United States District Court, District of Columbia
P. Mehta United States District Judge
Markist Bannister is a federal prisoner with intellectual
disabilities who suffers from severe paranoid schizophrenia.
He alleges that Defendant United States Parole Commission
(“Commission”) has failed to establish procedures
providing reasonable accommodations to prisoners with mental
and intellectual disabilities when making parole
determinations. This court previously dismissed
Plaintiff's failure-to-accommodate claim under the
Rehabilitation Act but permitted him to amend his Complaint
to challenge the Commission's failure to adopt
regulations implementing the Act. See generally Mem.
Op. and Order, ECF No. 18.
Amended Complaint, Plaintiff now advances a claim to compel
agency action “unlawfully withheld or unreasonably
delayed” under Section 706(1) of the Administrative
Procedure Act (APA). See Am. Compl., ECF No. 20,
¶¶ 116-21. Plaintiff challenges the
Commission's alleged inaction-specifically, its failure
to take affirmative steps to “(1) identify individuals
with disabilities who are participating in [the parole
program], (2) identify whether modifications to that program
are possible to ensure that those with disabilities are not
‘arbitrarily deprived' of the benefits of parole .
. . and (3) implement those modifications.” Pl.'s
Mem. of P. & A. in Opp'n to Defs.' Mot. to
Dismiss the Am. Compl., ECF No. 28 [hereinafter Pl.'s
Mot.], at 9. Plaintiff seeks declaratory and injunctive
relief that would compel the Commission to, among other
things, adopt “a fair process or procedure for properly
accounting for a parole applicant's disabilities.”
Am. Compl. at 27. Plaintiff also reasserts his individual
failure-to-accommodate claim. See Id. ¶¶
Commission moves to dismiss the Amended Complaint under
Federal Rule of Civil Procedure 12(b)(6) on the basis that
Plaintiff's claim is not legally cognizable under the
APA. Mem. of P. & A. Supporting Defs.' Mot. to
Dismiss, ECF No. 24-1, at 5-12. It also moves to dismiss
Plaintiff's renewed failure-to-accommodate claim based on
the court's previous ruling. See Id. at 12-13.
For the reasons that follow, the court grants Defendant's
motion and dismisses the Amended Complaint.
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)). “The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility” that the defendant has acted
unlawfully, and that the unlawful action (or inaction) has
injured the plaintiff in such a way that can be redressed by
a favorable decision of the court. Id. at 678. At
the motion to dismiss stage, the court must accept the
well-pleaded allegations of the complaint as true and draw
all reasonable inferences in favor of the plaintiff.
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).
brings his claim under Section 706(1) of the APA, which
empowers courts to “compel agency action unlawfully
withheld or unreasonably delayed.” 5 U.S.C. §
706(1). Section 706(1) codifies the common law writ of
mandamus and permits a court to compel an agency “to
perform a ministerial or non-discretionary act”
amounting to “a specific, unequivocal command.”
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,
63, 64 (2004) (internal quotation marks omitted); see
also Anglers Conservation Network v. Pritzker, 809 F.3d
664, 670 (D.C. Cir. 2016). In Norton v. Southern Utah
Wilderness Alliance, the Supreme Court explained that
“a claim under [Section] 706(1) can proceed only where
a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to
take, ” id. at 64, and Section 706(1)
cannot be used “to enter general orders compelling
compliance with broad statutory mandates, ”
id. at 66. The Norton plaintiffs claimed
that the Bureau of Land Management's failure to prohibit
the use of off-road vehicles (“ORVs”) on
protected federal lands violated its mandate to
“continue to manage [the land] . . . in a manner so as
not to impair the suitability of such areas for preservation
as wilderness.” Id. at 65 (quoting 43 U.S.C.
§ 1782(c)). The Court found that the plaintiffs had not
challenged an action the agency was required to take because
the statute “assuredly d[id] not mandate, with the
clarity necessary to support judicial action under §
706(1), the total exclusion of ORV use.” Id.
at 66. The Court also made clear that failure to comply with
the broad, “required” statutory mandate of 43
U.S.C. § 1782 was not sufficiently discrete to
constitute an agency action. Although the plaintiffs argued
that the statute contained “a categorical imperative,
namely, the command to comply with the nonimpairment mandate,
” the Court concluded that “[g]eneral
deficiencies in compliance . . . lack the specificity
requisite for agency action.” Id. In so doing,
the Court rejected the argument that it could “simply
enter a general order compelling compliance with that
mandate, without suggesting any particular manner of
requirements of Section 706(1) have been described as
“exacting.” In re LongDistance Tel. Serv.
Fed. Excise Tax Refund Litig., 751 F.3d 629, 634 (D.C.
Cir. 2014). The “discrete agency action”
limitation “precludes . . . broad programmatic
attack[s], ” Norton, 542 U.S. at 64, while the
“required agency action” limitation
“rules out judicial direction of even discrete agency
action that is not demanded by law, ” id. at
65. If, for example, “an agency is compelled by law to
act within a certain time period, but the manner of its
action is left to the agency's discretion, a court can
compel the agency to act, but has no power to specify what
the action must be.” Id.
APA claim falls squarely within the bounds of
Norton. Section 504 of the Rehabilitation Act
No otherwise qualified individual with a disability in the
United States, as defined in section 705(20) of this title,
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 or under any program
or activity conducted by any Executive agency . . . .
29 U.S.C. § 794(a). The Act thus creates a broad,
mandatory prohibition against discrimination based on
disability. Though this prohibition applies to the
Commission, the statute says nothing of how the Commission
must go about ensuring that no qualified individual with a
disability is “excluded from the participation
in” or “denied the benefits of” parole,
much less what procedures the Commission must adopt related
to considering accommodations in the parole context. In other
words, the statute does not mandate the action that Plaintiff
seeks “with the clarity necessary to support judicial
action under [Section] 706(1).” Norton, 542
U.S. at 66; see also In re Long- Distance Tel.
Serv. Fed. Excise Tax Refund Litig., 751 F.3d at 634
(denying request to force the Internal Revenue Service to
issue a “specific refund procedure” for
unlawfully collected telephone excise taxes because the
statute “at most requires some form of tax
refund procedure”); El Paso Nat. Gas Co. v. United
States, 750 F.3d 863, 891 (D.C. Cir. 2014) (noting that
a statute's language mandating that “‘the
Secretary shall comply with tribal laws' . . .
contain[ed] only a general follow-the-law directive”
and “flunk[ed] [Norton's] discreteness
test” (quoting 25 U.S.C. § 3712(b)).
sure, the Rehabilitation Act does provide that “[t]he
head of each [Executive] agency shall promulgate such
regulations as may be necessary to carry out the amendments
to this section made by the Rehabilitation Act], ” 29
U.S.C. § 794(a), but even that direction is simply too
broad to compel agency action. The D.C. Circuit faced a
similar statute in Sierra Club v. Jackson, 648 F.3d
848 (D.C. Cir. 2011). There, the court evaluated Section 7477
of the Clean Air Act, which provides that “[t]he
[Environmental Protection Agency] Administrator shall . . .
take such measures, including issuance of an order, or
seeking injunctive relief, as necessary to prevent the
construction or modification of a major emitting facility . .
. proposed to be constructed” in an attainment area.
See Id. at 851 (citing 42 U.S.C. § 7477).
Notwithstanding the statute's use of the word
“shall, ” the court agreed with the
“Administrator that she had sufficient discretion to
render her decision not to act nonjusticiable.”
Id. at 856. The court observed that the
statute's use of the term “as necessary”
“leaves it to the Administrator's discretion to
determine what action is ‘necessary'” and did
not provide sufficient “legal standards for judicial
review of the Administrator's decision not to act.”
Id. So, too, here. Conferring authority upon agency
heads to promulgate regulations “as necessary” to
carry out the Rehabilitation Act imparts broad discretion on
whether and how to act and offers no meaningful judicial
standard by which to evaluate inaction. The
“exacting” statutory command ...