The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
This matter is before the Court on defendant's motion to dismiss and plaintiff's motion to amend the complaint [#15]. For the reasons discussed below, the Court will deny the former and grant the latter.*fn1
Plaintiff, who also is known as Ismail Royer, is a federal inmate in the custody of the Federal Bureau of Prisons ("BOP") serving a 240-month term of imprisonment. Royer v. Fed. Bureau of Prisons, No. 1:10-cv-0146, 2010 WL 4827727, at *1 (E.D. Va. Nov. 19, 2010). "On January 16, 2004, [he] pled guilty . . . to one count of aiding and abetting the use and discharge of a firearm during and in relation to a crime of violence (conspiracy to violate the Neutrality Act), in violation of 18 U.S.C. §§ 924(c)(2) & 3238, and one count of aiding and abetting the carrying of an explosive during the commission of a felony . . . in violation of 18 U.S.C. §§ 844(h)(2) & 3238."*fn2 Id. Based upon these convictions, the BOP classifies plaintiff "an offender with a history of, or nexus to, international terrorism and has accordingly designated him as a 'terrorist inmate.'" Royer, 2010 WL 4827727, at *1.
According to plaintiff, in April 2006, "the BOP . . . published in the
Federal Register a proposed regulation titled 'Limited Communication
for Terrorist Inmates,'" pursuant to which the BOP would classify
certain inmates as "terrorist inmates" and impose "severe restrictions
on the conditions of [their] confinement," such as "limits on . . .
telephone use, visitation, and use of the mail." Compl. at
9.*fn3 After receiving "strong objections from a wide
range of civil liberties organizations, . . . the BOP abandoned the
required notice and comment procedure as to the proposed regulation."
Id. Instead, the BOP "quietly put into practice policies and
procedures substantially similar to the proposed regulations,
classifying certain prisoners as 'terrorist
inmates' and imposing tight restrictions on their ability to
communicate and on other conditions of their confinement." Id. As a
result of these policies, plaintiff allegedly was transferred from the
general population of a medium security facility, id., and placed in a
Communications Management Unit ("CMU") at the Federal Correctional
Institution in Terre Haute, Indiana ("FCI Terre Haute"), from December
2006 through October 2009. Id. at 10. Because of plaintiff's
"involvement in an altercation with another inmate," id., and the
disciplinary proceedings which followed, the BOP caused his transfer
"to its 'supermax,' the ADX in Florence, Colorado."*fn4
Idl. at 10. According to plaintiff, if he "had not been
confined by the BOP in the CMU at [FCI] Terre Haute under the policies
it created . . ., he would not have been transferred to ADX . . . .
Rather, at most, he would have been transferred to a Low or Medium
Security facility commensurate with his security level." Id. at
The BOP proposed the establishment of CMUs by regulation, see Communication Management Units, 75 Fed. Reg. 17324 (Apr. 6, 2010). Noting the existence of two CMUS then in operation at the Federal Correctional Complex in Terre Haute and the United States Penitentiary in Marion, Illinois, "this proposed rule codifie[d] and describe[d] the [BOP's] procedures for designating inmates to, and limiting communication within, its [CMUs]." Id. In relevant part, the notice of proposed regulation stated:
The purpose of the CMUs is to provide for an inmate housing unit environment that enables staff to more effectively monitor communication between CMU inmates and persons in the community. The CMU concept allows the [BOP] to monitor inmates for whom such monitoring and communication limits are necessary, whether due to a terrorist link or otherwise, such as inmates who have previously committed an infraction related to mail tampering from within an institution, or inmates who may be attempting to communicate with past or potential victims.
Id. at 17324-25. The CMU was described as "a general population unit where inmates will ordinarily reside, eat, and participate in educational, recreational, religious, visiting, unit management, and work programming, . . . [and] may contain a range of cells dedicated to segregated housing of inmates in administrative detention or disciplinary segregation status." Id. at 17325. The BOP deemed the CMUs necessary in order "to ensure the safety, security, and orderly operation of correctional facilities, and protect the public." Id. at 17324. The notice set June 7, 2010, as the deadline for submission of public comments. Id.
Plaintiff alleges that inmates at ADX "have no access to the Federal Register or any proposed federal regulations other than the closed circuit television system" at that facility, and notices posted in the Education Department, law library, or housing units. Compl. at 11. However, "[i]nmates in ADX's special housing unit or under disciplinary sanctions do not have television in their rooms and are not able to view the notices of . . . proposed regulations." Id. He explains that, when he arrived at ADX in March 2010, he was held in its special housing unit for approximately two weeks, during which time he had no television, id. at 12, and that he learned of the proposed regulation "only days before the June 7, 2010 deadline . . . from a party outside the prison." Id. at 13. For these reasons, he alleges, he did not have time to research and draft comments for submission to the BOP before the June 7, 2010, deadline. Id.
Plaintiff brings this action under the Administrative Procedure Act ("APA"), which requires that "[g]eneral notice of proposed rule making . . . be published in the Federal Register," 5 U.S.C. § 553(b), in order that "the agency . . . give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments," 5 U.S.C. § 553(c). He demands a declaratory judgment "that the [BOP] has violated 5 U.S.C. § 553 . . . by depriving plaintiff of his right to the procedural protection of notice and comment rule making under the APA." Compl. at 5. In addition, plaintiff demands injunctive relief to prevent the "BOP from implementing the proposed CMU regulations or taking any further action on those regulations until plaintiff and all BOP inmates receive notice . . . and an adequate opportunity . . . to submit comments to the BOP." Id.
The parties are in agreement that the only issues initially presented in this case are "whether [p]laintiff is entitled to notice and comment rulemaking under the APA and whether [the BOP] wrongfully deprived [p]laintiff of his alleged right to comment on [the] BOP's proposed CMU regulations." Def.'s Mem. at 6; Mem. in Supp. of Pl.'s Mot. to Strike Portions of Def.'s Mot. to Dismiss [#20] at 3. The BOP moves to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. In the alternative, the BOP moves to transfer this action under 28 U.S.C. § 1404(a) to the United States District Court for the District of Colorado.
A. Subject Matter Jurisdiction "Federal courts are courts of limited jurisdiction," Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and the United States Constitution "limits the jurisdiction of federal courts to "Cases" and "Controversies," Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992); see U.S. Const., art. III § 2, cl.1. "Three inter-related judicial doctrines -- standing, mootness, and ripeness -- ensure that federal courts assert jurisdiction only over 'Cases' and 'Controversies.'" Worth v. Jackson, 451 F. 3d 854, 855 (D.C. Cir. 2006) (quoting U.S. Const. art. III, § 2).
The plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction, Defenders of Wildlife, 504 U.S. at 561, and to establish ...