Settles v. United States Parole Commission

Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the
Clerk of any formal errors in order that corrections may be made before the
bound volumes go to press.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2005 Decided November 8, 2005

No. 03-5368

JOHN E. SETTLES, JR.,
APPELLANT

v.

UNITED STATES PAROLE COMMISSION AND
DAVID DOVE, WARDEN OF FCI EDGEFIELD
IN SOUTH CAROLINA,
APPELLEES

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.
 2

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.

I.
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
 3

(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
 4

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
 5

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 (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).

II.
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 (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
 6

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 (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 the “able and ready” standard from Northeastern
Florida, 508 U.S. at 666, because “he has failed to identify a
particular representative who was, in June 2000, willing to
appear on his behalf.” The Commission suggests an unduly
restrictive standard, which would have required Settles to
engage in a futile act: to go through the motions of obtaining
 7

representation when he knew that the relevant regulations
precluded him from having representation. The record,
however, includes Settles’s declaration that had he “been
allowed to take a representative to [his] parole hearing, [he]
would have made arrangements to obtain one and [he]
believe[d] that [he] would have been successful.” Even
assuming the “able and ready” standard applies outside the
context of a government set-aside program, see id., under the
standards applicable to motions to dismiss or for summary
judgment, at least, that declaration is sufficient.

The Commission’s second response is that Settles has not
alleged an equal protection injury because he has not alleged
that similarly situated individuals were treated differently.
Relying on Koyce v. United States Board of Parole, 306 F.2d
759 (D.C. Cir. 1962), the Commission contends that under
circuit precedent the relevant class “consists of persons confined
as he was confined, subject to the same conditions to which he
was subject.” Id. at 762; see also Moss v. Clark, 886 F.2d 686
(4th Cir. 1989). To prevail on his equal protection claim, Settles
would have to demonstrate that he was treated differently than
similarly situated individuals and that the Commission’s
explanation does not satisfy the relevant level of scrutiny.
Plyler v. Doe, 457 U.S. 202, 216 (1982). At this stage, however,
Settles need only show that he was part of a group that was
denied equal treatment. See Ne. Fla., 508 U.S. at 666. He was
in such a group at the time of his parole hearing because he
alleges that inmates at D.C. contract facilities could not have
representation, whereas those individuals in federal facilities
could have representation. This suffices to show his standing.
See Info. Handling Servs., Inc. v. Def. Automated Printing
Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003).

Finally, regarding the other prongs of the standing analysis,
the Commission’s suggestion that causation is lacking unless its
 8

decision to deny Settles parole is fairly traceable to his lack of
representation misunderstands the nature of the injury, which is
the denial of representation and not the denial of parole.
Furthermore, the Commission’s position is contrary to the
Supreme Court’s approach to standing in Northeastern Florida,
where it held that a plaintiff in Settles’s position “need not
allege that he would have obtained the benefit but for the
barrier.” 508 U.S. at 666. The Commission’s regulation
prevented Settles from having representation at his parole
hearing. A decision from this court finding the regulation
unlawful and requiring a new parole hearing with representation
would redress his injury. Id. at n.5.

To show injury in fact under the APA, Settles must show
that the procedural right to have representation at his parole
hearing is connected to his injury. Sugar Cane Growers Coop.
v. Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002). The
connection is plain: by denying Settles the right to have a
representative, which was allegedly given to others with whom
he was similarly situated, he was not treated equally. Because
Settles is seeking to enforce a procedural right, he is not required
to prove the procedural remedy (i.e., having a representative
present at his parole hearing) will result in a different
substantive outcome, much less that the prior procedural
deficiency caused the denial of his parole. See City of Waukesha
v. EPA, 320 F.3d 228, 235-36 (D.C. Cir. 2003); Sugar Cane, 289
F.3d at 94.

The Commission devotes only a footnote in its brief to
challenging Settles’s standing to bring the APA claim, and both
of its arguments lack merit. First, without authority, the
Commission asserts that if Settles is not “able and ready” then
he does not have standing. As established above, assuming such
a requirement applies, he is “able and ready.” Second, the
Commission contends that the fact that he was treated similarly
 9

to others in his class defeats standing. This is not so because
Settles does not solely challenge the classification of D.C. Code
offenders in D.C. contract facilities compared to those in federal
facilities; rather, he mainly contends on appeal that the
regulation is arbitrary and not supported by substantial evidence
because it fails to distinguish between D.C. contract facilities
and District facilities.

For these reasons, we hold that Settles has standing and we
turn to the § 1983 and APA claims set forth in the second
amended complaint.

III.
Section 1983 permits suit against a “person” acting under
color of State or District of Columbia law. See, e.g., Williams
v. United States, 396 F.3d 412, 413-14 (D.C. Cir. 2005). On
appeal, the Commission presents three new challenges to
Settles’s § 1983 claim: (1) it did not act under color of District
of Columbia law in promulgating the Amended Interim Rule
barring a representative at Settles’s parole hearing; (2) it is not
a “person” under § 1983; and (3) it enjoys sovereign immunity
from suit under § 1983. While the Commission maintains that
it may raise such issues for the first time on appeal because they
are jurisdictional, the only jurisdictional issue is whether the
United States has waived its sovereign immunity from this suit.
The questions of statutory interpretation address the question
whether Settles has failed to state a claim, see Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 89-90 (1998),
and such claims, unlike immunity, may be waived, cf. Natural
Res. Def. Council v. EPA, 25 F.3d 1063, 1074 (D.C. Cir. 1994).

A.
To recover under § 1983, the plaintiff must show that the
defendant was acting “under color” of state law. Section 1983
 10

does not apply to federal officials acting under color of federal
law. See Williams, 396 F.3d at 415-16; Case v. Milewski, 327
F.3d 564, 567 (7th Cir. 2003); Daly-Murphy v. Winston, 837
F.2d 348, 355 (9th Cir. 1988). In Fletcher v. District of
Columbia, 370 F.3d 1223 (D.C. Cir. 2004) (“Fletcher I”), the
court held that the Revitalization Act is an “Act of Congress
applicable exclusively to the District of Columbia,” such that
members of the Commission “are amenable to suit under § 1983
for actions taken pursuant to that Act.” 370 F.3d at 1227.
Fletcher, a pro se litigant, had sued the Commission rather than
the individual Commission members; however, the court
construed the complaint “to have named the individual members
of the Commission, in accordance with the general rule that,
upon a motion to dismiss, the complaint—particularly a
complaint filed by a pro se prisoner—should be construed
liberally.” Id. at 1227 n.*. Upon rehearing, the court in
Fletcher v. District of Columbia, 391 F.3d 250 (D.C. Cir. 2004)
(“Fletcher II”), vacated its prior judgment. The opinion in
Fletcher II addressed only that portion of the prior judgment
resting on the proposition that a parole guideline is not a law for
purposes of the Ex Post Facto Clause. Id. at 251. Specifically,
the court acknowledged that its prior holding was contrary to
that in Garner v. Jones, 529 U.S. 244, 255 (2000), where the
Supreme Court held that parole guidelines can be laws for
purposes of the clause; Fletcher’s case was thus remanded to the
district court. Fletcher II, 391 F.3d at 251. Under the
circumstances, it would be incorrect to suggest that the entirety
of our opinion in Fletcher I is no longer binding precedent. Left
standing is the holding in Fletcher I that a cause of action under
§ 1983 will lie against the individual members of the
Commission when acting pursuant to the Revitalization Act
§ 11231, 111 Stat. at 745. Fletcher I, 370 F.3d at 1227. Thus,
in responding to the Commission’s first statutory defense,
Settles might properly rely on Fletcher I to establish that the
Commission was acting under color of District of Columbia law
 11

in denying him a representative at his parole hearing. Cf.
LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996).

However, by failing to raise its statute-based challenges in
the district court, including that it is not a “person” under
§ 1983, the Commission has waived these issues. “[A]s a matter
of prudence if not jurisdiction, claims neither raised nor
addressed below usually may not be heard on appeal.” Nat’l
Fed’n of Fed. Employees v. Greenberg, 983 F.2d 286, 288 (D.C.
Cir. 1993). Although the court retains discretion to decide when
issues may nonetheless be considered on appeal, id., the
Commission presents no compelling reasons why the court
should depart from its general practice of refusing to consider
arguments raised for the first time on appeal. See District of
Columbia v. Air Florida, Inc., 750 F.2d 1077, 1078 (D.C. Cir.
1984); Fed. R. Civ. P. 12(h). This court always must address
issues of its jurisdiction, Citizens for the Abatement of Aircraft
Noise, Inc. v. Metro. Wash. Airports Auth., 917 F.2d 48, 53
(D.C. Cir. 1990), but whether the Commission is a “person”
under § 1983 is not a jurisdictional question. It is a statutory
one. See Bolden v. Southeastern Penn. Transp. Auth., 953 F.2d
807, 821 (3d Cir. 1991) (en banc). Recharacterizing an issue of
statutory interpretation as “jurisdictional” is mere wordplay. Cf.
Steel Co., 523 U.S. at 89-90. Were Settles’s claim “wholly
insubstantial and frivolous,” Bell v. Hood, 327 U.S. 678, 682-83
(1946), the court’s power to adjudicate the case would be
implicated. Settles’s claim is not so weak. Therefore, we hold
that the Commission has waived its two statutory based defenses
under § 1983.

B.
The Commission’s assertion of sovereign immunity,
however, goes to this court’s jurisdiction and may properly be
raised at any time. See Brown v. Sec’y of Army, 78 F.3d 645,
648 (D.C. Cir. 1996). As the Supreme Court has observed, “[i]t
 12

is axiomatic that the United States may not be sued without its
consent and that the existence of consent is a prerequisite for
jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212
(1983). Sovereign immunity may not be waived by federal
agencies. This court explained in Department of Army v.
Federal Labor Relations Authority, 56 F.3d 273 (D.C. Cir.
1995), that “[w]hile it is true that the sovereign immunity of a
State is waived by appearance in a federal court, . . . federal
sovereign immunity is not waived by appearance in any forum
because officers of the United States possess no power through
their actions to waive an immunity of the United States or to
confer jurisdiction on a court in the absence of some express
provision of Congress,” id. at 275 (citations and quotations
omitted). If the United States has not consented to being sued
under § 1983, sovereign immunity requires the court to dismiss
Settles’s claim for lack of jurisdiction. See First Va. Bank v.
Randolph, 110 F.3d 75, 77 (D.C. Cir. 1997).

A waiver of the United States’s sovereign immunity must
be unequivocally expressed in statutory text, see, e.g., United
States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 37 (1992), and
will not be implied, Lane v. Pena, 518 U.S. 187, 192 (1996).
Consent to a particular remedy must be unambiguous as well.
Dep’t of Army, 56 F.3d at 277. We find no clear statement that
would make the Commission itself subject to liability under
§ 1983. The 1979 amendment making § 1983 applicable to
persons acting under color of the laws of the District of
Columbia, see An Act to Permit Civil Suits Under [42 U.S.C.
1983] Against Any Person Acting Under Color of Any Law or
Custom of the District of Columbia, Pub. L. No. 96-170, 93 Stat.
1284 (1979), provides no statement or other indication that
Congress intended to subject federal entities to § 1983 liability.
Cf. H.R. Rep. No. 96-548, at 3 (1979), reprinted in 1979
U.S.C.C.A.N. 2609, 2611. Indeed, the legislative history
suggests that the reason for the amendment was the delegation
 13

of authority to the District government and its officials after the
original enactment of § 1983. Id. at 2, 1979 U.S.C.C.A.N. at
2610. Because “the local government at that time was directly
subject to federal control . . . no need existed for separate federal
court oversight of local government actions.” Id. The purpose
of the 1979 amendment was simply, after Monell v. City of New
York, 426 U.S. 658 (1978), to place District of Columbia laws
on a par with those of the states and territories of the United
States.

Nor does § 11231(a)(1) of the Revitalization Act, 111 Stat.
at 745, indicate that the Congress intended to subject the
Commission to § 1983 liability. The plain language adds to the
Commission’s jurisdiction, but does not state that, in exercising
its new jurisdiction over D.C. Code offenders, the Commission
would be acting as the D.C. Parole Board, which the
Revitalization Act abolished. Nothing in our decision in
Fletcher I, which held that in regard to D.C. Code offenders the
Commission acts pursuant to an “Act of Congress applicable
exclusively to the District of Columbia,” 370 F.3d at 1227,
requires the conclusion that when the Commission acts pursuant
to the Revitalization Act, it loses its character as a federal
agency and becomes for purposes of § 1983 a mere organ of the
District of Columbia, which, as a municipality, enjoys no
sovereign immunity. See Metro. R.R. Co. v. District of
Columbia, 132 U.S. 1, 9 (1889); District of Columbia v.
Owens-Corning Fiberglass Corp., 572 A.2d 394, 403-04 (D.C.
1989). Despite its role in administering parole for D.C. Code
offenders, the Commission retains the immunity it is due as an
arm of the federal sovereign.

C.
Although sovereign immunity blocks a § 1983 claim against
the Commission, Settles urges that his complaint be liberally
construed as naming the individual members of the Commission
 14

as defendants. He points to Fletcher I, in which the court
construed a pro se complaint against the Commission’s
members “in accordance with the general rule that, upon a
motion to dismiss, the complaint—particularly a complaint filed
by a pro se prisoner—should be construed liberally.” 370 F.3d
at 1227. As support, the court cited Warren v. District of
Columbia, 353 F.3d 36, 37 (D.C. Cir. 2004), in which the court
quoted a leading treatise to the effect that “[t]he general rule,
applicable in all cases, is ‘that the complaint will be construed
liberally on a Rule 12(b)(6) motion.’” Id. at 37 (quoting 5A
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1357 (2d ed. 1987)). The court
emphasized that pro se prisoner complaints are “not
distinguish[ed] . . . from any others” in the requirement that they
are to be liberally construed. Warren, 353 F.3d at 37.

It is certainly true that complaints are to be liberally
construed at the stage of a motion to dismiss. However, in
stating the general rule, the court in Warren was focusing on the
factual allegations stated in a complaint. This is clear because
the court acknowledged that courts sometimes reach further than
the complaint in pro se cases to discern the facts necessary to
state a cause of action. Id. at 38 (citing Anyanwutaku, 151 F.3d
at 1058). In other words, the rule of liberal construction of
complaints applies to factual allegations. Cf. 5B CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE: CIVIL § 1357, at 704 (3d ed. 2004). At the motion
to dismiss stage, counseled complaints, as well as pro se
complaints, are to be construed with sufficient liberality to
afford all possible inferences favorable to the pleader on
allegations of fact. Fletcher I indicates that the court will
construe a pro se prisoner’s complaint liberally both to afford all
reasonable inferences of fact and, in certain circumstances, to
rewrite the complaint to name new defendants. It is quite a
different matter to suggest that this particular exercise of
 15

liberality should extend to a complaint that is not pro se, so as
to allow a counseled plaintiff to name a new set of defendants.

It is long settled that the United States cannot be sued
without its consent. See Part III.B, supra. To the extent that it
may not have been entirely clear in what capacity the
Commission acted when it denied Settles a representative at his
parole hearing—because it was acting under District of
Columbia law and in fact applied a rule that was identical to that
of the former D.C. Parole Board—counsel would have been
alerted to the need to address who is the proper defendant.
Although Settles’s counsel did not have the benefit of our
decision in Fletcher I when he filed the second amended
complaint, there was no law in this circuit or others suggesting
the Commission could be sued as a “person” under § 1983, and
what law there was suggested it could not. In Al Favad v. CIA,
229 F.3d 272 (D.C. Cir. 2000), the court examined the meaning
of “person” in 28 U.S.C. § 1782, observing that the Supreme
Court has held repeatedly that the term “does not include a
sovereign government absent affirmative evidence of such an
inclusory intent,” id. at 274. Two other circuits had held that a
federal agency is not a “person” subject to § 1983 liability. See
Hindes v. FDIC, 137 F.3d 148, 158 (3d Cir. 1998); Hoffman v.
U.S. Dep’t of Housing and Urban Dev., 519 F.2d 1160, 1165
(5th Cir. 1975).

Thus, it was eminently foreseeable that the Commission
would, at some point, advance both jurisdictional and statutory
defenses. The fact that Settles’ second amended complaint was
virtually identical to his first amended complaint—there was
only a single repeated citation error (what appears to be a
typographical error) citing 28 U.S.C. § 2.73(c) instead of
§ 2.72(c)—does not change the analysis, because the rule of
liberality extends, except as applied in Fletcher I, to factual
allegations as distinct from renaming the defendant in order to
 16

avoid an immunity defense. Cf. 5B WRIGHT & MILLER,
FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1357, at 722.
Otherwise, Fletcher I would establish a rule of party
substitution, which would suggest that the Commission could
never succeed in a motion to dismiss on the ground of sovereign
immunity.

In any event, the procedural posture of this case indicates
that there is no legal basis to construe Settles’s second amended
complaint to name the individual Commissioners as defendants.
When a court rules on a Rule 12(b)(1) motion, it may “undertake
an independent investigation to assure itself of its own subject
matter jurisdiction.” Hasse v. Sessions, 835 F.2d 902, 908 (D.C.
Cir. 1987). This includes considering facts developed in the
record beyond the complaint. Id. at 907. But at the Rule
12(b)(1) stage, “the plaintiff is protected from an evidentiary
attack on his asserted theory by the defendant.” Id.; Hotel &
Rest. Employees Union, Local 25 v. Smith, 846 F.2d 1499, 1502-
03 (D.C. Cir. 1988) (en banc); see Warth v. Seldin, 422 U.S.
490, 500-02 (1975). Although the district court stated that it
was granting the Commission’s Rule 12(b)(1) motion to dismiss
the complaint for lack of standing, the court considered the
parties’ stipulation of facts and certain exhibits submitted by the
Commission to determine “[a]s a matter of fact” whether Settles
“was unable to present the best argument,” as he alleged,
because he was not represented. To the extent that this was a
factual resolution of Settles’s allegation and a rejection of his
theory of the case based on evidence submitted by the
Commission, the district court exceeded the bounds of factual
inquiry that Hasse, Smith, and Warth indicate are appropriate on
review of a Rule 12(b)(1) motion. However, because the
Commission moved for summary judgment as well, the district
court’s judgment can also be viewed as a grant of summary
judgment. See Rann v. Chao, 346 F.3d 192, 194 (D.C. Cir.
2003). As the nonmoving party, Settles remains entitled to the
 17

benefit of all reasonable inferences of fact for purposes of
determining whether material facts are in dispute, see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), but the rule on
liberal construction can provide no relief in this posture, cf.
Mazaleski v. Treusdell, 562 F.2d 701, 708 (D.C. Cir. 1977).
Therefore, because Settles has sued a defendant who is immune,
the Commission is entitled to judgment as a matter of law on the
§ 1983 claim.

IV.
Both parties claim they are entitled to summary judgment
on Settles’s APA claim. No material facts are in dispute, so we
inquire whether either party is entitled to judgment as a matter
of law. Settles contends that the Commission’s Amended
Interim Rule was arbitrary and not supported by substantial
evidence because of the absence of a connection between the
facts found (lack of staffing and security for representatives to
attend parole hearings in District facilities) and the choices made
(prohibiting representation at both District facilities and D.C.
contract facilities). He cites several passages from Commission
meetings and the Federal Register in support of his argument
that the regulation swept too broadly when the evidence before
the Commission indicated only that there were resource
problems in District facilities and not in D.C. contract facilities.

The Commission is entitled to summary judgment if the
path of its reasoning is sufficiently discernable in light of the
record. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983) (citing Bowman Transp., Inc. v.
Ark.-Best Freight Sys., 419 U.S. 281, 286 (1974)). The
administrative record before the court fails to demonstrate that
the Commission’s action was arbitrary and capricious as a
matter of law; rather it reveals that the Commission chose to
require particularized review of the security and structural
constraints of each non-federal facility prior to allowing
 18

representatives at parole hearings held within those facilities.
Amended Interim Rule, 65 Fed. Reg. at 19,997. While the
interim and final rules do not articulate a reason for the facility-
by-facility review, the path of the Commission’s reasoning is
sufficiently discernable in light of the record.

During the Commission’s quarterly business meeting, the
Commission’s General Counsel stated that, because it was not
clear that each of the facilities was “set up security-wise to allow
in representatives,” prior review should be required before
representatives were allowed. The General Counsel observed
that “I think it’s going to have to go on a case-by-case basis
because much of it depends on the physical layout of the facility
where parole hearings are being held and what the arrangement
between that facility and the Bureau of Prisons is.”

Settles emphasizes that the evidence in the record
demonstrates that the prohibition of representatives was based
on the lack of resources in prison facilities operated by the D.C.
Corrections Department. This is not so, although Settles is
correct that the Amended Interim Rule was an outgrowth of a
policy instituted because of a lack of resources at the D.C.
Corrections Department. The General Counsel addressed D.C.
contract facilities in his remarks to the Commission. Also,
Settles’s brief suggests that there was a blanket prohibition on
representatives in parole hearings held in D.C. contract facilities.
Again, not so. D.C. contract facilities required prior approval of
the Commission before representation was permitted. See
Amended Interim Rule, 65 Fed. Reg. at 19,997. At the time of
Settles’s parole hearing, which was approximately two months
after the Amended Interim Rule was effective, the Commission
had not approved the presence of hearing representatives in the
facility in which he was housed. Settles offers nothing to
indicate that the Commission’s failure to approve the presence
of representatives at the Youngstown facility by the time of his
 19

June 2000 parole hearing was arbitrary or otherwise unlawful.

Because the Commission was concerned about resource
constraints at the relevant facilities and received comments on
the restriction of representatives, the record reveals the required
“rational connection between the facts found and the choice
made.” Bowman Transp., 419 U.S. at 285 (quoting Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
Thus, the Commission is entitled to judgment as a matter of law.
See Anderson, 477 U.S. at 250.

Accordingly, we hold that Settles has standing to bring his
§ 1983 and APA claims. We further hold that the court lacks
jurisdiction over Settles’s § 1983 claim, and because the district
court considered Commission exhibits in dismissing the § 1983
claim, we affirm the grant of summary judgment to the
Commission on the § 1983 claim. Finally, we hold that Settles’s
APA claim fails on the merits and we direct the entry of
summary judgment for the Commission on the APA claim.