                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
ROY A. DANIEL, et al.,         )
                               )
          Plaintiffs,          )
                               )
          v.                   )    Civil Action No. 10-862 (RWR)
                               )
ISAAC FULWOOD, JR., et al.,    )
                               )
          Defendants.          )
______________________________)


                  MEMORANDUM OPINION AND ORDER

     The plaintiffs are federal inmates who alleged that the

U.S. Parole Commission violated the Ex Post Facto Clause in

making parole decisions by applying the 2000 parole guidelines

rather than the 1972 parole regulations that were in place at the

time each plaintiff was sentenced.   The plaintiffs also alleged

that they were denied fair parole review hearings, in violation

of the Due Process Clause of the Fifth Amendment.   A previous

memorandum opinion granted the defendants’ motion to dismiss both

of the plaintiffs’ claims.   The plaintiffs now move for

reconsideration under Federal Rule of Civil Procedure 59(e).

Because the plaintiffs fail to show clear error or manifest

injustice, their motion will be denied.

                             BACKGROUND

     Plaintiffs Roy A. Daniel, Alfonso Taylor, Harold Venable,

Percy Jeter, Abdus-Shahid Ali, and William Terry are federal
                                -2-

inmates who were incarcerated for violations of the D.C. Code

before March 3, 1985.   At the time the plaintiffs were

incarcerated, their parole hearings were governed by the 1972

Parole Regulations as applied by the D.C. Parole Board.   (Compl.

¶ 3.)   However, the plaintiffs’ parole hearings have proceeded

under the 2000 Guidelines as adopted by the United States Parole

Commission (“USPC”), which assumed jurisdiction over D.C. Code

offenders in 1997.   (Id. at ¶ 4; see also Sellmon v. Reilly, 551

F. Supp. 2d 66, 68 (D.D.C. 2008).)    The plaintiffs alleged that

when the defendants - - the Chairman and two Commissioners of

the USPC - - applied the revised parole guidelines, they violated

the Ex Post Facto Clause and the Due Process Clause of the United

States Constitution by effectively increasing each plaintiff’s

period of incarceration.   (Compl. ¶¶ 6, 10-17.)

     An opinion and order issued in September 2011 (“September

opinion”) dismissed the plaintiffs’ complaint for failure to

state a claim.   The September opinion held that the complaint did

not plausibly plead that the retroactive application of parole

regulations to prisoners created a significant risk of longer

incarceration in violation of the Ex Post Facto Clause, and that

parole regulations do not create a constitutionally protected

liberty interest that is protected by the Due Process Clause.

See Daniel v. Fulwood, 823 F. Supp. 2d 13, 15 (D.D.C. 2011).

The plaintiffs have moved under Federal Rule of Civil Procedure
                                 -3-

59(e) for reconsideration of the September opinion.    The

defendants oppose.

                            DISCUSSION

     “‘While the court has considerable discretion in ruling on a

Rule 59(e) motion, the reconsideration and amendment of a

previous order is an unusual measure.’”    Matthews v. District of

Columbia, 774 F. Supp. 2d 131, 132 (D.D.C. 2011) (quoting Berg v.

Obama, 656 F. Supp. 2d 107, 108 (D.D.C. 2009) (internal quotation

omitted)).   “[A]s a rule [a] court should be loathe to [revisit

its own prior decisions] in the absence of extraordinary

circumstances such as where the initial decision was clearly

erroneous and would work a manifest injustice.”    Marshall v.

Honeywell Technology Solutions, Inc., 598 F. Supp. 2d 57, 59

(D.D.C. 2009)(quoting Lederman v. United States, 539 F. Supp. 2d

1, 2 (D.D.C. 2008) (internal quotation omitted)).    “‘A motion to

alter the judgment need not be granted unless there is an

intervening change of controlling law, new evidence becomes

available, or there is a need to correct a clear error or prevent

manifest injustice.”   Matthews, 774 F. Supp. 2d at 132 (quoting

Berg, 656 F. Supp. 2d at 108).   “Motions for reconsideration ‘are

not simply an opportunity to reargue facts and theories upon

which a court has already ruled.’”     Moses v. Dorado, 840 F. Supp.

2d 281, 286 (D.D.C. 2012) (quoting Black v. Tomlinson, 235 F.R.D.

532, 533 (D.D.C. 2006)(internal quotations omitted))).
                                -4-

     The plaintiffs had argued that the Ex Post Facto analysis

should compare the 2000 guidelines against the 1987 regulations

which plaintiffs asserted were substantially similar to the 1972

regulations.   The September opinion held that “[t]he plaintiffs’

allegations regarding the similarities among the pre- and post-

1987 Board’s practices are too speculative to allow plaintiffs

convicted before 1987 to rely on the 1987 Regulations when

arguing an Ex Post Facto violation.”   Daniel, 823 F. Supp. 2d at

20-21 (citing Sellmon v. Reilly, 561 F. Supp. 2d 46, 49 (D.D.C.

2008)).   The plaintiffs argue that the opinion erred because the

D.C. Court of Appeals found that the 1987 Guidelines “‘merely

formalize the manner in which the Board exercises the discretion

conferred upon it’ by the 1972 Regulations.”   (Pls.’ Mem. in

Supp. of Mot. for Recons. (“Pls.’ Mem.”) at 2 (quoting Davis v.

Henderson, 652 A.2d 634, 636 (D.C. 1991))).

     This issue was argued by the parties before.   The September

opinion considered the applicability of Davis and determined that

it was not binding.   Daniel, 823 F. Supp. 2d at 20-21 n.3.   While

the plaintiffs admit this in the motion for reconsideration, they

claim to rely on the Davis ruling as an interpretation of

D.C. Code, not as a binding precedent.   (Pls.’ Mem. at 2.)

However, the September opinion interpreted Sellmon as “holding

that Davis did not require the federal district court to treat

the 1972 and 1987 Regulations as interchangeable when analyzing
                                  -5-

an Ex Post Facto claim.”   Daniel, 823 F. Supp. 2d at 20-21 n.3.

The Sellmon opinion states in relevant part:

     The Davis decision did not hold that the 1987
     Regulations actually represented or codified the actual
     practice of the Board prior to their enactment . . . .
     [T]he D.C. Circuit has already held that the Davis
     decision is not binding on federal courts with respect
     to the question of whether the retroactive application
     of the 1987 Regulations violated the Ex Post Facto
     Clause.

Sellmon, 551 F. Supp. 2d at 86.    Plaintiffs have shown no clear

error or any manifest injustice warranting reconsideration on

this point.

     The plaintiffs also argue that reconsideration should be

granted because the 2000 Guidelines impose substantive legal

burdens not present in the 1972 regulations.     (Pls.’ Mem. at 5.)

They allege that the September opinion erred when it concluded

that “because the Commission sometimes departs upward under the

2000 Guidelines, it must also depart down.”     (Id. at 7.)   The

plaintiffs also assert that “[a]t a minimum it is impermissible

to draw [the inference] against the moving party in a 12(b)(6)

motion.”   (Pls.’ Mem. at 7-8.)   The plaintiffs mischaracterize

the September opinion’s reasoning.      The September opinion stated

that while it “accept[ed] all of the plaintiffs’ factual

allegations as true[,] . . . even the plaintiffs’ well-pleaded

factual allegations are insufficient to state a plausible ex post

facto claim.”   Daniel, 823 F. Supp. 2d at 27 n.6 (internal

citation omitted).   The September opinion reached its conclusion
                                  -6-

not based upon impermissible inferences drawn against the

plaintiffs, but rather because “there remains no reasonably

reliable method of comparing a particular defendant’s

incarceration period under the 1972 Regulations, as opposed to

under the 2000 Guidelines” and that “any comparison of the

plaintiffs’ incarceration period under the two regulatory regimes

would be speculative.”   Daniel, 823 F. Supp. 2d at 27 (citing

Wilson v. Fullwood, 772 F. Supp. 2d 246, 266–67 (D.D.C. 2011) and

Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995)).      The

September opinion did not infer that the parole board departs

down from the guidelines, but, more broadly, reasoned that “the

Commission will use its discretion to depart from the guidelines

where appropriate.”   Daniel, 823 F. Supp. 2d at 27.   As the

September opinion noted, a court must “presume [that] the

[Commission] follows its statutory commands and internal policies

in fulfilling its obligations.”    Id. (citing Garner v. Jones, 529

U.S. 244, 256 (2000).)

     Finally, the plaintiffs contend that “to sustain a claim

that the Commission violated the Ex Post Facto Clause, plaintiffs

need only plead (and later prove) that the 2000 Guidelines create

a ‘significant risk’ that retroactive application will result in

a longer period of incarceration for the plaintiffs.”    (Pls.’

Mem. at 8 (quoting Garner, 529 U.S. at 255.))   They note that the

September opinion stated that “[t]he court remains open to
                                -7-

reconsider whether the plaintiffs have a plausible claim if, in

fact, the plaintiffs provide a non-speculative means of

establishing what their incarceration periods would be under the

1972 Regulations, notwithstanding that those regulations are

purely discretionary.”   Daniel, 823 F. Supp. 2d at 27 n.6.

     The controlling inquiry articulated in Garner is as follows:

     When the rule does not by its own terms show a
     significant risk, the respondent 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.

Garner, 529 U.S. at 255.   The D.C. Circuit summarized that “[t]he

question is one of practical effect.”   Fletcher v. District of

Columbia, 391 F.3d 250, 251 (D.C. Cir. 2004).   The plaintiffs’ Ex

Post Facto claim was originally dismissed for failure to raise

facial differences between the 1972 Regulations and the 2000

Guidelines that allowed the court to reasonably infer that the

latter subject the plaintiffs to a significant risk of increased

incarceration time.   The motion for reconsideration explains that

the plaintiffs would demonstrate the practical effects of the

1972 Regulations by reviewing the records of parole decisions

under the 1972 Regulations in order to establish that application

of the 2000 Guidelines created a significant risk of longer

incarceration.   However, the September opinion emphasized the

“amorphous nature of the 1972 Regulations,” which suggests that

even examination of Parole Board decisions in an attempt to
                                -8-

divine the practical implementation of the Regulations would be

necessarily and inherently speculative.   Daniel, 823 F. Supp. 2d

at 22.   Plaintiffs have not shown that

. to be wrong.   As another court found in addressing a similar Ex

Post Facto claim, the pre-1987 Regulations involved “so much

discretion that the Court simply cannot compare . . . how the

Commission might have evaluated parole under those regulations

with how the Commission did evaluate parole under the modern 2000

Guidelines.”   Wilson, 772 F. Supp. 2d at 267.

     Although a complaint may survive a motion to dismiss “even

if it strikes a savvy judge that actual proof of [the alleged]

facts is improbable, and that a recovery is very remote and

unlikely,” it must nonetheless “raise a reasonable expectation

that discovery will reveal evidence” that supports the

plaintiffs’ claims in order to survive dismissal.    Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 556 (2007).    Here, although the

plaintiffs have indeed stated their intention to establish the

practical effect of the 1972 Regulations by examining the record,

they have made no plausible showing of non-speculative evidence

sufficient to support an Ex Post Facto claim.    Although, as the

plaintiffs note, “every parole regime . . . contains an element

of discretion” (Pls.’ Rep. at 1), not all parole regimes are as

discretionary as the 1972 Regulations are.    In considering a

motion for reconsideration, a court is not required to draw any
                                -9-

inference in favor of the plaintiffs; it merely examines its

previous decision for clear error or manifest injustice.     See

Matthews, 774 F. Supp. 2d at 132.     Further, as the Federal

Circuit has stated, a court “is not required to permit discovery

based merely on the hope on the part of a plaintiff that it might

find evidence to support its complaint.”     Bubaker Amusement Co.,

Inc., v. United States, 304 F.3d 1349, 1361 (Fed. Cir. 2002));

see also Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009)(complaints

that are deficient under Fed. R. Civ. P. 8 are not entitled to

discovery); United States v. Marshall, 526 F.2d 1349, 1355 (9th

Cir. 1975), cert. denied sub nom. Marshall v. United States, 426

U.S. 923 (1976) (finding that the district court did not abuse

discretion in denying extensive discovery where the “claimed

infringement of constitutional rights was quite tenuous”).

     The plaintiffs have not satisfied the September opinion’s

invitation to establish a non-speculative means of demonstrating

what their incarceration periods would have been under the purely

speculative 1972 regulations.   Reconsideration of that opinion is

not warranted, and the plaintiffs’ motion will be denied.

                       CONCLUSION AND ORDER

     The plaintiffs have not shown clear error or manifest

injustice in the September 2011 opinion granting the defendants’

motion to dismiss.   Accordingly, it is hereby
                              -10-

     ORDERED that the plaintiffs’ motion [29] for reconsideration

be, and hereby is, DENIED.

     SIGNED this 27th day of September, 2012.


                                          /s/
                                     RICHARD W. ROBERTS
                                     United States District Judge
