UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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LEE JOHNSON, )
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Plaintiff, )
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v. ) Civil Action No. 09-1390 (PLF)
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EDWARD F. REILLY, JR. et al., )
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Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiff, a District of Columbia prisoner currently confined at the Federal
Correctional Institution in Cumberland, Maryland, sues the United States Parole Commission
(“USPC”) for allegedly violating the ex post facto clause of the United States Constitution during
his parole proceedings. He claims that the USPC applied its own guidelines issued in 2000 when
it should have applied guidelines issued by the former District of Columbia Parole Board in 1987
in conjunction with the Board’s 1991 policy guideline. See 74 FR 58540-01 (Nov. 13, 2009).
Plaintiff seeks a declaration that the “application of the 2000 guidelines to [him] violates the Ex
Post Facto Clause” and “a new Parole Hearing” utilizing the 1987 guidelines. Compl. at 8-9.
Defendants move to dismiss on the ground that the claims are moot [Dkt. No. 14].
Plaintiff, having now had the requested hearing, moves for summary judgment [Dkt. No. 11].
The Court agrees that the initial claims are moot and finds that plaintiff is not entitled to
judgment on the supplemental claim. It therefore will grant defendants’ motion to dismiss and
deny plaintiff’s motion for summary judgment.
I. BACKGROUND
Plaintiff is serving an aggregate sentence of 10 years and 8 months to 38 years for a
number of offenses – including voluntary manslaughter, carrying a pistol without a license,
conspiracy to commit murder, conspiracy to obstruct justice, and possession of a firearm during a
crime of violence – committed on August 4, 1993, and May 2, 1994. Compl. at 1-2. Plaintiff
appeared before a parole examiner for an initial parole hearing on April 26, 2005, and for a parole
reconsideration hearing on June 18, 2008. Plaintiff alleges that each time, the parole examiner
applied the 2000 guidelines. Id. at 19, 24.1
On December 17, 2009, the USPC, having amended its regulations applicable to
D.C. Code offenders, held a parole reconsideration hearing for plaintiff utilizing the 1987
guidelines. By notice of January 5, 2010, the USPC denied parole and set a reconsideration
hearing for an unspecified day in December 2010. Pl.’s Mot., Attachment (“Pl.’s Attach.”)
(Notice of Action). The USPC departed upward from the guidelines that, based on plaintiff’s total
point score of 3, would otherwise have authorized his release to parole. Id.
II. DISCUSSION
Plaintiff’s claims for injunctive and declaratory relief are moot because the parole
hearing conducted on December 17, 2009 provided the equitable relief sought by plaintiff in his
complaint. See Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir.
2009) (“A case is moot when ‘the challenged conduct ceases such that there is no reasonable
1
The USPC assumed authority over parole determinations of District of Columbia
prisoners in August 1998. See Franklin v. District of Columbia, 163 F.3d 625, 632 (D.C. Cir.
1998) (acknowledging new law transferring parole authority from the former D.C. Board of
Parole); Sellmon v. Reilly, 551 F. Supp. 2d 66, 68-73 (D.D.C. 2008) (discussing original and
revised regulations and guidelines).
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expectation that the wrong will be repeated’ in circumstances where ‘it becomes impossible for
the court to grant any effectual relief whatever to the prevailing party.’ ” ) (quoting United States
v. Philip Morris USA, Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009)) (other citation omitted);
Fletcher v. United States Parole Commission, 550 F. Supp. 2d 30, 44 (D.D.C. 2008) (“A case is
considered moot either when the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.”) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969));
see also Sellmon v. Reilly, 551 F. Supp. 2d 66, 84 (D.D.C. 2008) (“Were these plaintiffs to prevail
in their ex post facto challenge, they would gain at most a new parole hearing. . . .”) (citation and
internal quotation marks omitted).
In his motion for summary judgment, plaintiff acknowledges that the USPC
utilized the 1987 guidelines at his most recent parole hearing but now claims that the parole
examiner “recommended that parole be denied [] for reasons unauthorized by the 1987
Regulations.” Pl.’s Mot. ¶ 4. Contrary to plaintiff’s assertion, the 1987 regulations authorized the
USPC “to depart upward based on a prisoner’s risk to society.” Phillips v. Fulwood, ___ F.3d
___, 2010 WL 3063754 at *5 (D.C. Cir., Aug. 6, 2010) (citing D.C. MUN. REGS. tit. 28
§ 204.22 & app. 2-1, at 2-34). Here, the USPC found “that at this time there is a reasonable
probability that you would not obey the law if released and your release would endanger public
safety.” Pl.’s Attach. It reasoned:
[Y]ou were convicted of two separate
offenses that resulted in the death of two individuals.
The second victim was a witness in a murder trial and
was killed on orders from the target of the
investigation. Your involvement in this conspiracy
and obstruction of justice makes you a more serious
risk if released to the community at this time.
Additionally, your institution misconduct is deemed
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to be serious and includes past acts of threatening
staff on two occasions and engaging in a fight with
another inmate.
Id.
Because the USPC’s decision is rationally supported, plaintiff has presented no
grounds for granting judgment in his favor. See Edmundson v. Turner, 954 F.2d 510, 512-13 (8th
Cir. 1992) (explaining that courts “have limited jurisdiction to review Parole Commission
determinations. Congress has expressly declared that the Commission's decisions to grant or deny
parole are ‘actions committed to agency discretion for purposes of [the judicial review provisions
of the Administrative Procedure Act].’ ") (quoting 18 U.S.C. § 4218(d)) (brackets in original);
accord Slader v. Pitzer, 107 F.3d 1243, 1246 (7th Cir. 1997) (“The inquiry is not whether the
Commission's decision is supported by the preponderance of the evidence, or even by substantial
evidence; the inquiry is only whether there is a rational basis in the record for the Commission's
conclusions embodied in its statement of reasons.”); cf. with Rockingham v. United States Parole
Commission, 523 F. Supp. 2d 38, 42 (D.D.C. 2007) (“A court's role in reviewing a parole
revocation decision is limited. The court determines only whether the revocation decision was
‘either totally lacking in evidentiary support or [was] so irrational as to be fundamentally
unfair.’ ”) (quoting Singletary v. Reilly, 452 F.3d 868, 872 (D.C. Cir. 2006) (other citations
omitted) (brackets in original).
For the foregoing reasons, defendants’ motion to dismiss is granted and plaintiff’s
motion for summary judgment is denied. A separate Order accompanies this Memorandum
Opinion.
/s/________________________
PAUL L. FRIEDMAN
DATE: August 26, 2010 United States District Judge
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