Taylor v. Reilly

• Decision Date: 13 September 2012
• Docket Number: No. 10–5153.,10–5153.
• Parties: Melvin J. TAYLOR, Appellant v. Edward F. REILLY, Jr., Chairman, U.S. Parole Commission, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

685 F.3d 1110

Melvin J. TAYLOR, Appellant

v.Edward F. REILLY, Jr., Chairman, U.S. Parole Commission, et al., Appellees.

No. 10–5153.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 20, 2011.

Decided July 17, 2012.

Rehearing En Banc Denied Sept. 13, 2012.

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.

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 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); see28 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, 120 S.Ct. 1362, 146 L.Ed.2d 236 (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. 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, 125 S.Ct. 1242, 161 L.Ed.2d 253 (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; see74 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 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 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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (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, ––– U.S. ––––, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (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, 129 S.Ct. 808, 172 L.Ed.2d 565 (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, 107 S.Ct. 3034, 97 L.Ed.2d 523 (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, 107 S.Ct. 3034. This does “not require a case directly on point, but existing precedent must have placed the...