Settles v. U.S. Parole Com'n

Decision Date08 November 2005
Docket NumberNo. 03-5368.,03-5368.
Citation429 F.3d 1098
PartiesJohn E. SETTLES, Jr., Appellant v. UNITED STATES PAROLE COMMISSION and David Dove, Warden of FCI Edgefield in South Carolina, Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 01cv02286).

Melissa Briggs Hutchens argued the cause for appellant. With her on the briefs was Mark S. Raffman.

R. Craig Lawrence, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan and John F. Henault, Jr., Assistant U.S. Attorneys.

Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

John E. Settles appeals the dismissal of his second amended complaint against the United States Parole Commission for lack of standing. Settles contends that the district court erred in ruling that he failed to show an injury in fact because, in order to vindicate a procedural right, he was not required to establish that the right, if vindicated, would lead to a favorable outcome. Upon de novo review, we agree that Settles has standing to bring (1) a claim under 42 U.S.C. § 1983 (2000), alleging that he was denied equal protection because the Commission's rule and policies, preventing him from having a representative at his parole hearing, did not equally apply to federal prisoners who were seeking to be paroled, and (2) a challenge to the Commission's rule under the Administrative Procedure Act ("APA"), 5 U.S.C § 706 (2000). However, we hold that because he has sued the Commission and not the individual members of the Commission, Settles has asserted a claim against an entity that enjoys sovereign immunity from suit under § 1983, and thus the court lacks jurisdiction over his § 1983 claim. Because the district court considered Commission materials beyond the pleadings, the dismissal of the § 1983 claim can also be viewed as the grant of summary judgment. Accordingly, we affirm the grant of summary judgment to the Commission on the § 1983 claim, and because Settles's APA claim fails on its merits, we direct the entry of summary judgment for the Commission on the APA claim.


As part of the National Capital Revitalization and Self-Government Improvement Act of 1997 ("Revitalization Act"), Pub.L. No. 105-33, §§ 11000-11723, 111 Stat. 251, 712-87 (1997), Congress required the Commission to "assume the jurisdiction and authority of the Board of Parole of the District of Columbia to grant and deny parole, and to impose conditions upon an order of parole, in the case of any imprisoned felon who is eligible for parole or reparole under the District of Columbia Code" (hereafter "D.C.Code offenders"). Revitalization Act § 11231(a)(1), 111 Stat. at 745. During the ensuing transition period, D.C.Code offenders were incarcerated in District facilities and D.C. contract facilities, and, according to Settles, in federal contract facilities.

The Commission's regulations in effect at Settles's parole hearing on June 27, 2000, provided that:

A prisoner appearing for a parole hearing in a federal facility may have a representative pursuant to [28 C.F.R.] § 2.13(b). A prisoner appearing for a parole hearing in a facility other than a federal facility shall not be accompanied by counsel or any other person (except a staff member of the facility) except in such facilities as the Commission may designate as suitable for the appearance of representatives.

Amended Interim Rule, 65 Fed.Reg. 19,996, 19,997 (Apr. 13, 2000) (amending 63 Fed.Reg. 39,172, 39,177 (July 21, 1998)) (emphasis added). The Final Rule, which was promulgated a month after Settles's parole hearing, was identical to the Amended Interim Rule, except that it clarified that the term "federal facility" included "federal contract facilities." Final Rule, 65 Fed.Reg. 45,885, 45,888 (July 26, 2000) (codified at 28 C.F.R. § 2.72(c) (2001)).

Settles was not permitted to have a representative present at his June 2000 parole hearing because he was a D.C.Code offender incarcerated at the Corrections Corporation of America prison in Youngstown, Ohio, which is a D.C. contract facility that had not been designated suitable for representatives. He was denied parole in August 2000, and his next parole hearing is scheduled for April 2006. He filed a pro se petition for habeas corpus against the Commission, and the district court, in denying the Commission's motion to transfer venue, construed Settles's petition as a § 1983 complaint and appointed counsel. Counsel, by leave of court, filed two amended complaints against the Commission, each alleging that the regulation preventing D.C.Code offenders housed in facilities under contract with the D.C. Department of Corrections from having representatives at their parole hearings violates 42 U.S.C. § 1983 and the APA, 5 U.S.C. § 706(2). The amended complaints sought a declaratory judgment invalidating the regulation and injunctive relief in the form of a new parole hearing that "include[s] the opportunity to have a representative" present. The Commission answered, asserting that the complaint failed to state a claim, that venue was improper, and that there was a lack of subject matter jurisdiction, while generally denying the allegations of the APA claim. The Commission, in moving to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) or 12(b)(6), or for summary judgment under Fed.R.Civ.P. 56, as well as in its response to Settles's motion for summary judgment, challenged Settles's equal protection claim on the merits and did not raise any statutory defenses or invoke sovereign immunity.

The district court granted the Commission's Rule 12(b)(1) motion to dismiss for lack of standing, reasoning upon considering the parties' stipulated facts and certain exhibits submitted by the Commission that Settles had not identified a cognizable injury in fact. The court summarily denied Settles's motion for summary judgment. Settles appeals, and this court reviews de novo both the dismissal for lack of standing, Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 937 (D.C.Cir.2004), and the district court's rulings on motions for summary judgment, Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1031 (D.C.Cir.2004). Although the Commission has revised its regulations to permit all D.C.Code offenders to have representation at parole hearings, 68 Fed.Reg. 41,527, 41,530 (July 14, 2003), this case is not moot because Settles has not yet been released and seeks injunctive relief in the form of a new parole hearing. Cf. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Hedgepeth v. Washington Metro. Area Transit Auth., 386 F.3d 1148, 1152 (D.C.Cir.2004); Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C.Cir.1998).


The "irreducible constitutional minimum of standing" requires that Settles demonstrate that he has suffered an injury in fact, that there is a causal connection between the injury and the conduct complained of, and that it is likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The district court, which did not distinguish between Settles's § 1983 claim and his APA claim, concluded that Settles failed to demonstrate that he suffered a cognizable injury because it understood his claim to be "that the regulation chilled [his] ability to persuade the Commission to release him on parole." As Settles notes, he is alleging that the Commission denied him equal protection by not permitting a representative to attend his parole hearing, which for federal prisoners is a clear procedural right; he is not asserting standing based upon some impalpable harm to his chances of receiving parole, as the district court suggests.

To demonstrate an injury in fact for an equal protection claim,

[w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The "injury in fact" in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. . . .

Northeastern Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). Here, Settles alleges in his § 1983 claim that he was treated differently than D.C.Code offenders incarcerated at federal or federal contract facilities because as an inmate at a non-federal facility he was denied the opportunity to have a representative at his parole hearing, which, in turn, made it more difficult for him to gain the benefit of parole. While the Court in Northeastern Florida was addressing instances where individuals in one group are competing with individuals in another group for a benefit (such as a contract or admission to a school), the analytical framework is appropriately applied here because Settles's claim is that the Commission's violation of equal protection made it more difficult for him to achieve the benefit of a parole.

The Commission's contrary views are unpersuasive. Its first response is that, even in situations where a plaintiff seeks to challenge a barrier to a benefit, "the plaintiff must still give evidence that he would have been able to exercise the benefit had it been available." This statement confuses what the "benefit" is: the benefit is not representation; it is receiving parole. The barrier to obtaining the benefit is the prohibition on representation. The Commission maintains that Settles has not satisfied...

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