Gordon Reid v. Hugh J. Hurwitz (AMENDED OPINION)

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 17, 2018 Decided February 5, 2019
Amended April 9, 2019
No. 17-5012
GORDON C. REID,
APPELLANT
v.
HUGH J. HURWITZ, ACTING DIRECTOR, FEDERAL BUREAU OF
PRISONS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00375)
Caleb P. Redmond, Student Counsel, argued the cause as
amicus curiae in support of appellant. With him on the briefs
were Erica Hashimoto, Director, and Paola Pinto and Sean
Stein, Student Counsel.
Daniel Schaefer, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: GRIFFITH, WILKINS and KATSAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
2
Dissenting opinion filed by Circuit Judge KATSAS.
WILKINS, Circuit Judge: This case concerns whether the
District Court properly dismissed based on mootness the claims
of an incarcerated prisoner. Because the allegations in Gordon
Reid’s Complaint logically fall within a mootness exception for
claims “capable of repetition, yet evading review,” we reverse
the decision of the District Court and remand the case for
further proceedings.
I.
In reviewing the District Court’s dismissal, we “accept all
of the factual allegations in the complaint as true.” Jerome
Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.
2005) (alteration and citation omitted). The facts recounted
here come from the Complaint or undisputed submissions in
the record. In 2008, the United States District Court for the
District of New Hampshire sentenced Gordon Reid to
incarceration for a term of 220 months, followed by three years
of supervised release, for the crime of Interference with
Commerce by Threats of Violence. Reid began serving that
sentence on May 6, 2008, when he was delivered to the U.S.
Penitentiary McCreary in Kentucky. Id. Sometimes for
disciplinary reasons, and other times for administrative ones,
Reid was housed repeatedly in Special Housing Units (SHUs)
at McCreary and the other Bureau of Prisons (BOP) facilities,
where he has continued serving his sentence.
Reid, proceeding pro se, filed a Complaint in the District
Court for the District of Columbia on March 16, 2015.1 At the
1
Reid’s filing was styled a “Petition for Declaratory and Injunctive
Relief.” J.A. 6. The District Court construed it as a Complaint.
3
time, Reid was incarcerated at the U.S. Penitentiary in Tucson,
Arizona. He alleged that BOP had violated its own policies
and procedures in three ways: (1) BOP had failed to deliver his
magazine subscriptions while he was confined in SHUs, thus
violating 28 C.F.R. § 540.71 and BOP Program Statement
5266.11 (Nov. 9, 2011); (2) BOP had deprived him of outside
exercise while he was confined in SHUs, violating 28 C.F.R.
§ 541.31(g) and BOP Program Statement 5270.10 (Aug. 1,
2011); and (3) BOP deprived him of meaningful access to the
administrative remedy procedures in violation of 28 C.F.R.
§ 542.10 and BOP Program Statement 1330.18 (Jan. 6, 2014).
When questioned about these violations, Reid alleges BOP
personnel “invariably” claimed that they were complying with
“BOP Policy.” J.A. 7-8. We liberally construe the pro se
Complaint as asserting not only a broad challenge to a
nationwide BOP policy or practice, but also a declaratory claim
with respect to the individual deprivations Reid suffered in
SHUs. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per
curiam). The Complaint asked for declaratory, injunctive, and
mandamus relief to remedy these alleged violations.
In total, Reid appears to have been transferred in and out
of a SHU over twenty times from August 1, 2007, to July 19,
2016, under either administrative detention or disciplinary
segregation status. This amounted to at least 764 days in a
SHU, and some of those confinement periods postdated the
filing of his Complaint in the District Court.
BOP filed a motion to dismiss or, in the alternative, for
summary judgment, arguing that Reid’s claims were moot.
BOP argued that Reid was “no longer confined at USP Tucson,
his place of confinement when he filed this civil action,” or at
any of the other facilities where the alleged violations occurred.
Mot. to Dismiss at 15-16, No. 1:15-cv-375 (RMC) (D.D.C.
filed Sept. 28, 2015), ECF No. 14. BOP concluded that Reid’s
4
“allegations concerning how staff at previous institutions
handled the processing of inmates’ incoming magazines, how
SHU staff allocated outside recreation time, or Unit Team’s
protocol for conducting rounds in SHU no longer present[ed] a
case or controversy,” and argued that the mootness exceptions
did not apply. Id. at 16.
In response to BOP’s motion, the District Court issued an
order to “advise the pro se Plaintiff of his obligations” under
the Rules, as well as the consequences for failing to follow
them. Order at 1, 3, No. 1:15-cv-375 (RMC) (D.D.C. filed Oct.
1, 2015), ECF No. 15. The District Court informed Reid that
he needed to file a response in opposition to the motion by
November 30, 2015, and advised him of all relevant Federal
Rules of Civil Procedure and local rules regarding opposition
to motions to dismiss and for summary judgment. Id.
After initially granting BOP’s motions because of Reid’s
failure to timely respond, the District Court accommodated
Reid’s late filing of a response opposing BOP’s motions. See
Order at 1-2, No. 1:15-cv-375 (RMC) (D.D.C. filed June 2,
2016), ECF No. 21. In his brief opposing dismissal and
supporting his cross-motion for summary judgment, Reid
argued that the case was not moot because he was challenging
ongoing practices of BOP. Mot. to Vacate Judgment at 106,
No. 1:15-cv-375 (RMC) (D.D.C. filed May 6, 2016), ECF No.
20. He also argued that the case was an exception to the
mootness doctrine: “That these controversies are capable of
repetition is a matter of historical fact rather than deduction for
Plaintiff has, in fact, been repeatedly housed in SHU units
across the country where, time and again,” BOP had committed
the same violations. Id. at 109.
The District Court ordered BOP to file an opposition to
Reid’s cross-motion for summary judgment, combined with
5
BOP’s opposition to Reid’s motions to strike and reply in
support of its motion to dismiss. In its filing, BOP stated that
“[n]ormally, a prisoner’s transfer or release from a prison
moots any claim he might have for equitable relief arising out
of the conditions of his confinement in prison.” Def.’s Opp’n
to Pl’s Cross Mot. for Summ. J. & Reply in Supp. of Def.’s
Mot. to Dismiss (Def.’s Cross Opp’n & Reply) at 7, No. 1:15-
cv-375 (RMC) (D.D.C. filed July 21, 2016), ECF No. 25; see
also Scott v. District of Columbia, 139 F.3d 940, 941 (D.C. Cir.
1998). BOP responded to Reid’s argument that his claims were
not moot due to changing circumstances by reiterating that
Reid had since been transferred to another facility and out of
the SHU. Def.’s Cross Opp’n & Reply 7-8. BOP argued that
“with the exception of one night, [Reid] ha[d] not been
confined in SHU at all since his transfer to USP Coleman.” Id.
at 8 (emphasis in original). BOP stated that Reid’s claims were
“linked exclusively to his confinement in the SHUs and
therefore no longer present[ed] a ‘live’ controversy,” as Reid
was no longer confined in SHUs. Id. at 9. BOP also pointed
out that Reid had not alleged continued violations since his
(then) latest transfer. Id. In support, BOP attached an affidavit
stating that Reid was no longer housed in a SHU and had been
in the general population at the Coleman facility with the
exception of one twelve-hour period. Decl. of An Tran at 1-5,
No. 1:15-cv-375 (RMC) (D.D.C. filed July 21, 2016), ECF No.
25-1. BOP also attached inmate records with data it had not
originally provided in support of its motion. Id. at 8-50.
The District Court instructed Reid that he could file a reply
in support of his cross motion for summary judgment before
August 29, 2016. Order at 2, No. 1:15-cv-375 (RMC) (D.D.C.
filed June 2, 2016), ECF No. 21. On November 8, 2016 – over
two months after the deadline for Reid’s reply brief – the
District Court issued an order granting BOP’s motion to
dismiss Reid’s claims as moot and denying his cross motion for
6
summary judgment. The District Court noted that Reid had
“asserted nothing” to contradict BOP’s argument that “for the
past straight year” Reid had not been “confined to the Special
Housing Units that gave rise to his claims.” Reid, 2016 WL
6602614, at *1. Thus, the District Court held:
“Normally, a prisoner’s transfer or release from
a prison moots any claim he might have for
equitable relief arising out of the conditions of
his confinement in that prison.” And in the
absence of “a cognizable cause of action,” a
plaintiff has “no basis upon which to seek
declaratory relief.”
Id. (citations omitted).
On appeal, Amicus for Reid2 argues that the District Court
did not meet its obligations for litigation involving a pro se
plaintiff,3 and that Reid’s claims avoid mootness because they
are capable of repetition, yet evading review or, alternatively,
because the voluntary cessation doctrine applies.
II.
We review de novo the District Court’s dismissal for
mootness. Schmidt v. United States, 749 F.3d 1064, 1068 (D.C.
2
We thank Erica Hashimoto, Paola Pinto, Caleb P. Redmond, and
Sean Stein for their work on this appeal.
3
The District Court was very generous with Reid, giving him
additional instructions and leeway with late filings. The District
Court not only complied with, but also went above and beyond, our
guidance for managing the docket of a pro se case. See Moore v.
Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993); Neal v.
Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992).
7
Cir. 2014). “Under Article III of the United States Constitution
we ‘may only adjudicate actual, ongoing controversies.’”
District of Columbia v. Doe, 611 F.3d 888, 894 (D.C. Cir.
2010) (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)).
Under the mootness doctrine, we cannot decide a case if
“events have so transpired that the decision will neither
presently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future.” Clarke v.
United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc)
(quotation marks omitted). The party seeking jurisdictional
dismissal must establish mootness, while the opposing party
has the burden to prove that a mootness exception applies.
Honeywell Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d
568, 576 (D.C. Cir. 2010).
The Supreme Court has carved out one such exception for
claims that are “capable of repetition, yet evading review.”
Spencer v. Kemna, 523 U.S. 1, 17 (1998). “The exception
applies when: ‘(1) the challenged action is in its duration too
short to be fully litigated prior to its cessation or expiration, and
(2) there is a reasonable expectation that the same complaining
party will be subject to the same action again.’” Doe, 611 F.3d
at 894 (quoting Jenkins v. Squillacote, 935 F.2d 303, 307 (D.C.
Cir. 1991)). At the motion to dismiss stage, courts assess
justiciability based in part on “the theory of injury presented in
the complaint” and “the facts alleged in support of the claim.”
Haase v. Sessions, 835 F.2d 902, 907 (D.C. Cir. 1987)
(reversing district court’s 12(b)(1) dismissal because the court
“did not adequately assess whether the alleged policy pose[d]
a realistic threat to [the plaintiff]”). Although Haase applies
this framework to constitutional standing, not mootness, they
are “related concepts” because both go to the plaintiff’s injury.
Garden State Broad. Ltd. P’ship v. FCC, 996 F.2d 386, 394
(D.C. Cir. 1993). If anything, the standing doctrine is stricter
than the mootness doctrine. If the theory of justiciability is
8
“not itself inherently flawed, the [Article III] inquiry is
ordinarily . . . complete.” Haase, 835 F.2d at 907.
BOP urges us to hold Reid’s factual allegations, which it
finds “speculative,” to a stricter standard, such as the
plausibility standard articulated in Ashcroft v. Iqbal, 556 U.S.
662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544(2007). But it is impossible for a plaintiff, when she initially
files a Complaint, to make plausible allegations supporting a
mootness exception. The District Court focused not on the
allegations Reid made in his Complaint, but rather on the legal
theory of justiciability. The District Court dismissed the
pleadings on the basis that Reid’s transfer from the SHU
rendered inapplicable the “capable of repetition, yet evading
review” exception as a matter of law. Because we disagree and
see no logical flaw in the theory of why the mootness exception
may apply, we reverse the District Court’s decision to dismiss
the Complaint at the pleadings stage.4
First, Reid adequately alleges that the challenged action is
too fleeting to be fully litigated. To address whether a claim
evades review, we ask whether “the challenged action was in
its duration too short to be fully litigated prior to its cessation
or expiration.” Weinstein v. Bradford, 423 U.S. 147, 149
(1975). In Doe, we noted that “there can be no doubt that a
one-year placement order under the [Individuals with
Disabilities Education Act] is, by its nature, too short in
duration to be fully litigated prior to its expiration.” 611 F.3d
at 894-95. Based on the information provided by BOP, Reid’s
longest stay in a SHU was 120 days, and many of his other
4
Although Amicus presents an argument in favor of applying the
voluntary cessation doctrine under Aref v. Lynch, 833 F.3d 242 (D.C.
Cir. 2016), this argument was not raised below and is thus forfeited.
See Keepseagle v. Vilsack, 815 F.3d 28, 36 (D.C. Cir. 2016).
9
stays were for much shorter time periods. Amicus Br. 8-10, 33.
We agree with Amicus that this short duration “evades even
district court review, let alone review by this Court and the
Supreme Court.” Id. at 33. The short durations of Reid’s SHU
placements clearly meet the threshold.
Second, we see no logical deficiency in Reid’s allegations
that he reasonably expects to be subjected to the same
challenged deprivations in the future. See FEC v. Wisc. Right
to Life, Inc., 551 U.S. 449, 463-64 (2007). As Amicus points
out, Reid demonstrated that BOP had placed him in the SHU
“in almost every facility that confined him for longer than
twenty-eight days, including four instances of segregation after
he filed his complaint.” Amicus Br. 31.
On this point, Olmstead v. L.C. ex rel. Zimring, 527 U.S.
581 (1999), is instructive. In Olmstead, the Supreme Court
noted that a claim was not moot when the petitioners were
“currently receiving treatment in community-based programs”
because of “the multiple institutional placements [the
petitioners] ha[d] experienced,” making the claims capable of
repetition, yet avoiding review. Id. at 594 n.6. Thus, even
though the petitioners were no longer in an institutional
placement, their claims avoided mootness due in part to the
multiple times that they had experienced institutional
placements in the past. Reid’s circumstance is similar.
BOP recognizes that “[a] prisoner’s transfer to another
facility or unit will not moot a claim for equitable relief . . . if
the very same policy, practice, or condition continues to apply
to the same prisoner’s confinement following his or her transfer
to another unit or facility.” Appellee’s Br. 25 (citing Scott, 139
F.3d at 941). But, BOP contends, “[o]n this record, the chance
that Reid would again be subjected to the three deprivations in
10
SHU that he challenged was entirely speculative.” Id. at 26;
see id at 36.
The BOP’s argument ignores that Reid’s complaint
identifies not only single instances but also BOP’s alleged
policy or practice of violating its own regulations to the
detriment of Reid. In particular, Reid has alleged three key
facts. First, he has been housed at eight different SHUs since
2008. Second, he has suffered a uniform set of deprivations at
each SHU that contradict BOP’s written regulations. Third,
each time he has suffered a deprivation, he alleges that BOP
officials justify the deprivations based on “BOP policy.” J.A.
7-8. Having been placed in a SHU in myriad different BOP
institutions, subject each time to a restriction allegedly imposed
under a purported BOP policy or practice contravening BOP
regulations, Reid has proffered a logical theory that the
challenged actions reasonably will recur despite his current
transfer out of the SHU. See, e.g., Olmstead, 527 U.S. at 594
n.6; Doe v. Sullivan, 938 F.2d 1370, 1378-79 (D.C. Cir. 1991).
III.
Both the District Court and the government on appeal have
failed to grapple with Reid’s claim that he was repeatedly
subjected to deprivations in the SHU due to an ongoing policy
or practice of the BOP. Instead, the government argues that
Reid is unlikely to be subjected to those conditions again
because his past experience is insufficiently predictive of the
likelihood of Reid returning to a SHU. See Appellee’s Br. 39-
42 (“Once the conditions of confinement that an inmate
challenges cease completely at some point[,] an expectation of
recurrence is no longer reasonable.” (emphasis in original)).
In dismissing Reid’s Complaint under Rule 12(b)(1), the
District Court simply stated that, “[n]ormally, a prisoner’s
11
transfer or release from a prison moots any claim he might have
for equitable relief arising out of the conditions of his
confinement in that prison.” Although this is “normally” true,
it is not true when a prisoner alleges he has been subject to
those conditions in multiple BOP facilities, along with an
alleged policy or practice of violating regulations that would
apply to Reid at any BOP facility in the future. The District
Court erred by dismissing Reid’s claims as moot when, as a
logical matter, his pleadings as a whole are capable of
repetition, yet evading review. See Haase, 835 F.2d at 907-08.
The District Court has multiple options on which to
proceed on remand. The government filed various motions
under Rule 12 and Rule 56, and it may renew its motions when
this case returns to the District Court.
Although Reid has presented a sound legal theory for why
his claims are not moot, the District Court may have concerns
about “the facts alleged in support of” jurisdiction. Id. at 907.
The District Court is free “at the motion to dismiss stage” to
inquire into Reid’s asserted facts in support of the mootness
exception. Id. As a related but separate matter, the District
Court may doubt Reid’s standing to plead a broad-based attack
on the alleged BOP policy or practice. A plaintiff challenging
“an ongoing policy must . . . demonstrate both that ‘the request
for declaratory relief is ripe’ and that [he has] ‘standing to bring
such a forward-looking challenge.’” Conservation Force, Inc.
v. Jewell, 733 F.3d 1200, 1206 (D.C. Cir. 2013) (quoting Del
Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321
(D.C. Cir. 2009)). We have not determined the minimal
requirements for factual allegations rebutting a mootness
challenge that the District Court considers at the motion to
dismiss stage, but we have held that a plaintiff must plead facts
plausibly demonstrating standing, see, e.g., Humane Soc’y of
the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). If the
12
District Court harbors doubts, it may give Reid “the
opportunity to plead additional facts” to support jurisdiction.
Haase, 835 F.2d at 903; see also Moore, 994 F.2d at 877(“[L]eave to amend is particularly appropriate when a plaintiff
proceeds pro se.”).
The District Court further may address the other Rule 12
motions. In vacating the decision below, we do not pass
judgment on whether Reid has plausibly stated policy and
individual challenges that survive a Rule 12(b)(6) motion on
the merits. It is possible that, on remand, the District Court will
hold that BOP’s alleged conduct “stops short of the line
between possibility and plausibility of entitlement to relief.”
See Twombly, 550 U.S. at 557 (quotation marks omitted). But
that is a different question than the one before us now.
The District Court also may wait until summary judgment
to consider anew both Reid’s standing to assert the policy and
individual claims, as well as the BOP’s mootness argument.
***
The District Court erred in dismissing Reid’s Complaint
on the ground of mootness because it alleged a policy or
practice of violations by the BOP. Reid’s theory for why his
claims are not moot is logically sound. See Haase, 835 F.2d at
907-08. We reverse the decision of the District Court and
remand the case for further proceedings.
So ordered.
KATSAS, Circuit Judge, dissenting: Gordon Reid alleges
that the Federal Bureau of Prisons has adopted a nationwide
policy to violate its own regulations regarding the treatment of
prisoners. My colleagues reserve the question whether Reid
has adequately alleged such a policy. Yet, in assessing
mootness, they credit the allegation for now and then use it to
transform specific past disputes—about Reid’s treatment in
prisons where he is no longer housed—into a unified, recurring
controversy that may follow Reid from prison to prison.
Respectfully, I am unpersuaded. We should reject Reid’s
conclusory allegation that BOP has implemented unlawful
nationwide policies. And without such unifying policies, the
specific disputes alleged here are not capable of repetition.
Therefore, I would affirm the dismissal of this case as moot.
I
In 2008, Reid was convicted of robbing a convenience
store. During pretrial detention, “Reid quickly distinguished
himself as a combative, disruptive, and violent inmate.” Reid
v. Strafford Cty. Dep’t of Corr., No. 06-CV-182, 2008 WL
163042, at *1 (D.N.H. Jan. 15, 2008). Since then, while
incarcerated at various BOP facilities, Reid has amassed a
disciplinary record that includes assault with a dangerous
weapon, fighting and threatening other prisoners, throwing
liquids on prison guards, indecent exposure, disobeying orders,
and insolence. J.A. 20–30. Reid has often been placed in the
Special Housing Unit (SHU) of various prisons, for either
disciplinary or administrative reasons.
In March 2015, Reid filed a lawsuit arising from his
treatment in the SHUs of prisons in Arizona, California,
Indiana, Kentucky, Louisiana, North Carolina, Oklahoma, and
Virginia. Reid alleged that he was denied magazines and
exercise pursuant to informal BOP policy and that he was often
denied prompt access to administrative complaint forms. Reid
2
claimed that these various deprivations violated BOP
regulations and a formal policy statement. He sought
declaratory and injunctive relief, but not damages.
After the complaint was filed, Reid was transferred to a
prison in Florida and then to another prison in Pennsylvania.
Reid has never sought to amend his complaint to add
allegations about his treatment at either of those institutions.
The government moved to dismiss or for summary
judgment on various grounds, including mootness. Reid cross-
moved for summary judgment. In these motions, both parties
introduced documents and affidavits detailing Reid’s past
treatment at BOP prisons.
The district court dismissed the case as moot. It invoked
our precedents holding that an inmate’s release or transfer from
a prison normally moots prospective challenges to conditions
at that prison. See, e.g., Scott v. District of Columbia, 139 F.3d
940, 941 (D.C. Cir. 1998). This rule is merely one specific
application of the general mootness principle: “A case
becomes moot—and therefore no longer a ‘Case’ or
‘Controversy’ for purposes of Article III—when the issues
presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” Already, LLC v. Nike,
Inc., 568 U.S. 85, 91 (2013) (quotation marks omitted).
II
In support of Reid, a court-appointed amicus advances two
distinct arguments to avoid mootness. One argument is that
this case never became moot because Reid seeks to challenge
not only specific past deprivations, but also an ongoing policy
to inflict similar deprivations at all BOP prisons. Another
argument is that this case falls within an exception to mootness
3
because the past deprivations involve controversies that are
capable of repetition yet evading review. 1
My colleagues credit the second argument, at least in the
current procedural posture of this case, and they do not reach
the first argument. I would reject both. I begin with the policy
point because, as explained below, unless Reid can plead and
prove that BOP has a nationwide policy to violate the
regulations at issue in this case, he cannot show that his specific
past disputes are capable of repetition.
A
The complaint frames a challenge to ongoing policies.
Reid alleges a “BOP policy” that “prisoners housed in SHU
may not have magazines,” in violation of a regulation
providing that they may. J.A. 7. Likewise, Reid alleges a
“BOP policy” to restrict inmates’ exercise as punishment for
minor infractions of prison rules, in violation of a written
policy statement that “[r]estriction or denial of exercise is not
used as punishment.” J.A. 8–9. Finally, Reid alleges that,
“[o]n many occasions,” he was denied prompt access to forms
for filing grievances. J.A. 9. Reid does not further describe
these alleged policies. Yet his amicus contends that this case
presents justiciable challenges to all of them.
1
If “the specific conduct that gave rise to the case has
ceased,” a plaintiff nonetheless may seek prospective relief “as
to an ongoing policy” authorizing the conduct. Del Monte
Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C.
1
Reid has forfeited any argument based on the voluntary-cessation
exception to mootness. Ante at 8 n.4.
4
Cir. 2009). But the plaintiff must establish both that he “has
standing to bring such a forward-looking challenge” and that
“the [challenge] is ripe.” City of Houston v. HUD, 24 F.3d
1421, 1429 (D.C. Cir. 1994). Standing requires an injury that
is “concrete, particularized, and actual or imminent,” among
other things. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409
(2013) (quotation marks omitted). Ripeness requires both an
impending injury and an issue that is presently fit for judicial
resolution. See Texas v. United States, 523 U.S. 296, 300–01
(1998). Without pleading and proving that an ongoing policy
exists, the plaintiff cannot satisfy these basic requirements, and
the prospective challenge likewise would fail on the merits.
Standing and ripeness must be “supported in the same way
as any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required at
the successive stages of the litigation.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). Thus, on a motion to
dismiss, the plaintiff must allege well-pleaded facts that
support a plausible inference of standing and ripeness. See
Ashcroft v. Iqbal, 556 U.S. 662, 677–84 (2009); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555–63 (2007). Confirming this
point, we have held that the pleading requirements of Twombly
and Iqbal apply to questions of standing. See, e.g., Hancock v.
Urban Outfitters, Inc., 830 F.3d 511, 513 (D.C. Cir. 2016) (at
the pleading stage, a plaintiff must “‘state[ ] a plausible claim’
that each element of standing is satisfied” (quoting Iqbal, 556
U.S. at 678–79)). Likewise, on summary judgment, the
plaintiff must adduce sufficient evidence from which the trier
of fact could reasonably find standing and ripeness. See, e.g.,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–52 (1986).
Two aspects of Twombly and Iqbal are important here.
First, courts do not accept as true a complaint’s legal
conclusions, “mere conclusory statements,” or “[t]hreadbare
5
recitals of the elements” of a claim. Iqbal, 566 U.S. at 678.
Included in these categories are naked assertions of unlawful
motive, see id. at 680–82, or agreement, see Twombly, 550 U.S.
at 551. Second, any specific factual allegations falling outside
these categories must establish a “plausible” claim—
something “more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678. For example,
“parallel conduct does not suggest conspiracy” in antitrust
cases, for it is fully consistent with independent action in
competitive markets. Twombly, 550 U.S. at 557, 566–70.
Likewise, the fact that “thousands of Arab Muslim men” were
detained after the September 11 attacks was “no surprise”
given the identities of the attackers, and thus did not support a
plausible inference of unconstitutional discrimination. Iqbal,
556 U.S. at 681–82. In both instances, the allegations failed to
negate an “obvious alternative explanation” besides unlawful
conduct. Id. at 682 (quoting Twombly, 550 U.S. at 567).
2
Under these standards, Reid failed to plausibly allege any
unlawful BOP policies. To begin, it is not enough merely to
assert that unlawful policies exist, just as it was not enough
merely to assert the existence of a conspiracy in Twombly or an
illicit motive in Iqbal. Rather, the bare allegation of an
unlawful policy is a legal conclusion or conclusory statement.
See, e.g., AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631,
637 (9th Cir. 2012); McCauley v. City of Chicago, 671 F.3d
611, 616–17 (7th Cir. 2011). Even two decades before
Twombly, this Court made clear that “more than a nebulous
assertion of the existence of a ‘policy’ is required to establish
standing.” Haase v. Sessions, 835 F.2d 902, 911 (D.C. Cir.
1987). Thus, the allegation that Reid was denied magazines
and exercise “per BOP policy,” J.A. 7–8, is plainly insufficient.
And the statement that Reid was denied prompt access to
6
administrative forms “[o]n many occasions,” J.A. 9, is even
less substantial, as it fails to allege a policy even in conclusory
terms.
The complaint further alleges that prison officials
“invariably informed” Reid that they were following BOP
policies in denying him magazines and exercise. J.A. 7–8. Yet
Reid says nothing more about who said so, when, where, how
often, and under what circumstances. This too falls short, for
Twombly and Iqbal require enough “specific facts” to “present
a story that holds together.” McCauley, 671 F.3d at 616
(quotation marks omitted). These vague references to hearsay
statements tell no such story. If pleading “there is a policy” is
not enough, then neither is pleading “I was invariably informed
that there is a policy,” which is all Reid has done here.
Nor do Reid’s allegations about specific incidents support
any plausible inference of a policy. As for magazines, the
complaint alleges only that, at eight facilities, “prison officials
refused to deliver magazines sent from the publisher to
Petitioner.” J.A. 7. Entirely unstated are the involved officials;
the names, number, or types of the magazines; and the
frequency or surrounding circumstances of any refusal to
deliver. As for exercise, Reid alleges only denials for
infractions “such as having a string hanging from the shower,
a piece of paper in the window, not having his bed made to the
satisfaction of the prison guard, or any other matter of cell
decorum, whether real or imagined.” J.A. 8. On its face, this
suggests not a nationwide policy, but individual decisions
based on the facts and circumstances surrounding different
prisoners in different prisons at different times.
The relevant BOP regulations further undercut any
inference of an illicit nationwide policy. They permit inmates
to “receive softcover publications” such as magazines, 28
7
C.F.R. § 540.71(a)(1), but this privilege is limited in several
respects. For one, a warden may reject publications deemed
“detrimental to the security, good order, or discipline” of the
prison, as well as publications that “might facilitate criminal
activity.” Id. § 540.71(b). A warden also “may set limits
locally (for fire, sanitation or housekeeping reasons) on the
number or volume of publications an inmate may receive or
retain in his quarters.” Id. § 540.71(f). Finally, a warden may
restrict an inmate’s incoming correspondence “based on
misconduct or as a matter of classification.” Id. § 540.15(a).
The regulations further provide that a SHU inmate may receive
five hours of outdoor exercise per week, id. § 541.31(g), and a
BOP policy document states that “[r]estriction or denial of
exercise is not used as punishment,” BOP Program Statement
5270.11, at 12 (Nov. 23, 2016). But this privilege is also
significantly limited, as the regulation further states that
exercise may be denied “if it is determined that [the inmate’s]
use of exercise privileges threatens safety, security, and orderly
operation of a correctional facility, or public safety.” 28 C.F.R.
§ 541.31(g). Reid does not challenge any of these limitations.
Given the narrow, qualified nature of these regulatory
privileges, a large number of deprivations does not plausibly
suggest illegal nationwide policies. Any such inference would
ignore an obvious alternative explanation—that the
deprivations resulted from individual applications of the
regulations to the circumstances of different prisoners in
different prisons at different times. The regulations themselves
require such contextual judgments, and Reid’s allegations
provide no basis to suspect anything more sinister.
3
Reid’s thin allegations of amorphous policies also fail to
establish ripeness. In Worth v. Jackson, 451 F.3d 854 (D.C.
8
Cir. 2006), we held unripe a prospective challenge to an alleged
informal policy of using race and sex preferences in hiring. As
we explained, “we cannot assess a facial challenge to an
unwritten policy that by definition has no face.” Id. at 862. We
concluded that, absent “concrete application” of the policy, we
could not “ascertain its contours.” Id. In City of Houston, we
likewise held unripe a prospective challenge to an alleged
informal policy to deny hearings in vaguely specified
categories of cases. 24 F.3d at 1431 (“There is simply no way
for this court to consider whether HUD can act without a
hearing in some amorphous category of ‘cases such as this
one,’ because the actual contours of the cases within the
category are potentially determinative of their outcome.”).
Here, Reid’s complaint similarly alleges an unwritten policy
that is uncertain in its scope and application.
On this point, the amicus invokes Payne Enterprises v.
United States, 837 F.2d 486 (D.C. Cir. 1988), which
adjudicated a prospective challenge to an Air Force policy of
refusing to release bid abstracts for certain contracts. Id. at 488.
But the policy there was written, its scope was undisputed, and
its application in future cases did not depend on presently
unknown facts. See id. at 491. None of that is true here.
4
The evidentiary submissions undercut Reid’s policy claim
even further. Both parties moved for summary judgment and,
in so doing, introduced documents and affidavits detailing
Reid’s various disputes with BOP. Reid opposed the
government’s motion on the merits but did not argue that it was
premature. Thus, pleadings aside, we could readily reject the
alleged illegal policy on summary judgment.
The evidentiary materials confirm that Reid’s past disputes
with BOP have been localized and fact-intensive. To pick a
9
few examples: Documents indicate that in September 2013,
officials at the Jonesville, Virginia prison withheld magazines
from Reid because of security concerns about “inmates
continuously covering their cell windows and light fixtures,
which causes poor visibility into cells and interferes with staff
duties.” Reid v. Samuels, No. 15-CV-375 (D.D.C.), ECF Doc.
23, at 66. In January 2013, officials at the Atwater, California
prison made a different, safety-related judgment—to withhold
magazines from Reid because of concerns about sanitation and
fire hazards. See id. at 18. By contrast, an official at the
Tucson, Arizona prison where Reid was held from November
2013 to July 2015 testified that inmates there were “not denied
access to their mail,” and Reid had neither bought nor been sent
any magazines. J.A. 49. The disputes about exercise were
similarly varied: Atwater officials revoked Reid’s privileges
after he obstructed the light fixture in his cell. Reid, No. 15-
CV-375, ECF Doc. 23, at 32. According to Reid, officials at
other prisons did the same after he put “paper on the wall, light,
sink, etc.” J.A. 68. A Tucson official testified that Reid was
not denied exercise but voluntarily refused it. J.A. 50.
To be sure, Reid disputes much of this evidence. For
example, he argues that magazines should not have been
“singled out” for removal in Jonesville because other objects
could have been used to cover lights and windows. Reid, No.
15-CV-375, ECF Doc. 23, at 68. He claims that, while in
Tucson, he was given a free subscription to “Z Magazine” and
never refused exercise. J.A. 69–70. He contends that a
cellmate obstructed the light in Atwater. Reid, No. 15-CV-375,
ECF Doc. 23, at 34. Whatever the merits of these disputes,
they turn on particular facts involving individual prisons and
prisoners. Neither the disputes themselves, nor any other
record evidence, suggest illegal nationwide policies.
10
B
Without any policy that could unify Reid’s various
individual disputes with BOP, this action cannot fit within the
mootness exception for cases that are capable of repetition yet
evading review. Under that doctrine, there must be a
reasonable expectation that the same “legal controversy”
between the same parties will reoccur. See, e.g., Del Monte,
570 F.3d at 322–24. Only then can the doctrine be squared
with “the Constitution’s requirement, set forth in Article III,
that courts resolve only continuing controversies between the
parties.” People for the Ethical Treatment of Animals v.
Gittens, 396 F.3d 416, 422 (D.C. Cir. 2005) (PETA).
Our decisions confirm that, to be capable of repetition, a
legal controversy must be fixed, knowable in advance, and thus
predictably repeatable. For example, in Del Monte, we held
that a dispute whether certain statutory deadlines were
mandatory was capable of repetition. 570 F.3d at 324–35.
Likewise, in Christian Knights of the Ku Klux Klan v. District
of Columbia, 972 F.2d 365 (D.C. Cir. 1992), we held capable
of repetition a dispute whether a permit to march along the
National Mall could be restricted because of threatened
audience violence. Id. at 371. By contrast, in PETA, we held
that a past controversy, which arose from the exclusion of a
sculpture from an exhibit, was too “fact-specific” to be capable
of repetition. 396 F.3d at 424. The plaintiff alleged
impermissible content discrimination in how the formal
selection criteria had been applied in practice. See id. at 423.
After summarizing the various factual disputes embedded in
the controversy, we stated: “To conclude that a dispute like
this would arise in the future requires us to imagine a sequence
of coincidences too long to credit.” Id. at 424.
11
PETA governs this case. Setting aside the deficient policy
allegations, Reid does not challenge anything that could give
rise to a discrete, predictably repeatable legal controversy. As
explained above, he claims that BOP has violated regulations
that require case-by-case inquiries into prison safety, security,
order, discipline, sanitation, and housekeeping. Not
surprisingly, the application of those regulations has spawned
distinct, fact-intensive controversies. For example, the
Jonesville dispute about the use of magazines as window
covers is different from the Atwater dispute about sanitation
and fire hazards, and both of those are different from the
Tucson dispute about what magazines were mailed to Reid.
Likewise, the Tucson dispute about whether Reid refused
exercise is different from the Atwater dispute about which
inmate obstructed the lights, and both of those are different
from other disputes about whether Reid adequately maintained
his cell. Because no discrete, identifiable legal controversy is
capable of repetition, the mootness exception does not apply.
C
My colleagues reverse on narrow grounds, so my
disagreement with them is also narrow. They reserve the
question whether Reid has adequately pleaded a policy under
the plausibility standard articulated in Twombly and Iqbal.
Ante at 11. Likewise, they reserve the question whether Reid’s
policy allegations could survive a motion for summary
judgment. Ante at 12. I would have decided those questions,
but they remain open on remand.
The disagreement about how to apply the mootness
exception for cases that are capable of repetition yet evading
review is also narrow. My colleagues do not dispute two
critical points: the legal controversy itself must be predictably
repeatable, and Reid’s claim to satisfy this requirement
12
depends on his policy allegations. My colleagues invite the
district court on remand to probe the facts relevant to
mootness—including the policy allegations—either on a
motion to dismiss or on summary judgment. Ante at 11–12.
So, the mootness question also remains open.
Ultimately, my colleagues and I disagree over how to
apply the mootness exception in the current procedural posture
of this case, which they describe as one involving a “motion to
dismiss the Complaint at the pleadings stage.” Ante at 8. My
colleagues recognize that the party opposing mootness bears
the burden of proving that the exception applies. Ante at 7. But
they note that a complaint, which is filed before the alleged
mooting event, obviously cannot plead a mootness exception.
Ante at 8. So, they conclude, we should consider only whether
there is any “logical deficiency” in the plaintiff’s argument for
satisfying the exception. Ante at 9–11. They derive this
forgiving standard from a statement in Haase that “[a]ssuming
the theory presented in the complaint is not itself inherently
flawed, the standing inquiry is ordinarily now complete.” 835
F.2d at 907; see ante at 7.
This analysis seems to me mistaken. For one thing, Haase
was a case about initial standing, so it has nothing to say about
how courts should assess intervening facts bearing on
mootness. Its inquiry whether the plaintiff’s theory is
“inherently flawed” reflects not a distinction between standing
and mootness, but a general premise that motions to dismiss do
not test for pleading sufficiency. That premise was correct
when Haase was decided in 1987, see Conley v. Gibson, 355
U.S. 41 (1957), but it did not survive Twombly and Iqbal.
In this case, the complaint alleges illicit policies that pre-
date the mooting event of Reid’s prison transfer, so there is
nothing unfair about assessing whether those allegations were
13
plausibly pleaded. And, if intervening factual developments
had strengthened Reid’s case, he could have sought leave to
amend the complaint, which he did not. Finally, the record
includes not only the government’s motion to dismiss, but also
the parties’ cross-motions for summary judgment, which
amply develop the facts relevant to mootness. As noted above,
Reid has never claimed that the government’s motion was
premature. So, I can see no reason to apply only a minimal
screen for “logical deficiency” at this juncture, thereby
artificially prolonging the life of this moot case.
Because nothing prevents us from resolving the question
of mootness now, I would affirm the district court’s order
dismissing this case as moot.