                       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

                                                   15
