Daniel v. Smoot
Opinion
Amit P. Mehta, United States District Judge
This case is back before the court on a motion by Defendants the U.S. Parole Commission and its individual Commissioners (collectively, "Defendant" or "the Commission"), to reconsider the court's decision of February 13, 2018. See Mem. Op., ECF No. 99. That decision concerned a motion by Plaintiffs-individuals who remain incarcerated for D.C. Code offenses that occurred on or before March 3, 1985, but who have never received parole-to enforce a Settlement Agreement that requires *82the Commission to conduct Plaintiffs' parole hearings using the guidelines that were in place at the time of their offenses. Plaintiffs had alleged that the Commission was not carrying out its obligations under the Agreement in good faith, both with respect to its actual parole decisions and the scheduling of any subsequent hearings following a denial of parole. The court agreed with Plaintiffs only as to the latter issue, finding that the Commission, by ordering set-offs of greater than one year for the lion's share of offenders, was violating the mandate that rehearings "ordinarily" be held within one year. The court ordered the Commission to hold rehearings as soon as practicable for all inmates who had no recent disciplinary actions.
Defendant now asks the court to revisit its decision on grounds that the order is contrary to the terms of the parties' Settlement Agreement, improperly cabins the Commission's discretion, and assigns undue weight to Plaintiffs' evidence. Upon consideration of the parties' arguments and evidence, the court denies in part and grants in part Defendant's motion.
II. BACKGROUND
A. History of the Parole Guidelines
The court begins with some historical background. Until 1997, the District of Columbia Board of Parole ("Board") made parole determinations for D.C. Code offenders. Between 1972 and 1985, the Board applied a set of guidelines that it had adopted in 1972 ("1972 Guidelines"). The 1972 Guidelines supplied non-exhaustive factors for the Board to consider when making parole determinations. See 9 D.C.R.R. § 105.1 (1972). If the Board denied parole, the 1972 Guidelines provided a general rule for imposing "set-offs," that is, the time period between the denial of parole and the next parole consideration hearing, or "rehearing." See 9 D.C.R.R. § 103 (1972). The rule stated as follows:
All prisoners serving a maximum sentence of less than five years who were denied parole at their original parole hearing will ordinarily be granted a rehearing no later than six months after the Board's last action.
Prisoners serving a maximum sentence of five years or more who were denied parole at their original hearing ordinarily will receive a rehearing one year after the last action taken by the Board....
In all cases of rehearings, the Board reserves to itself the right to establish a rehearing date at any time it feels such would be proper, regardless of the length of sentence involved or the time remaining to be served.
Id. (emphasis added). Although the 1972 Guidelines granted the Board discretion to deviate from the "ordinary" one-year set-off, it was silent as to the factors that might warrant a departure. See id.
The Board adopted new parole guidelines in 1985, which came to be known as the "1987 Guidelines," in reference to the year they were published. See Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes,
For decades, the Board made set-off determinations under the operative Guidelines, and those alone. But that changed in the early 1990s. In late 1991, the Board adopted, and then amended in early 1992, policy guidance that for the first time gave shape to the Board's discretion in scheduling rehearings. See D.C. Board of Parole, Policy Guideline, Reconsideration Hearings-Establishing Dates , April 27, 1992 [hereinafter 1992 Policy Guideline]. The 1992 Policy Guideline enumerated multiple, non-exhaustive aggravating and mitigating factors that the Board could consider when determining whether to assign an offender a rehearing date that was later or earlier than the one-year norm. See
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Amit P. Mehta, United States District Judge
This case is back before the court on a motion by Defendants the U.S. Parole Commission and its individual Commissioners (collectively, "Defendant" or "the Commission"), to reconsider the court's decision of February 13, 2018. See Mem. Op., ECF No. 99. That decision concerned a motion by Plaintiffs-individuals who remain incarcerated for D.C. Code offenses that occurred on or before March 3, 1985, but who have never received parole-to enforce a Settlement Agreement that requires *82the Commission to conduct Plaintiffs' parole hearings using the guidelines that were in place at the time of their offenses. Plaintiffs had alleged that the Commission was not carrying out its obligations under the Agreement in good faith, both with respect to its actual parole decisions and the scheduling of any subsequent hearings following a denial of parole. The court agreed with Plaintiffs only as to the latter issue, finding that the Commission, by ordering set-offs of greater than one year for the lion's share of offenders, was violating the mandate that rehearings "ordinarily" be held within one year. The court ordered the Commission to hold rehearings as soon as practicable for all inmates who had no recent disciplinary actions.
Defendant now asks the court to revisit its decision on grounds that the order is contrary to the terms of the parties' Settlement Agreement, improperly cabins the Commission's discretion, and assigns undue weight to Plaintiffs' evidence. Upon consideration of the parties' arguments and evidence, the court denies in part and grants in part Defendant's motion.
II. BACKGROUND
A. History of the Parole Guidelines
The court begins with some historical background. Until 1997, the District of Columbia Board of Parole ("Board") made parole determinations for D.C. Code offenders. Between 1972 and 1985, the Board applied a set of guidelines that it had adopted in 1972 ("1972 Guidelines"). The 1972 Guidelines supplied non-exhaustive factors for the Board to consider when making parole determinations. See 9 D.C.R.R. § 105.1 (1972). If the Board denied parole, the 1972 Guidelines provided a general rule for imposing "set-offs," that is, the time period between the denial of parole and the next parole consideration hearing, or "rehearing." See 9 D.C.R.R. § 103 (1972). The rule stated as follows:
All prisoners serving a maximum sentence of less than five years who were denied parole at their original parole hearing will ordinarily be granted a rehearing no later than six months after the Board's last action.
Prisoners serving a maximum sentence of five years or more who were denied parole at their original hearing ordinarily will receive a rehearing one year after the last action taken by the Board....
In all cases of rehearings, the Board reserves to itself the right to establish a rehearing date at any time it feels such would be proper, regardless of the length of sentence involved or the time remaining to be served.
Id. (emphasis added). Although the 1972 Guidelines granted the Board discretion to deviate from the "ordinary" one-year set-off, it was silent as to the factors that might warrant a departure. See id.
The Board adopted new parole guidelines in 1985, which came to be known as the "1987 Guidelines," in reference to the year they were published. See Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes,
For decades, the Board made set-off determinations under the operative Guidelines, and those alone. But that changed in the early 1990s. In late 1991, the Board adopted, and then amended in early 1992, policy guidance that for the first time gave shape to the Board's discretion in scheduling rehearings. See D.C. Board of Parole, Policy Guideline, Reconsideration Hearings-Establishing Dates , April 27, 1992 [hereinafter 1992 Policy Guideline]. The 1992 Policy Guideline enumerated multiple, non-exhaustive aggravating and mitigating factors that the Board could consider when determining whether to assign an offender a rehearing date that was later or earlier than the one-year norm. See
Congress eliminated the D.C. Board of Parole in 1997 and assigned the Board's task of making parole decisions for persons convicted of violations of District of Columbia law to the United States Parole Commission. Balanced Budget Act of 1997, Pub. L. 105-33, § 11231(a)-(b). In 2000, the Commission adopted new guidelines for D.C. Code offenders ("2000 Guidelines"). See
B. Procedural Background
1. The Initial Litigation
Plaintiffs1 are individuals who were convicted of D.C. Code offenses that occurred on or before March 3, 1985, and who became eligible for parole on or after August 5, 1999, but remain incarcerated. Pls.'
*84Mem. in Supp. of Mot. to Enforce Settlement Agreement, ECF No. 82 (under seal) [hereinafter Pls.' Mem. to Enforce], at 1; see also Stipulation of Settlement & Dismissal, ECF No. 77 [hereinafter Settlement Agreement], at 1. They filed this action challenging the U.S. Parole Commission's use of the 2000 Guidelines, instead of the 1972 Guidelines that were in place at the time of their offenses, as violating the Ex Post Facto Clause and Due Process Clauses of the U.S. Constitution. See generally Compl., ECF No. 1. The gravamen of Plaintiffs' Complaint was that Defendant's application of the 2000 Guidelines created a "significant risk" of an increased minimum sentence that Plaintiffs had to serve before becoming eligible for parole.
Although the Complaint focused primarily on the risk of prolonged incarceration under the Commission's 2000 Guidelines relative to the Board's 1972 Guidelines, the Complaint contained a single paragraph regarding the difference in the timing of rehearings under the two regimes. Specifically, Plaintiffs alleged:
[U]nder both the 1972 Regulations and the 1987 Guidelines, even if the Board denied parole to a prisoner serving a sentence greater than five years, he would only have to wait one more year for another opportunity at parole. By comparison, under the 2000 Guidelines the same prisoner must wait at least three years, possibly more, for another parole hearing even when he was already within his 2000 Guidelines range at his first hearing.
The district court initially dismissed the class-action Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Daniel v. Fulwood ,
2. Proceedings on Remand
The Circuit's decision set in motion a series of events that ultimately ended with the Settlement Agreement that is the subject of the motion presently before the court. With the case on remand in the spring of 2015, Defendant stated to the court that it was considering "a rule change that would grant hearings to Plaintiffs pursuant to the 1972 regulations." See Def.'s Mot. to Dismiss, ECF No. 68 [hereinafter Def.'s Nov. 11, 2015, Brief], at 5 (summarizing representations Defendant made to the court at an April 29, 2015 status conference). While the Commission was considering such action, Plaintiffs filed *85an Amended Complaint that repeated the substance of their initial complaint, including, once again, only a passing reference to the timing of rehearings. See generally Am. Compl., ECF No. 50; see also id. ¶ 105.
Soon thereafter, on October 14, 2015, Defendant promulgated and published a new rule,
A prisoner who committed the offense of conviction on or before March 3, 1985 who is not incarcerated as a parole violator and is serving a maximum sentence of five years or more who was denied parole at their original hearing ordinarily will receive a rehearing one year after a hearing conducted by the U.S. Parole Commission. In all cases of rehearings, the U.S. Parole Commission may establish a rehearing date at any time it feels such would be proper, regardless of the length of sentence involved. No hearing may be set for more than five years from the date of the previous hearing.
The Commission's rulemaking set the table for resolving this matter. On December 18, 2015, two months after the adoption of the New Regulation, Plaintiffs and the Commission entered into a Settlement Agreement, the centerpiece of which was the Commission's commitment to apply the New Regulation in "good faith." See Settlement Agreement at 2. Under the Agreement's terms, the Commission also promised to conduct initial parole hearings under the terms of the 1972 Guidelines for all Plaintiffs, including those who had received parole denials under the 2000 Guidelines. See
Over the next seven months, the Commission held initial parole hearings under the 1972 Guidelines for 56 offenders, granting parole to some but denying parole to most. Mem. Op. at 7; see Pls.' Mem. to Enforce, Ex. 2, ECF No. 82-1 [hereinafter Parole Records], at 1. Additionally, for those offenders denied parole, the Commission ordered set-offs of more than one year in the vast majority of cases. See Parole Records at 1.
3. Plaintiffs' Motion to Enforce
The Commission's predominantly adverse parole decisions prompted Plaintiffs, on April 27, 2017, to file a motion to enforce the Settlement Agreement ("Motion to Enforce" or "Plaintiffs' Motion"). See Pls.' Mot. to Enforce Settlement Agreement, ECF No. 81; Pls.' Mem. to Enforce. Plaintiffs alleged that the Commission was not "in good faith" applying the 1972 Guidelines-both with respect to parole decisions and to the scheduling of rehearings-and sought a court order directing the Commission to comply with the terms of the agreement. Pls.' Mem. to Enforce at 5-10. As to the latter issue, Plaintiffs objected to the Commission's setting of rehearings two or more years into the future, because the 1972 Guidelines, as well as the New Regulation, provided that set-offs *86"ordinarily" would be one year.
To buttress their claim, Plaintiffs submitted a declaration from Walter Ridley, who was the chairman of the District of Columbia Parole Board "in 1985 and 1986." Pls.' Mem. to Enforce, Ex. 1, ECF No. 82-1 [hereinafter Ridley Decl.], at 1. According to Ridley, the D.C. Board "very seldom" scheduled set-offs for greater than one year, and it assigned longer rehearing dates "only if the person had serious disciplinary infractions or other institutional problems since their last parole hearing."
The Commission opposed Plaintiffs' Motion. Although conceding that the 1972 Guidelines and the New Regulation called for a one-year set-off in the "ordinary" case, the Commission argued that the 1972 Guidelines gave the D.C. Board broad, unreviewable discretion to impose set-off terms of greater than one year. See generally Def.'s Opp'n to Pls.' Mot. to Enforce Settlement Agreement, ECF No. 88 [hereinafter Def.'s Opp'n to Pls.' Mot.], at 8. It also maintained that the offenders to whom the New Regulation applied were an "extraordinary group," because of their violent conduct, criminal records, or misdeeds while incarcerated.
On February 13, 2018, the court ruled in favor of Plaintiffs on the set-off issue, holding that the Commission was not applying the New Regulation in good faith with respect to the scheduling of rehearings. Mem. Op. at 14-18. The court explained that the New Regulation-which incorporated 1972 Guidelines nearly wholesale-"provided clear direction on the scheduling of set-offs."
The court similarly rejected Defendant's alternative argument that Plaintiffs might be the "exceptional cases" that justify a significant deviation from the norm. See
Believing the court got it wrong, Defendant filed the instant Motion to Alter Judgment ("Defendant's Motion") one month later, on March 13, 2018. See Def.'s Mot. to Alter J. as to Order, Mem. & Op., ECF No. 102 [hereinafter Def.'s Mot. to Alter]. In its motion, Defendant claims that reconsideration is warranted because the court's decision "requiring annual parole hearing[s] for nearly all D.C. Offenders subject to the D.C. Board's 1972 guidelines is contrary to law" for a variety of reasons. Def.'s Mot. to Alter, Mem. in Supp., ECF No. 102-1 [hereinafter Def.'s Mem.], at 3. Among them are that: (1) the court's interpretation of the Settlement Agreement is inconsistent with the broad discretion the Commission enjoys; (2) the evidence the court relied upon, especially Ridley's declaration, was "insufficient and unreliable," and the court ignored case law showing that the D.C. Board, under the 1972 Guidelines, did impose set-offs of more than one year based on offense severity; and (3) the court's decision improperly requires the Commission to waste resources by requiring "pro forma " annual hearings. In the alternative, should the court not grant Defendant's motion in full at this time, Defendant asks the court to delay taking any action until the D.C. Circuit resolves two cases that are pending review.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 59(e)"provides a limited exception to the rule that judgments are to remain final." Leidos, Inc. v. Hellenic Republic ,
In this case, the Commission asserts as the basis for reconsideration only that the court committed clear error in finding the Commission to have breached the Settlement Agreement. Def.'s Mem. at 1.
IV. DISCUSSION
A. The Origins of the New Regulation and the Settlement Agreement
Before determining whether the court clearly erred in its decision enforcing the Settlement Agreement, it is worthwhile to *88revisit how the parties arrived at their pact in the first place. This case began with constitutional challenges-one rooted in the Ex Post Facto Clause, the other in the Due Process Clause-to the Commission's use of the 2000 Guidelines to a class of offenders whose crimes were committed on or before March 3, 1985, and who had not received parole. See generally Compl. Both claims focused primarily on the premise that applying the 2000 Guidelines retroactively created a significant risk of prolonging the terms of incarceration for this group of offenders. See generally
The D.C. Circuit's decision reversing the initial dismissal of Plaintiffs' Complaint reflects the set-off question's tangential quality. There, the Circuit held that Plaintiffs had stated a plausible Ex Post Facto claim because the 2000 Guidelines called for the use of factors that, in practice, increased an offender's presumptive parole date as compared to the 1972 Guidelines, which did not employ that methodology. Daniel ,
Plaintiffs' near-singular focus on parole suitability and length of incarceration, rather than the timing of rehearings, is wholly understandable when put in context of pertinent Supreme Court jurisprudence. In California Department of Corrections v. Morales ,
Not long after, the Court decided Garner v. Jones ,
Morales and Garner supply an important frame of reference for this litigation. Those cases make clear that, when Plaintiffs filed this action, they faced an uphill battle to prove that the Commission's retroactive application of the 2000 Guidelines with regard to set-offs violated the Ex Post Facto Clause. Indeed, like the policy at issue in Garner , the 2000 Guidelines grant the Commission some discretion as to the length of time between parole hearings for D.C. Code offenders. See
Against this favorable legal landscape, the Commission in this case nevertheless voluntarily agreed to make one year the "ordinary" time period between hearings not once, but twice , for the present group of offenders. It did so for the first time through the rulemaking process. When the Commission first publicly issued notice and comment for what would become the New Regulation, its proposed text was silent as to any presumptive period of time between hearings. See generally Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes,
Notwithstanding the fact that, as Judge Huvelle found in Sellmon v. Reilly ,551 F.Supp.2d 66 (D.D.C. 2008), not all retroactive application[s] of changed rules implicates the Ex Post Facto Clause for all prisoners, for administrative convenience and consistency with the "Sellmon Rule ," the Commission has decided that it will apply the parole guidelines that were in effect when the offenders committed their offenses.
Def.'s Mot. to Stay Disc., ECF No. 64, Ex. 1, Decl. of Helen H. Krapels, ECF No. 64-1 [hereinafter Krapels Decl.], ¶ 4 (emphasis added).2 Thus, the Commission is on record as stating that the New Regulation affords Plaintiffs greater protections than the minimum required by law.
The Commission reaffirmed its commitment to the one-year norm when it entered into the Settlement Agreement with Plaintiffs. See generally Settlement Agreement. As noted, the centerpiece of the Settlement Agreement is Defendant's commitment to apply the New Regulation "in good faith." Thus, by promising to adhere to the New Regulation as promulgated, the Commission agreed to apply the one-year set-off norm "in good faith."
With this background in mind, the court now turns to the arguments for reconsideration made by Defendant.
B. Defendant's Arguments
1. The Court Misconstrued the Plain Text of the New Regulation and Relevant Case Law
Defendant's primary argument centers on discretion. Defendant asserts that the court's ruling is contrary to the plain text of the New Regulation and precedent interpreting the 1972 Guidelines, both of which establish that the Commission has near-absolute discretion in setting rehearing dates on a case-by-case basis. Def.'s Mem. at 3-5. The Commission also insists that the court overlooked case law recognizing the D.C. Board's broad discretion to impose set-offs of greater than one year, citing five decisions: two from the D.C. Court of Appeals, one from the Third Circuit, one from the Seventh Circuit, and an additional decision from the U.S. District Court for the District of Columbia. Id. at 4-5; see also id. 13-14 (discussing an additional D.C. Court of Appeals decision and a D.C. Circuit decision). In short, Defendant asserts that the court's decision is rooted in a clear error of law.
Defendant's argument is not new, however. Defendant made the very same contention in its opposition to Plaintiffs' Motion to Enforce, citing the D.C. Board's discretion to set rehearing dates "at any time it feels such would be proper." Def.'s Opp'n to Pls.' Mot. at 8 (quoting 9 D.C.R.R. § 103). The court's decision explained why that text did not save the Commission. See Mem. Op. at 14-16 (discussing the New Regulation's employment of a "presumptive one-year set-off" and its provision granting the Commission "discretion in how long to fix a set-off"). A motion for reconsideration cannot be used to relitigate previously rejected lines of argument, see Exxon Shipping ,
In any event, the court's ruling is in no way at odds with the text of the New *91Regulation or the case law interpreting its older regulatory relative, the 1972 Guidelines. As the above history shows, the Commission, of its own volition through rulemaking, committed to "ordinarily" applying a one-year set-off to all offenders who committed offenses when the 1972 Guidelines were in effect but had not yet received parole. And then, by entering the Settlement Agreement, the Commission agreed that it would "ordinarily" grant annual parole hearings to Plaintiffs in this litigation . No court compelled the Commission to do so. And while it is true that, as part of the New Regulation, the Commission retained some discretion to impose set-offs of more than one year, such discretion cannot swallow whole the one-year norm that it agreed to apply to this defined group of Plaintiffs. Indeed, under the Commission's reading of the New Regulation, the term "ordinary" has no meaning. What conclusion is there to draw, other than the one the court reached, when the Commission exceeds the adopted and agreed-upon one-year norm in 33 out of 37, or 90 percent, of Plaintiffs' cases? The term "ordinarily" simply cannot be disregarded. Yet, that is precisely what the Commission did.
Nor does the Commission's insistence that these offenders are the "worst of the worst" excuse it from imposing one-year set-offs. The Commission claims that it exercised its discretion on a case-by-case basis, and that the high rate of set-offs of more than one year can be explained by the fact that the offenders in question committed the most serious crimes and therefore "are not representative of the bulk of the many thousands of offenders to whom the 1972 regulations have applied over time." Def.'s Mem. at 8. The Commission made that same argument before, see Def.'s Opp'n to Pls.' Mot. at 8, and the court rejected it, see Mem. Op. at 16-17. Nevertheless, the court explains its decision here once more. The problem with this argument is that the Commission agreed to "ordinarily" hold annual hearings for this very group of offenders , not some nebulous set of prisoners. When it adopted the New Regulation and entered into the Settlement Agreement, the Commission well understood that these offenders had committed the most serious crimes. No one pulled the wool over its eyes. Still, the Commission voluntarily committed to apply a one-year set-off norm to this group of offenders. And, at no time did it ever expressly say or intimate that Plaintiffs would not qualify for a one-year set-off because of the seriousness of their crimes. The Commission's position is, in essence, that it engaged in rulemaking and settlement with its fingers crossed, only to back out of its promises when the ink was dry. The plain text of the New Regulation and the Settlement Agreement cannot countenance such an outcome.
The Commission also argues that the longer set-offs here were a proper exercise of its discretion when viewed relative to the application of the 1972 Guidelines to all offenders who committed offenses, of any kind, prior to 1985. Def.'s Mem. at 6. As the Commission puts it:
The fact that relatively fewer prisoners subject to the 1972 guidelines currently receive "ordinar[y]" set-offs is not a function of the Commission's disregard for the rules, but rather is a consequence of elapsed time: most "ordinar[y]" offenders who were sentenced while the 1972 Guidelines were in effect from 1972 to 1985 have been paroled or otherwise released. Most of the relative handful who remain are not "ordinary[.]"
Accordingly, the court rejects Defendant's contention that the court clearly erred in failing to recognize the breadth of the Commission's discretion with respect to setting dates for the reconsideration of parole.
2. The Evidence Relied upon by the Court was "[I]nsufficient and [U]nreliable"3
Next, Defendant criticizes the evidence that the court relied upon in reaching its decision, calling it "insufficient and unreliable." Id. at 10. First, Defendant attacks the relevance of the "raw statistics" cited by the court, i.e., that nearly 90% of Plaintiffs received set-offs of longer than one year. Id. at 12. According to the Commission, that statistic:
fail[s] to account ... for the confounding factor that the cohort of prisoners still subject to the 1972 regulations have been winnowed over time to exclude nearly all but those convicted of the most serious crimes and/or those with the worst institutional misconduct. Nor do[es] [it] account for the extremely small sample size at issue.
Id. at 12. Thus, the Commission dismisses the data as having little probative value on the question of breach. Second, Defendant claims that the court gave undue weight to Ridley's declaration, when it was entitled to none. Id. at 10-12. Defendant challenges the basis for Ridley's testimony and also presents evidence to dispute his conclusions. Specifically, Defendant points to case law, which it asserts the court ignored, that purportedly contradicts Ridley's contention that the D.C. Board ordered set-offs of more than one year only in cases of recent institutional misbehavior. According to Defendant, the cited cases show that the D.C. Board under the 1972 Guidelines imposed longer set-offs because of the severity of a person's offense. Id. at 11-14.
The court rejects these contentions because, once again, the Commission is doing no more than relitigating arguments it already made or could have made. First, the court previously considered, and rejected, the Commission's argument that the "raw statistics," id. at 12, cannot be relied upon because they do not take into account the seriousness of this group of offenders' crimes within "the context of the larger group" subject to the 1972 Guidelines, see Def.'s Mot. at 8. See Mem. Op. at 16-17. Second, as to Ridley, Defendant's attack comes too late. In its earlier pleading, the Commission barely even mentioned Ridley; in fact, the Commission cited his declaration favorably. See id. ("Based upon the declaration of former Board member Walter Ridley, it is clear that the D.C. Board exercised [ ] discretionary authority" to set rehearing dates.). It did not contend in its brief, as it does *93now, that Ridley's testimony is of no probative value because it "[speaks] merely in the most general of terms"; "[h]is recollections are from what appears to be, at worst, a scarcely relevant timeframe, and, at best, a non-representative-transitory one;" and his "declaration nowhere indicates that [he] consulted anything other than his 31 year-old memories to support his statements." Def.'s Mem. at 10-12. Ridley's declaration was Plaintiffs' evidence of the D.C. Board's practices, and the Commission let it stand unrebutted. The Commission cannot now mount the aggressive attack that it could have made earlier. Moreover, the case law that the Commission now marshals could have been used before to attack Ridley. Defendant previously cited as evidence of the Board's practices two of the cases it now touts- Hall v. Henderson ,
In any event, the court once again rejects these arguments in substance, with one qualification regarding Ridley's declaration, as discussed below. First, it remains the fact that the "raw statistics" that the Commission discounts stand as the main evidence of the Commission's conformance with the Settlement Agreement. Indeed, there is little other evidence for the court to consider, and what evidence there is does not aid the Commission. At the court's direction, the parties submitted hearing records for 13 of the offenders who were recommended for parole by hearing examiners in their initial hearings pursuant to the Settlement Agreement, but who were denied parole upon further review. See Nov. 20, 2017, Hr'g Tr., ECF No. 107 [hereinafter November Hr'g Tr.], at 35-36. Only one of the 13 individuals received a one-year rehearing. See Joint Suppl. Filing Pursuant to Nov. 20 Hr'g, ECF No. 96 [hereinafter Joint. Suppl. Filing]. Of the remaining 12 cases, in only three did the Commission explain its reason for its longer-than-one-year set-off. See Joint Suppl. Filing, Attach. 1, ECF No. 96-1, at 33, 43, 110. No reason was given for the longer set-off in the other nine cases. See generally
Admittedly, as the Commission points out, see April 13, 2018, Hr'g Tr., ECF No. 108 [hereinafter April Hr'g Tr.], at 11-12; November Hr'g Tr. at 33; Def.'s Opp'n to *94Pls.' Mot. at 7, neither the New Regulation nor the Settlement Agreement require the Commission to explain its reasons for longer set-offs. And the Commission, of course, does not bear the burden of showing a breach of the Settlement Agreement. Yet, the Commission had ample opportunity to submit evidence to explain its decision-making in the face of Plaintiffs' statistical evidence, but simply chose not to offer any. For example, the Commission could have submitted a sworn declaration from commissioners or agency officials explaining the reasons for the set-off numbers, or it could have offered other notices of action that explained the longer set-offs. In the end, in response to the "raw statistics," all the Commission put forth was the litigation position that it made set-off decisions on a case-by-case basis and imposed year-plus set-offs for 90% of those who were denied parole because of the severity of their offense conduct. See November Hr'g Tr. at 33-35. An unsupported legal position is not sufficient to overcome overwhelming statistical evidence showing the Commission's persistent deviation from the agreed-upon one-year norm.
Nor has the Commission offered relevant evidence of the D.C. Board's actual practices under the 1972 Guidelines to show that the Commission's efforts to carry out the New Regulation are consistent with its predecessor's actions. Evidence of a parole board's actual practices can inform how the board interprets its governing regulations and policies. See Garner ,
These cases do not, however, support that argument. The Commission is of the view that that decisions applying the 1972 Guidelines are the only relevant evidence of the D.C. Board's practices under the 1972 Guidelines. Therefore, according to the Commission, decisions made by the D.C. Board under subsequent guidelines and policies, including the successor 1987 Guidelines, shed no light on the D.C. Board's practices under the 1972 Guidelines. See April Hr'g Tr. at 18-22. It has taken the same position before the D.C. Circuit. See id. at 19-20.5 Accepting the Commission's own view for present purposes, none of the cases it cites are relevant because each of them concern application of guidelines or policies other than the 1972 Guidelines. In Hall -one of two cases cited in the Commission's opposition to Plaintiffs' motion, see Def.'s Opp'n to Pls.' Mot. at 8-the D.C. Board applied the 1992 Policy Guidelines when it gave the offender a five-year set-off, on grounds that the offender had displayed cruelty to the victims and had negative institutional behavior.
That brings the court to Plaintiffs' declarant, Ridley. The only evidence that the Commission offers to undermine Ridley's statement are the above-cited cases. Defendant attacks Ridley's statement on other grounds-its use of "the most general of terms," its failure to state what guidelines he refers to, and his brief and dated familiarity with the Board's practices-but insofar as evidence goes, the only proof presented is case law. See Def.'s Mem. at 10-11. For the reasons already explained, the cited authorities shed no light on the D.C. Board's practices under the 1972 Guidelines. Accordingly, they are not, as the Commission contends, "definitive proof that plaintiff[s]' declarant's recollections are inaccurate and/or unrepresentative." Id. at 13.
Nevertheless, the court finds that it did clearly err in relying on Ridley's observations to make findings about the D.C. Board's actual set-off practices under the 1972 Guidelines. As the Commission points out, Ridley's declaration does not identify the set of guidelines he uses as his point of reference to opine that the Commission's actions in this case deviate from the Board's historical approach to set-offs. A simple internet search reveals, however, that Ridley cannot possibly speak to the Board's practices under the 1972 Guidelines, at least based on first-hand knowledge, for a simple reason: He was not on the D.C. Board when those guidelines were in effect. As noted earlier, the parole regulations that are commonly known as the "1987 Guidelines" actually went into effect two years earlier than its moniker suggests, in March 1985. See supra at 82. Ridley, however, began his tenure as chairman of the D.C. Board in June of 1985, three months after the "1987" Guidelines took effect. See Sara Evans, Barry Names New Head of Parole Board , Wash. Post (June 5, 1985) (reporting that the mayor of the District of Columbia had appointed Ridley as the chairman of the D.C. Parole Board for a six-year term that would begin June 17, 1985).6 When the *96court originally considered Plaintiffs' Motion to Enforce, it incorrectly believed that the "1987" Guidelines actually went into effect in 1987, and not two years earlier. So, when Ridley indicated that he "served as the chair of the former DC Board of Parole ... in 1985 and 1986," Ridley Decl. at 1, the court assumed that his two-year tenure encompassed a time when the 1972 Guidelines were in effect. That assumption was mistaken. The 1987 Guidelines supplied the governing rules for nine-plus months of 1985 and the full year in 1986, the very time period that Ridley served as the Board's chairman. Neither side noted this timing discrepancy in its initial briefing.7 In any event, having found that Ridley did not serve on the D.C. Board when the 1972 Guidelines were in effect, the court retracts its reliance on Ridley's declaration.
This confession of error does not, however, alter the court's conclusion that the Commission violated the Settlement Agreement. The uncontested statistical evidence marshalled by Plaintiffs provides compelling evidence, on its own, of the Commission's breach. The Commission agreed that this group of offenders "ordinarily will receive a rehearing one year after [an original] hearing conducted by the U.S. Parole Commission."
Although the court's rejection of Ridley's testimony does not alter its conclusion that the Commission is in breach of the Settlement Agreement, it does require the court to amend an aspect of its Order granting Plaintiffs' Motion to Enforce. Without Ridley's attestations, there is no record proof of the D.C. Board's practices with respect to imposing longer set-offs under the 1972 Guidelines. And, in the absence of such relevant evidence, the court will not speculate as to what the D.C. Board's practices were while those Guidelines were in effect. The court therefore will not limit the Commission's discretion in setting rehearing dates of more than one year to only offenders with recent, verifiable disciplinary problems. Accordingly, the court strikes the following sentence from its earlier Order: "Only Plaintiffs who have had verifiable disciplinary problems since their original hearing are not subject to the presumptive scheduling of a rehearing after one year." Order, ECF No. 100.
The court recognizes that this modification removes any bright-line rule as to when the Commission may deviate from the one-year norm. While bright-line rules usually are preferable, particularly where liberty interests are at stake, the parties did not bargain for such a rule in the Settlement Agreement. The court is in no position to place definite restrictions on the Commission that are not called for by the text of the Settlement Agreement and *97the New Regulation, and where there is no record evidence to support imposing clear limitations.
3. The Court's Decision Wastes the Commission's Limited Resources by Requiring Pro Forma Annual Rehearings
Next, Defendant argues that the court's decision was erroneous because it grants pro forma annual rehearings for offenders who are not suitable for parole. It asserts that that the court's opinion "misallocat[es] parole decisionmakers' resources away from more parole-suitable prisoners" by mandating that the Commission "go through the motions of needless annual hearings for prisoners for whom parole is not reasonably probable." Def.'s Mem. at 2; see also
Morales and Garner do not support reconsideration. Both cases have been on the books for over 15 years, yet Defendant did not cite either when it opposed Plaintiffs' Motion. Nor did the Commission advance the argument that it makes now that the Settlement Agreement should be interpreted to preserve the Commission's resources. For that reason alone, reconsideration is not appropriate. See Patton Boggs LLP ,
But the court disagrees with Defendant on the merits as well. As discussed above, Morales and Garner both involve Ex Post Facto Clause challenges to retroactive application of law or policy that resulted in a longer time period between parole hearings than the prisoner would have faced under the rules applicable at the time of the offense. In both cases, the Supreme Court found there to be no Ex Post Facto Clause violation. Here, of course, the Ex Post Facto Clause is not at issue. The question presented is governed by contract law principles, not constitutional ones. See In re Estate of Drake ,
Defendant tries to avoid this obvious disconnect by arguing that the Settlement Agreement "does not permit the plaintiffs to sidestep case law interpreting the parole regulations, nor may they seek to impose requirements at variance with the ex post facto and due process principles that undergird many decisions addressing prisoners' challenges on parole matters." Def.'s Mem. at 4 n.1; see also April Hr'g Tr. at 5-6 ("[T]he Commission obviously intended to act in conformity with all the jurisprudence governing ex post facto challenges to parole determinations."). In doing so, the Commission seems to suggest that it sought only to do the bare minimum required by the Constitution when conducting parole proceedings for Plaintiffs.
If that was the parties' intention it is not at all apparent on the face of either the Settlement Agreement or the New Regulation. Under the District of Columbia's "objective" law of contracts, "a party's unexpressed intent is irrelevant if a contract is unambiguous." Dyer v. Bilaal ,
4. Staying a Decision Pending Appeal of Related Matters
Finally, if the court does not grant its motion in full, the Commission asks to delay any action on this case until the D.C. Circuit decides two pending cases-Ray v. Smoot , No. 16-5135 (D.C. Cir. docketed May 31, 2016), and Ford v. Massarone , No. 16-5298 (D.C. Cir. argued Apr. 26, 2018). According to Defendant, both pending appeals present issues substantially similar to this one. Because "the Circuit may well further opine on the scope of the Commission's discretion concerning parole rehearing set-offs for D.C. Code offenders," Defendant asks the court to hold off on deciding this motion until the Circuit rules in those cases. Def.'s Mem. at 17-18.
The court declines the Commission's invitation. There is no good reason to wait. The court ruled against the Commission on Plaintiffs' Motion to Enforce months ago, and Defendant's present motion has only prolonged this litigation. Meanwhile, offenders who "ordinarily" are supposed to receive hearings on an annual basis wait for a final order enforcing the parties' agreement. Any further delay is simply not warranted. The court therefore will not delay this matter pending the D.C. Circuit's decisions in Ford and Ray .
V. CONCLUSION AND ORDER
For the foregoing reasons, Defendants' Motion to Alter or Amend Judgment in Part, ECF No. 102, is denied in part and granted in part. As explained in this Memorandum Opinion, the court reaffirms its decision that the Commission breached the Settlement Agreement by not scheduling the vast majority of offenders for rehearings within one year. The court, however, amends that portion of its Order that constrains the Commission's discretion to exceed the "ordinary" one-year set-off only in cases of recent, verifiable disciplinary problems. The court will enter an Amended Order on Plaintiffs' Motion to Enforce that is consistent with this Memorandum Opinion.
Footnotes
316 F. Supp. 3d 79 (Daniel v. Smoot) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.