The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
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.
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:*fn1
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 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 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).*fn2 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.
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 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.*fn3
"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, 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, ...