UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
FLORENCE IMMIGRANT AND REFUGEE RIGHTS PROJECT,
Plaintiff, v. Civil Action No. 22-3118 (CKK) U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.
MEMORANDUM OPINION & ORDER (October 6, 2025)
This matter is before the Court upon Defendants’ [121] Motion to Dismiss the Second
Amended Complaint for Injunctive and Declaratory Relief. Upon consideration of the parties’
submissions,1 the relevant legal authority, and the entire record, the Court shall DENY
Defendants’ Motion.
I. BACKGROUND
Plaintiff Florence Immigrant and Refugee Rights Project (“FIRRP”) and other legal
services organizations filed this action on October 13, 2022, alleging that the Department of
Homeland Security and other Defendants were not providing constitutionally and statutorily
required access to counsel for people held in certain immigration detention facilities. Compl., ECF
No. 1. On February 1, 2023, the Court entered a preliminary injunction against Defendants,
1 The Court’s consideration has focused on the following documents, including the attachments and exhibits thereto: • Plaintiff’s Second Amended Complaint for Injunctive and Declaratory Relief, ECF No. 118; • Defendants’ Motion to Dismiss the Second Amended Complaint, ECF No. 121; • Plaintiff’s Opposition to Defendants’ Motion to Dismiss, ECF No. 124; and • Defendants’ Reply in Support of Motion to Dismiss the Second Amended Complaint, ECF No. 127.
In an exercise of its discretion, the Court concludes that oral argument is not necessary to the resolution of the issues presented in the pending motion. See LCvR 7(f).
1 holding that Plaintiff FIRRP had shown a likelihood of success on the merits of its claim that
attorney-access conditions at the Central Arizona Florence Correctional Complex (“Florence”)
were constitutionally deficient because they amounted to punishment. Ams. for Immigrant Just. v.
U.S. Dep’t of Homeland Sec., No. 22-cv-3118, ECF No. 79, 2023 WL 1438376 (D.D.C. Feb. 1,
2023) (CKK) (“PI Op.”). The Court found that FIRRP had shown “a clear likelihood of success
on its punitive-detention claim as to Florence” and that Defendants had “effectively blocked
attorney access in toto” at the Florence facility. Id. at *16–17. However, the Court found that the
other groups that had filed suit alongside FIRRP were not entitled to preliminary injunctions
because those groups had not shown a likelihood of success on the merits of their own claims. See
id. at *21. The Court also found that one Plaintiff lacked standing and dismissed its claims for
lack of subject-matter jurisdiction. See id.; Order, ECF No. 78, at 1.
To remedy the likely harm that FIRRP established at the preliminary injunction stage, the
Court ordered that Defendants must, within 60 days, either install “six private, confidential
attorney-client visitation rooms in which counsel may utilize translation services and physically
pass documents to and from their detainee client[s]” or “a ratio of 25 detainees to one telephone
that block[s] all others from listening to legal calls while in progress.” Order, ECF No. 78, at 1.
The Court further ordered that, in making these changes, Defendants “shall otherwise comply with
every provision” of the applicable national detention standards. Id.
After several extensions of time to comply with the Court’s Order, Defendants notified the
Court on August 30, 2023, that they had installed 24 soundproof virtual visitation booths at the
Florence facility and implemented procedures for detainees to use these booths for private virtual
meetings with attorneys. See Defs.’ Cert. of Compliance, ECF No. 120.
2 However, FIRRP’s success at the preliminary injunction stage is merely one step in the
litigation. As the Supreme Court recently emphasized in Lackey v. Stinnie, such success is “a
transient victory at the threshold of an action” that “is “tentative [in] character, in view of the
continuation of the litigation to definitively resolve the controversy.” 604 U.S. 192, 203 (2025)
(quoting Sole v. Wyner, 551 U.S. 74, 78, 84 (2007)).
Before Defendants certified compliance with the Court’s preliminary injunction, the Court
severed the several Plaintiffs’ cases from one another, retaining jurisdiction over FIRRP’s case
and transferring the cases of the other remaining Plaintiffs to other Districts. See Order, ECF
No. 102. FIRRP then filed a Second Amended Complaint on August 11, 2023, removing factual
allegations, claims, and parties that the Court had transferred or dismissed and adding factual
allegations related to FIRRP’s existing claims. Second Am. Compl., ECF No. 118; see also Notice
of Consent to Filing of Second Am. Compl., ECF No. 117 (explaining changes implemented in
the Second Amended Complaint). The Second Amended Complaint relates in extensive detail
alleged deficiencies in access to communications between FIRRP and its detained clients. See,
e.g., Second Am. Compl., ¶¶ 6–13, 23–36, 47–149, 161–73.
Defendants have now moved to dismiss FIRRP’s Second Amended Complaint. See Defs.’
Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 121. FIRRP opposes the Motion. Pl’s Opp’n to Defs.’
Mot. to Dismiss (“Pls.’ Opp’n”), ECF No. 124.
Defendants’ Motion presents the Court with three central arguments.
First, Defendants argue that because detainees who are FIRRP’s clients “[can] access
counsel through several mediums and [that] Defendants abide by the appropriate performance-
based national detention standards,” the Second Amended Complaint fails to state a claim under
either the Fifth Amendment Due Process Clause or the Rehabilitation Act. Defs.’ Mot. at 1.
3 Second, Defendants argue that FIRRP “has not pled sufficient facts to establish third-party
standing or to provide Defendants with sufficient notice about the claims.” Id. Specifically, they
argue that FIRRP has failed to “identify any client who was injured by Defendants’ procedures in
any actual proceeding or show that FIRRP clients are hindered in bringing their claims as first-
party litigants.” Id.
Third, and finally, Defendants contend that FIRRP’s claims must be dismissed for lack of
subject-matter jurisdiction and failure to state a claim because FIRPP “does not offer sworn
statements from FIRRP counsel or any declarations from detained clients in support of its claims.”
Id. at 6.
Each of Defendants’ contentions is predicated on alleged failures and inadequacies in
pleading by FIRRP. The Court has carefully considered Defendants’ arguments and FIRRP’s
factual allegations under Rule 12. Although the Second Amended Complaint does not provide
full factual development of FIRRP’s allegations, the allegations that it does contain are sufficient
to establish FIRRP’s standing and satisfy the pleading requirements of Rule 12(b)(6).
Accordingly, the Court shall DENY Defendants’ [121] Motion to Dismiss.
II. LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff’s
complaint need not contain “‘detailed factual allegations,’” but it must be “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at
555). When evaluating a motion to dismiss, a court must “‘construe the complaint liberally,’
granting the [plaintiff] ‘the benefit of all inferences that can be derived from the facts alleged.’”
4 Frederick Douglass Found., Inc. v. District of Columbia, 82 F.4th 1122, 1135 (D.C. Cir. 2023)
(quoting Zukerman v. USPS, 961 F.3d 431, 436 (D.C. Cir. 2020)).
Although the court “is limited to considering facts alleged in the complaint, any documents
attached to or incorporated in the complaint, matters of which the court may take judicial notice,
and matters of public record,” Covad Commc’ns Co. v. Revonet, Inc., 250 F.R.D. 14, 18 (D.D.C.
2008) (CKK), there is no requirement in the Federal Rules of Civil Procedure that a plaintiff attach
declarations to the complaint. Cf. Fed. R. Civ. P. 11(a) (“Unless a rule or statute specifically states
otherwise, a pleading need not be verified or accompanied by an affidavit.”). A motion to dismiss
under Rule 12(b)(6) for failure to state a claim “tests the legal sufficiency of a complaint.”
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). At this juncture, the court “do[es] not
‘assess the truth of what is asserted or determine[e] whether a plaintiff has any evidence to back
up what is in the complaint.’” Id. (second alteration in original) (quoting ACLU Found. of S. Cal.
v. Barr, 952 F.2d 457, 467 (D.C. Cir. 1991)).
III. ANALYSIS
Defendants advance three arguments for dismissal of the Second Amended Complaint: that
FIRRP lacks third-party standing to raise attorney-access claims on behalf of its clients, that it fails
to state a claim under the Fifth Amendment Due Process Clause, and that it fails to state a claim
under the Rehabilitation Act. See Defs.’ Mot., ECF No. 121. For the reasons that follow, the
Court concludes that none of these arguments warrant dismissal. The Court shall therefore DENY
A. The Second Amended Complaint adequately alleges third-party standing.
Defendants first argue that the Court should dismiss Plaintiff’s Second Amended
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) because it lacks
third-party standing to raise claims on behalf of its detained clients. This Court disagrees.
5 Third-party standing is a limited exception to the general principle that litigants must assert
their own legal rights. Cf. Warth v. Seldin, 422 U.S. 490, 499 (1975). To proceed on the basis of
third-party standing, a litigant must satisfy three requirements: (1) an “injury in fact” to the
litigant’s own interests, (2) “a close relation to the third party” whose rights are asserted, and
(3) “some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio,
499 U.S. 400, 410–11 (1991); see Kowalski v. Tesmer, 543 U.S. at 130 (describing latter two
requirements as “additional showings” on top of injury-in-fact requirement). The allegations in
the Second Amended Complaint are sufficient to satisfy all three requirements in this case.
First, FIRRP has adequately alleged an injury-in-fact to its own interests. An injury-in-
fact is “an invasion of a legally protected interest that is ‘concrete and particularized,’ ‘actual or
imminent,’ and ‘fairly traceable’ to the challenged act of the defendant, and likely to be redressed
by a favorable decision in the federal court.” Navegar, Inc. v. United States, 103 F.3d 994, 998
(D.C. Cir. 1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). An
organizational Plaintiff can establish injury-in-fact by showing a sufficient “personal stake” in the
outcome of the case, such as a direct impediment to its own activities. See Havens Realty Corp.
v. Coleman, 455 U.S. 363, 379–80 (1982).
As this Court previously held, the barriers to attorney access that FIRRP has alleged are
direct impediments to its mission, and FIRRP has organizational standing to challenge those
barriers. See PI Op. at *7 (citing Ukrainian-Am. Bar Ass’n v. Baker, 893 F.2d 1374, 1378 (D.C.
Cir. 1990)). The Second Amended Complaint relates in detail the injury-in-fact allegedly suffered
by FIRRP in its representation of its detained clients. These extensive allegations in the Second
Amended Complaint, combined with the Court’s prior ruling, support a finding of injury-in-fact
to FIRRP that is sufficient to satisfy the first prong of the third-party standing framework.
6 Second, FIRRP has adequately alleged “a close relation to” the third parties whose rights
it intends to assert. The third parties at issue here are immigration detainees at the Florence facility,
and FIRRP alleges that it serves as counsel to some of these detainees. See, e.g., Second Am.
Compl. ¶ 17 (“FIRRP currently represents clients detained at Florence who are harmed by
Defendants’ restrictions on access to counsel, and are otherwise impeded from protecting their
own interests regarding attorney access.”). At the motion-to-dismiss stage, an allegation of an
actual attorney-client relationship provides a sufficient basis to find that FIRRP has satisfied the
second prong of the third-party standing inquiry. See Caplin & Drysdale, Chartered v. United
States, 491 U.S. 617, 624 n.3 (1989) (holding that a law firm could assert the rights of an existing
client and noting that the attorney-client relationship “is one of special consequence”); cf.
Kowalski, 543 U.S. at 131 (noting that an “existing attorney-client relationship is, of course, quite
distinct from [a] hypothetical attorney-client relationship,” and holding that the latter does not
support third-party standing).
Third, and finally, the Second Amended Complaint adequately alleges “some hindrance
to” FIRRPs’ clients’ “ability to protect [their] own interests.” Powers, 499 U.S. at 411. The
hindrance prong of the third-party standing test “does not require an absolute bar from suit, but
‘some hindrance to the third party’s ability to protect his or her own interests.’” Pennsylvania
Psychiatric Soc. v. Green Spring Health Servs., Inc., 280 F.3d 278, 290 (3d Cir. 2002) (quoting
Powers, 499 U.S. at 411). Hindrances justifying third-party standing can include “systemic
practical challenges to pursuing one’s own rights,” “deterrence from filing suit due to privacy
concerns,” or “the ‘imminent mootness’ of a case.” United States v. TDC Mgmt. Corp., 263 F.
Supp. 3d 257, 274 (D.D.C. 2017) (JDB) (citing Singleton v. Wulff, 428 U.S. 106, 117 (1976)). The
Second Amended Complaint’s allegations in this regard sufficiently plead facts supporting
7 hindrance to a third party’s ability to protect his or her own interests. See, e.g., Second Am. Compl.
¶¶ 30, 44, 46, 49–67, 73, 114, 125, 131.
Although Defendants suggest that FIRRP should have attached declarations from its clients
to substantiate its assertion of third-party standing, this argument lacks merit. See Defs.’ Mot. at
8–9, 13. Declarations are not required to establish standing or any other element of a claim at the
motion-to-dismiss stage. See Jeffries v. Volume Servs. Am., Inc., 928 F.3d 1059, 1063 (D.C. Cir.
2019) (explaining that at the pleading stage, “a plaintiff is required only to state plausibly that each
standing element exists”); see also Browning, 292 F.3d at 242 (noting that when evaluating a
motion to dismiss, a court must “accept the plaintiff’s factual allegations as true”).
Accordingly, consistent with the Court’s prior determination at the preliminary injunction
stage, the Court finds that FIRRP has sufficiently established third-party standing to raise attorney-
access claims on behalf of its detained clients. See Powers, 499 U.S. at 411.
B. The Second Amended Complaint states a claim under the Fifth Amendment Due Process Clause.
Next, Defendants urge this Court to dismiss FIRRP’s claim under the Fifth Amendment
Due Process Clause. The Court declines to do so.
FIRRP’s Fifth Amendment Due Process claim is founded in the allegation that Defendants
have functionally denied FIRRP’s clients detained at the Florence facility from accessing their
attorneys without due justification. FIRRP supports this claim with myriad factual allegations
regarding asserted deficiencies in client access. See, e.g., Second Am. Compl. ¶¶ 30, 44, 46, 49-
67, 73, 114, 125, 131.
The crux of Defendants’ motion to dismiss is the argument that FIRRP’s factual allegations
of attorney-access barriers at Florence are “conclusory and do not reference a specific claim,” and
therefore fail to satisfy Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6), leaving Defendants
8 incapable of “formulat[ing] an informed defense.” Defs.’ Mot. at 14. Defendants also briefly argue
that FIRRP’s claims regarding the adequacy of in-person visitation must fail because the applicable
national detention standards “do not impose a set number of visitation rooms.” Id. at 15.
However, at the preliminary injunction stage, the Court already concluded that “FIRRP has
shown a clear likelihood of success on its punitive-detention claim as to Florence.” PI Op. at *16.
The Court found that Defendants have “functionally stripped detainee-clients of access to their
attorneys without due justification,” and that their failure to provide confidential legal visitation
and calls “effectively vitiates attorney-client access in its entirety.” Id. at *16, *21.
Immigration detention is “undisputedly civil—i.e., non-punitive in nature.” S. Poverty L.
Ctr. v. U.S. Dep’t of Homeland Sec. (SPLC I), No. 18-cv-0760, 2020 WL 3265533, at *18 (D.D.C.
June 17, 2020) (CKK) (quoting R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 187 (D.D.C. 2015) (JEB)).
Detained immigrants can establish unconstitutional punishment by showing that there is “an
expressed intent to punish,” or that the challenged conditions are either “not ‘rationally related to
a legitimate nonpunitive governmental purpose’” or “excessive in relation to that purpose.”
Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015) (quoting Bell v. Wolfish, 441 U.S. 520, 561
(1979)); see also SPLC I, 2020 WL 3265533, at *18. To determine whether a challenged condition
is not rationally related to a legitimate governmental purpose, the court considers “whether the
conditions are ‘employed to achieve objectives that could be accomplished in so many alternative
and less harsh methods.’” SPLC I, 2020 WL 3265533, at *18 (quoting Bell, 441 U.S. at 539 n.20).
Where conditions at a detention facility are “not more considerate than those at pretrial and
prison facilities,” they “may be punitive in nature.” SPLC I, 2020 WL 3265533, at *19 (quoting
Torres v. U.S. Dep’t of Homeland Sec., 411 F. Supp. 3d 1036, 1064-65 (C.D. Cal. 2019)); see also
PI Op. at *12 (explaining that detained immigrants establish a “‘presumption’ of punitive
9 detention” where conditions are “equal to or worse than conditions experienced by inmates
convicted of a criminal offense”). Upon establishing such a presumption, “a makeshift burden then
generally shifts to the defendant to establish that the conditions are rationally related to a non-
punitive purpose and those conditions were not excessive.” PI Op. at *12.
In its Second Amended Complaint, FIRRP has adequately alleged that attorney-access
conditions at Florence are more restrictive than those in which prisoners serving criminal sentences
are held, both at the very same facility and similarly situated facilities. See, e.g., Second Am.
Compl. ¶¶ 34, 55, 57, 78, 104.
For example, FIRRP alleges that there are no “private, confidential attorney-client
visitation rooms where counsel can utilize interpretation services and physically pass documents
to and from detained clients.” Second Am. Compl. ¶ 48; see also id. ¶ 51 (attorneys cannot share
legal documents in private visitation rooms due to plexiglass walls); id. ¶ 67 (“If attorneys elect to
use the private meeting rooms at Florence, they cannot exchange documents or procure signatures
without giving them to a guard, breaching confidentiality.”). FIRRP also alleges that the only
visitation area where attorneys can share documents is in a cafeteria-like setting, where there is no
privacy. Id. ¶¶ 50–51 (“Legal visits at Florence occur primarily in a large, cafeteria-style visitation
room, which does not provide any confidential space for attorneys and clients to communicate.”).
Similarly, FIRRP alleges that there is no video teleconferencing availability for confidential
attorney-client communication, id. ¶ 103, and legal calls made from housing units are not private
or confidential, id. ¶ 82. FIRRP alleges that, following the Court’s preliminary injunction order,
Defendants provided FIRRP clients with prepaid cell phones for attorney-client communication.
Id. ¶ 69. However, FIRRP alleges that calls made using these cell phones are not always
confidential, and they are often held in a hallway or in a cafeteria-style visitation room, where
10 FIRRP’s clients can be overheard by others. Id. ¶ 76. Taken together, these factual allegations
plausibly state a claim that the attorney-access conditions for immigration detainees at Florence
are more restrictive than those applicable to prisoners serving criminal sentences. Those
allegations are therefore sufficient to state a Fifth Amendment punitive-detention claim. Accord
PI Op. at *16.
Defendants’ arguments for dismissal maintain that FIRRP’s factual allegations of attorney-
access barriers at Florence are “conclusory and do not reference a specific claim,” and fail to satisfy
Rules 8(a)(2) and 12(b)(6), leaving Defendants incapable of “formulat[ing] an informed defense.”
Defs.’ Mot. at 14. The breadth and detail of the allegations contradict that assertion. Nonetheless,
Defendants parse the Second Amended Complaint and point to separate factual allegations that
they contend do not violate the U.S. Constitution. Id. at 18–20 (citing lack of scheduled phone
calls, burdensome pro bono call system, use of cellphones and printers, and lack of fax and email
to exchange documents). However, although single restriction in isolation may not reach the level
of a constitutional violation, the combination of many such restrictions may make the whole
greater than the sum of the parts. The crux of the analysis of attorney-access restrictions must
therefore be based on the “totality of these circumstances.” PI Op. at *14 (quoting SPLC I, 2020
WL 3265533, at *24).
Defendants also suggest that FIRRP should have submitted declarations from attorneys or
clients to substantiate its allegations regarding attorney-access conditions, but this Court disagrees.
As the Court noted in response to Defendants’ similar argument that FIRRP should have submitted
declarations to show third-party standing, declarations are not required to establish any element of
a claim at the motion-to-dismiss stage. See Jeffries, 928 F.3d at 1063; Browning, 292 F.3d at 242.
11 In this Court’s view, the Second Amended Complaint’s allegations are sufficient to meet
the pleading requirements of Rules 8(a)(2) and 12(b)(6). To the extent that Defendants need
additional specificity to construct their defense as the case proceeds, they can obtain the necessary
information through the discovery process.
Defendants’ additional argument that the “continued immigration detention of Plaintiff’s
clients pending removal cannot be described as punitive or excessive in relation to the legitimate
government purpose of enforcing the immigration laws” is beside the point. Defs.’ Mot. at 20.
This lawsuit does not challenge the lawful detention of immigrants who have allegedly violated
the immigration laws. It only seeks redress for the alleged violation of those detainees’ rights to
have unimpeded access to their counsel. For the reasons the Court has explained, the Second
Amended Complaint states a valid substantive due process claim sufficient to overcome the motion
to dismiss.
C. The Second Amended Complaint states a claim under the Rehabilitation Act.
Finally, Defendants seek to dismiss FIRRP’s claim under the Rehabilitation Act. Because
the Second Amended Complaint plausibly alleges that the attorney-access conditions at the
Florence facility functionally exclude otherwise-qualified detained individuals with disabilities
from participating in a public program or activity, the Court shall not dismiss this claim.
In the Second Amended Complaint, FIRRP defines a category of individuals it describes
as “Detained Clients with Disabilities.” See Second Am. Compl. ¶¶ 107-09). FIRRP contends
that these clients face particular barriers to attorney access “because Defendants impose certain
barriers disproportionately on Detained Clients with Disabilities and because other barriers . . .
have a disproportionate effect on Detained Clients with Disabilities.” Id. ¶ 120.
To succeed on its Rehabilitation Act claim on behalf of these individuals, FIRRP must
show that “(1) one or more of its [Detained Clients with Disabilities] are ‘disabled’ within the 12 meaning of the Rehabilitation Act; (2) one or more of [Detained Clients with Disabilities] are
‘otherwise qualified’ for a particular program or activity; (3) one or more of its [Detained Clients
with Disabilities] were ‘excluded from[] or denied the benefit of’ that program or activity; and (4)
‘the program or activity is carried out by a federal executive agency or with federal funds.’” PI
Op. at *19 (citing Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1266 (D.C. Cir. 2008)).
This inquiry is necessarily fact-intensive. See Solomon v. Vilsack, 763 F.3d 1, 10 (D.C. Cir. 2014);
Brown v. District of Columbia, 928 F.3d 1070, 1090 (D.C. Cir. 2019) (Wilkins, J., concurring).
In the portion of the Court’s preliminary injunction ruling that assessed a Rehabilitation
Act claim by Plaintiff Americans for Immigration Justice (“AIJ”), the Court determined that it
would have required specific factual evidence of “the specific identity of any clients’ disabilities,
how disabling their respective conditions are, the details of prior requests for accommodation(s),
and the efforts (if any) by [the facility] to provide any such requested accommodation(s)” in order
to evaluate AIJ’s Rehabilitation Act claim at the preliminary injunction stage. PI Op. at *19.
FIRRP’s Second Amended Complaint responds to the concerns that the Court previously
expressed about AIJ’s Rehabilitation Act claim by adding specific and detailed factual allegations
regarding two of its clients that are detained at Florence, who FIRRP identifies as “Jose” and
“Pedro.” See Second Am. Compl. ¶¶ 30–33, 107–18 (describing Jose and Pedro’s symptoms and
potential diagnoses, the impediments to attorney access that the experienced, and the
accommodation requests that FIRRP made on their behalf). These detailed factual allegations,
taken together with FIRRP’s legal allegations reciting the elements of a Rehabilitation Act claim,
satisfy the requisite pleading standards.
Two challenges remain. Defendants seek dismissal of FIRRP’s Rehabilitation Act claim
on the grounds that: (1) it provides inadequate notice, and, (2) even drawing all factual inferences
13 in its favor, FIRRP cannot satisfy the third prong of the relevant test: that “one or more of its [two]
purportedly disabled clients were ‘excluded from or denied the benefit of’ th[e] program or
activity.” See Defs.’ Mot. at 24–25; Defs.’ Reply at 16–18.
Defendants contend that the Second Amended Complaint “fails to provide sufficient
information about specific individuals’ diagnoses and mental disabilities, or the specific
accommodations requested, the specific accommodations that were denied, and the basis for any
denial.” Defs.’ Mot. at 24; Defs.’ Reply at 16–18.
However, this contention lacks merit. The Second Amended Complaint alleges facts about
specific individuals’ diagnoses and mental disabilities. See, e.g., Second Am. Compl. ¶ 112
(alleging that Jose’s diagnoses of “Post-Traumatic Stress Disorder, Insomnia Disorder, Major
Depressive Disorder with mood congruent psychotic features, and Unspecified Major
Neurocognitive Disorder, [are] most likely due to Traumatic Brain Injury”), ¶ 116 (alleging that
“Pedro’s symptoms are so extreme that it was difficult to conduct a formal evaluation and obtain
a clear diagnosis,” but that “he experienced psychosis and suicidality”). It similarly contains
detailed allegations of the “accommodation requests” that FIRRP has made. See, e.g., id. ¶¶ 114,
¶ 118. The Second Amended Complaint also alleges that the specific accommodations were
denied. Id. ¶¶ 114, 118. It further asserts that there appears to be no logically sound basis for these
denials. See, e.g., id. ¶ 110 (explaining that Defendant Immigration and Customs Enforcement
(“ICE”) established a directive requiring the type of attorney access for clients with disabilities
that this case seeks), ¶ 114 (explaining that facility staff denied a request for private, scheduled
legal phone calls “despite interest in such a system by those charged with telephonic visitation
scheduling at Florence,” and that facility staff “denied or attempted to deny” visits even when they
were specifically approved by ICE beforehand). The Second Amended Complaint therefore gives
14 Defendants adequate notice of the essential Rehabilitation Act allegations. Contrary to
Defendants’ suggestion, there is no need for a declaration from a client or a client’s medical
provider at this stage of the proceeding. See Defs.’ Mot. at 24; Browning, 292 F.3d at 242. To
the extent that Defendants require further information to formulate their defense, discovery is the
appropriate vehicle for obtaining that information.
Defendants’ argument about lack of fair notice appears to misapprehend the fundamental
difference between the pleading standards and standards of proof to be established at trial or in a
motion for summary judgment. They contend that dismissal is appropriate because every fact
necessary at a trial was not alleged, citing to cases that evidence a complete failure to allege facts
supporting discrimination and characterizing the alleged facts as “legal conclusions.” Cf., e.g.,
Savoy v. United States, 962 F. Supp. 2d 1, 2 (D.D.C. 2013) (RC) (“Plaintiff mentions
discrimination but he has neither alleged any acts of discrimination nor stated any facts suggesting
that the IRS’ garnishing of his wages was ‘solely’—or even probably—due to his alleged mental
disability.”); Donovan v. Powell, 70 F. Supp. 3d 460, 464 (D.D.C. 2014) (CKK) (“The Court
agrees that Plaintiff has provided only a recitation of legal conclusions without any factual support
and, accordingly, Count II also should be dismissed for failure to state a claim upon which relief
can be granted.”); Lucas v. District of Columbia, 683 F. Supp. 2d 16, 20 (D.D.C. 2010) (EGS)
(granting a motion to dismiss on a Rehabilitation Act claim in which the plaintiff’s complaint
included only conclusory, boilerplate language regarding “a policy, custom or practice” employed
by the defendant). This effort to hold Plaintiff to a trial or summary-judgment standard of proof
in the context of a motion to dismiss is unavailing.
1. Meaningful Access
The Rehabilitation Act requires government entities to provide “meaningful access” to
government programs and benefits to people with disabilities. Alexander v. Choate, 469 U.S. 287, 15 301 (1985). This requirement is not a black-and-white proposition. The government can fall short
of providing “meaningful access” even when people with disabilities have some ways of accessing
the benefit. See, e.g., Am. Council of the Blind, 525 F.3d 1256, 1259, 1269–70 (D.C. Cir. 2008)
(holding that blind people lacked “meaningful access” to currency despite the government’s
argument that “availability of portable currency readers to identify denominations and credit cards
as an alternative to cash” provided some access); Nat’l Ass’n of the Deaf v. Trump, 486 F. Supp.
3d 45, 58 (D.D.C. 2020) (JEB) (holding that “[c]losed captioning and transcripts” of coronavirus
briefings did not amount to “meaningful access” to these briefings for deaf people even though
they provided some access); Rogers v. Colo. Dep’t of Corr., No. 16-cv-2733, 2019 WL 4464036,
at *16 (D. Colo. Sept. 18, 2019) (holding that “the fact that TTYs retain some functionality” that
provides deaf incarcerated people some ability to communicate “does not equate to meaningful
access”).
Defendants argue that because FIRRP has not alleged a total denial of access to its clients
with disabilities, it cannot bring a Rehabilitation Act claim for denial of access to counsel on their
behalf. See Defs.’ Mot. at 25; Defs.’ Reply at 15–22. However, FIRRP’s Second Amended
Complaint more than sufficiently alleges that the barriers to accessing counsel at Florence are high.
See, e.g. Second Am. Compl. ¶ 113 (“at least five times over approximately two months, FCC
denied FIRRP staff in-person visitation [with its client Jose] after they had already traveled to the
facility”); ¶ 117 (14 of FIRRP staff’s 20 attempts to visit Pedro in person “were denied by staff”);
¶ 113 (over a “five-month period” when Jose was in mental health observation, FIRRP staff
succeeded in contacting him by phone only three times); ¶ 117 (“FIRRP was never able to
communicate with Pedro [by phone] despite several attempts.”); ¶ 123 (FIRRP attorney “was
denied telephone and in-person visits for nearly a month with a Detained Client with a [D]isability,
16 who was under ‘mental health watch,’ during which time the client’s case continued before the
court.”). FIRRP has also alleged that these access barriers can have serious repercussions, such as
by causing “[i]nterruption[s] in communications [that] undermine the attorney-client relationship,”
and “concrete harm” to the ability of Plaintiff and Detained Clients with Disabilities “to
communicate effectively about matters crucial to legal representation.” Id. ¶¶ 121, 129.
“Meaningful access” is a “necessarily fact-specific” inquiry, and it is not appropriate for
determination on a motion to dismiss in this case. See Am. Council of the Blind, 525 F.3d at 1267.
Further development of the relevant facts will allow this issue to be resolved as this case proceeds.
2. Reasonable Accommodations
The Second Amended Complaint requests a wide variety of forms of accommodations to
ensure client access. Defendants maintain that the requested accommodations are not reasonable
and that dismissal should follow. See Defs.’ Mot. at 28–35.
As with the prior question of whether the Government has upheld its obligation to provide
“meaningful access,” “whether a particular type of accommodation is reasonable is commonly a
contextual and fact-specific inquiry.” Solomon, 763 F.3d at 9. Accordingly, the “reasonableness
of an accommodation under the [closely related ADA inquiry] is a question of fact appropriate for
resolution by the trier of fact and not by the Court on a motion under Fed. R. Civ. P. 12(b)(6).”
Niece v. Fitzner, 922 F. Supp. 1208, 1218 (E.D. Mich. 1996).
Defendants assert that they offer reasonable accommodations for in-person visitation,
contrary to the allegations in the Second Amended Complaint. Compare Defs.’ Mot. at 29–30,
and Defs.’ Reply at 16–18, with Second Am. Compl. ¶¶ 113–15, 117–18, 123, 128. Assessing the
back-and-forth between the parties over what procedures are or are not in place and are or are not
followed, or have sufficient other justification, is not a proper inquiry at the motion-to-dismiss
stage, at which the Court must assume the truth of the Plaintiff’s plausible factual allegations. The 17 Court finds that FIRRP has met its pleading burden. As this case proceeds, discovery will elucidate
the critical facts, and any remaining disputes can be resolved by the trier of fact.
Defendants also contend that an accommodation request for video teleconference visits is
moot because video visits “are now available through the virtual visitation booths” that Defendants
installed in response to the preliminary injunction entered in this case. See Defs.’ Mot. at 33.
However, “a case does not become moot simply because the defendant has complied with [an]
injunction.” Marshall v. Loc. Union No. 639, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen
& Helpers of Am., Inc., 593 F.2d 1297, 1300 n.14 (D.C. Cir. 1979). “If there is a substantial
likelihood that the defendant will revert back to the enjoined practice then the case is not moot.”
Id. Here, absent this Court’s preliminary injunction order, the challenged denial of access to
private attorney visitation could recur, for example through the closure or non-operation of the
new videoconference booths. See Phillips v. Mabus, 894 F. Supp. 2d 71, 84-85 (D.D.C. 2012);
Gray Panthers Project Fund v. Thompson, 273 F. Supp. 2d 32, 34-35 (D.D.C. 2002).
Accordingly, FIRRP’s claims regarding reasonable accommodations for video teleconference
visits are not moot.
Defendants also dispute FIRRP’s allegation that its clients with disabilities experience
particular difficulties using the call-back message system at Florence. Compare Defs.’ Mot. at 31
(maintaining that because the system worked on occasion, it is demonstrably workable), with
Second Am. Compl. ¶¶ 125, 113-114, 117, 128. Again, the “reasonableness of an accommodation
under the [closely related ADA inquiry] is a question of fact appropriate for resolution by the trier
of fact and not by the Court on a motion under Fed. R. Civ. P. 12(b)(6).” Niece, 922 F. Supp. at
1218. FIRRP’s claims regarding the call-back message system therefore shall not be dismissed.
18 FIRRP also contends that, after Defendants’ policies resulted in multiple failed attempts to
visit its client Pedro, it requested—and was refused—an accommodation where its staff would
visit Pedro cell-side (i.e., go to Pedro’s isolation cell and conduct an interview through the door).
Second Am. Compl. ¶ 118. Defendants respond that “Plaintiff does not explain the basis for the
denial or if and how a ‘cell-side’ visit was a reasonable accommodation.” Defs.’ Mot. at 31.
However, given the alleged prior failures of attorney access and the allegation that a cell-side visit
was previously granted, see Second Am. Compl. ¶ 118, Plaintiff’s failure to allege a specific basis
for the denial does not warrant the dismissal of these allegations. Furthermore, Defendants
explanations in its Reply Memorandum again would require the Court to engage in fact-finding
between the versions of events. See Defs.’ Reply at 16–18. That exercise would be inappropriate
at this stage of the litigation.
Another subject for factual exploration, but not on a motion to dismiss, is the dispute over
Plaintiff’s request that Pedro be transferred to another nearby ICE facility. Defendants assert that
transfer would not be a reasonable accommodation because of the “many factors” that “must be
considered . . . including the safety and security of the detainee, other detainees, counsel, and the
staff at both facilities.” Defs.’ Mot. at 34. Quite plainly, the consideration of evidence and expert
testimony to resolve this issue is for another stage of the case.
Finally, the Second Amended Complaint adequately alleges specific harms that
Defendants’ attorney-access barriers impose on its clients with disabilities. See, e.g., Second Am.
Compl. ¶ 118 (“[Plaintiff was un]able to communicate with Pedro since the day of his last court
date on January 17, 2023, until he was ultimately released from custody.”), ¶ 121 (“Interruptions
in communication can undermine the attorney-client relationship.”), ¶ 123 (“Detained Clients with
Disabilities may experience a total loss of access to counsel for weeks because of prolonged
19 periods in mental health segregation."), ,r 130 ("In some cases, FIRRP attorneys have experienced
periods-from days to months-where they could not access Detained Clients with Disabilities at
all because of these barriers."). These allegations show the requisite harm that is necessary to state
a Rehabilitation Act claim. See, e.g., Choate, 469 U.S. at 301; Am. Council of the Blind, 525 F.3d
at 1259, 1269-70; Nat'! Ass'n of the Deafv. Trump, 486 F. Supp. 3d at 58; Rogers, 2019 WL
4464036, at *16.
* * *
In sum, the Second Amended Complaint adequately alleges that FIRRP has third-party
standing to advance attorney-access claims on behalf of its clients, states a claim under the Fifth
Amendment's Due Process Clause, and states both "meaningful access" and "reasonable
accommodation" claims under the Rehabilitation Act.
IV. CONCLUSION
For the foregoing reasons, Defendants' [ 121] Motion to Dismiss the Second Amended
Complaint is hereby DENIED.
SO ORDERED.
Dated: October 6, 2025
COLLEEN KOUAR-KO EL United States District Judge