                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
____________________________________
                                      )
LEE JOHNSON,                          )
                                      )
               Plaintiff,             )
                                      )
            v.                        ) Civil Action No. 09-1390 (PLF)
                                      )
EDWARD F. REILLY, JR. et al.,         )
                                      )
               Defendants.            )
____________________________________)


                                   MEMORANDUM OPINION

               Plaintiff, a District of Columbia prisoner currently confined at the Federal

Correctional Institution in Cumberland, Maryland, sues the United States Parole Commission

(“USPC”) for allegedly violating the ex post facto clause of the United States Constitution during

his parole proceedings. He claims that the USPC applied its own guidelines issued in 2000 when

it should have applied guidelines issued by the former District of Columbia Parole Board in 1987

in conjunction with the Board’s 1991 policy guideline. See 74 FR 58540-01 (Nov. 13, 2009).

Plaintiff seeks a declaration that the “application of the 2000 guidelines to [him] violates the Ex

Post Facto Clause” and “a new Parole Hearing” utilizing the 1987 guidelines. Compl. at 8-9.

               Defendants move to dismiss on the ground that the claims are moot [Dkt. No. 14].

Plaintiff, having now had the requested hearing, moves for summary judgment [Dkt. No. 11].

The Court agrees that the initial claims are moot and finds that plaintiff is not entitled to

judgment on the supplemental claim. It therefore will grant defendants’ motion to dismiss and

deny plaintiff’s motion for summary judgment.
                                        I. BACKGROUND

               Plaintiff is serving an aggregate sentence of 10 years and 8 months to 38 years for a

number of offenses – including voluntary manslaughter, carrying a pistol without a license,

conspiracy to commit murder, conspiracy to obstruct justice, and possession of a firearm during a

crime of violence – committed on August 4, 1993, and May 2, 1994. Compl. at 1-2. Plaintiff

appeared before a parole examiner for an initial parole hearing on April 26, 2005, and for a parole

reconsideration hearing on June 18, 2008. Plaintiff alleges that each time, the parole examiner

applied the 2000 guidelines. Id. at 19, 24.1

               On December 17, 2009, the USPC, having amended its regulations applicable to

D.C. Code offenders, held a parole reconsideration hearing for plaintiff utilizing the 1987

guidelines. By notice of January 5, 2010, the USPC denied parole and set a reconsideration

hearing for an unspecified day in December 2010. Pl.’s Mot., Attachment (“Pl.’s Attach.”)

(Notice of Action). The USPC departed upward from the guidelines that, based on plaintiff’s total

point score of 3, would otherwise have authorized his release to parole. Id.


                                         II. DISCUSSION

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

hearing conducted on December 17, 2009 provided the equitable relief sought by plaintiff in his

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

        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).

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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 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).

               In his motion for summary judgment, plaintiff acknowledges that the USPC

utilized the 1987 guidelines at his most recent parole hearing but now claims that the parole

examiner “recommended that parole be denied [] for reasons unauthorized by the 1987

Regulations.” Pl.’s Mot. ¶ 4. Contrary to plaintiff’s assertion, the 1987 regulations authorized the

USPC “to depart upward based on a prisoner’s risk to society.” Phillips v. Fulwood, ___ F.3d

___, 2010 WL 3063754 at *5 (D.C. Cir., Aug. 6, 2010) (citing D.C. MUN. REGS. tit. 28

§ 204.22 & app. 2-1, at 2-34). Here, the USPC found “that at this time there is a reasonable

probability that you would not obey the law if released and your release would endanger public

safety.” Pl.’s Attach. It reasoned:

                                 [Y]ou were convicted of two separate
                         offenses that resulted in the death of two individuals.
                         The second victim was a witness in a murder trial and
                         was killed on orders from the target of the
                         investigation. Your involvement in this conspiracy
                         and obstruction of justice makes you a more serious
                         risk if released to the community at this time.
                         Additionally, your institution misconduct is deemed


                                                   3
                         to be serious and includes past acts of threatening
                         staff on two occasions and engaging in a fight with
                         another inmate.

Id.

               Because the USPC’s decision is rationally supported, plaintiff has presented no

grounds for granting judgment in his favor. See Edmundson v. Turner, 954 F.2d 510, 512-13 (8th

Cir. 1992) (explaining that courts “have limited jurisdiction to review Parole Commission

determinations. Congress has expressly declared that the Commission's decisions to grant or deny

parole are ‘actions committed to agency discretion for purposes of [the judicial review provisions

of the Administrative Procedure Act].’ ") (quoting 18 U.S.C. § 4218(d)) (brackets in original);

accord Slader v. Pitzer, 107 F.3d 1243, 1246 (7th Cir. 1997) (“The inquiry is not whether the

Commission's decision is supported by the preponderance of the evidence, or even by substantial

evidence; the inquiry is only whether there is a rational basis in the record for the Commission's

conclusions embodied in its statement of reasons.”); cf. with Rockingham v. United States Parole

Commission, 523 F. Supp. 2d 38, 42 (D.D.C. 2007) (“A court's role in reviewing a parole

revocation decision is limited. The court determines only whether the revocation decision was

‘either totally lacking in evidentiary support or [was] so irrational as to be fundamentally

unfair.’ ”) (quoting Singletary v. Reilly, 452 F.3d 868, 872 (D.C. Cir. 2006) (other citations

omitted) (brackets in original).

               For the foregoing reasons, defendants’ motion to dismiss is granted and plaintiff’s

motion for summary judgment is denied. A separate Order accompanies this Memorandum

Opinion.

                                                      /s/________________________
                                                      PAUL L. FRIEDMAN
DATE: August 26, 2010                                 United States District Judge

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