                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

 EDDIE WILSON,

           Plaintiff,

      v.                                                    Civil Action No. 09-2365 (CKK)

 ISAAC FULLWOOD, JR., et al.

           Defendants.



                                 MEMORANDUM OPINION
                                    (March 28, 2011)

I.     Introduction.

       Plaintiff is currently imprisoned at United States Penitentiary Hazelton (“USP

Hazelton”), where he is serving aggregate sentences imposed for a crime spree in 1975

consisting of kidnaping, robbery, burglary, rape, and first-degree murder, in violation of various

portions of the District of Columbia Code, as well as for a 1978 violation of the United States

Code for possession of a controlled substance in prison. Plaintiff has had four parole hearings,

one in each of the following years: 2001, 2004, 2005, and 2008. Plaintiff now brings this action

against three current Commissioners and one former Commissioner of the United States Parole

Commission (“Commission” or “USPC”) under 42 U.S.C. § 1983, alleging that the Commission

violated the Ex Post Facto Clause of the United States Constitution in its application of certain

parole guidelines in lieu of others at his four parole hearings. Defendants have moved to dismiss

under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be

granted.
       In this Memorandum Opinion, the Court will first discuss the background of this case,

including a summary of Plaintiff’s crimes and convictions, an explanation of the regulatory

framework applicable to Plaintiff’s parole hearings, a summary of Plaintiff’s four parole

hearings, and a summary of Plaintiff’s allegations in this case and Defendant’s motion to

dismiss. The Court will then discuss the standards applicable to the evaluation of Defendants’

motion and evaluate that motion. For the reasons discussed below, the motion will be granted.

II.    Background.

       A.      Plaintiff’s Crimes and Convictions.

       The United States District Court for the Middle District of Pennsylvania, when

considering a petition for a writ of habeas corpus filed by Plaintiff, succinctly set forth the facts

concerning Plaintiff’s crimes and convictions:1

                On October 5, 1976, Wilson entered a guilty plea in the Superior Court for
       the District of Columbia to thirty-six (36) felony counts. On January 31, 1977,
       Wilson was sentenced on first degree murder and armed robbery charges to an
       aggregate sentence of twenty-eight (28) years to life imprisonment. . . . Wilson
       subsequently was sentenced to concurrent sentences on the remaining thirty-four
       (34) counts of kidnapping, robbery, and burglary and/or rape.
                While serving his District of Columbia sentence at the Lorton
       Reformatory in Virginia, which was then the District’s long-term correctional
       facility, Wilson was charged with possession with intent to distribute Pentazocin
       and possession of a knife. Following a jury trial in the United States District
       Court for the Eastern District of Virginia, Wilson was found guilty of the drug


       1
           The Court neither takes judicial notice of nor separately finds these facts. See Anderson
v. The Islamic Republic of Iran, No. 08-cv-535, 2010 WL 4871189, at *4 (D.D.C. Dec. 1, 2010)
(quoting Fed. R. Evid. 201(b)) (noting that “[a] difficult issue arises concerning judicial notice
of . . . courts’ prior findings of facts” because “[w]hile such findings in a prior proceeding are
‘capable of accurate and ready determination’ from judicial records,” they are not necessarily
“‘not subject to reasonable dispute’”). Instead, the Court assumes the truth of the averments in
the complaint, see discussion infra Part III.B., and merely quotes the Middle District of
Pennsylvania as a convenient means of providing background information consistent with those
averments.

                                                  2
       offense and not guilty of the weapons charge. On October 16, 1987, Wilson was
       sentenced to a term of imprisonment of three (3) years to run consecutive to his
       District of Columbia sentences.
               In January 2001, Wilson successfully challenged the decision by the
       Bureau of Prisons (“BOP”) to have his 1987 federal sentence lodged as a detainer
       to be served only after he had completed his District of Columbia sentences. By
       letter dated January 23, 2001, Wilson was notified that the BOP had reversed its
       decision, and that “The three year sentence is aggregated with your D.C. Code
       [sentences] as originally computed and your eligibility date is October 29, 2000.”
       Accordingly, Wilson became eligible for parole.

Wilson v. U.S. Parole Comm’n, No. 4:06-CV-1853, 2010 WL 569554, at *1 (M.D. Pa. Feb. 11,

2010) (internal citations omitted) (alteration in original). Plaintiff is currently serving his

aggregate sentence at United States Penitentiary Hazelton. Inmate Locator, Fed. Bureau of

Prisons, http://www.bop.gov/iloc2/LocateInmate.jsp (search for Register Number 01581-000).

       B.      Parole Regulatory Framework.

       The Commission exercises parole authority over both U.S. Code offenders, 28 C.F.R.

§ 2.2 (2010), and D.C. Code offenders, id. § 2.70. The Commission’s authority over U.S. Code

offenders derives from 42 U.S.C. § 4203. The Commission’s authority over D.C. Code offenders

derives from the National Capital Revitalization and Self-Government Improvement Act, Pub. L.

No. 105-33, § 11231, 111 Stat. 712, 734–37 (1997) [hereinafter D.C. Revitalization Act], which

“abolished the D.C. Parole Board and directed the USPC to conduct parole hearings for D.C.

Code offenders ‘pursuant to the parole laws and regulations of the District of Columbia,’”

Sellmon v. Reilly, 551 F. Supp. 2d 66, 68 (D.D.C. 2008) [hereinafter Sellmon I] (quoting

§ 11231(c)).

       When the Commission considers for parole “prisoners serving any combination of U.S.

and D.C. Code sentences that have been aggregated by the U.S. Bureau of Prisons” (BOP), the

Commission is directed by regulation to “apply the guidelines at [28 C.F.R.] § 2.20 to the

                                                   3
prisoner’s U.S. Code crimes, and the guidelines of the District of Columbia Board of Parole to

the prisoner’s D.C. Code crimes.” 28 C.F.R. § 2.65(a)–(b) (2010).2 Although the process is thus

bifurcated, parole consideration is nonetheless made “on the basis of a single parole eligibility

and mandatory release date on the aggregate sentence” and “every decision made by the

Commission, including the grant, denial, and revocation of parole, is made on the basis of the

aggregate sentence.” Id. § 2.65(a).

       Concerning the guidelines applicable to U.S. Code offenders, significant to this case is a

change affecting crimes committed between 1984 and 1987, a time period that includes

Plaintiff’s 1987 drug conviction. Under the Sentencing Reform Act of 1984, Pub. L. No.

98–473, title II, ch. II, 98 Stat. 1987 [hereinafter SRA], Congress mandated that the Commission

“set a release date” for a parolee “within the range that applies to the prisoner under the

applicable parole guideline,” id. § 235(b)(3), 98 Stat. at 2032. “Before enactment of the SRA,

the Parole Commission was permitted to go beyond the guideline range in cases with ‘good

cause for so doing.’” Lyons v. Mendez, 303 F.3d 285, 288 n.4 (3d Cir. 2002) (quoting 18 U.S.C.

§ 4206(c) (1982)). However, under the Sentencing Act of 1987, Pub. L. No. 101-182, 101 Stat.

1266, Congress amended § 235(b)(3) to require that a release date be set for a parolee “pursuant

to section 4206 of title 18, United States Code,” thus restoring the Commission’s discretion to go

beyond the guideline range for good cause, id. § 2(b), 101 Stat. at 1266; Lyons, 303 F.3d at 288

n.5.


       2
         An aggregate sentence is “the sum of all the maximum consecutive terms to which an
inmate is sentenced. For sentences that run concurrently with each other, the shorter of the two
terms is subsumed by the longer, and the aggregate term may include only the longer term, not
both terms.” Cosgrove v. Thornburgh, No. 80-cv-516, 1992 U.S. Dist. LEXIS 12483, at *13
(D.D.C. Aug. 14, 1992).

                                                 4
       Concerning the guidelines applicable to D.C. Code offenders, such guidelines have

changed several times in the years since Plaintiff’s 1976 crimes. From 1932 to 1985, parole

eligibility was determined by a D.C. Parole Board that operated with nearly complete discretion.

Austin v. Reilly, 606 F. Supp. 2d 4, 8 (D.D.C. 2009). Under regulations promulgated in 1972 and

in effect at the time of Plaintiff’s crimes (the “1972 Regulations”), the Board took “into account

some of the following factors in making it’s determination as to parole:”

               (a) The offense, noting the nature of the violation, mitigating or
      aggravating circumstances and the activities and adjustment of the offender
      following arrest if on bond or in the community under any presentence type
      arrangement.
               (b) Prior history of criminality noting the nature and pattern of any prior
      offenses as they may relate to the current circumstances.
               (c) Personal and social history of the offender, including such factors as his
      family situation, educational development, socialization, marital history,
      employment history, use of leisure time and prior military experience, if any.
               (d) Physical and emotional health and/or problems which may have played
      a role in the individual’s socialization process, and efforts made to overcome any
      such problems.
               (e) Institutional experience, including information as to the offender’s
      overall general adjustment, his ability to handle interpersonal relationships, his
      behavior responses, his planning for himself, setting meaningful goals in areas of
      academic schooling, vocational education or training, involvements in self-
      improvement activity and therapy and his utilization of available resources to
      overcome recognized problems. Achievements in accomplishing goals and efforts
      put forth in any involvements in established programs to overcome problems are
      carefully evaluated.
               (f) Community resources available to assist the offender with regard to his
      needs and problems, which will supplement treatment and training programs begun
      in the institution, and be available to assist the offender to further serve in his
      efforts to reintegrate himself back into the community and within his family unit as
      a productive useful individual.

9 D.C.R.R. ch. 2, § 105.1 (1972). In 1981, the District of Columbia promulgated new parole

regulations (the “1981 Regulations”), but the language of § 105.1 remained unchanged. 9

D.C.R.R. ch.2, § 105.1 (1981). Under both the 1972 and 1981 Regulations, “the Board had no


                                                 5
formalized scoring system . . . . The decision to grant parole remained within the discretion of

the Board . . . .” Davis v. Henderson, 652 A.2d 634, 635 (1995), quoted in Austin, 606 F. Supp.

2d at 9.3

        “In 1985, the D.C. Board of Parole adopted guidelines to channel its discretion; these

guidelines were published and codified in 1987” (the “1987 Regulations”). Sellmon I, 551 F.

Supp. 2d at 69–71; see D.C. Mun. Regs. tit. 28, § 204 (1987). The Court explained in Sellmon I

how the 1987 Regulations operated:

                 After serving his or her minimum sentence, a D.C. Code offender became
        eligible to considered for parole. Once a prisoner became eligible for parole, the
        D.C. Parole Board would then determine whether he or she was suitable for
        parole. Under the 1987 Regulations, the D.C. Parole Board would make this
        determination employing an analytical framework that relied on [two] pre- and
        [two] post-incarceration factors. . . .
                 The first . . . factor the Board considered was the degree of risk posed by
        an offender [as calculated by the Salient Factor Score (SFS)], an actuarial risk
        assessment device that relies exclusively on information known at the time of
        incarceration. In calculating a prisoner’s SFS, the Board considered six
        pre-incarceration factors: (1) prior convictions and adjudications; (2) prior
        commitments of more than 30 days; (3) age at the commission of current offense;
        (4) recent commitment-free period; (5) status of prisoner at time of current
        offense; and (6) history of heroin or opiate dependence. The SFS placed the
        candidate into one of four risk categories (10–9 = low risk, 8–6 = fair risk, 5–4 =
        moderate risk, or 3–0 = high risk) from which the Board would determine a
        baseline number of points (“base point score”) that provided 0 for low risk, 1 for
        fair risk, 2 for moderate risk, and 3 for high risk. The Board would then take the
        base point score and adjust it using the remaining pre-incarceration factor and the
        two-post incarceration factors to arrive at the Point Assignment Grid Score (“total
        point score”).
                 The remaining pre-incarceration factor was the type of risk posed by the
        offender . . . . If the Board determined that the parole candidate’s current offense,


        3
        Although both Austin and Davis concerned only the 1981 version of § 105.1, because
the 1972 version of that section was identical to the 1981 version, the logic of these cases
concerning the 1981 version applies with equal force to the 1972 version. See Austin, 606 F.
Supp. 2d at 8–9; Davis, 952 A.2d at 635. Compare 9 D.C.R.R. ch. 2, § 105.1 (1972) with 9
D.C.R.R. ch. 2, § 105.1 (1981).

                                                  6
       or two prior felony convictions involved violence, weapons, and/or drug
       trafficking, then the Board could increase the baseline point score by a maximum
       of one point.
               The two post-incarceration factors were the offender’s institutional
       adjustment, an aggravating factor applicable to those cases in which the Board
       made findings that disciplinary infractions were either serious or repetitious
       enough to impact negatively on the parole decision, and the offender’s program
       participation, a mitigating factor applicable to those cases in which the Board has
       made findings that the program or work accomplishments of the prisoner were
       substantial enough to impact favorably on the parole decision. The Board could
       add one point to the candidate’s baseline point score for negative institutional
       behavior and subtract one point for sustained program or work assignment
       achievement.
               Once the Board calculated the offender’s total point score, the 1987
       Regulations directed that a parole request could be granted (with varying levels of
       supervision) at the initial hearing if the offender’s final adjusted score was 0, 1, or
       2, or denied if the offender’s final adjusted score was 3–5. In the case of a parole
       rehearing, parole could be granted for a score of 0–3, or denied if the score was
       4–5. The Board recognized, however, that there occasionally will be unique
       circumstances that are not taken into account by either the Salient Factor Score or
       the type of risk assessment, but that none-the-less should impact on the release
       decision. In such a case, the Parole Board could depart from the action indicated
       by the SFS by referencing an applicable aggravating or mitigating factor . . . .
       [Such factors were whether]: (1) the offender repeatedly failed under parole
       supervision; (2) the current offense involved ongoing criminal behavior; (3) the
       offender had a lengthy history of criminally related alcohol abuse; (4) the
       offender had a history of repetitive sophisticated criminal behavior; (5) the
       offender had an unusually serious prior record of at least five felony convictions;
       or (6) the offender’s crime involved unusual cruelty to victims.
               In 1991, to ensure consistent and equitable application of the 1987
       Regulations, the Board adopted a policy guideline to define the terms used in the
       appendices to the 1987 Regulations . . . .

Sellmon I, 551 F. Supp. 2d at 69–71 (internal citations, quotations, quotation marks, alterations,

ellipses, and footnotes omitted).

       “Between 1998 and 2000, the USPC drafted new parole regulations and guidelines (the

‘2000 Guidelines’) that it applied to any offender who received an initial parole hearing after

August 5, 1998.” Id. at 71. These regulations are currently in effect and enumerated at 28

C.F.R. § 2.80 (2010). The Court also explained in Sellmon I how these guidelines operate:

                                                 7
                Similar to the 1987 Regulations, the 2000 Guidelines use a point score
       system to determine whether a candidate is presumptively suitable for parole.
       This system begins with a calculation of the Salient Factor Score (“SFS”), which
       assesses the degree of risk that a parole candidate will become a recidivist. See
       28 C.F.R. §§ 2.80(c)[,] 2.20. The candidate’s “criminal conduct (including the
       nature and circumstances of the current offense) . . . [is then] used to assist the
       Commission in determining the probable seriousness of the recidivism that is
       predicted by the Salient Factor Score.” Id. § 2.80(c). Like the 1987 Regulations,
       the 2000 Guidelines also determine the “type of risk” posed by the parole
       candidate by looking at his or her history of violence, the use of weapon, and/or
       death of the victim as a result of the candidate’s crime. Id. § 2.80(f). Under the
       2000 Guidelines, a candidate can receive as many as 7 points based on the “type
       of risk” factor. Id. . . . .
                After calculating both the degree and type of risk posed by an offender,
       the base point score is converted into a “base guideline range” of months that are
       added to the parolee’s minimum sentence imposed by the court. See [id.]
       § 2.80(h). Any offender with a base point score of greater than 3 points will,
       absent superior program achievement, have additional months added to his or her
       parole eligibility period. Id. §[] 2.80(h)[–](i).
                After adding the base guideline range to the parole eligibility period, the
       USPC then adds or subtracts months to reflect negative institutional behavior
       and/or superior program achievement. See [id.] §[] 2.80(j)[–](l). The final range
       of months is referred to as the “total guideline range,” which is “the amount of
       time [an offender] may expect to serve with continued good conduct and ordinary
       program achievement.” 65 Fed. Reg. 70,663, 70,664 (Nov. 27, 2000). Until a
       parole candidate has served a period of time equal to the bottom of his total
       guideline range, the candidate is presumed to be unsuitable for parole. See 28
       C.F.R. §[] 2.80(h)[–](i), [](l).
                Finally, similar to the 1987 Regulations, the 2000 Guidelines permit the
       USPC to deny parole to a candidate who is presumptively eligible under “unusual
       circumstances.” The 2000 Guidelines provide examples of “unusual
       circumstances” but do not limit the discretion of the USPC to depart on any basis
       that it classifies as “unusual” except that it cannot have been “fully taken into
       account in the guidelines.” [Id.] § 2.80(n).

Sellmon I, 551 F. Supp. 2d at 72–73.

       C.        History of Plaintiff’s Parole Hearings.

       The Middle District of Pennsylvania also succinctly set forth relevant background

information on Plaintiff’s four parole hearings:4

       4
           See discussion supra note 1.

                                                    8
        During his initial parole hearing before the Parole Commission on May 9,
2001 [(the “2001 hearing”)], in determining Institutional Factors, the Hearing
Examiner made a finding based in part on the weapons charge for which Wilson
had been found not guilty in his 1987 jury trial in the Eastern District of Virginia.
Based on that finding, a period of twelve (12) to sixteen (16) months was added to
Wilson’s base guideline range. Wilson’s Total Guideline Range was determined
to be 324–350 months.
        ....
        Following the hearing, a Notice of Action dated July 23, 2001 issued
denying parole and continuing for a Three Year Reconsideration Hearing in May
2004 after the service of thirty-six (36) months from his hearing date.
        ....
        In a prior habeas action before [the U.S. District Court for the Middle
District of Pennsylvania], Wilson claimed that the Hearing Examiner’s actual on
the record reasoning process regarding the determination that Wilson was in
possession of a knife was based on an inaccurate factual predicate. . . . [B]y
Notice of Action dated January 26, 2005, the Parole Commission re-opened
Wilson’s case for a special reconsideration hearing at which it would not include
the previously assessed twelve (12) to sixteen (16) months for possession of a
knife that previously had been included in calculating his guideline range.
Because Respondents agreed to afford Wilson the relief he sought in his petition,
by Order dated January 28, 2005, the petition was dismissed as moot.
        On June 22, 2004, while his prior habeas petition was pending,
Petitioner’s Three-Year Reconsideration Hearing was held [(the “2004 hearing”)].
Because the Parole Commission had not yet issued its decision that it would not
consider the knife charge in calculating Wilson’s base guideline range, the knife
charge again was considered, and Wilson’s Total Guideline Range again was
calculated to be 324–350 months.
        In a Notice of Action dated July 7, 2004, the Parole Commission denied
parole and continued to a Three-Year Reconsideration Hearing in June 2007. The
Notice indicated that, as of June 22, 2004, Wilson had been confined for a total of
343 months.
        Pursuant to its decision to calculate Wilson’s Total Guideline Range
without assessing the twelve (12) to sixteen (16) months for possession of a knife,
on January 26, 2005, the Parole Commission issued a Notice of Action pursuant
to 28 C.F.R. § 2.75(e) scheduling a special reconsideration hearing. The Notice
indicated that, if no other changes are made to the guidelines, Wilson’s range
would be 312–334 months.
        On March 28, 2005, the Commission conducted Wilson’s Special
Reconsideration Hearing [(the “2005 hearing”)]. The Hearing Summary noted
Wilson’s confirmation of the fact that he had been confined for 353 months. The
Hearing Examiner stated that, although the Notice of Action showed that the
guideline range would be 312–334 months, the Examiner calculated the guideline
range at 312–324 months. Even so, the Examiner stated that, “In considering all


                                         9
       the information, this Examiner concurs that the subject is a more serious risk than
       indicated by his SFS. These risk factors were defined in the NOA dated
       7/7/2004.” The Examiner made a recommendation to deny parole, but to
       continue to a presumptive parole after the service of 372 months on October 26,
       2006 with Special Conditions of Mental Health and Drug Aftercare. However, on
       April 15, 2005, the Executive Reviewer added the following comment to the
       Hearing Summary: “I disagree with setting a release date at this hearing for the
       reasons outlined in the NOA dated 7/[7]/04, which are still applicable at this
       hearing. A reconsideration hearing in 36 months is recommended.”
               On April 21, 2005, a Notice of Action issued denying parole. Pursuant to
       28 C.F.R. [§] 2.75, following an initial or subsequent hearing for a District of
       Columbia offender, the Commission may, inter alia, set a presumptive parole date
       up to three (3) years from the date of the hearing, or schedule a reconsideration
       hearing three years from the month of the hearing. Although the Commission
       recognized Wilson’s eligibility for consideration under its presumptive release
       date policy in the Notice of Action, it exercised its discretion to continue his case
       to a Three-Year Reconsideration Hearing in March 2008 [(the “2008 hearing”)].
               [O]n June 3, 2008, the Parole Commission issued a Notice of Action
       denying parole and continuing to a Three-Year Reconsideration Hearing in April
       2011.

Wilson, 2010 WL 569554, at *3–4 (internal citations and footnotes omitted).

       D.      Summary of Plaintiff’s Claims and Defendants’ Motion.

       Plaintiff commenced this action under 42 U.S.C. § 1983 against three current USPC

Commissioners—Isaac Fulwood, Cranston Mitchell, and Patricia K. Cushwa—and one former

USPS Commissioner—Edward F. Reilly, Jr. Compl. at 1, ECF No. 15; The Chairman and

Commissioners, U.S. Parole Comm’n, U.S. Dep’t of Justice, http://www.justice.gov/uspc/

executive.htm (last visited Mar. 28, 2011) (identifying all named defendants except Mr. Reilly as

current commissioners). Plaintiff alleges that in each of his four parole hearings, the

Commission (1) violated the Ex Post Facto Clause of the United States Constitution by applying

       5
         Plaintiff attaches several pages to the form he used to file his complaint. See Compl.
The form lacks page numbers, and the attached pages are numbered separately. See id. The
Court will therefore cite to page numbers generated by the ECF header. But cf. The Bluebook: A
Uniform System of Citation R. B.7.1.4, at 21 (Columbia Law Review Ass’n et al. eds., 19th ed.
2010) (recommending against citation to ECF pagination in lieu of original pagination).

                                                10
the 2000 Guidelines instead of the 1987 Regulations to his D.C. Code offenses (the “first

allegation”), (2) violated the Ex Post Facto Clause with respect to the SRA and his U.S. Code

offense (the “second allegation”), and (3) wholly failed to conduct a hearing on his U.S. Code

offense, in violation of the bifurcated scheme of 28 C.F.R. § 2.65 (the “third allegation”).

Compl. at 5–7, 10–11. As relief, Plaintiff requests “retroactive application of a parole hearing

for the U.S. Code sentence pursuant to 28 C.F.R. § 2.65 and retroactive application of D.C.

guidelines pursuant to [§] 2.65 [and the] 1987 [Regulations].” Compl. at 5.

       Defendants have moved to dismiss the complaint under Federal Rule of Civil Procedure

12(b)(1) for lack of subject-matter jurisdiction and under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim upon which relief may be granted. See Defs.’ Mot. to

Dismiss, ECF No. 13; Defs.’ Mem. of P. & A. in Supp. of Their Mot. to Dismiss Pl.’s Compl.,

ECF No. 13 [hereinafter Mem.]. Defendants first argue that Plaintiff’s second allegation has

been adjudicated in a petition for the writ of habeas corpus denied by the U.S. District Court for

the Middle District of Pennsylvania, thus making this case res judicata under principles of both

claim and issue preclusion (the “first argument”). Mem. at 11–12. Defendants next argue that

Plaintiff cannot prevail on his first allegation, because his D.C. Code offenses predate the

adoption of the 1987 Regulations (the “second argument”). Id. at 12–13. Defendants’ third

argument is that Plaintiff cannot prevail on his third allegation, because, as to the U.S. Code

violation, Plaintiff has not cited any federal law or constitutional provision that entitles him to a

proper calculation of his federal time (the “third argument”). Id. at 14–15. Defendants’ fourth

and final argument is that Plaintiff cannot prevail on any of his claims against the former

Commissioner (the “fourth argument”). Id. at 15.



                                                  11
III.      Standards of Review.

          A.     Rule 12(b)(1).

          A plaintiff bears the burden of establishing that a federal court has subject-matter

jurisdiction. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007); see also

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“Federal courts are courts

of limited jurisdiction . . . [and it] is to be presumed that a cause lies outside this limited

jurisdiction.”). In evaluating a motion to dismiss under Rule 12(b)(1), “the court may ‘consider

the complaint supplemented by undisputed facts evidenced in the record, or the complaint

supplemented by undisputed facts plus the court’s resolution of disputed facts.’” Coalition for

Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat’l

Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)); see also Jerome Stevens Pharm., Inc. v.

FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider materials outside

the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”). A court

must, however, accept as true all factual allegations contained in the complaint and afford the

plaintiff the benefit of all favorable inferences that can be drawn from the alleged facts.

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164

(1993).

          B.     Rule 12(b)(6).

          Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “in

order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355



                                                   12
U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary to withstand a

Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish “more than

labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id.

“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at

557). Rather, a complaint must contain sufficient factual allegations that if accepted as true,

“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at

1949 (citing Twombly, 550 U.S. at 556).

       When considering a motion to dismiss for failure to state a claim, the court must construe

the complaint in a light most favorable to the plaintiff and must accept as true all reasonable

factual inferences drawn from well pleaded factual allegations. In re United Mine Workers of

Am. Emp. Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994). However, a plaintiff must

provide more than just “a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.

Ct. at 1950. When a complaint’s well pleaded facts do not enable a court, “draw[ing] on its

judicial experience and common sense . . . to infer more than the mere possibility of

misconduct,” the complaint has not shown that the pleader is entitled to relief. Id.6

IV.    Analysis.

       6
         Defendants attach to their motion several documents concerning Plaintiff’s sentencing
and parole determinations. See Mot. Exs. A–G, ECF No. 13-1. “If, on a motion under Rule
12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56.” The Court hereby
excludes the matters outside the pleadings attached to Defendants’ motion under Rule 12(b)(6),
and will therefore not convert the motion to one for summary judgment under Rule 56.

                                                 13
       Defendants’ motion will not be granted under Rule 12(b)(1), because Defendants do not

actually make any argument under that Rule. However, Defendants’ motion will be granted

under Rule 12(b)(6).

       A.      Defendants Make No Argument Under Rule 12(b)(1).

       Defendants do not specify which of their arguments are made under Rule 12(b)(1) and

which are made under Rule 12(b)(6). See Mem. The Court infers, however, from the language

in Defendants’s memorandum that their second, third, and fourth arguments are made under Rule

12(b)(6). See Mem. at 12–15 (arguing that “Plaintiff has failed to state an ex post facto issue” as

to his first allegation, that Plaintiff’s third allegation “is not cognizable under 42 U.S.C. § 1983,

and that as to all allegations the former Commissioner “is not in a position to grant the

injunctive relief plaintiff seeks”) (emphasis added). Similar language implying reliance on Rule

12(b)(6) is absent from Defendants’ first argument.

       Perhaps Defendants intend, then, to make subject-matter jurisdictional arguments under

Rule 12(b)(1) in their first argument: that this case is res judicata. But “the defense of res

judicata . . . while having a ‘somewhat jurisdictional character,’ does not affect the subject[-

]matter jurisdiction of the district court.” Smalls v. United States, 471 F.3d 186, 189 (D.C. Cir.

2006) (quoting SBC Commc’ns Inc. v. FCC, 407 F.3d 1223, 1229–30 (D.C. Cir. 2005)) (citing

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005); N.Y. Shipping Ass’n,

Inc. v. Fed. Mar. Comm’n, 854 F.2d, 1338, 1352 (D.C. Cir. 1988)). Defendants therefore make

no argument that challenges the Court’s subject-matter jurisdiction in this case.

       B.      Defendants’ Motion Will Be Granted Under Rule 12(b)(6).

       First, Plaintiff is not required to bring his claim in a habeas petition, because granting the



                                                  14
requested relief will not necessarily result in his immediate or speedier release from

confinement. Second, this case is partially res judicata: claim preclusion precludes all three of

Plaintiff’s allegations, but only concerning the 2004 and 2005 hearings, and only against the

current Commissioners; and issue preclusion further precludes Plaintiff’s second allegation, for

all hearings, but only against the former Commissioner. Third, Plaintiff’s third allegation is not

actionable under § 1983, because the alleged right derives from a regulation, not a federal law or

constitutional provision. Fourth, all of Plaintiff’s allegations made against the former

Commissioner fail, because such Commissioner lacks authority to provide the relief requested.

Fifth, Plaintiff’s first allegation fails because Plaintiff is not entitled to application of the 1987

Regulations as requested, and even if Plaintiff had requested application of the 1972

Regulations, the Board’s discretion under the 1972 Regulations was so broad that Plaintiff has

not effectively pled that application of the 2000 Regulations significantly increased the risk of

his longer incarceration. Sixth and finally, Plaintiff’s second allegation fails because Plaintiff

misconstrues the SRA ex post facto issue and thus fails to plead a claim based on that issue.

                1.      Plaintiff May Proceed Under § 1983.

        Although Defendants have not asserted that Plaintiff must proceed with his claims in a

habeas petition rather than under § 1983, see Mem., because the Court must sua sponte dismiss

claims asserted by a plaintiff proceeding in forma pauperis upon which relief may not be

granted, 28 U.S.C. § 1915(e)(2), and because Plaintiff is proceeding in forma pauperis, Order,

ECF No. 4, the Court will consider whether Plaintiff must so proceed, such that he fails to state a

§ 1983 claim upon which relief may be granted. A “prisoner’s challenge to the determination of

his eligibility for parole . . . attack[s] the ‘fact or duration’ of confinement” and “therefore,



                                                   15
habeas is the sole remedy available to such a prisoner.” Chatman-Bey v. Thornburgh, 864 F.2d

804, 810 n.5 (D.C. Cir. 1988). However, the Supreme Court has explained that, as to duration,

this requirement that such prisoners seek habeas relief applies only “when they seek to invalidate

the duration of their confinement[ ]either directly through an injunction compelling speedier

release or indirectly through a judicial determination that necessarily implies the unlawfulness of

the State’s custody.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). Claims under “§ 1983

remain[] available for procedural challenges where success in the action would not necessarily

spell immediate or speedier release for the prisoner.” Id.

       In this case, Plaintiff’s challenge under § 1983 would not necessarily spell his immediate

or speedier release. Plaintiff merely asks for a rehearing with reconsideration of his parole

eligibility under the bifurcated scheme of 28 C.F.R. § 2.65, to include application of the 1987

Regulations to his D.C. Code violations, and presumably to also include application of the

regulations in 28 C.F.R. § 2.20 to his U.S. Code violation. Compl. at 5. He does not specifically

request that parole be granted now or at some other date. See id. As to the 1987 Regulations,

“the Commission can consider any unique circumstances that are not taken into account . . . but

that none-the-less should impact on the release decision.” Sellmon I, 551 F. Supp. 2d at 71

(internal quotation marks omitted). Therefore, even if this Court were to grant Plaintiff a

rehearing and order application of the 1987 Regulations, Plaintiff would not necessarily win

parole sooner than otherwise.

       As to the regulations in § 2.20, based on Plaintiff’s allegations, granting a rehearing and

ordering application of those regulations would also not necessarily lead to a decrease in the

duration of his incarceration. Under the bifurcated approach of § 2.65, the Commission is



                                                16
required to first calculate under § 2.20 a prisoner’s “federal time” for U.S. Code offenses,

§ 2.65(c), then to conduct a parole hearing for D.C. Code offenses “not later than four months

prior to the parole eligibility date, or the expiration of the ‘federal time,’ whichever is later,”

§ 2.65(e). Plaintiff alleges that the Commission never calculated his federal time, and instead

simply waited until his three-year federal portion of his aggregated sentence had been served,

then held a hearing on his D.C. Code offenses. Compl. at 11 (“Plaintiff has never seen the U.S.

Parole Commission concerning this (federal time) crime/sentence.”). Assuming this to be true,

even if the Court were to order a calculation of Plaintiff’s federal time under § 2.20, such time

would not necessarily end up being less than three years, because § 2.65 permits the Commission

to calculate federal time as an amount up to and including “the limit of the U.S. Code sentence.”

§ 2.65(d). Because neither aspect of the relief Plaintiff seeks would necessarily spell his

immediate or speedier release, Plaintiff may initially proceed with his claims under § 1983.

However, as discussed below, Plaintiff fails to state a § 1983 claim upon which relief may be

granted.

                2.      Plaintiff Fails to State a Claim Upon Which Relief May Be Granted to
                        the Extent That This Case Is Partially Res Judicata.

        Res judicata encompasses the doctrines of claim preclusion and issue preclusion. Both

claim and issue preclusion bar litigation of some claims and issues alleged by Plaintiff in this

case.

                        a.      The Doctrine of Res Judicata Includes Claim Preclusion and
                                Issue Preclusion.

        “The doctrine of res judicata prevents repetitious litigation involving the same causes of

action or the same issues.” I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944,



                                                  17
946 (D.C. Cir. 1983). The doctrine has two components: claim preclusion and issue preclusion.

Taylor v. Sturgell, 553 U.S. 880, 892 (2008). Claim preclusion incorporates the principles of

merger—“the extinguishment of a claim in a judgment for plaintiff”—and bar—“the

extinguishment of a claim in a judgment for defendant.” Restatement (Second) of Judgments,

ch. 3, Introductory Note; Taylor, 553 U.S. at 892 n.5 (citing Migra v. Warren City School Dist.

Bd. of Ed., 465 U.S. 75, 77 n.1 (1984)). Issue preclusion incorporates the principles of direct

estoppel—“the effect of the determination of an issue in another action between the parties on

the same claim”—and collateral estoppel—such effect in another action on “a different claim.”

Restatement (Second) of Judgments, ch. 3, Introductory Note; Taylor, 553 U.S. at 892 n.5 (citing

Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 77 n.1 (1984)).

       “Under claim preclusion, ‘a final judgment on the merits of an action precludes the

parties or their privies from relitigating issues that were or could have been raised in that

action.’” Sheppard v. District of Columbia, No. 10-cv-834, 2011 WL 710211, at *3 (D.D.C.

Feb. 22, 2011) (quoting Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002)). “A judgment on the

merits is one that ‘reaches and determines the real or substantial grounds of action or defense as

distinguished from matters of practice, procedure, jurisdiction or form.’” Id. at *5 (quoting

Saylor v. Lindsley, 391 F.2d 965, 968 (2d Cir. 1968) (internal citations omitted)) (citing

Nwachukwu v. Karl, 222 F.R.D. 208, 212 (D.D.C. 2004) (noting the judicial goal of “deciding

cases on their merits, as opposed to procedural mishaps dictating the outcome”)). “Whether two

cases implicate the same cause of action turns on whether they share the same ‘nucleus of

facts.’” Drake, 291 F.3d at 66 (quoting Page v. United States, 729 F.2d 818, 820 (D.C. Cir.

1984)). To determine whether two cases share the same nucleus of facts, courts consider



                                                 18
“whether the facts are related in time, space, origin, or motivation[;] whether they form a

convenient trial unit[;] and whether their treatment as a unit conforms to the parties’ expectations

or business understanding or usage.” Stanton v. D.C. Court of Appeals, 127 F.3d 72, 78 (D.C.

Cir. 1997). “A privy is one so identified in interest with a party to the former litigation that he or

she [or it] represents precisely the same legal right in respect to the subject matter of the

case”—in other words, a person who or entity that is in privity with the party. Hafezi v.

Construction & Dev., Inc., No. 04-cv-2198, 2006 WL 1000339, at *6 (D.D.C. Apt. 14, 2006)

(internal quotation marks omitted).

       Under the collateral estoppel form of issue preclusion, “‘once a court has decided an

issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue

in a suit on a different cause of action involving a party to the first case.’” Sheppard, 2011 WL

710211, at *3 (quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir.

1992)). This form of issue preclusion applies if three conditions are met: “First, the issue must

have been actually litigated, that is, contested by the parties and submitted for determination by

the court. Second, the issue must have been actually and necessarily determined by a court of

competent jurisdiction in the first [case]. Third, preclusion in the second [case] must not work

an unfairness.” Otherson v. Dep’t of Justice, 711 F.2d 267, 273 (D.C. Cir. 1983) (internal

citations, quotations, and quotation marks omitted). Issue preclusion can work an unfairness

where “the party to be bound lacked an incentive to litigate” in the first action the issue to be

precluded in the second. Id.




                                                  19
        Defendants move the court to dismiss Plaintiff’s allegations as precluded under both

claim preclusion and issue preclusion,7 arguing that the Middle District of Pennsylvania has

already decided the claim that and issue whether the Commission violated the Ex Post Facto

Clause with respect to the SRA and Plaintiff’s U.S. Code offense, Mem. at 11 (“Plaintiff appears

to be attempting to relitigate the SRA issue he raised and the ex post facto claim challenging the

Commissions’ use of its own regulations.”), and that “Plaintiff’s ex post facto claim based on the

Commission’s use of its own regulations is similarly barred because he could have raised those

claims in the earlier action,” id. at 12. Plaintiff counters that “[t]he habeas case is not yet final

and is on appeal,” so it should not be given preclusive effect. Pl.’s Mot. in Opp’n, and in

Response to Defs.’ Mot. to Dismiss at 2, ECF No. 17 [hereinafter Opp’n]. But “[u]nder

well-settled federal law, the pendency of an appeal does not diminish the res judicata effect of a

judgment rendered by a federal court.” Hunt v. Liberty Lobby, Inc., 707 F.2d 1493, 1497–98

(D.C. Cir. 1983) (citing Huron Holding Co. v. Lincoln Mine Operating Co., 312 U.S. 183,

188–89 (1941); Reed v. Allen, 286 U.S. 191, 199 (1932)) (italicization omitted). The Court also

notes that, as a general matter, preclusive effect may be had from claims and issues litigated in a

habeas case to those in a § 1983 case. See, e.g., Hawkins v. Risley, 984 F.2d 321, 323 (9th Cir.



        7
          Actually, Defendants argue that “Plaintniff’s [c]laims are [b]arred by [r]es [j]udicata or
[c]ollateral [e]stoppel.” Mem. at 11 (emphasis added). But as explained above, res judicata is
not mutually exclusive of collateral estoppel; rather, collateral estoppel is a form of issue
preclusion, and issue preclusion is a part of the doctrine of res judicata, along with claim
preclusion. See Restatement (Second) of Judgments, ch. 3, Introductory Note.
        The Court is aware, however, that “[t]he preclusive effects of former adjudication are
discussed in varying and, at times, seemingly conflicting terminology, attributable to the
evolution of preclusion concepts over the years,” and that the term “res judicata” is often used as
a synonym for claim preclusion, to the exclusion of issue preclusion. Migra, 465 U.S. at 77 n.1.
The Court therefore construes Defendant’s use of the term “res judicata” to mean “claim
preclusion.”

                                                  20
1993) (giving claim-preclusive effect in a § 1983 case to claims litigated in a habeas decision);

Truesdale v. U.S. Dep’t of Justice, 657 F. Supp. 2d 219 D.D.C. 2009 (giving issue-preclusive

effect in a § 1983 case to issues litigated in a habeas decision). The Court will therefore

evaluate, under the rubric discussed above and in keeping with the goal of judicial efficiency,

whether to give preclusive effect to claims or issues litigated in Plaintiff’s earlier habeas case.

                       b.      Plaintiff’s Allegations Are Partially Claim-Precluded.

       In Wilson, the Middle District of Pennsylvania adjudicated on the merits a habeas petition

filed by Plaintiff against the U.S. Parole Commission and his warden. See 2010 WL 569554.

Plaintiff only challenged his 2004 and 2005 proceedings. Id. at *2 n.3. Specifically, he alleged

that his U.S. Code violation occurred in 1987, between enactment of the 1984 SRA that cabined

the Commission’s discretion to recommend parole beyond the guideline range applicable to U.S.

Code offenses and enactment of the 1987 amendment that restored that discretion. Id. at *7. He

thus argued that “the Commission’s decisions on July 7, 2004 and April 21, 2005 departing from

the guidelines to deny parole violate the Ex Post Facto Clause.” Id.

       The Wilson Court noted that the Court of Appeals for the Third Circuit has “held that the

application of the 1987 amendment . . . to individuals who committed crimes in violation of the

United States Code between the time of the enactment of the SRA in 1984 and its amendment in

1987 violates the Ex Post Facto Clause.” Id. (citing Lyons v. Mendez, 303 F.3d 285, 293 (3d

Cir. 2002)). But the Wilson Court concluded that the Commission only “applied the regulations

that apply to District of Columbia Code Prisoners and Parolees set forth at 28 C.F.R. § 2.70 et

seq., rather than the regulations that apply to United States Code Prisoners and Parolees set forth

at 28 C.F.R. § 2.1 et seq.,” because Plaintiff’s “District of Columbia sentences were imposed



                                                  21
under the District of Columbia statute, not under the SRA.” Wilson, 2010 WL 569554, at *7.

The Wilson Court thus decided that Wilson’s claim—that at his 2004 and 2005 hearings, the

Commission applied parole regulations for U.S. Code offenses ex post facto under the 1987

amendment to the SRA, rather than under the 1984 SRA—lacked support, because the

Commission did not apply parole regulations applicable to U.S. Code offenses at all, but instead

only applied parole regulations applicable to D.C. Code offenses. Id.

       In this case, Plaintiff alleges that “the U.S. [C]ode sentence of three years[] has an [E]x

[P]ost [F]acto [C]lause involved in that conviction” and cites Lyons, 303 F.3d at 293. Compl. at

10–11. Defendants are correct, then, that Plaintiff appears to be relitigating his ex post facto

allegation concerning the SRA. Plaintiff could have also raised his two other allegations—that

the Commission should have conducted a parole calculation with respect to his federal time, and

that the Commission should have applied the 1987 Regulations instead of the 2000 Guidelines to

his D.C. Code offenses—in his habeas proceeding, but he did not do so. See Wilson, 2010 WL

569554.

       Unlike in the habeas case, which only concerned the 2004 and 2005 parole hearings,

Plaintiff extends his arguments in the instant case to the 2001 and 2008 parole hearings as well.

Compl. at 6–7, 10–11. Allegations concerning the 2001 and 2008 hearings do not share the same

nucleus of fact as allegations concerning the 2004 and 2005 hearings, because although the

allegations about all four hearings are similar, each hearing was a distinct occurrence in time that

cannot be assumed to be sufficiently similar to warrant the extension of claim preclusion from

the hearings about which Plaintiff’s allegations were litigated (or were not raised)—the 2004 and

2005 hearings)—to the hearings about which Plaintiff has not litigated at all—the 2001 and 2008



                                                 22
hearings. Any claim-preclusive effect will thus be limited to claims made in this case about the

2004 and 2005 hearings.

       In addition, unlike the habeas case, where Plaintiff sued the Commission itself and his

warden, see id. at *1, Plaintiff now is suing individual Commissioners—three current

Commissioners and one former Commissioner. Compl. at 4. “[T]he government, its officers,

and its agencies are regarded as being in privity for [claim-preclusive] purposes.” Estevez v.

Nabers, 219 F.2d 321, 323 (5th Cir. 1955) (citing Di Silvestro v. Gray, 194 F.2d 355 (D.C. Cir.

1952)). See, e.g., Warren v. McCall, 709 F.2d 1183, 1184–85 (7th Cir. 1983) (finding that

officers of the Commission were in privity with a warden for the purposes of claim preclusion).

The current Commissioners are therefore privies of the Commission and warden from the habeas

case and may assert claim preclusion in this case. Former Commissioner Reilly, however, lacks

such privity because, lacking any authority as a current Commissioner, his legal interests are not

sufficiently aligned with those of the Commission itself, unlike the interests of the current

Commissioners. See Fletcher v. District of Columbia, 481 F. Supp. 2d 156, 163 n.9 (D.D.C.

2007) [hereinafter Fletcher III] (“[F]ormer Commissioners . . . cannot act on future parole or

reparole matters involving plaintiff or anyone else.”), vacated in part on other grounds sub nom,

Fletcher v. U.S. Parole Comm’n, 550 F. Supp. 2d 30 (D.D.C. 2008). Any claim-preclusive

effect will thus be limited to claims made against only the current Commissioners.

       In summation, Plaintiff is attempting to relitigate the SRA issue previously adjudicated

on the merits in his habeas proceeding as to the 2004 and 2005 hearings; Plaintiff could have

previously litigated the two other issues he raises in this case as to those hearings; the instant

case concerns the 2001, 2004, 2005, and 2008 hearings; and Plaintiff has sued different



                                                  23
defendants in the instant case, three of whom are in privity with the respondents in the habeas

proceeding, one of whom is not in privity. Claim-preclusive effect therefore applies to all three

of Plaintiff’s allegations, but only concerning the 2004 and 2005 hearings, and only concerning

the current Commissioners. Defendants’ motion will be granted as to these claim-precluded

allegations, such that at this point, only the following will remain: all three of Plaintiff’s

allegations, with respect to the 2001 and 2008 hearings, against the current Commissioners, and

all three allegations, with respect to all hearings, against the former Commissioner.

                        c.      Plaintiff’s Allegations Are Partially Issue-Precluded.

          Issue preclusion cannot apply to any issues in allegations concerning the 2001 and 2008

hearings, because those issues were not actually litigated by the Wilson court, which limited its

decision to issues concerning the 2004 and 2005 hearings. See 2010 WL 569554, at *2 n.3.

Preclusion of issues relating to the 2001 and 2008 hearings therefore fails the first prong of

Otherson, which requires an issue to have been actually litigated to be precluded. See 711 F.2d

at 273.

          But issue preclusion does apply to the SRA issue concerning the 2004 and 2005 hearings,

which remains in Plaintiff’s allegations against former Commissioner Reilly. That issue was

actually and necessarily decided by the Wilson court, which specifically concluded that “the

Commission did not rely on the 1987 amendment to the SRA in rendering its decisions outside

the guidelines to deny parole” in the 2004 and 2005 hearings. See 2010 WL 569554, at *2 n.3,

*6–7. Further, there is no reason to think that Plaintiff lacked a strong incentive to litigate this

issue in the habeas proceeding; it was the entire basis of his claim. There is therefore no

unfairness in giving preclusive effect to that issue in this case. All three Otherson prongs thus



                                                  24
are satisfied. See 711 F.2d at 273. The SRA issue concerning the 2004 and 2005 hearings and

directed at former Commissioner Reilly is precluded. Defendants’ motion will be granted as to

this issue-precluded allegation, such that at this point, only the following will remain: all three

of Plaintiff’s allegations, with respect to the 2001 and 2008 hearings, against the current

Commissioners; and only two allegations—that the Commission should have conducted a parole

calculation with respect his federal time, and that the Commission should have applied the 1987

Regulations instead of the 2000 Guidelines to his D.C. Code offenses—with respect to

all hearings, against former Commissioner Reilly.

                3.      Plaintiff Fails to State a Claim Upon Which Relief May Be Granted to
                        the Extent That Plaintiff’s Third Allegation Is Not Cognizable Under
                        § 1983.

        In relevant part, § 1983 provides for recovery against any “person who, under color of

any statute . . . [or] regulation . . . of . . . the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the

United States. 42 U.S.C. § 1983. Section 1983 thus provides the availability of injunctive relief

for the deprivation of some right, but such right must be rooted in the Constitution or a federal

law. Id.; Blessing v. Freestone, 520 U.S. 329, 340 (1997). Therefore, where such right is rooted

in a mere regulation promulgated by the Executive, injunctive relief for the deprivation thereof

cannot be had under § 1983. Edwards v. District of Columbia, 821 F.2d 651, 665 (D.C. Cir.

1987) (noting that an “agency regulation can define the exact scope of a duty that Congress has

clearly created” by statute, such that the regulation is actionable under § 1983, “[b]ut where

Congress has not clearly created any duty, there is no § 1983 right for regulations to define.”);



                                                    25
see also Smith v. Palmer, 24 F. Supp. 2d 955, 962–63 (N.D. Iowa 1998) (noting that regulations

are actionable under § 1983 only “if a statute creates enforceable rights” and “implementing

regulations under statute . . . further define those enforceable rights,” but citing conflicting

authorities).

        Under the bifurcated approach enumerated in 28 C.F.R. § 2.65, the Commission is

required to apply two sets of regulations for prisoners with aggregated U.S. and D.C. Code

sentences. See discusison supra Part.II.B. Plaintiff alleges that the Commission never

calculated his federal time for his U.S. Code offense, and instead simply waited until his three-

year federal portion of his aggregated sentence had been served, then held a hearing on his D.C.

Code offenses. Compl. at 6–7, 11 (“Plaintiff has never seen the U.S. Parole Commission

concerning this (federal time) crime/sentence.”). Plaintiff alleges that the Commission only

completed one half the bifurcated approach and thus failed to properly apply § 2.65. Id. In

essence, Plaintiff alleges that he has a right to have his federal time calculated in accordance

with the regulations at 28 C.F.R. § 2.20, as mandated by § 2.65(b). Opp’n at 4, 9 (arguing that

“[t]the U.S. Code sentence must be reconciled with the D.C. Code sentence,” but that “[P]laintiff

was not given a parole hearing for his U.S. Code sentence”); see also id. at 12 (quoting Thomas

v. Brennan, 961 F.2d 612, 617 (7th Cir. 1992) (discussing the bifurcated U.S./D.C. parole regime

and noting that “the Commission . . . may not shunt aside one regime while paying too much

heed to the other”)). But for the source of this right, Plaintiff only identifies § 2.65. Plaintiff

simply does not point to any federal statute or constitutional provision that entitles him to a

calculation of his federal time under § 2.20. See Compl.; Opp’n.8 Plaintiff therefore fails to state

        8
        Plaintiff does pepper his papers with assertions of ex post facto violations, see Compl.;
Opp’n, which would implicate § 1983, but such assertions do not apply to his third allegation.

                                                  26
a claim upon which relief may be granted as to his third allegation. Defendants’ motion will be

granted as to this allegation, such that at this point, only the following will remain: Plaintiff’s

two ex post facto allegations, with respect to the 2001 and 2008 hearings, against the current

Commissioners; and only one allegation—that the Commission should have applied the 1987

Regulations instead of the 2000 Guidelines to his D.C. Code offenses—with respect to

all hearings, against the former Commissioner.

                4.      Plaintiff Fails to State a Claim Upon Which Relief May Be Granted as
                        to the Remaining Allegation Against the Former Commissioner.

        In relevant part, § 1983 provides for recovery against any “person who, under color of

any statute . . . of . . . the District of Columbia, subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution.” 42 U.S.C. § § 1983. “[A]ny Act of

Congress applicable exclusively to the District of Columbia shall be considered to be a statute of

the District of Columbia” for the purposes of § 1983. Id. “Because the D.C. Revitalization Act

is such a statute,” the Court of Appeals for the District of Columbia has concluded that

“members of the United States Parole Commission are amenable to suit under § 1983 for actions

taken pursuant to that Act.” Fletcher v. District of Columbia, 370 F.3d 1223, 1227 (D.C. Cir.

2004), vacated in part on other grounds, 391 F.3d 250 (D.C. Cir. 2004); Fletcher III, 481 F.

Supp. 2d at 162–63 (noting that although “sovereign immunity is not waived under § 1983,”

because “[t]hat immunity . . . does not extend to injunctive relief against officials in their official



His ex post facto assertions relate only to alleged application of the 2000 Guidelines in lieu of
the 1987 Regulations for his D.C. Code offenses, and to alleged application of the 1987
amendment to the SRA instead of the 1984 version of the SRA for his U.S. Code offense. Here,
however, Plaintiff asserts that nothing was applied for his U.S. Code offense.

                                                   27
capacities,” a “plaintiff may pursue prospective injunctive . . . relief against

the . . . Commissioners in their official capacities”); see also Sellmon I, 551 F. Supp. 2d at 83

n.2.

       But a plaintiff may only pursue such relief against “present individual Commissioners,”

not former commissioners. Fletcher III, 481 F. Supp. 2d at 163 (emphasis added). Simply put,

“[p]rospective injunctive relief against the former Commissioners makes no sense as they cannot

act on future parole or reparole matters involving plaintiff or anyone else.” Id. at 163 n.9.

Plaintiff therefore fails to state any claim upon which relief may be granted against former

Commissioner Reilly. Defendants’ motion will be granted as to all allegations against this

defendant, such that at this point, only the following will remain: Plaintiff’s two ex post facto

allegations, with respect to the 2001 and 2008 hearings, against the current Commissioners.

               5.      Plaintiff Fails to State a Claim Upon Which Relief May Be Granted as
                       to the Remaining Portion of his First Allegation.

       “The Ex Post Facto Clause of the United States Constitution prohibits retroactive

increases in punishment for a crime after its commission.” Sellmon I, 551 F. Supp. 2d at 84

(citing U.S. Const. art. I, § 9, cl. 3; Collins v. Youngblood, 497 U.S. 37, 42–43 (1990)). “It is

meant ‘to assure that legislative Acts give fair warning of their effect and permit individuals to

rely on their meaning until explicitly changed.’” Id. (quoting Weaver v. Graham, 450 U.S. 24,

28–29 (1981)). “The Supreme Court has held that a retroactively applied parole regulation,

guideline, or policy statement may violate the Ex Post Facto Clause if it creates ‘a significant

risk’ of ‘a longer period of incarceration than under the earlier rule.’” Id. (quoting Garner v.

Jones, 529 U.S. 244, 255 (2000)).




                                                  28
       In the remaining portion of Plaintiff’s first allegation, Plaintiff alleges that the

Commission violated the Ex Post Facto Clause by applying the 2000 Guidelines—i.e., those

enumerated at 28 C.F.R. § 2.80—instead of the 1987 Regulations to his D.C. Code offenses

during his 2001 and 2008 parole hearings, because such application “added additional

months/points for crimes of violence and the death of the victim, and added months for prior

disciplinary infractions,” which “increase[d Plaintiff’s] length of incarceration.” Compl. at 6–7,

10. But Defendants correctly point out that “‘a plaintiff may invoke an ex post facto protection

only on the basis of the parole regime that was in effect at the time he committed his offense.’”

Mem. at 16 (quoting Austin, 606 F. Supp. 2d at 7–8 (citing Sellmon I, 551 F. Supp. 2d at 85;

Weaver v. Graham, 450 U.S. 24, 30 (1981))). The parole regime in effect at the time Plaintiff

committed his D.C. Code offenses was promulgated in 1972. See 9 D.C.R.R. ch. 2, § 105.1

(1972), discussion supra Part II.B. The Court therefore cannot grant the specific relief Plaintiff

seeks—application of the 1987 Regulations—and Defendants’ motion will be granted as to that

relief. However, the Court will separately examine whether Plaintiff states an ex post facto

claim upon which relief can be granted for application of the 2000 Guidelines in lieu the 1972

Regulations.

       Under § 105.1 of the 1972 Regulations as well as the same section of the 1981

Regulations (collectively, the “pre-1987 Regulations”) the D.C. Parole Board operated with

discretion that was “almost unbridled,” Sellmon I, 551 F. Supp. 2d at 86 n. 15, and “totally

unfettered,” Sellmon v. Reilly, 561 F. Supp. 2d 46, 50 (D.D.C. 2008), applying loose guidelines

and no formal point-scoring system, Austin, 606 F. Supp. 2d at 9. See discussion supra Part II.B.

“The pre-1987 Regulations are thus of minimal help in demonstrating how the Board exercised



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its discretion in practice prior to 1987.” Sellmon I, 551 F. Supp. 2d at 86 n.15. In other words,

the pre-1987 Regulations gave the Board, and now the Commission, so much discretion that the

Court simply cannot compare, based on Plaintiff’s allegations, how the Commission might have

evaluated parole under those regulations with how the Commission did evaluate parole under the

modern 2000 Guidelines. Given the breadth of this pre-1987 discretion and Plaintiff’s failure to

plead facts sufficient to allow the Court to compare his parole consideration under the 2000

Guidelines to consideration under the pre-1987 Regulations, Plaintiff fails to state a claim upon

which relief may be granted as to his first allegation. Defendants’ motion will be granted as to

this allegation, such that at this point, only the following will remain: Plaintiff’s ex post facto

allegation concerning the SRA, with respect to the 2001 and 2008 hearings, against the current

Commissioners.

               6.      Plaintiff Fails to State a Claim Upon Which Relief May Be Granted as
                       to the Remaining Portion of his Second Allegation.

        In the remaining portion of Plaintiff’s second allegation, Plaintiff alleges that “the U.S.

[C]ode sentence of three years[] has an [E]x [P]ost [F]acto [C]lause involved in that

conviction” and cites Lyons, 303 F.3d at 293. Compl. at 10–11. The Third Circuit in Lyons

“held that the application of the 1987 amendment . . . to individuals who committed crimes in

violation of the United States Code between the time of the enactment of the SRA in 1984 and

its amendment in 1987 violates the Ex Post Facto Clause,” Wilson, 2010 WL 569554, at *7

(citing Lyons, 303 F.3d at 293), because the 1987 amendment gave the Commission discretion to

set release dates for prisoners beyond the date recommended by the regulations applicable to

U.S. Code violations, whereas the 1984 SRA cabined that discretion, see discussion supra Part

II.B.


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       Plaintiff thus appears to be relying on the Lyons decision to allege that application of the

2000 Guidelines at his parole hearings violated the Ex Post Facto Clause, but such reliance is

misplaced. The 2000 Guidelines, enumerated at 28 C.F.R. § 2.80, apply to D.C. Code offenses,

while the SRA ex post facto issue identified by Lyons concerns application of the other

guidelines, enumerated at 28 C.F.R. § 2.20, that apply to U.S. Code offenses (the “Federal

Regulations”). See discussion supra Part II.B. Whether the Commission applied the 2000

Guidelines in Plaintiff’s parole hearings with respect to his D.C. Code offenses has nothing to do

with whether the Commission applied the Federal Regulations with respect to his U.S. Code

offense, much less whether any application of the Federal Regulations was done with the greater

discretion conferred by the 1987 amendment to the SRA or with the lesser discretion of the

original 1984 SRA. The Wilson Court, considering only the 2004 and 2005 hearings, thus

dispensed with Plaintiff’s SRA argument by concluding that the Commission applied the 2000

Guidelines, not the Federal Regulations, 22010 WL 569554, at *7, a conclusion to which this

Court gave preclusive effect, see discussion supra Part IV.B.2. Similarly, this Court now

dispenses with Plaintiff’s SRA argument concerning the 2001 and 2008 hearings, because

Plaintiff has pled that the Commission applied the 2000 Guidelines, not the Federal Regulations.

Plaintiff therefore fails to state a claim upon which relief may be granted as to his second

allegation. Defendants’ motion will be granted as to this allegation, such that at this point, no

allegations remain. Plaintiff’s case will therefore be dismissed.




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V.     Conclusion.

       For the reasons discussed above, in a separate order to issue this date, Defendants’

motion to dismiss will be granted and Plaintiff’s case will be dismissed.

DATE: March 28, 2011

                                                            /s/
                                                            COLLEEN KOLLAR-KOTELLY
                                                            United States District Judge




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