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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 SelfGovernment 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. 5BCHARLES 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 facilityby-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.