                       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

                                                  I.

       Plaintiff 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.

       In an 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. ¶¶ 101–15.

       The 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.

                                              II.

       “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)). “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).




                                                    2
                                                III.

       Plaintiff 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,




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the Court rejected the argument that it could “simply enter a general order compelling compliance

with that mandate, without suggesting any particular manner of compliance.” Id.

       The requirements of Section 706(1) have been described as “exacting.” In re Long-

Distance 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.

       Plaintiff’s APA claim falls squarely within the bounds of Norton. Section 504 of the

Rehabilitation Act states:

               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-



                                                 4
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)).

       To be 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 necessary to compel agency action under



                                                  5
Section 706(1) is therefore absent in the Rehabilitation Act. See Ctr. for Biological Diversity v.

Zinke, 260 F. Supp. 3d 11, 26 (D.D.C. 2017) (citing Sierra Club v. Jackson) (“[I]t is well

established that the formulation that an agency ‘shall’ take certain action ‘as necessary’ lacks the

degree of mandatoriness needed to give rise to a claim under 5 U.S.C. § 706(1).”).

       Lacking a statutory foothold, Plaintiff attempts to support his Section 706(1) claim with

case law expounding upon the duties imposed by the Rehabilitation Act. See Pl.’s Mot. at 6–9

(citing Pierce v. District of Columbia, 128 F. Supp. 3d 250 (D.D.C. 2015); Se. Comm. Coll. v.

Davis, 442 U.S. 397 (1979)). That effort is unavailing. In Pierce v. District of Columbia, for

example, the court held that prison officials at the District of Columbia’s Correctional Treatment

Facility had an “affirmative duty to assess the potential accommodation needs of inmates with

known disabilities . . . and to provide the accommodations that are necessary for those inmates to

access the prison’s programs and services.” 128 F. Supp. 3d at 272. But the claim in Pierce was

a straightforward discrimination claim brought directly under the Americans with Disabilities Act

and the Rehabilitation Act. The Pierce plaintiff did not seek to compel through the APA the

promulgation of regulations implementing certain procedures. Nor does the Supreme Court’s

decision in Southeastern Community College v. Davis help Plaintiff. Davis involved an individual

challenge for failure to accommodate. See 442 U.S. at 402–03. The Court merely explained in

general terms an entity’s statutory obligation to accommodate disabilities, see id. at 412–14, but

nothing in the opinion establishes the kind of “specific, unequivocal command” required under

Norton to compel agency action. 542 U.S. at 64 (citation omitted). Thus, neither Pierce nor Davis

aid Plaintiff’s effort to define a statutory requirement that can be compelled under the APA.

       At bottom, the Rehabilitation Act provision upon which Plaintiff relies provides only a

broad statutory mandate that the Commission must follow. The Supreme Court has made clear



                                                 6
that courts are not empowered “to enter general orders compelling compliance with broad statutory

mandates” and that “[g]eneral deficiencies in compliance . . . lack the specificity requisite for

agency action.” Norton, 542 U.S. at 66; see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891

(1990) (“[R]espondent cannot seek wholesale improvement of this program by court decree, rather

than in the offices of the Department or the halls of Congress, where programmatic improvements

are normally made.”). As the Court noted in Norton, recognizing Plaintiff’s claim here would

necessarily “mean that it would ultimately become the task of the supervising court, rather than

the agency, to work out compliance with the [Rehabilitation Act], injecting the judge into day-to-

day agency management.” 542 U.S. at 66–67. The APA does not contemplate, nor could this

court provide, such oversight.

                                               IV.

       For the reasons set forth above, Defendant’s Motion to Dismiss, ECF No. 24, is granted,

and Plaintiff’s APA claim, Count 2 of the Amended Complaint, is dismissed. The court also

dismisses Count 1, Plaintiff’s realleged Rehabilitation Act claim, as previously decided. See Mem.

Op. and Order, ECF No. 18.

       A final, appealable order accompanies this Memorandum Opinion.




Dated: January 7, 2020                                      Amit P. Mehta
                                                     United States District Judge




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