Pate v. Bureau of Prisons ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FRANK PATE,
Plaintiff,
Civil Action No. 21-202 (RDM)
v.
FEDERAL BUREAU OF PRISONS, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Frank Pate is currently serving a 210-month sentence in federal prison in
Pensacola, Florida, after a jury convicted him in 2015 of two counts of wire fraud and one
count of mail fraud. On January 11, 2021, Plaintiff, who is proceeding pro se, brought this
action against the Federal Bureau of Prisons (“BOP”) and the Director of the BOP, alleging
that Defendants failed to issue a decision as to Plaintiff’s request for compassionate release, in
violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Dkt. 1 at 2–3
(Compl. ¶ 3). 1 In his complaint, Plaintiff asks the Court to order the Director to “issue a
written [d]etermination” as to his request for compassionate release. Id. at 7 (Compl. ¶ 10).
Before the Court is Defendants’ motion to dismiss Plaintiff’s complaint. Dkt. 15. For the
reasons set forth below, the Court will GRANT Defendants’ motion and will DISMISS the
1
On May 19, 2021, Plaintiff filed a motion for preliminary injunction in which he sought to
challenge his incarceration on the grounds that he was never convicted of a federal offense. Dkt.
12 at 2. On July 7, 2021, the Court denied that motion because the “alleged wrong that Plaintiff
[sought] to remedy with a preliminary injunction [was] different from the wrong alleged in the
complaint” and because, to the extent Plaintiff sought to challenge his conviction or detention, he
was required to do so either in the court in which he was sentenced, 28 U.S.C. § 2255, or in the
district in which he is confined, id. § 2241. Order, Dkt. 18 at 2.
complaint.
The allegations in Plaintiff’s complaint are far from clear. At various points, Plaintiff
invokes the APA, 5 U.S.C. §§ 701–706; the federal compassionate-release statute, 18 U.S.C.
§ 3582(c)(1)(A); substantive due process; and equal protection. See Dkt. 1 at 1, 4, 7, 8 (Compl.
¶¶ 5, 9, 10). But Plaintiff is proceeding pro se, and “a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). In keeping with this standard, the Court construes Plaintiff’s complaint to assert an
APA claim to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C.
§ 706(1). Three aspects of the complaint support this reading: First, although Plaintiff does not
focus on Section 701(6), he broadly invokes “Title 5 of the US Code, subsections 701–706.”
Dkt. 1 at 1 (Compl.). Second, at various points, the complaint alleges that Defendants had a
duty to take certain actions in response to Plaintiff’s request for compassionate release.
Plaintiff avers, for example, that “[t]he BOP and the Director[] have failed to apply BOP
Policy,” id. (Compl. ¶ 1); that, under BOP policy, it “is burdened on the Director of the BOP”
that he “shall determine if extraordinary and compelling reasons exist[] pertaining to the
inmates’ circumstances,” id. at 2 (Compl. ¶ 3); and that “BOP has failed to seek a
determination from the Director, as to his personal circumstances as required,” id. at 3 (Compl.
¶ 3). Finally, in his request for relief, Plaintiff asks the Court to “ORDER the Director of the
BOP [to] issue a written Determination as to Petitioner[’]s current circumstances, as is his
requirement under 1(D) of the BOP Policy statement.” Id. at 7 (Compl. ¶ 10). These
allegations are reasonably construed to compel agency action unlawfully withheld under
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Section 706(1).2
“[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.” Norton v. S. Utah
Wilderness All. (SUWA), 542 U.S. 55, 64 (2004). Section 706(1), moreover, “empowers a
court only to compel an agency to perform a ministerial or non-discretionary act, or to take
action upon a matter, without directing how it shall act.” Id. (quotation marks omitted).
Defendants maintain that Plaintiff’s complaint must be dismissed because “Plaintiff has cited
to no law which requires the Defendants to investigate his circumstances and grant him a
compassionate release.” Dkt. 15-1 at 14.
As an initial matter, there is some uncertainty as to whether the threshold requirement
to identify a “discrete agency action” that Defendant is “required to take” is a jurisdictional or
merits inquiry. See Long Term Care Pharmacy All. v. Leavitt, 530 F. Supp. 2d 173, 187 n.7
2
The Court does not understand the complaint to raise a claim for compassionate release under
18 U.S.C. § 3582(c)(1)(A). That statute permits a court to “reduce [a] term of imprisonment”
“upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the
defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of
Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of
such a request by the warden of the defendant’s facility, whichever is earlier,” id.§ 3582(c)(1)(A), if the court finds that “extraordinary and compelling reasons warrant such a
reduction,” § 3582(c)(1)(A)(i), and the reduction is “consistent with applicable policy statements
issued by the Sentencing Commission,” id. § 3582(c)(1)(A)(ii). Although Plaintiff invokes the
compassionate-release statute, Dkt. 1 at 4 (Compl. ¶ 5), and asserts that certain aspects of his
medical history qualify as “extraordinary and compelling reasons” warranting a reduction, id. at
3 (Compl. ¶ 3), he does so not by way of requesting compassionate release from this Court but,
rather, to illustrate why, in his view, the Director must review his request. Indeed, the only relief
Plaintiff requests in his complaint is an order compelling the Director to issue a written decision
on Plaintiff’s request. Id. at 7 (Compl. ¶ 10). In any event, even if Plaintiff were to raise a claim
for compassionate release under Section 3582(c)(1)(A), the Court would lack subject-matter
jurisdiction to hear it, since a motion for compassionate release may be raised only before the
court that sentenced the inmate, United States v. Raia, 954 F.3d 594, 596 (3d Cir. 2020); see
United States v. Smith, 896 F.3d 466, 473 (D.C. Cir. 2018), which in this case is the Eastern
District of Texas. See Dkt. 15-1 at 6.
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(D.D.C. 2008). This distinction matters insofar as it affects the kinds of information the Court
may consider when resolving a motion to dismiss. Specifically, in assessing a motion to
dismiss for failure to state a claim, “a court may consider only ‘the facts contained within the
four corners of the complaint,’ along with ‘any documents attached to or incorporated into the
complaint, matters of which the court may take judicial notice, and matters of public record.’”
Lamb v. Milennium Challenge Corp., No. 19-589, 2021 WL 4439234, at *3 (D.D.C. 2021)
(citations omitted) (first quoting Nat’l Postal Pro. Nurses v. U.S. Postal Serv., 461 F. Supp. 3d
24, 28 (D.D.C. 2006); and then quoting United States ex rel. Head v. Kane Co., 798 F. Supp.
2d 186, 193 (D.D.C. 2011)). By contrast, when a party seeking dismissal raises factual issues
that call into question the Court’s jurisdiction, the Court “must go beyond the pleadings and
resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the
motion to dismiss.” Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir.
2000). As relevant here, Defendants have attached two exhibits to their motion to dismiss: a
letter from the Warden to the Plaintiff denying his request for compassionate release, see Dkt.
15-4, and a declaration from Patrick Kissell, the Administrative Remedy Specialist at the BOP,
which explains that Plaintiff has not appealed the Warden’s denial of his request, as is required
for the agency to take further action under 28 C.F.R. § 571.63, Dkt. 15-3.
Although the D.C. Circuit has yet to confront this threshold question, multiple judges
on this Court and other courts have treated the requirement to identify a discrete action the
agency at issue is required to take as a jurisdictional inquiry. See Fort Sill Apache Tribe v.
Nat’l Indian Gaming Comm’n, 103 F. Supp. 3d 113 (D.D.C. 2015); Hamadi v. Chertoff, 550 F.
Supp. 2d 46 (D.D.C. 2008); see also Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108,
1113 (9th Cir. 2005) (dismissing a Section 706(1) action for lack of standing because the
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plaintiff failed to allege a failure to take a discrete agency action). These decisions have
principally relied on the Supreme Court’s decision in SUWA, a Section 706(1) case in which
the Court set aside a Tenth Circuit decision reversing a district court’s dismissal for lack of
subject-matter jurisdiction. In SUWA, the Court equated a Section 706(1) claim with a
mandamus action, explaining that Section 706(1) “carried forward the traditional practice prior
to [the APA’s] passage, when judicial review was achieved through use of the so-called
prerogative writs—principally writs of mandamus.” 542 U.S. at 63. The Court then delineated
the scope of Section 706(1) with reference to the traditional limits on mandamus relief,
reasoning that because “[t]he mandamus remedy was normally limited to enforcement of a
specific unequivocal command, the ordering of a precise, definite act . . . about which [an
official] had no discretion whatever, . . . [Section] 706(1) empowers a court only to compel an
agency to perform a ministerial or non-discretionary act” that is “legally required.” Id. at 63–
64 (second alteration in original) (citations omitted) (quotation marks omitted). Importantly, in
a mandamus action, the threshold requirement that a plaintiff identify a “clear duty to act”—the
analogue to Section 706(1)’s requirement to identify an action the agency is “required to
take”—poses a jurisdictional hurdle. Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir.
2016). Thus, the theory goes, since Section 706(1) is essentially equivalent to a mandamus
action, and the threshold requirement for a clear nondiscretionary duty is jurisdictional for
mandamus, it must be jurisdictional for Section 706(1) as well. See SUWA v. Babbitt, No.
2:99CV852K, 2000 WL 33914094, at *2 (D. Utah 2000), rev’d sub nom., SUWA v. Norton,
301 F.3d 1217 (10th Cir. 2002), rev’d, 542 U.S. 55 (2004).
It bears emphasis, however, that the Supreme Court did not decide this question in
SUWA. The Court agreed that Section 706(1) “carried forward” the remedy traditionally
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available in mandamus, 542 U.S. at 63, but said nothing about the final step in the syllogism:
that is, because the clear-nondiscretionary-duty requirement in mandamus is jurisdictional, the
similar requirement under Section 706(1) must also be jurisdictional. It is unclear, therefore,
whether the Court intended to signal that Section 706(1) “carried forward” the jurisdictional
rules applicable in mandamus. There is reason to doubt that the Court intended to do so,
however. For one thing, federal courts’ jurisdiction to hear mandamus actions and Section
706(1) claims is premised on different statutes—28 U.S.C. § 1361 in the case of mandamus,
and 28 U.S.C. § 1331 in the case of Section 706(1)—and ascertaining whether a threshold
limitation on a statute’s scope is jurisdictional is a statute-specific inquiry, see Arbaugh v. Y&H
Corp., 546 U.S. 500, 514–515 (2006). It is also significant that Section 706(1) is part of the
APA. Courts have long held that the “judicial review provisions of the APA are not
jurisdictional,” Air Courier Conf. v. Am. Postal Workers Union, 498 U.S. 517, 523 n.3 (1991),
and that the “APA’s final agency action requirement is not jurisdictional,” Trudeau v. FTC,
456 F.3d 178, 184 (D.C. Cir. 2006). And, notably, the APA defines “agency action” to include
a “failure to act.” 5 U.S.C. § 551(13). Put together, these considerations suggest that the
threshold requirement to identify a nondiscretionary action the agency was required to take
goes to the merits, not jurisdiction—a conclusion reached by at least one judge on this Court,
Friends of the Earth v. U.S. Dep’t of Interior, 478 F. Supp. 2d 11, 23, 26–28 (D.D.C. 2007).
Ultimately, however, the Court need not resolve this issue, because the complaint must
be dismissed for a reason that clearly is jurisdictional: Plaintiff lacks Article III standing to
maintain this action. Although the parties do not discuss standing in their briefs, the Court is
“obligated to consider sua sponte issues,” like standing, that “go[] to [its] subject-matter
jurisdiction,” Gonzalez v. Thayer, 565 U.S. 134, 141 (2012). In doing so, moreover, the Court
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can and should consider evidence outside the pleadings. Phoenix Consulting Inc., 216 F.3d at
40. As relevant here, the Court has before it unrebutted evidence establishing that Plaintiff has
already received the process he seeks under the compassionate-release statute and BOP
regulations. As a result, he has not suffered an injury in fact that the Court can redress by
compelling BOP to act on his request for compassionate release.
The federal compassionate-release statute provides that a defendant may bring a motion
to modify his sentence after “the lapse of 30 days from the receipt of such a request by the
warden of the defendant’s facility,” if the BOP has not brought a motion on the defendant’s
behalf within that time. 18 U.S.C. § 3582(c)(1)(A). The regulations implementing Section
3582(c)(1)(A), in turn, set forth an extensive process for BOP to review compassionate-release
applications. 28 C.F.R. § 571.61(a) provides that a “request for a motion under . . .
3582(c)(1)(A) shall be submitted to the Warden” and that, “[o]rdinarily, the request shall be in
writing, and submitted by the inmate.” Before BOP can move for compassionate release, the
inmate’s application must be reviewed “by the Warden, the General Counsel, and either the
Medical Director for medical referrals or the Assistant Director, Correctional Programs
Division for non-medical referrals, and with the approval of the Director, Bureau of Prisons.”
28 C.F.R. § 571.62(a). The Warden must “promptly review a request for consideration under
. . . 3582(c)(1)(A)” and, if she “determines that the request warrants approval,” she “shall refer
the matter in writing with recommendation to the Office of General Counsel.” Id.§ 571.62(a)(1). If the General Counsel determines that the request warrants approval, she
“shall solicit the opinion of either the Medical Director or Assistant Director, Correctional
Programs Division.” Id. § 571.62(a)(2). With this opinion, the General Counsel then “shall
forward the entire matter to the Director . . . for final decision.” Id.
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If, however, an “inmate’s request is denied by the Warden,” the Warden must provide
“written notice and a statement of reasons for the denial.” Id. § 571.63(a). Importantly, if the
Warden denies an inmate’s request, the regulations demand no further action from the BOP
unless and until the inmate “appeal[s] the denial through the Administrative Remedy Procedure
(28 C.F.R. part 542, subpart B).” Id. If, on the other hand, the Warden approves the inmate’s
request and forwards the request to the General Counsel or Director, and one of those officials
denies the request, the regulations mandate that the denying official “shall provide the inmate
with a written notice and statement of reasons for the denial.” Id. § 571.63(b), (c). And, if the
Director denies a request, she must “provide the inmate with a written notice and statement of
reasons . . . within 20 workdays after receipt of the referral from the Office of General
Counsel.” Id. § 571.63(c). A denial by either the Director or the General Counsel constitutes a
“final administrative decision.” Id. § 571.63(b), (c).
In short, the compassionate-release regulations establish a multilayered process through
which BOP officials review and decide upon inmate applications. In this case, the thrust of
Plaintiff’s APA claim is that the BOP has not issued a decision upon his application for
compassionate release and that this failure to act causes him an injury in fact.3 But here,
3
In his complaint, Plaintiff invokes Section 1(D) of BOP Program Statement 5050.50, which he
claims creates a mandatory duty on the part of the Director to review his claim for compassionate
release. According to Plaintiff, that section mandates that “the Director of the Bureau of Prisons
shall determine if extraordinary and compelling reasons exist[] pertaining to the inmates’
circumstances.” Dkt. 1 at 2 (Compl. ¶ 3). There are two problems with this assertion. First,
BOP Program Statement 5050.50 does not have a section 1(D), nor does the language that
Plaintiff quotes appear anywhere in that document. Second, informal agency guidelines like
Program Statement 5050.50, generally are not capable of creating mandatory legal duties of the
kind necessary to sustain a mandamus action or an order compelling agency action under Section
706(1). Cf. Ctr. for Biological Diversity v. Zinke, 260 F. Supp. 3d 11, 21 (D.D.C. 2017) (“[T]he
‘law’ that generates a mandatory duty need not be a statute—it can also be an ‘agency
regulation[] that ha[s] the force of law[.]’” (alterations in original) (quoting SUWA, 542 U.S. at
65)).
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unrebutted evidence attached to Defendants’ motion to dismiss shows that the BOP has already
acted upon Plaintiff’s compassionate release application, and so there is no relief the Court
could provide that would redress an injury in fact. As a result, Plaintiff lacks standing to
maintain this action. See Ranchers-Cattlemen Action Legal Fund v. USDA, No. 20-2552, 2021
WL 4462723, at *4 (D.D.C. Sept. 29, 2021) (“[A] plaintiff must [establish] “the ‘three
elements’ that comprise the ‘irreducible constitutional minimum of standing’: injury in fact,
causality, and redressability.” (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992))).
In considering whether it has subject-matter jurisdiction, the Court must consider the
exhibits that Defendants attached to their motion to dismiss—namely, the letter Plaintiff
received from the warden of his facility, Dkt. 15-4, and the declaration of Patrick Kissell, the
Administrative Remedy Specialist at the BOP, Dkt. 15-3. Together, these exhibits show that
(1) Plaintiff submitted a request for compassionate release to the Warden, Dkt. 15-4 at 1; (2)
the Warden denied Plaintiff’s request and provided written notice and a statement of reasons
for the denial, as required by 28 C.F.R. § 571.63(a), Dkt. 15-4 at 1–2; and (3) Plaintiff failed to
appeal the Warden’s denial within 20 calendar days, as required by 28 C.F.R. § 542.15(a), Dkt.
15-3 at 3–4. Plaintiff’s opposition to the motion to dismiss makes no effort to rebut these facts.
Dkt. 19. Under 28 C.F.R. § 571.63, the BOP’s review process is complete once the Warden
denies an inmate’s request for compassionate release and the inmate does not file an
administrative appeal of the Warden’s decision. Therefore, the Court concludes that there is
not currently a request pending before the BOP on which the Court can order the agency to act.
Accordingly, Plaintiff has not suffered an injury in fact that is redressable by an order
of this Court, and so the Court will dismiss Plaintiff’s complaint for lack of standing. The
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Court further concludes that any effort to replead this claim would be futile in light of the
Warden’s denial of Plaintiff’s request; Plaintiff’s failure to appeal that denial within 20
calendar days; and Plaintiff’s failure to demonstrate a valid reason for delay that might support
a more-than-one-year extension in the time to file an appeal, see 28 C.F.R. § 542.14(b). Thus,
the Court will deny Plaintiff leave to amend and will dismiss the claim with prejudice. See
Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996); Carty v. Author Sols., Inc., 789 F.
Supp. 2d 131, 135–36 (D.D.C. 2011).
Accordingly, the Court will GRANT Defendant’s motion to dismiss, Dkt. 15, and will
DISMISS Plaintiff’s complaint with prejudice.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: October 29, 2021
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