased
the risk of [petitioner’s] serving a longer term,” notwithstanding
that the new rule provided parole reviews after 8-year rather
than 3-year intervals). Accordingly, we cannot conclude that
such an application violated “clearly established” law.
Anderson, 483 U.S. at 640.

     Taylor argues that the parole officials were at least “on
notice” that they had to conduct a fact-specific comparison of
both the 1987 and 2000 Regulations before deciding to apply the
latter to his case. Br. 44. But Taylor cites no court decision,
either before or after his 2001 and 2005 parole hearings, that
found a violation of the Ex Post Facto Clause based merely on
a failure to conduct such a comparison. Cf. Wilson v. Layne,
526 U.S. 603, 617 (1999) (finding no clearly established
violation of law when the petitioners failed to cite “any cases of
controlling authority in their jurisdiction” holding that the
practice at issue was unlawful). Taylor maintains that our 2004
decision in Fletcher I was such a case, but he is mistaken.
Fletcher I held nothing more than that the plaintiff’s Section
1983 case could not be dismissed on the ground that “a parole
guideline is not a ‘law’ within the proscription of the Ex Post
Facto Clause,” and it therefore remanded the case for the district
court to conduct “proceedings consistent with Garner.”
Fletcher I, 391 F.3d at 251. Our disposition was a procedural
direction to the district court. We issued no direction to the
defendant Parole Commission and reached no conclusion
whatsoever with respect to a violation of the Ex Post Facto
Clause.

    Indeed, even if it were assumed that there are circumstances
in which parole officials are required by the Ex Post Facto
                                 12

Clause to compare the impact of two sets of regulations before
applying one, what those circumstances are and whether they
apply to Taylor’s case are both unclear.5 Recall that, “[w]hen
the rule does not by its own terms show a significant risk,”
Garner places the burden on the plaintiff to “demonstrate, by
evidence drawn from the rule’s practical implementation by the
agency charged with exercising discretion, that its retroactive
application will result in a longer period of incarceration than
under the earlier rule.” Garner, 529 U.S. at 255. In Fletcher II,
we held that the petitioner was “entitled to a searching
comparison of the old and new reparole regimes” by the district
court considering his complaint, 433 F.3d at 879, but did so only
after first concluding that he had “presented a creditable claim”
of a significant risk of longer incarceration, id. at 878. We have
never addressed whether such a “creditable claim” is either
necessary or sufficient to mandate an initial searching
comparison by parole officials (and we do not mean to suggest
an answer to that question here). Nor has Taylor ever contended
that he presented such a creditable claim to the parole officials
who are defendants here -- or that he even asked them to apply
the 1987 Regulations to his case. In these circumstances, it was
not a violation of clearly established law for the parole officials
to fail to conduct a comparison of the two sets of regulations.

                                 III

    A parole official applying the 2000 Regulations at Taylor’s
parole hearings would not have had reason to know that doing


    5
      We note that a 2009 regulation issued by the USPC now requires
hearing examiners, in specified circumstances, to evaluate prisoners’
cases using the 1987 Regulations. 28 C.F.R. § 2.80(o). As discussed
in Part I, Taylor was accorded a new hearing pursuant to that
regulation, but his parole was again denied. See Parole Hearing
Summary (July 28, 2009) (J.A. 36-40); Oral Arg. Recording at 25:50.
                               13

so would create a “significant risk” of longer incarceration than
applying the 1987 Regulations. If there were any difference in
the ultimate outcome for Taylor, it would not have become
apparent without a searching comparison of the application of
each of the two sets of regulations to the facts of his case.
Hence, although it was clearly established at the relevant times
that applying new parole regulations creating a significant risk
of longer incarceration violates the Ex Post Facto Clause, it
would not have been clear to reasonable parole officials that
applying the new regulations to Taylor would actually create
such a risk. Nor had any case required officials -- particularly
officials who did not already have a basis for believing there
was such a risk -- to conduct a searching comparison before
deciding which regulations to apply.

    Accordingly, the judgment of the district court is

                                                       Affirmed.
    KAVANAUGH, Circuit Judge, concurring:               The
Government contends that the U.S. Parole Commissioners
should receive absolute immunity for their decision to deny
parole to Taylor. The Government’s fallback argument is
qualified immunity. Taylor’s claim fails even if the Parole
Commissioners are entitled only to qualified immunity, and
the Court thus correctly affirms dismissal of the suit. The
Court does not address the Government’s absolute immunity
argument. I write separately simply to make clear that the
Government’s absolute immunity theory is unavailing.

     The Government claims that Parole Commissioners are
like judges or agency adjudicators who are entitled to absolute
immunity for their judicial or quasi-judicial decisions. But
the Government’s position misunderstands the office of
Parole Commissioner. The Supreme Court has afforded
absolute immunity to those adjudicative officials who operate
independently and are not removable at will by the President
or another Executive Branch officer. See, e.g., Butz v.
Economou, 438 U.S. 478, 513-14 (1978). By contrast,
Executive Branch officials who are removable at will are
ordinarily entitled only to qualified immunity for their
decisions, even when their actions are quasi-judicial. (An
exception, not applicable here, is the absolute immunity
granted to prosecutors for certain prosecutorial decisions.)
Parole Commissioners are Executive Branch officials who are
removable at will by the President. See Constitutionality of
Legislation Extending the Terms of Office of U.S. Parole
Commissioners, 18 Op. O.L.C. 166, 171 (1994). Therefore,
the Supreme Court’s precedents do not support granting
absolute immunity to Parole Commissioners for their parole
decisions.
