UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

FRANK PATE,

Plaintiff,

v.

FEDERAL BUREAU OF PRISONS, et al.,

Defendants.

Civil Action No. 21-202 (RDM)

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.
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 
5

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 
6

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 
7

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. 
8

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 
10

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