Melvin Taylor v. Edward Reilly, Jr.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2011 Decided July 17, 2012

No. 10-5153

MELVIN J. TAYLOR,

APPELLANT

v.

EDWARD F. REILLY, JR., CHAIRMAN, U.S. PAROLE

COMMISSION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-00749)

Doug Keller, Supervising Attorney, Georgetown University

Law Center Appellate Litigation Program, argued the cause as

amicus curiae in support of appellant. With him on the briefs

were Steven H. Goldblatt, Director, Nilam A. Sanghvi,

Supervising Attorney, and Blake Holleman and Ana Olarte del

Castillo, Student Counsel.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause

for appellees. With her on the brief were Ronald C. Machen Jr.,

U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Kenneth A. Adebonojo, Assistant U.S. Attorney, entered an

appearance.

2

Before: GARLAND and KAVANAUGH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

Concurring opinion filed by Circuit Judge KAVANAUGH.

GARLAND, Circuit Judge: Plaintiff Melvin Taylor alleges

that U.S. Parole Commission officials violated his rights under

the Ex Post Facto Clause by applying the Commission’s parole

regulations at his parole hearings. We conclude that application

of those regulations did not violate any clearly established

constitutional right of which a reasonable official would have

known at the time of the hearings. Accordingly, we affirm the

district court’s dismissal of Taylor’s damages suit on the ground

of qualified immunity.

I

In 1993, Taylor was convicted in District of Columbia

Superior Court of the crimes of threatening to injure a person

and manslaughter, and he was sentenced to a maximum of 45

years in prison. Under that sentence, Taylor would become

eligible for parole after serving one-third of the maximum

period, minus any good-time credits. At the time of Taylor’s

conviction, the District of Columbia had its own parole board

that relied on regulations published in 1987. See Taylor v.

Craig, 2009 WL 900048, at *1 (S.D. W. Va. Mar. 24, 2009);

D.C. MUN. REGS. tit. 28, §§ 204.1-.22 (1987) (“1987

Regulations”). In 1997, Congress brought the D.C. parole

system under the jurisdiction of the U.S. Parole Commission

(USPC). See National Capital Revitalization and Self-

Government Improvement Act, Pub. L. No. 105-33, § 11231,

111 Stat. 712, 745-46 (codified at D.C. CODE § 24-131). And in

3

2000, the USPC adopted its own regulations regarding

suitability for parole, 28 C.F.R. §§ 2.70-.107 (“2000

Regulations”), which it made applicable to D.C. Code offenders

like Taylor, 65 Fed. Reg. 45,885 (July 26, 2000); see 28 C.F.R.

§ 2.70(a).

At Taylor’s first parole hearing in 2001, the USPC applied

the 2000 Regulations and denied him parole. Taylor v. Craig,

2009 WL 900048, at *2. Taylor came up for parole again in

2005, but, again based on the 2000 Regulations, the Commission

found that Taylor would not be suitable for parole for several

more years. Id.

In 2005, Taylor filed a petition for a writ of habeas corpus

in the United States District Court for the Southern District of

West Virginia, the district in which he was then incarcerated.

The petition alleged that application of the 2000 Regulations,

rather than the 1987 Regulations, at both his 2001 and 2005

hearings violated his rights under the Ex Post Facto Clause of

the Constitution. Taylor relied principally upon Garner v.

Jones, in which the Supreme Court held that retroactive

application of parole guidelines may violate the Ex Post Facto

Clause if it creates a “significant risk” of longer incarceration.

529 U.S. 244, 251-52, 255 (2000). After engaging in a detailed

analysis that compared the USPC’s 2000 Regulations to D.C.’s

1987 Regulations as they might have applied to Taylor, the

habeas court concluded: “It appears that Petitioner may have a

meritorious claim that the USPC violated the Ex Post Facto

Clause when it retroactively applied the 2000 regulations to his

parole hearings.” Taylor v. Craig, 2009 WL 900048, at *13.

Nonetheless, the court held that “[a]lthough the USPC’s actions

may have created a significant risk of an increased period of

incarceration,” that was “by no means certain” because the

Board had “ample discretion to depart from the parole decision

suggested by a strict application of the [1987] regulations.” Id.

4

Thus, the court said, a victory for Taylor would have “[a]t

best . . . entitled [him] to a new parole hearing with instructions

to the USPC to exercise its discretion within the framework

created by [D.C.’s] 1987 Regulations.” Id. Concluding that the

only kind of relief available for such a claim was a change in

“the procedures of parole-granting entities” rather than release,

the court dismissed Taylor’s petition for habeas corpus under 28

U.S.C. § 2241, but suggested that a claim for relief might have

been appropriate had Taylor sued under 42 U.S.C. § 1983. Id.

at *13-15 (citing Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)).

Thereafter, Taylor filed the instant Section 1983 complaint

against four Parole Commissioners who served on the USPC at

the time of his hearings, and against one Parole Examiner who,

he alleged, presided over his 2005 parole hearing.1 Taylor

sought a declaratory judgment that the defendants’ application

of the 2000 Regulations violated the Ex Post Facto Clause, an

injunction barring the defendants from relying on those

regulations at his future parole proceedings, an injunction

ordering them to hold a new hearing applying the 1987

Regulations, and compensatory and punitive damages. In the

summer of 2009, responding to similar lawsuits, the USPC

adopted a rule entitling inmates like Taylor to new parole

hearings in which the 1987 D.C. rules would be applied.

Appellees’ Br. 6; see 74 Fed. Reg. 34,688 (July 17, 2009)

(interim rule); 74 Fed. Reg. 58,540 (Nov. 13, 2009) (final rule)

(codified at 28 C.F.R. § 2.80(o)). After a new hearing at which

the 1987 Regulations were applied, Taylor’s parole was again

1

See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C.

Cir. 2005) (noting that “a cause of action under § 1983 will lie against

the individual members of the [United States Parole] Commission”

when, “pursuant to the [National Capital] Revitalization Act,” they

preside in matters involving D.C. Code offenders).

5

denied. Parole Hearing Summary (July 28, 2009) (J.A. 36-40);

Oral Arg. Recording at 25:50.

The defendants moved to dismiss Taylor’s complaint under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim upon which relief can be granted. The motion argued that

Taylor’s claims for declaratory and injunctive relief were moot

in light of the new hearing he had been accorded, and that the

defendants were protected against Taylor’s damages claims by

absolute immunity or, in the alternative, qualified immunity.

Agreeing with all of the defendants’ arguments, the district court

granted the motion the dismiss. Taylor v. Reilly, 2010 WL

891276 (D.D.C. Mar. 9, 2010). In upholding the defense of

qualified immunity, the court found: “[I]t was not clearly

established in 2005 -- nor is it today -- that the Commission’s

retroactive application of its guidelines violated the ex post facto

clause” because “such a determination depends on the facts of

the particular case.” Id. at *2 n.2.

Thereafter, Taylor appealed, and we appointed amicus

curiae to present arguments on his behalf.2 Taylor does not

contest the district court’s finding that his claims for declaratory

and injunctive relief are moot. He does, however, maintain his

quest for damages, arguing that neither absolute nor qualified

immunity protects the defendants. Because we conclude that the

defendants are entitled to qualified immunity, we do not address

the issue of absolute immunity.

II

We review a dismissal for failure to state a claim under

Rule 12(b)(6) de novo. Muir v. Navy Fed. Credit Union, 529

2

For purposes of this opinion, we will attribute to Taylor the

arguments made by amicus.

6

F.3d 1100, 1108 (D.C. Cir. 2008). In so doing, we “‘accept as

true all of the factual allegations contained in the complaint.’”

Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

The Supreme Court has held that “[q]ualified immunity

shields federal and state officials from money damages unless a

plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was

‘clearly established’ at the time of the challenged conduct.”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The courts

“have discretion to decide which of the two prongs of

qualified-immunity analysis to tackle first.” Id. (citing Pearson

v. Callahan, 555 U.S. 223, 236 (2009)). Exercising that

discretion, we begin (and end) with an examination of whether

the right the plaintiff asserts was “clearly established” at the

time of his 2001 and 2005 parole hearings.

The operation of the “clearly established” standard

“depends substantially upon the level of generality at which the

relevant ‘legal rule’ is to be identified.” Anderson v. Creighton,

483 U.S. 635, 639 (1987). The Court has explained, for

example, that although “the right to due process of law is quite

clearly established by the Due Process Clause,” that level of

generality is too high for purposes of qualified immunity

because “there is a sense in which any action that violates that

Clause (no matter how unclear it may be that the particular

action is a violation) violates a clearly established right.” Id.

The same can “be said of any other constitutional or statutory

violation.” Id. Instead, “the right the official is alleged to have

violated must have been ‘clearly established’ in a more

particularized, and hence more relevant, sense: The contours of

the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Id.

at 640. This does “not require a case directly on point, but

7

existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft, 131 S. Ct. at

2083; see Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012). In

determining whether the state of the law was “clearly

established” at the time of the action complained of, “‘we look

to cases from the Supreme Court and this court, as well as to

cases from other courts exhibiting a consensus view’ -- if there

is one.” Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011)

(quoting Johnson v. District of Columbia, 528 F.3d 969, 976

(D.C. Cir. 2008)).

Taylor’s complaint is based upon an alleged violation of the

Ex Post Facto Clause, which “bar[s] enactments which, by

retroactive operation, increase the punishment for a crime after

its commission.” Garner, 529 U.S. at 249; see U.S. CONST. art.

I, § 9, cl. 3; id. § 10, cl. 1. “Retroactive changes in laws

governing parole of prisoners, in some instances, may be

violative of this precept.” Garner, 529 U.S. at 250 (emphasis

added). But retroactive changes do not always violate the

Clause. “The question,” the Court held in Garner, “is whether

the [new law] creates a significant risk of prolonging [the

prisoner’s] incarceration.” Id. at 251.

As Garner explained, “[w]hether retroactive application of

a particular change in parole law respects the prohibition on ex

post facto legislation is often a question of particular difficulty

when the discretion vested in a parole board is taken into

account.” Id. at 250. “When the rule does not by its own terms

show a significant risk, the [prisoner] must demonstrate, by

evidence drawn from the rule’s practical implementation by the

agency charged with exercising discretion, that its retroactive

application will result in a longer period of incarceration than

under the earlier rule.” Id. at 255 (emphasis added). In such a

case, the prisoner “must show that as applied to his own

sentence the law created a significant risk of increasing his

8

punishment.” Id. (emphasis added). This requires a “rigorous

analysis of the level of risk created by the change in law.” Id.

In this case, whether retroactive application of the 2000

Regulations violates the Clause is “a question of particular

difficulty,” id. at 250. The 2000 Regulations instruct the USPC

to calculate a Total Guideline Range to determine the number of

months a prisoner should serve before he is suitable for parole.

See Phillips v. Fulwood, 616 F.3d 577, 578-79 (D.C. Cir. 2010);

28 C.F.R. § 2.80(f)-(l). The first step is to ascertain the

minimum number of months the prisoner must serve before he

becomes eligible for parole, a determination based on the

maximum sentence imposed by the court and the prisoner’s

good-time credits. See Taylor v. Craig, 2009 WL 900048, at *5.

Next, a “Base Point Score” is determined by assessing three

categories: risk of recidivism, current or prior violence, and

whether the crime involved the death of a victim or a high level

of violence. 28 C.F.R. § 2.80(f). The first category alone

involves application of six factors. See Taylor v. Craig, 2009

WL 900048, at *5; 28 C.F.R. § 2.20 Items A-F. The Base Point

Score yields a base guideline range, which is added to the

minimum number of months the prisoner must serve before

becoming eligible for parole. 28 C.F.R. § 2.80(h)-(m). The

result is then adjusted, based on the presence of specified

aggravating or mitigating factors, to produce the Total Guideline

Range. See id. (methods for determining minima and maxima).3

As the district court in Taylor’s habeas case noted, although

“most of the factors” considered under the 2000 Regulations

were incorporated from the 1987 Regulations, Taylor v. Craig,

3

The adjustment factors include: disciplinary infractions incurred

during the prisoner’s incarceration; the gravity of such infractions; and

superior achievement in areas such as educational, vocational, and

counseling programs. 28 C.F.R. § 2.80(j)-(k); see id. § 2.36.

9

2009 WL 900048, at *9, “the two sets of regulations

substantially differ in how they structure the discretion to grant

or deny parole,” id. at *7. The discrepancy arises in part from

the fact that the 2000 Regulations produce a guideline range of

time during which an inmate becomes suitable for parole (i.e.,

after 100-120 months), whereas the 1987 Regulations produce

a point scale in which those with a lower point score are deemed

suitable for parole. Id. at *7. Both sets of regulations allow for

departures from their guidelines.

The 2000 Regulations do not, on their face, show a

significant risk of prolonged incarceration over the 1987

Regulations for every prisoner to whom they may be applied.

Certainly no case has so held. In Fletcher v. District of

Columbia (Fletcher I), 391 F.3d 250 (D.C. Cir. 2004), this court

did not even attempt to determine whether application of the

2000 rather than the 1987 Regulations constituted an Ex Post

Facto violation, instead remanding to the district court for a fact-

specific analysis. In a parallel habeas case, Fletcher v. Reilly

(Fletcher II), 433 F.3d 867 (D.C. Cir. 2006), we again remanded

without making a determination. Indeed, although we found

“facial distinctions” between the regulations that were

potentially significant for the petitioner’s case, we held only that

those distinctions were “sufficient to warrant factual

development . . . in order to determine whether” application of

the later regulations constituted an Ex Post Facto violation. Id.

at 879.4 And in Sellmon v. Reilly, the district court found that

4

None of those “facial distinctions” are present here. The

reference in Fletcher II was to regulations regarding reparole

decisions (that is, decisions to parole individuals who had previously

been paroled and were returned to prison after violating parole or

committing further offenses). For that category of prisoners, Fletcher

II found facial differences between the 1987 and 2000 Regulations, in

that the latter did not take account of a prisoner’s rehabilitative

10

application of the 2000 rather than the 1987 Regulations did not,

in fact, lead to an increased sentence for one of the prisoner

plaintiffs. 551 F. Supp. 2d 66, 93 (D.D.C. 2008); see also

Phillips, 616 F.3d at 582 (concluding that application of the

2000 Regulations did not produce a longer period of

incarceration for the plaintiff in light of the Board’s upward

departure from the guidelines).

Nor is it apparent on the face of the 2000 Regulations that,

“as applied to [Taylor’s] own sentence,” those regulations

“created a significant risk of increasing his punishment.”

Garner, 529 U.S. at 255. Taylor insists that it is apparent, citing

the decision of the district court in his habeas case. But that

court held no more than that “[i]t appears that Petitioner may

have a meritorious claim” of a violation of the Ex Post Facto

Clause. Taylor v. Craig, 2009 WL 900048, at *13 (emphasis

added). Even that qualified verdict was reached only after the

court conducted a five-page, “searching comparison” of the

manner in which the two sets of regulations applied to Taylor --

including an analysis of the nature of Taylor’s offenses, his

background, and his conduct subsequent to conviction. See id.

at *7-11; see also id. at *3 (stating that Taylor’s Ex Post Facto

argument presents a “thorny question”). In part, this is because

applying the two sets of regulations requires an apples-to-

oranges comparison: as noted above, while the 2000

Regulations generate ranges of time, the 1987 Regulations

generate a point scale on which those with fewer points are

deemed presumptively suitable for parole. See id. at *7.

In short, there is no sense in which the new “rule . . . by its

own terms show[s] a significant risk” of increased incarceration.

Garner, 529 U.S. at 255. Accordingly, if there were a violation

here, it was not a violation that any “reasonable official would

accomplishments between his two incarcerations. Id. at 877-79.

11

[have] underst[oo]d” at the time he applied the 1987 Regulations

to Taylor’s case. Anderson, 483 U.S. at 640; cf. Garner, 529

U.S. at 255 (finding, in light of the prisoner’s criminal history,

that it was “difficult to see how” a new parole rule “increased

the risk of [petitioner’s] serving a longer term,” notwithstanding

that the new rule provided parole reviews after 8-year rather

than 3-year intervals). Accordingly, we cannot conclude that

such an application violated “clearly established” law.

Anderson, 483 U.S. at 640.

Taylor argues that the parole officials were at least “on

notice” that they had to conduct a fact-specific comparison of

both the 1987 and 2000 Regulations before deciding to apply the

latter to his case. Br. 44. But Taylor cites no court decision,

either before or after his 2001 and 2005 parole hearings, that

found a violation of the Ex Post Facto Clause based merely on

a failure to conduct such a comparison. Cf. Wilson v. Layne,

526 U.S. 603, 617 (1999) (finding no clearly established

violation of law when the petitioners failed to cite “any cases of

controlling authority in their jurisdiction” holding that the

practice at issue was unlawful). Taylor maintains that our 2004

decision in Fletcher I was such a case, but he is mistaken.

Fletcher I held nothing more than that the plaintiff’s Section

1983 case could not be dismissed on the ground that “a parole

guideline is not a ‘law’ within the proscription of the Ex Post

Facto Clause,” and it therefore remanded the case for the district

court to conduct “proceedings consistent with Garner.”

Fletcher I, 391 F.3d at 251. Our disposition was a procedural

direction to the district court. We issued no direction to the

defendant Parole Commission and reached no conclusion

whatsoever with respect to a violation of the Ex Post Facto

Clause.

Indeed, even if it were assumed that there are circumstances

in which parole officials are required by the Ex Post Facto

12

Clause to compare the impact of two sets of regulations before

applying one, what those circumstances are and whether they

apply to Taylor’s case are both unclear.5 Recall that, “[w]hen

the rule does not by its own terms show a significant risk,”

Garner places the burden on the plaintiff to “demonstrate, by

evidence drawn from the rule’s practical implementation by the

agency charged with exercising discretion, that its retroactive

application will result in a longer period of incarceration than

under the earlier rule.” Garner, 529 U.S. at 255. In Fletcher II,

we held that the petitioner was “entitled to a searching

comparison of the old and new reparole regimes” by the district

court considering his complaint, 433 F.3d at 879, but did so only

after first concluding that he had “presented a creditable claim”

of a significant risk of longer incarceration, id. at 878. We have

never addressed whether such a “creditable claim” is either

necessary or sufficient to mandate an initial searching

comparison by parole officials (and we do not mean to suggest

an answer to that question here). Nor has Taylor ever contended

that he presented such a creditable claim to the parole officials

who are defendants here -- or that he even asked them to apply

the 1987 Regulations to his case. In these circumstances, it was

not a violation of clearly established law for the parole officials

to fail to conduct a comparison of the two sets of regulations.

III

A parole official applying the 2000 Regulations at Taylor’s

parole hearings would not have had reason to know that doing

5

We note that a 2009 regulation issued by the USPC now requires

hearing examiners, in specified circumstances, to evaluate prisoners’

cases using the 1987 Regulations. 28 C.F.R. § 2.80(o). As discussed

in Part I, Taylor was accorded a new hearing pursuant to that

regulation, but his parole was again denied. See Parole Hearing

Summary (July 28, 2009) (J.A. 36-40); Oral Arg. Recording at 25:50.

13

so would create a “significant risk” of longer incarceration than

applying the 1987 Regulations. If there were any difference in

the ultimate outcome for Taylor, it would not have become

apparent without a searching comparison of the application of

each of the two sets of regulations to the facts of his case.

Hence, although it was clearly established at the relevant times

that applying new parole regulations creating a significant risk

of longer incarceration violates the Ex Post Facto Clause, it

would not have been clear to reasonable parole officials that

applying the new regulations to Taylor would actually create

such a risk. Nor had any case required officials -- particularly

officials who did not already have a basis for believing there

was such a risk -- to conduct a searching comparison before

deciding which regulations to apply.

Accordingly, the judgment of the district court is

Affirmed.

KAVANAUGH, Circuit Judge, concurring: The

Government contends that the U.S. Parole Commissioners

should receive absolute immunity for their decision to deny

parole to Taylor. The Government’s fallback argument is

qualified immunity. Taylor’s claim fails even if the Parole

Commissioners are entitled only to qualified immunity, and

the Court thus correctly affirms dismissal of the suit. The

Court does not address the Government’s absolute immunity

argument. I write separately simply to make clear that the

Government’s absolute immunity theory is unavailing.

The Government claims that Parole Commissioners are

like judges or agency adjudicators who are entitled to absolute

immunity for their judicial or quasi-judicial decisions. But

the Government’s position misunderstands the office of

Parole Commissioner. The Supreme Court has afforded

absolute immunity to those adjudicative officials who operate

independently and are not removable at will by the President

or another Executive Branch officer. See, e.g., Butz v.

Economou, 438 U.S. 478, 513-14 (1978). By contrast,

Executive Branch officials who are removable at will are

ordinarily entitled only to qualified immunity for their

decisions, even when their actions are quasi-judicial. (An

exception, not applicable here, is the absolute immunity

granted to prosecutors for certain prosecutorial decisions.)

Parole Commissioners are Executive Branch officials who are

removable at will by the President. See Constitutionality of

Legislation Extending the Terms of Office of U.S. Parole

Commissioners, 18 Op. O.L.C. 166, 171 (1994). Therefore,

the Supreme Court’s precedents do not support granting

absolute immunity to Parole Commissioners for their parole

decisions.