The opinion of the court was delivered by: Richard W. Roberts United States District Judge
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.
Plaintiffs Roy A. Daniel, Alfonso Taylor, Harold Venable, Percy Jeter, Abdus-Shahid Ali, and William Terry are federal 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 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))).
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 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 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 ...