The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Thaddeus Fletcher began this litigation while incarcerated for a parole violation, a term of imprisonment that he contends was imposed pursuant to federal reparole regulations that violate the Ex Post Facto Clause of the U.S. Constitution. His amended complaint seeks damages and injunctive and declaratory relief against the U.S. Parole Commission and various commissioners in their official and/or individual capacities pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).*fn1 Separately, he has sought his release through a habeas petition filed in a related case, Fletcher v. Reilly, Civil Action No. 01-2058 (D.D.C.). On March 26, 2007, the Court granted defendants' motion to dismiss Fletcher's Bivens claim for damages based on the determination that the individually-sued defendants were protected by absolute immunity or, in the alternative, by qualified immunity. Fletcher v. District of Columbia, 481 F. Supp. 2d 156, 164-68 (D.D.C. 2007). In conducting the immunity analysis, the Court limited the Bivens claim to "the application of the Commission's guidelines to [Fletcher] by those Commissioners involved in the decision to deny him reparole," and excluded the aspect of his claim related to "promulgation of the reparole guidelines" because no injury flowed from that act alone. See id. at 164-65. Soon thereafter, on May 4, 2007, Fletcher was released from prison on reparole consistent with his presumptive reparole date of April 29, 2007, set by the Commission in 2004.
Defendants now move to dismiss Fletcher's remaining claim for declaratory and injunctive relief for lack of a case or controversy. In response, Fletcher has conceded that his habeas petition has been rendered moot by his release. But he contends that his action for declaratory and injunctive relief should be allowed to proceed and he also requests a ruling on his pending motion for summary judgment. He separately seeks reconsideration of the Court's dismissal of his damages claims, on the ground that the Court improperly limited the scope of his Bivens claims.*fn2
The factual background of this action is set forth more fully in this Court's most recent decision on this matter, see 481 F. Supp. 2d at 158-60, and in the D.C. Circuit opinions addressing the initial proceedings on the original complaint, see Fletcher v. District of Columbia, 370 F.3d 1223 (D.C. Cir.) ("Fletcher I"), vacated in part, 391 F.3d 250 (D.C. Cir. 2004) ("Fletcher II"); Fletcher v. Reilly, 433 F.3d 867 (D.C. Cir. 2006) ("Fletcher III"). The Court assumes at this stage of the proceedings that the factual allegations of Fletcher's amended complaint are true. In relevant part, Fletcher alleges that he was on parole following his imprisonment for a 1978 rape conviction in the District of Columbia when, in 1995, he was convicted and sentenced in Maryland for assault with intent to commit murder. See Am. Compl. ¶ 1. The District of Columbia Board of Parole then issued a warrant against Fletcher for violation of his parole. Id. The warrant was executed upon Fletcher's release from the custody of Maryland in August 1998. Id. The D.C. Board revoked Fletcher's parole the following October and imposed a 24-month "set-off" before he could be considered again for parole. Id.
Under the D.C. Board regulations then in effect, post-incarceration rehabilitative conduct was an important factor in the decision to grant reparole. Id. ¶ 13; see also Fletcher III, 433 F.3d at 870-71. During the period of his 24-month set-off, Fletcher engaged in significant rehabilitative conduct, including earning a B.A. in Urban Studies from the University of the District of Columbia, working as a clerk in the "Metro Shop" and a supervisor in the "Fabric Industry," and completing various life-skills and psychological programs. Am. Compl. ¶ 14. He received no infractions during this time. Id.
By the time Fletcher became eligible for reparole consideration, the D.C. Board had been dissolved and responsibility for the release of prisoners incarcerated under D.C. law had been transferred to the U.S. Parole Commission, pursuant to § 11231 of the National Capital Revitalization and Self-Government Improvement Act of 1997, Pub. L. 105-33, 111 Stat. 712. Am. Compl. ¶ 1. By then, the U.S. Parole Commission, following two rounds of rulemaking in 1998 and 2000, had finalized a regulation, 28 C.F.R. § 2.81, requiring the application of its existing guidelines concerning the reparole of federal prisoners to D.C. prisoners whose parole was revoked for a non-D.C. Code offense. Id. ¶¶ 1, 16-19; see also 65 Fed. Reg. 45885, 45887, 45894 (July 26, 2000) (final rule codifying § 2.81); 63 Fed. Reg. 39172, 39183 (July 21, 1998) (interim final rule codifying precursor provision at former § 2.87). This regulation states, in relevant part:
If the prisoner is not serving a new, parolable D.C. Code sentence, the Commission's decision to grant or deny reparole on the parole violation term shall be made by reference to the reparole guidelines at § 2.21. The Commission shall establish a presumptive or effective release date pursuant to § 2.12(b), and conduct interim hearings pursuant to § 2.14. 28 C.F.R. § 2.81(a).*fn3 The rule became effective August 5, 2000, and specified that it applied to all prisoners and parolees who were "serving sentences under the District of Columbia Code for felony crimes committed prior to August 5, 2000." Id. at 45885, 45887.*fn4
Fletcher alleges that, in contrast to the former D.C. Board reparole regulations, the federal reparole guidelines, published at 28 C.F.R. § 2.21, consider only the offense and offender characteristics, excluding rehabilitative progress or positive post-incarceration conduct from the resulting "salient factor score." Am. Compl. ¶ 18. He further alleges that, under the federal reparole guidelines, the U.S. Parole Commission sets a presumptive release date at the first reparole hearing, which is "virtually impossible" to change at subsequent interim hearings. Id. ¶ 19.
A reparole hearing was held in November 2000. See Fletcher III, 433 F.3d at 873 (incorporated by reference into Am. Compl. ¶ 2). The following December the members of the U.S. Parole Commission considered and denied Fletcher reparole, and set a presumptive reparole date of October 29, 2010. Am Compl. ¶ 1. In doing so, the members of the Commission applied the federal reparole guidelines, as required by § 2.81(a), and thus developed a salient factor score and offense severity category which did not take into account Fletcher's post-incarceration rehabilitative conduct. Id. ¶ 21.
On August 14, 2002, the U.S. Parole Commission acknowledged an error in its salient factor score and set a new presumptive release date of October 2007, with the next review hearing set for July 2004. See Fletcher III, 433 F.3d at 874. As a result of the 2004 review hearing, Fletcher's presumptive reparole date was moved up by six months, to April 29, 2007. See Def.'s Mootness Mem., Exhibit P. Consistent therewith, Fletcher was released on reparole on May 4, 2007. Id. Exhibit EE; see also Pl.'s Opp. at 7-8 (acknowledging Fletcher's release).
Fletcher alleges that "[t]he retroactive application of the federal reparole regulation adversely affect[ed] both [his] eligibility and his suitability for reparole, creating a significant risk that he [was] detained in prison longer than he would have under the regulations and practice of the D.C. Board at the time his offense was committed." Am. Compl. ¶ 22. He further alleges that the Commission and its members "directed, authorized and approved the reparole procedures used in [his] case," and that the "procedures are unconstitutional, on their face and as applied to him." Id. ¶ 23.
Relying on these factual allegations, Fletcher styles his claim for relief as based on "[t]he unlawful retroactive application of the federal reparole regulations by the United States Parole Commission and its members" to him and also "defendants' policy and practice of retroactively applying federal reparole regulations to plaintiff, instead of the D.C. Board reparole regulations in effect at the time of plaintiff's original offense . . . ." Am. Compl. ¶¶ 25, 26. He alleges that the foregoing "policies, practices, customs, acts and omissions" have caused him to face a significant risk of increased punishment, and to be detained in prison longer than he would have been had the D.C. Board regulations been applied to his reparole eligibility and suitability determinations. Id. ¶ 27.
In response to the amended complaint, defendants moved to dismiss all of the claims, raising lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted based on absolute and qualified immunity and the statute of limitations. On March 26, 2007, the Court issued a memorandum opinion and order finding that the exercise of personal jurisdiction and venue in this district was appropriate and that the claims were timely filed. Fletcher, 481 F. Supp. 2d at 168-72. The Court held that the claim for declaratory and injunctive relief under Section 1983 could proceed against the Commissioners sued in their official capacities, but dismissed the Commission itself based on sovereign immunity. Id. at 160-64.
As to the merits of the Bivens claim for damages, the Court held that "plaintiff's Bivens claim will be evaluated on the basis of the application of the Commission's guidelines to him by those Commissioners involved in the decision to deny him reparole," but that the allegations relating to the promulgation of the reparole regulation and the Commissioners' failure to promulgate a regulation in line with the prior D.C. Board regulation would be excluded. 481 F. Supp. 2d at 164-65. The Court reasoned that Bivens and its progeny require a plaintiff to "demonstrate an injury consequent upon the violation" of his constitutional rights by federal employees. Id. at 164. Applying that standard, the Court determined that:
[P]laintiff's claims regarding the promulgation of the reparole guidelines must be dismissed because plaintiff cannot demonstrate that he has suffered a concrete injury or harm by the mere enactment of the guidelines. . . . The Court rejects plaintiff's inventive argument that his cause of action is neither the promulgation nor the application of the regulation, but rather something in between -- the failure over time to promulgate and follow a proper regulation in line with the prior D.C.
Board policy. Plainly, plaintiff's actionable injury arises from the application of the federal guideline to his case in 2000, not from some abstract continuing failure.
Id. The Court then held that the Commissioners are protected from suit by absolute immunity because the reparole decision was quasi-judicial in nature and thus, like judges and other officials performing judicial functions, the Commissioners were immune from a Bivens action for damages. Id. at 165-66. The Court proceeded to consider whether qualified immunity also would bar the Bivens claim -- that is, whether "[the official's] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." See id. at 166 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In conducting the qualified immunity analysis, the Court assumed that the facts alleged by Fletcher would establish a violation of the Ex Post Facto Clause, and focused its inquiry on whether, under "clearly established" law, the Commissioners were on notice that determination of Fletcher's reparole eligibility date on the basis of post-offense reparole regulations and guidelines would violate the Ex Post Facto Clause. 481 F. Supp. 2d at 166-68. Finding that the law was not clearly established on this issue at the time his reparole was denied in 2000, the Court held that qualified immunity applied. Id.
Fletcher now seeks reconsideration of the dismissal of his Bivens claims. He also has moved for summary judgment on the merits of his claim that defendants acted in violation of the Ex Post Facto Clause. For their part, defendants have moved to dismiss the remaining claim for declaratory and injunctive relief ...