UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) MARKIST BANNISTER, ) ) Plaintiff, ) ) v. ) Case No. 18-cv-01397 (APM) ) UNITED STATES PAROLE COMMISSION, ) et al., ) ) Defendants. ) _________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Defendant United States Parole Commission has denied parole multiple times to Plaintiff
Markist Bannister, a federal prisoner who suffers from severe paranoid schizophrenia. The most
recent denial of parole occurred in 2017. Plaintiff alleges that, for years, the Commission’s denials
violated the Rehabilitation Act because the Commission failed to reasonably accommodate his
mental illness. As relief, Plaintiff does not seek parole. Instead, he asks the court to compel the
Commission to re-evaluate his parole eligibility in light of reasonable accommodations that might
make him otherwise qualified for parole.
This matter comes before the court on Defendants’ Motion to Dismiss or, in the
Alternative, for Summary Judgment. The court grants Defendants’ Motion but declines to dismiss
this action. The Commission did not violate the Rehabilitation Act because it conducted an
individualized assessment of Plaintiff’s eligibility for parole; it appropriately considered Plaintiff’s
disability as it pertains to future dangerousness; and it properly evaluated the reasonable accommodations that Plaintiff sought but nevertheless found him ineligible for parole. The court
therefore dismisses with prejudice the failure-to-accommodate aspect of his claim.
The court, however, dismisses the Complaint without prejudice insofar as Plaintiff
challenges the Commission’s failure to adopt regulations to implement the Rehabilitation Act.
Plaintiff asserts such claim under the Rehabilitation Act, but the Rehabilitation Act does not
provide a private cause of action to enforce the congressional mandate requiring federal agencies
to promulgate implementing regulations. Such challenge must be brought under the
Administrative Procedure Act (“APA”). See 5 U.S.C. § 706(1) (providing that courts “shall
compel agency action unlawfully withheld or unreasonably delayed”). Accordingly, the court will
afford Plaintiff an opportunity to amend his Complaint to bring a claim under the Administrative
Procedure Act.
II. BACKGROUND
A. Factual Background
Plaintiff Markist Bannister is a federal prisoner in Ayers, Massachusetts, serving a sentence
of five to thirty years for robbery and aggravated assault. See Compl., ECF No. 1 [hereinafter
Compl.], ¶ 1. The Bureau of Prisons classified Plaintiff—who suffers from paranoid
schizophrenia, attention-deficit hyperactivity disorder, and an intellectual disability—at its most
severe mental health classification. Id. ¶¶ 3, 27, 34, 37. When Plaintiff takes his medications as
prescribed, he has a bright affect, euthymic mood, and friendly interaction style. Id. ¶ 31. The
Bureau of Prisons has recognized that Plaintiff would be able to function in the community, if he
were placed in “a mental health group facility with psychiatric and mental health services.” Id.
¶ 33.
2 Defendant U.S. Parole Commission (“the Commission”) has denied Plaintiff parole seven
times since 2004. Id. ¶¶ 4, 10–13.
1. The 1987 Guidelines
Since 2010, the Commission has applied the now-defunct D.C. Parole Board’s 1987
Guidelines (“the 1987 Guidelines”). Under the 1987 Guidelines, the Commission first calculates
a “Salient Factor Score” (“SFS”), which accounts for, among other things, the person’s criminal
history, prior commitments, age at time of offense, recent commitment-free period, status of
prisoner at time of current offense, and history of drug abuse. Id. ¶ 19 (citing Compl., ECF No. 1-
1 [hereinafter Guidelines], § 204.4). The SFS categorizes an applicant as either low, fair,
moderate, or high risk. See Guidelines § 204.17. Once the risk category is determined, the
Commission considers pre- and post-incarceration factors—such as the violent nature of the
offense, disciplinary infractions in prison, and achievement in prison programming—which
produces a Grid Score. Id. § 204.18, Compl. ¶ 22. At an initial parole hearing, offenders with a
Grid Score of 0, 1 or 2 shall be granted parole, and applicants with a Grid Score of 3, 4 or 5 shall
be denied parole. See Guidelines § 204.19. For subsequent hearings, or “rehearings,” the
Commission takes the prior hearing’s Grid Score and adjusts it based on the offender’s interim
institutional record. Id. § 204.21. Applicants with a Grid Score of 0 up to 3 are granted parole,
and applicants with a score of 4 or 5 are denied parole. Id. The Commission may, “in unusual
circumstances,” deviate from this “strict” scoring system, so long as it explains the departure in
writing. Id. § 204.22.
2. The Commission’s Denials of Parole
In 2004 and 2007, the Commission denied Plaintiff parole. See Compl. ¶¶ 38, 42. In both
instances, the Commission improperly applied the Commission’s own guidelines adopted in 2000,
3 instead of the 1987 Guidelines. See id. ¶¶ 39, 43; see Sellmon v. Reilly, 551 F. Supp. 2d 66 (D.D.C.
2008) (holding that the Commission’s application of the 2000 Guidelines to offenders, like
Plaintiff, who violated the D.C. Code before August 5, 1998, violated the Ex Post Facto Clause).
Following the decision in Sellmon v. Reilly, in 2010 the Commission conducted a retroactive
review of its previous denials and, applying the appropriate 1987 Guidelines, determined that
Plaintiff would have received a Grid Score of 3 in 2004 and a Grid Score of 4 in 2007. See id.
¶¶ 43–44. As to 2007, the Commission determined that Plaintiff’s Grid Score would have
increased by one point to 4 because of negative institutional behavior since 2004. The Commission
also found that Plaintiff would not have received a one-point reduction due to his lack of
programming achievement, which the Commission expressly recognized was “as a result” of his
paranoid schizophrenia and prior substance abuse. See id. ¶ 45.
At his next parole reconsideration hearing held in 2010, Plaintiff again received a Grid
Score of 4. See id. ¶ 50. Once more, the Commission denied Plaintiff a point reduction because
of his lack of programming “due to [his] diagnosis” of paranoid schizophrenia and prior substance
abuse. See id. ¶ 49; see also id., Ex. B, ECF No. 1-2, at 1.
Plaintiff’s Grid Score improved at his next rehearing. In 2011, Plaintiff received a Grid
Score of 3 because he had no intervening disciplinary infractions and he had completed
programming; in addition, a staff psychologist testified that Plaintiff could live in a group home
placement. See Compl. ¶¶ 52, 53, 56. Nonetheless, the Commission denied Plaintiff parole,
explaining in its Notice of Action that “your mental illness and inability to function in an open
setting makes you a more serious risk if released.” See id. ¶¶ 54–55. In 2013, Plaintiff’s Grid
Score increased by a point to a 4 due to intervening disciplinary infractions, rendering him
ineligible for parole. See id. ¶ 62.
4 In 2015, Plaintiff appeared for another parole hearing. See id. ¶ 68. He had incurred no
new disciplinary infractions since his last hearing. And, even though he had completed some
programming in the intervening period—including anger management, counseling, and a mental
health support group—the Commission did not deduct one point for program achievement because
Plaintiff had failed to participate in a victim impact or a General Educational Development
(“GED”) course. See id. ¶¶ 69–70. Plaintiff’s Grid Score therefore remained a 4, and the
Commission again denied Plaintiff parole. See id. ¶ 67; see also id., Ex. F, ECF No. 1-6, at 3.
In 2017, Plaintiff had another parole hearing. This time, before the hearing and through
counsel, he wrote the Commission requesting that the “Commission accommodate his mental
disability in rendering a decision on his parole application.” See id. ¶ 78; see also id., Ex. E, ECF
No. 1-5 [hereinafter Ex. E], at 1. Plaintiff alleged that the Commission had committed errors in
past hearings, including “consider[ing] factors . . . that are related to [Plaintiff’s] mental disability”
and “not giv[ing] credit for programming . . . because [Plaintiff] had been unable to secure a [GED]
degree . . . due to his disability.” Ex. E at 1–2. Plaintiff asked the Commission to “depart[ ]” from
the 1987 Guidelines and proposed five “steps” the Commission should take to accommodate
Plaintiff’s disability. See id. at 2. The court discusses these proposed “steps” in detail below, but
for present purposes it is sufficient to note that the Commission did not formally respond to
Plaintiff’s request. See id. ¶ 78.
The 2017 hearing produced an increased Grid Score of 5. Plaintiff’s negative institutional
behavior since his last hearing, which included an assault without serious injury, property
destruction, and bodily harm threats, resulted in the addition of a point from his 2015 Grid Score.
See id. ¶¶ 78, 80; see also id., Ex. F, ECF No. 1-6 [hereinafter Ex. F], at 4. Additionally. the
Commission did not grant a point reduction for programming, “even though the hearing examiner
5 recognized that [Plaintiff] ‘has significant mental health issues, which interfere with his
institutional adjustment and perhaps ability to maintain a job assignment and participate in
programs.’” Id. ¶ 81; Ex. F at 4. The Commission acknowledged that “[Plaintiff’s] release plan
as indicated on the progress report should be to a residential facility, which can address his dual
diagnoses,” but concluded that, “[i]t is doubtful [Plaintiff] will ever achieve a paroleable Grid Point
Score.” Ex. F. at 4.
B. Procedural Background
Plaintiff filed this action on June 13, 2018. See Compl. He named four Defendants, the
U.S. Parole Commission (“the Commission”) and three individual Commissioners acting in their
official capacities—Patricia Wilson Smoot, Patricia K. Cushwa, and Charles T. Massarone.
Compl. ¶¶ 10–13. On August 27, 2018, Defendants moved to dismiss, or in the alternative, for
summary judgment. See Defs.’ Mot. to Dismiss, ECF No. 11 [hereinafter Defs.’ Mot.], Defs.’
Mem. in Support of Mot. to Dismiss, ECF No. 11-1 [hereinafter Defs.’ Mem.]. Defendants sought
dismissal for lack of subject matter jurisdiction under Rule 12(b)(1), as well as for failure to state
a claim upon which relief can be granted under Rule 12(b)(6). See id. at 7–8. Alternatively, they
moved for summary judgment. See id. at 8–9.
During oral argument held on March 15, 2019, the Commission conceded that the court
has subject matter jurisdiction over this matter. The court agrees with that assessment. See Davis
v. U.S. Sentencing Com’n, 716 F.3d 660, 665 (D.C. Cir. 2013) (quoting Wilkinson v. Dotson, 544
U.S. 74, 82 (2005)) (“Claims that ‘will not necessarily imply the invalidity of confinement or
shorten its duration’ are not at the ‘core’ of habeas and therefore may be pursued through other
causes of action.”). The court therefore only addresses Defendants’ Rule 12(b)(6) arguments. 1
1 The court likewise does not reach Defendants’ argument that Plaintiff cannot challenge the Commission’s denial of parole. Defs.’ Mem. at 12–14. Plaintiff does not seek review of the Commission’s denials, but rather the process of
6 III. LEGAL STANDARD
“A Rule 12(b)(6) motion tests the legal sufficiency of a complaint.” Browning v. Clinton,
292 F.3d 235, 242 (D.C. Cir. 2002). A court must determine whether the complaint contains
“sufficient factual matter, accepted as true, ‘to state a claim that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 US 544, 570
(2007)). A claim is facially plausible when “the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). The factual allegations need not be “detailed,” but they must
be more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing
Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
“The court must construe the complaint in favor of the plaintiff, who must be granted the
benefit of all inferences that can be derived from the facts alleged.” Hettinga v. United States, 677
F.3d 471, 476 (D.C. Cir. 2012) (citation and internal quotation marks omitted). “Factual
allegations, although assumed to be true, must still be enough to raise a right to relief above the
speculative level.” Id. (citation and internal quotation marks omitted). In assessing a motion to
dismiss, a court can look at “documents either attached to or incorporated [by reference] in the
complaint.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); see
also Mpoy v. Rhee, 758 F.3d 285, 291 n.1 (D.C. Cir. 2014).
IV. DISCUSSION
The parties agree on three key threshold matters that narrow the court’s analysis. First,
Defendants do not dispute that, as a general matter, the Rehabilitation Act applies to the
denials and, specifically, whether the Commission disregarded reasonable accommodations that might have made him parole eligible.
7 Commission’s parole determinations. See Def.’s Mem. at 15 (citing Thompson v. Davis, 295 F.3d
890, 896–99 (9th Cir. 2002) (holding that the Americans with Disabilities Act applies to state
paroling authorities)); see also Hr’g Tr. (draft), March 15, 2019, at 42 (the Commission’s counsel
replying “no dispute” to assertion that Rehabilitation Act applies to the paroling process). Second,
Plaintiff concedes the Commission can consider an offender’s disability—here, his paranoid
schizophrenia—in assessing the offender’s “future dangerousness” when evaluating his suitability
for parole. See Pl.’s Mem. of P. & A. in Opp’n to Defs.’ Mot., ECF No. 13 [hereinafter Pl.’s
Mem.], at 24. In other words, unlike protected classifications such as race, gender, national origin,
or religion, Plaintiff here does not take the position that a paroling authority is in all instances
forbidden from factoring an offender’s disability into an individual parole decision. Rather,
Plaintiff’s position is that the Commission must consider ways in which an offender’s disability
can be reasonably accommodated when deciding whether to grant parole. See id. (“Mr. Bannister
is contending that the Commission must . . . include in its individualized assessment whether a
disability is linked to a negative factor, and whether a reasonable accommodation would mitigate
the concerns arising from that disability and facilitate parole.”). Third, although his Complaint
details parole decisions dating back to 2004, Plaintiff recognizes that only the denials in 2015 and
2017 are actionable due to the Rehabilitation Act’s statute of limitations. 2 See also Hr’g Tr. (draft),
March 15, 2019, at 23 (Plaintiff counsel replying “[i]n terms of the statute of limitations, yes,”
when asked “would you agree with me that only the 2015 and 2017 determinations are before
me”).
2 Although the statute of limitations under the Rehabilitation Act is unresolved in this Circuit as between one or three years, the court will adopt Defendants’ assumed period of three years. See Defs.’ Mem. at 19–20 (citing Owens-Hart v. Howard Univ., 220 F. Supp. 3d 81, 95 (D.D.C. 2016)).
8 Additionally, for present purposes, the court assumes that the process by which the
Commission makes an individual parole determination—as distinct from a case alleging
categorical exclusion of a group of offenders based on a common disability—is subject to review
under the Rehabilitation Act. Relying on the Ninth Circuit’s decision in Thompson v. Davis—a
case in which the plaintiffs claimed that the state parole authority was systematically denying
parole based on drug addiction—Defendants take the position that “the only thing forbidden”
under the Rehabilitation Act “is to categorically exclude from consideration all people with a
particular disability.” Defs.’ Mem. at 17–18 (citing Thompson, 295 F.3d at 898 n.4). So long as
the paroling authority makes an individualized assessment of parole suitability, Defendants posit,
such decision-making is beyond the reach of the Rehabilitation Act. See id. at 18–20. The court
need not weigh in on this legal question. For reasons that will become apparent, the court in this
case can assume that the Rehabilitation Act reaches the type of individual paroling decisions
challenged here by Plaintiff.
With these parameters in mind, the court proceeds to address whether the Commission’s
denials of parole in 2015 and 2017 violated the Rehabilitation Act.
A. The Commission Complied with the Rehabilitation Act
The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability
. . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794(a). To make out a claim, a plaintiff must plead sufficient
facts establishing that:
(1) [he is] disabled within the meaning of the Rehabilitation Act, (2) [he is] otherwise qualified, (3) [he was] excluded from, denied the benefit of, or subject to discrimination under a program or
9 activity, and (4) the program or activity is carried out by a federal executive agency or with federal funds.
Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1266 (D.C. Cir. 2008); see also Colbert v.
District of Columbia, 110 F. Supp. 3d 251, 255 (D.D.C. 2015). “The Act does not . . . guarantee
the handicapped equal results” with regard to federally funded services. Alexander v. Choate, 469
U.S. 287, 304 (1985). Rather, it requires that “an otherwise qualified handicapped individual must
be provided with meaningful access to the benefit that the [federal executive agency] offers.” Id.
at 301. “[T]o assure meaningful access, reasonable accommodations in the [federal agency’s]
program or benefit may have to be made.” Id.
In this case, Plaintiff has not stated a claim under the Rehabilitation Act because he has not
plausibly alleged that the Commission failed to consider “reasonable accommodations” that might
have made him “otherwise qualified” for parole. The court starts with the denial of parole in 2017.
Plaintiff obliquely defines the reasonable accommodation that the Commission did not purportedly
consider in 2017. Cf. Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999) (stating,
on a motion for summary judgment, the plaintiff “must describe” the reasonable accommodation
that would make her otherwise qualified). In paragraph 78 he references, and attaches to his
Complaint, the letter that he sent to the Commission in advance of the hearing that sought
“accommodations under the Rehabilitation Act.” Compl. ¶ 78. That letter asked the Commission
to take the following “steps” to accommodate his disability:
1. As a general matter, [Plaintiff’s] parole eligibility should not be negatively affected by his mental impairment (schizophrenia). Decisions that are predicated directly or indirectly on the basis of his medical diagnosis or the symptoms of his mental disability are not permitted under the Rehabilitation Act.
2. Since his parole hearing in 2015, Mr. Bannister has spent a significant amount of time in the N1 psychiatric unit at FMC Devens. Residency in this unit, as opposed to the general
10 population, relates to Mr. Bannister’s mental impairment and should not be considered as a factor in his parole proceedings.
3. Since his parole hearing in 2015, Mr. Bannister’s record reflects some minor disciplinary incidents. These incidents relate to Mr. Bannister’s mental impairment and should not be considered as a factor in his parole proceedings.
4. As described above, Mr. Bannister’s inability to complete programming should not be considered as a factor in his parole proceedings.
5. If the U.S. Parole Commission identifies other factors that would prevent Mr. Bannister from receiving parole, the Commission should consider whether those factors related to Mr. Bannister’s diagnosed schizophrenia or a symptom of schizophrenia. If so, then those factors should not be considered in his parole proceedings.
Compl., Ex. E, at 2 (emphasis in original). With perhaps the exception of “step” number four,
none of these requested “accommodations” qualify as remotely “reasonable.”
All of the “steps,” except the fourth, essentially ask the Commission to disregard Plaintiff’s
schizophrenia and discount the ways in which that disability has manifested itself in Plaintiff’s
past institutional behavior and how it might affect him in the future. That audacious request,
perhaps not surprisingly, is fundamentally at odds with the law. By statute, the Commission is
required to consider, if available and relevant, “reports of physical, mental, or psychiatric
examination of the offender.” 18 U.S.C. § 4207(5) (1976). The Commission’s regulations are to
the same effect. See 28 C.F.R. § 2.19(a)(5) (stating that the Commission “shall consider,” if
available and relevant, “[r]eports of physical, mental, or psychiatric examination of the offender”).
Moreover, nothing in the Rehabilitation Act forecloses the Commission from considering a
person’s disability “in making an individualized assessment of [an offender’s] future
dangerousness . . .” Thompson, 295 F.3d at 898 n.4; see also Crowell v. Massachusetts, 477 Mass.
106, 113 (Ma. 2017) (observing that “the board’s important role in protecting society from early
11 release of dangerous persons means that the board must be able to consider whether the symptoms
of a prisoner’s disability mean that he or she has a heightened propensity to commit crime while
released on parole”); cf. Am. Council of the Blind, 525 F.3d at 1266 (stating that a defendant may
assert, as an affirmative defense to liability, that accommodating the plaintiff’s disability would
constitute an undue burden). To the contrary, the court in Thompson recognized that “[a] person’s
disability that leads one to a propensity to commit crime may certainly be relevant in assessing
whether that individual is qualified for parole.” Thompson, 295 F.3d at 898 n.4. Plaintiff’s request
that the Commission ignore or discount his disability therefore finds no support in the
Rehabilitation Act.
Plaintiff’s requested fourth “step”—that the Commission not hold against him his inability
to complete certain programming—even if granted in full, would not have made Plaintiff
“otherwise qualified” for parole in 2017. The 1987 Guidelines provide that an offender may
receive a one-point reduction in his Grid Score for completing recommended programming. See
Guidelines, Appendix 2-1, at 2-34 3; see also Compl. ¶ 45. In 2017, Plaintiff received a Grid Score
of five, see Ex. F at 4, and did not receive the one-point reduction, Compl. ¶ 81. But even if the
Commission had somehow accommodated for Plaintiff’s lack of programming since his last
hearing, see Ex. F at 4, by, for example, granting Plaintiff a one-point reduction, Plaintiff, at best,
would have received a Grid Score of 4, still rendering him ineligible for parole. This requested
accommodation therefore would not have made him “otherwise qualified.” See Southeastern
Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979) (defining an “otherwise qualified individual” as
“one who is able to meet all of the program’s requirements in spite of his handicap”).
3 This pagination is internal to the Guidelines as provided. The ECF pagination is at Compl., ECF No. 1-1, at 53.
12 Plaintiff’s Complaint alludes to another accommodation that might qualify him for parole:
“a group home placement.” Compl. ¶ 56. The quoted paragraph from the Complaint, however,
concerns a parole assessment of Plaintiff in 2011, not 2017, and Plaintiff did not specifically ask
for such consideration in 2017. See id. In any event, the record is clear that the Commission did
in fact consider group-home placement in 2017. The Commission had before it a “detailed Mental
Status Update,” prepared in early May 2017. Ex. F. at 4; Def.s’ Mem., Ex. C, ECF No. 11-3, at
12–17. That Update made a “recommended release plan . . . to a dual diagnosis Residential
Treatment Facility.” Ex. F at 4; see also Def.s’ Mem., Ex. C, at 17 (“[H]e is functioning at his
base line and will require[ ] a mental health group facility with psychiatric and mental health
services readily available in order to facilitate his functioning in the community.”). The
Commission considered the Update yet concluded that Plaintiff’s “inability to comply with
institutional rules is an indicator that [he is] a high risk [to] commit new crimes when released to
the community.” Def.s’ Mem., Ex. K, at 52 (further stating that “[t]he Commission has considered
the information provided at your hearing pertaining to your mental illness”); see also Ex. F at 4
(“A detailed Mental Status Update is included for the reader[’]s review.”). Thus, in 2017, the
Commission did precisely what Plaintiff says it should have done: it considered a residential
treatment facility as a reasonable accommodation that would make Plaintiff suitable for parole.
Even Plaintiff does not contend that the Commission’s rejection of that accommodation is
reviewable.
That leaves the parole denial in 2015. As to that year, the court can offer no meaningful
relief. It would be utterly futile to order the Commission to reconsider its 2015 decision simply to
take account of potential reasonable accommodations when the Commission concluded in 2017
that no reasonable accommodation would make Plaintiff otherwise qualified for parole. The court
13 simply cannot ask the Commission to transport itself back to 2015 and consider Plaintiff’s
eligibility at that time. Time did not stand still. Such relief would require the Commission to
ignore the multiple disciplinary infractions that Plaintiff has incurred since 2015, as well as the
absence of any mitigating programming that might make him more parole suitable. The
Commission must determine an offender’s suitability for parole in light of all relevant available
evidence at the time of the eligibility review. Ordering the Commission to conduct a thought
exercise as if it were back in 2015 would be pointless.
Accordingly, for the reasons stated, the court finds that Plaintiff has failed to state a claim
under the Rehabilitation Act. 4
B. The Commission’s Alleged Failure to Adopt Regulations
The Complaint contains allegations that suggest Plaintiff also seeks to advance a challenge
to the Commission’s regulations for what they do not provide. According to Plaintiff, the
Commission’s regulations do not acknowledge the non-discrimination principle embedded in the
Rehabilitation Act or provide a process by which an offender can request reasonable
accommodations in parole determinations, particularly under the 1987 Guidelines. See Compl.
¶¶ 112–13. Indeed, at oral argument, Plaintiff stated that, as relief, he also seeks an order
compelling the Commission to adopt regulations to “carry out” the Rehabilitation Act. See Hr’g
Tr. (draft), March 15, 2019, at 29–30 (arguing the Commission should “at least have a means of
responding to requests for accommodation”); see also 29 U.S.C. § 794(a) (providing that “[t]he
4 The court believes that it has appropriately considered the Commission’s records even on a motion to dismiss because the records either were attached to Plaintiff’s Complaint or incorporated therein by reference. If the court is wrong, and the addition of records by Defendants converted their motion into one for summary judgment, the court still would have found in favor of Defendants. There is no genuine dispute of material fact as to what evidence the Commission considered in 2017 and its reasons for denying parole. Discovery would not have altered those facts.
14 head of each such agency shall promulgate such regulations as may be necessary to carry out the
amendments to this section made by the [Rehabilitation Act].”).
The court need not consider that potential claim or the requested relief at this time. Plaintiff
brings only a single claim in this case—under the Rehabilitation Act. See Compl. at 20–21. But
the Rehabilitation Act does not provide Plaintiff with a cause of action to compel the Commission
to promulgate regulations. Cf. SAI v. Dep’t of Homeland Security, 149 F. Supp. 3d 99, 112 (D.D.C.
2015) (holding that the Rehabilitation Act does not provide a private cause of action to compel an
agency to enforce its own Rehabilitation Act implementing regulations). Such action, if it exists,
would arise under the Administrative Procedure Act (“APA”). See 5 U.S.C. § 706(1) (providing
that courts “shall compel agency action unlawfully withheld or unreasonably delayed.”); cf. Norton
v. S. Utah Wilderness All., 542 U.S. 55, 63 (2004). Plaintiff has not, however, brought an action
under the APA. The Complaint therefore contains no cause of action that would enable the court
to grant the relief that Plaintiff seeks. The court therefore dismisses, without prejudice, Plaintiff’s
Rehabilitation Act claim insofar as it seeks to compel the Commission to adopt implementing
regulations.
V. CONCLUSION AND ORDER
For the reasons set forth above, Defendants’ Motion to Dismiss, ECF No. 11, is granted in
part with prejudice and in part without prejudice. Plaintiff may amend his Complaint within
30 days to advance an APA claim. In inviting Plaintiff to do so, the court expresses no view on
whether this plaintiff has standing to assert such claim. The court will enter a final order if Plaintiff
declines to amend his Complaint.
Dated: March 25, 2019 Amit P. Mehta United States District Judge