The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff is a District of Columbia Code offender serving a parole revocation sentence imposed by the United States Parole Commission ("Commission"). He alleges that the Commission's application of its reparole guidelines violated the Ex Post Facto Clause of the Constitution. Plaintiff's claims are brought pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Fed. Narcotics Officers, 403 U.S. 388 (1971).*fn1 His amended complaint names as defendants the Commission and present and former Commissioners in their official and personal capacities. Plaintiff seeks injunctive and declaratory relief against all defendants under § 1983 and money damages from the individually-sued Commissioners under Bivens.
Defendants have filed a motion to dismiss the amended complaint. Based on the parties' filings and the applicable law, the Court concludes that the Commission is not subject to liability in this case because the United States has not waived sovereign immunity. Moreover, plaintiff's claims for money damages under Bivens against Commissioners in their personal capacities are barred by absolute or qualified immunity. The Court thus concludes that the plaintiff can only proceed against the present Commissioners in their official capacities on the claim under 42 U.S.C. § 1983 for prospective injunctive and declaratory relief.
This matter has a lengthy history, including threedecisions by the D.C. Circuit. The relevant background is drawn from the records before this court and, where appropriate, those earlier decisions.
On March 15, 1980, in the Superior Court of the District of Columbia, plaintiff was sentenced to a term of 12 to 36 years imprisonment for rape. Respondent's Opposition to Petition for Writ of Habeas Corpus ("Resp. Opp."), Exh. A.*fn2 Plaintiff was released on parole by the District of Columbia Board of Parole ("D.C. Board") on October 23, 1990, and ordered to remain under parole supervision until August 22, 2014. Id. Exh. B.
On August 12, 1994, plaintiff was arrested in Prince George's County, Maryland, and charged with assault with intent to kill and use of a firearm in a crime of violence. Id. Exh. C. He pleaded guilty to these charges and received a ten-year sentence, which was later reduced to a five-year term. Id. Exh. D & Exh. F. On May 10, 1995, the D.C. Board issued a warrant for plaintiff's arrest based on this new criminal conduct and administrative parole violations resulting from his arrest and conviction. Id. Exh. C. The D.C. Board's warrant was lodged as a detainer while plaintiff served his sentence in Maryland. Id. Exh. E.
On August 29, 1998, plaintiff was arrested on the D.C. Board's parole violation warrant. Id. Exh. G. Following a parole revocation hearing in October 1998, the D.C. Board revoked plaintiff's parole and ordered that he be considered for reparole by August 29, 2000. Id. Exh. H. After parole authority over D.C. Code offenders was transferred from the D.C. Board to the Commission, see 28 C.F.R. § 2.70, et seq.; D.C. Code § 24-131, the Commission held a revocation rehearing. Resp. Opp., Exh. I. The Commission determined that plaintiff's parole violation behavior was of Category Eight severity because it involved attempted murder. Id. Based on the calculated salient factor score, the Commission guidelines provided that plaintiff should serve 150 months before reparole. Id. The Commission set a presumptive parole date of October 29, 2010. Id. On February 12, 2002, the Commission reopened plaintiff's case for reconsideration of his salient factor score. Id. Exh. L. On August 14, 2002, the Commission reduced the guideline range to 120 months, with a presumptive parole date of October 29, 2007. Petitioner's Amended Response, Fletcher, No. 01-2058, Exh. C.
Plaintiff initiated this action pro se.*fn3 He contended that the application of the Commission's reparole guidelines instead of the D.C. Board guidelines in effect at the time of his original offense increased his length of incarceration and violated the Ex Post Facto Clause. Complaint ("Compl.") at 6-8. The case was brought pursuant to 42 U.S.C. § 1983 against the District of Columbia, several of its agencies and employees, and against the Commission, its commissioners, and certain Commission employees. Id. at 5-6.*fn4 Plaintiff named the defendants in their individual and official capacities and alleged that they acted under the color of District of Columbia law. Id. at 10. Plaintiff sought a declaration that defendants' actions were unconstitutional and an award of compensatory and punitive damages. Compl. at 9.
On July 2, 2002, the Court dismissed plaintiff's complaint without prejudice on the ground that his damages claim was precluded by Heck v. Humphrey, 512 U.S. 477 (1994), because a judgment in plaintiff's favor would be equivalent to a determination that his parole revocation detention was unlawful. As a result, this Court held, plaintiff had to pursue his claim through a habeas petition before he could file a suit for damages.
Plaintiff appealed, and in Fletcher v. Dist. of Columbia, 370 F.3d 1223 (D.C. Cir. 2004)(Fletcher I), the court of appeals held that plaintiff did not have to pursue a habeas remedy before bringing his claim pursuant to 42 U.S.C. § 1983. Id. at 1227. Construing plaintiff's pro se complaint as naming members of the Commission, the court also ruled that individual members of the Commission were amenable to suit under § 1983 because their actions were taken pursuant to a statute that applied solely to the District of Columbia, the National Capital Revitalization and Self-Government Improvement Act of 1997 ("Revitalization Act"), Pub. L. 105-33, 111 Stat. 712. Id at 1227 & n. *.*fn5 However, the court rejected plaintiff's claim on the merits, on the ground that a parole guideline is not a "law" subject to the prohibitions of the Ex Post Facto Clause. Id. at 1228.*fn6
Plaintiff filed a petition for rehearing, relying on Garner v. Jones, 529 U.S. 244 (2000). In Garner, the Supreme Court held that a non-binding parole regulation was subject to the Ex Post Facto Clause, and that, to succeed on such a challenge, a claimant must show that retroactive application of the parole regulation creates "a significant risk of increasing the measure of punishment attached to the covered crimes." Id. at 250. Upon rehearing, the court of appeals vacated its previous judgment and remanded the matter to this Court for further proceedings consistent with Garner. Fletcher v. Dist. of Columbia, 391 F.3d 250, 251 (D.C. Cir. 2004)(Fletcher II).
Meanwhile, the dismissal of plaintiff's habeas petition was also reviewed by the court of appeals, which remanded that case with the following explanation:
Fletcher has made out a prima facie case that his rights under the Ex Post Facto Clause have been violated, because he is a D.C. Code offender whose parole was revoked based on an offense that was not a D.C. Code offense. Under these circumstances, the facial distinctions between the Board's regulations and the federal regulations that replaced them, specifically the fact that the new federal regulations, unlike the regulations they replaced, do not take post-incarceration behavior into account, is sufficient to warrant factual development on his habeas petition. Under Garner and Fletcher II, Fletcher is entitled to a searching comparison of the old and new reparole regimes in order to determine whether the U.S. Parole Commission's application of the federal reparole regulations at Fletcher's reparole hearing in 2000 created a significant risk that he will be subjected to a lengthier incarceration than he would have been if the Commission had adhered to the rules and practices of the D.C. Board.
Fletcher v. Reilly, 433 F.3d 867, 879 (D.C. Cir. 2006)(Fletcher III). Over the past year, the parties have engaged in extensive discovery to accomplish the contemplated "factual development."
Defendants move to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction over the individual defendants, improper venue, and for failure to state a claim, all pursuant to Fed. R. Civ. P. 12(b). Defendants also contend that plaintiff's suit is barred by the statute of limitations. The Court will address the issues raised by defendants' motion in turn.
I. 42 U.S.C. § 1983 Claim
Defendants contend that the doctrine of sovereign immunity bars plaintiff's claim under 42 U.S.C. § 1983. Sovereign immunity is a jurisdictional issue. Brown v. Sec'y of Army, 78 F.3d 645, 648 (D.C. Cir. 1996). If the United States has not waived sovereign immunity, the court must dismiss for lack of jurisdiction. First Va. Bank v. Randolph, 110 F.3d 75, 77 (D.C. Cir. 1997). A plaintiff has the burden of proving subject matter jurisdiction by a preponderance of the evidence. Felter v. Norton, 412 F. Supp. 2d 118, 122 (D.D.C. 2006)(citation and quotation omitted).
The United States is immune from suit absent its explicit consent to be sued. Lehman v. Nakshian, 453 U.S. 156, 160 (1981); Kugel v. United States, 947 F.2d 1504, 1506 (D.C. Cir. 1991). Sovereign immunity bars all suits against the United States, its agencies, and federal employees in their official capacities, except where there has been a statutory waiver of immunity. United States v. Mitchell, 445 U.S. 535, 538 (1980). The United States "may not be sued without its consent" and "the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). A waiver of "sovereign immunity must be unequivocally expressed in statutory text" and will not be implied. Lane v. Pena, 518 U.S. 187, 192 (1996); Settles v. United States Parole Comm'n, 429 F.3d 1098, 1105 (D.C. Cir. 2005)(citations omitted). The scope of a sovereign immunity waiver is to be strictly construed in favor of the sovereign. Dep't of the Army v. Blue Fox, 525 U.S. 255, 261 (1999). The sovereign's consent to a particular remedy must also be unambiguous. Dep't of the Army v. Fed. Labor Relations Auth., 56 F.3d 273, 277 (D.C. Cir. 1995).
Here, plaintiff concedes that he only seeks prospective declaratory and injunctive relief under § 1983 against the Commission and its officers, that he does not seek money damages against the Commission or the individual Commissioners in their official capacities, and hence that money damages are sought only against the individual (past) Commissioners in their personal capacities under Bivens. See, e.g., Pl.'s Opp. to Deft. Comm'n's Mot. to Dismiss, p. 10; Pl.'s Opp. to Mot. to Dismiss, p. 10; Pl.'s Supp. Mem. in Opp. to Mot. to Dismiss, p. 4. For good reason, the Court concludes, as it is plain that money damages are not available against the Commission or the Commissioners in their official capacities. Moreover, as the D.C. Circuit has already concluded, the Commission cannot be sued under § 1983. However, defendants overreach in contending that injunctive relief is unavailable under § 1983 against the Commissioners in their official capacities.
In Settles, the D.C. Circuit addressed whether the Commission was subject to § 1983 liability for parole decisions regarding D.C. Code offenders. The Court first found that nothing in the statutory text or legislative history indicated that Congress intended federal agencies to be subject to § 1983. Settles, 429 F.3d at 1105. In addition, the Court concluded that there was no evidence that by enacting the ...