ELLEN SEGAL HUVELLE, District Judge.
David Jackson has sued Isaac Fulwood, Jr., Cranston J. Mitchell, Patricia K. Cushwa, Patricia Wilson Smoot, Aprille Cole, and Jamie Brand in their official capacities, as well as the United States Parole Commission ("USPC"), alleging that the special restrictions imposed on his parole deprive him of his Fifth Amendment right to due process and his First Amendment right to freedom of speech and freedom of association, and that the imposition of these restrictions was arbitrary and capricious under the Administrative Procedure Act ("APA"). The USPC voluntarily withdrew the parole conditions Jackson complained of on March 30, 2011, and subsequently moved to dismiss the case under Fed.R.Civ.P. 12(b)(1), arguing that the Court lacks subject matter jurisdiction because Jackson's claims are moot. For the reasons stated herein, defendants' motion will be denied.
Jackson pled guilty to Attempted Carnal Knowledge, a misdemeanor, in Superior Court on September 25, 1981, and was sentenced to three years' probation. (Compl. ¶¶ 12-13, 18.) Jackson was not required to register as a sex offender. (Id. ¶ 15.) Jackson was subsequently incarcerated and, on January 3, 2005, was "released after serving time for a technical violation of the terms of his parole."
In November 2009, Jackson was incarcerated for an "administrative violation" of his parole conditions and, on November 18, 2010, was again released. (Id. ¶ 21.) Upon Jackson's release, the USPC issued a Notice of Action that stated that Jackson
On December 6, 2010, Jackson sent a letter to CSOSA formally challenging the restrictions, but was denied any relief. (Id. ¶ 26.) On March 4, 2011, he filed suit in this Court, seeking to enjoin the imposition of these conditions of his parole. (Id. ¶ 1.) On March 30, the parole provisions at issue "were lifted." (Defs.' Mem. of P. & A. In Supp. of Defs.' Mot. to Dismiss ("Defs.' Mot.") at 1.) On July 6, defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1).
On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Court must accept all factual allegations in the complaint as true and give the plaintiff the benefit of all reasonable inferences from the facts alleged. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C.Cir.2005). A court may dismiss for lack of subject matter jurisdiction only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Richardson v. United States, 193 F.3d 545, 549 (D.C.Cir.1999) (quoting Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C.Cir.1998)). Where a court's subject matter jurisdiction is called into question, it may consider matters outside the pleadings to ensure it has power of the case.
Article III of the Constitution limits the Court to adjudication of "actual, ongoing controversies." Sierra Club v. Jackson, 648 F.3d 848, 852 (D.C.Cir.2011). Thus, if "an event occurs while a case is pending on appeal that makes it impossible for the court to grant `any effectual relief whatever' to a prevailing party, the appeal must be dismissed." Beethoven.com LLC v. Librarian of Cong., 394 F.3d 939, 950 (D.C.Cir.2005) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). However, in "at least two kinds of cases the fact that the specific conduct that gave rise to the case has ceased does not mean that the challenge to the legality of that conduct is moot." Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C.Cir.2009). A claim for declaratory relief will not be moot if the claim "fits the exception for cases that are capable of repetition, yet evading review, or falls within the voluntary cessation doctrine." City of Houston, Tex. v. Dep't of Housing & Urban Dev., 24 F.3d 1421, 1429 (D.C.Cir.1994) (internal citations and quotation marks omitted).
Defendants argue that the case is moot because the USPC has removed the parole conditions to which Jackson objected and, therefore, the violation Jackson alleged is no longer occurring. (Defs.' Mot. at 5-6.) Jackson concedes that the defendants have "removed the Special Restrictions" from his parole. (See Pl.'s Opp'n at 3.) Thus, the specific conduct giving rise to his lawsuit has ceased. Nevertheless, he argues that the case is not moot because the voluntary cessation doctrine applies (id. at 6-11), because his claim is capable of repetition, yet evading review (id. at 11-12), and because his complaint seeks nominal damages. (Id. at 12-13.) Because the Court agrees that the voluntary cessation doctrine applies, it need not determine whether Jackson's claim is capable of repetition, yet evading review.
"As a general rule, `voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.'" Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). Where a defendant voluntarily ceases allegedly unlawful activity, the case will only be moot if the defendant shows that there is "no reasonable expectation" that the violation will recur and "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C.Cir.2008) (quoting Cnty. of Los Angeles, 440 U.S. at 631, 99 S.Ct. 1379). Defendants have the "heavy burden" of showing that "`subsequent events'" make it "`absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'"
Defendants point out that Jackson's parole restrictions have been completely withdrawn. (Defs.' Mot. at 9.) Therefore, they argue, the effects of the alleged violation have been "completely eradicated," and there is no reasonable expectation that the restrictions will be reimposed. (Defs.' Mot. at 9-10.) To support this claim, they have attached a declaration from Deirdre Jackson, a Case Services Administrator for the USPC.
(Jackson Decl. ¶ 10.) Defendants suggest that a declaration that "it is unlikely that [Jackson] will be subjected to the conditions again" (Def.'s Mot. at 9) is sufficient to make it "absolutely clear that the allegedly wrongful behavior could not reasonable be expected to recur." Parents Involved in Cmty. Sch., 551 U.S. at 719, 127 S.Ct. 2738. Perhaps recognizing the weakness of this argument, defendants also argue that even if Jackson's parole officer were inclined to reimpose the restrictions, she could not do so without providing Jackson ten days to comment and, therefore, the wrongful behavior Jackson alleges cannot recur. (Defs.' Reply at 4.)
"[T]he government cannot escape the pitfalls of litigation by simply giving in to a plaintiff's individual claim without renouncing the challenged policy, at least where there is a reasonable chance of the dispute arising again between the government and the same plaintiff." Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular Affairs, 74 F.3d 1308, 1311 (D.C.Cir.1996), vacated on other grounds, 519 U.S. 1, 117 S.Ct. 378, 136 L.Ed.2d 1 (1996). Thus, because defendants have merely withdrawn the special parole restrictions, without explanation, the voluntary cessation doctrine will apply if there is a reasonable chance the dispute could arise again. Jackson argues that the violations he allege could recur because he could be again imprisoned and again released on parole, because defendants could simply conduct a new review of his case, or because defendants could re-impose the restrictions if the supervision of his parole is transferred back to the District of Columbia or to another jurisdiction. (Pl.'s Opp'n at 7-9.)
Jackson's argument that the restrictions could be re-imposed "if he were found to have violated his parole, returned
Jackson's argument that his parole conditions may be reexamined at any time, or that the restrictions may be re-imposed if supervision of his parole is transferred to a different location, is more convincing. (Pl.'s Opp'n at 8-9.) In a similar case in which the plaintiff challenged "Special Conditions" on his parole, the Court found that the voluntary cessation doctrine applied. Goings v. Court Servs. & Offender Supervision Agency, 786 F.Supp.2d 48, 56-58 (D.D.C.2011). In that case, the government revoked two of the conditions plaintiff complained of, then argued that the case was moot. Id. at 62-63, at *10. Although the Court found that the case was not moot because only a "portion" of the conditions had been modified, id. at 61-62, at *9, it also found that, "even with respect to the modified conditions," the defendant's "subsequent modification of the conditions amounts to a voluntary cessation." Id. Specifically, the Court noted that CSOSA "remain[ed] free to re-impose conditions" on the plaintiff at any point, because the "conditions placed on the plaintiff's probation are assessed on `an ongoing basis.'" Id. at 63, at *11. Defendants attempt to distinguish Goings by pointing out that, in that case, the CSOSA had altered "some, but not all" of the conditions, while here, all of the conditions that Jackson objects to have been removed.
The "rationale supporting" voluntary cessation "as an exception to mootness" is that, without an order from the Court preventing it from continuing the allegedly illegal practice, "the defendant is
Defendants argue that even if there were a reasonable expectation that Jackson's parole officer would re-impose the special restrictions, it would be impossible for the precise legal wrong alleged by Jackson—"the imposition of parole provisions without notice and an opportunity to be heard"—to recur because USPC regulations prevent "amending or modifying parole conditions" without a ten-day notice and comment period. (Defs.' Reply at 2 (citing 28 C.F.R. § 2.204(c)(2)).) Because the "specific safeguards . . . governing the amendment of parole conditions" render defendants "incapable of re-imposing the provisions at issue without notice and opportunity to be heard," it is impossible for the alleged constitutional violations to recur. (Defs.' Reply at 2.) This argument fails for two reasons. First, defendants ignore the fact that the original notice of the restrictions "modify[ing] the conditions of release," which Jackson apparently never received (Compl. ¶ 24), offered him the opportunity to "object or comment to the Commission within ten days." (Compl. Ex. 2, at 1.) They do not attempt to explain why he was not sent the original notice and offer no assurances that they will notify him of proposed restrictions in the future. Second, and more importantly, Jackson's complaint does more than simply allege that he was denied "notice and opportunity to be heard,"—it alleges that the process of imposing restrictions on his parole was deficient because there was no notice, hearing, or individualized investigation, and that the restrictions were "unjustified." (Compl. ¶ 25.) Moreover, it alleges that the USPC violated the APA by imposing the restrictions "without any findings that their imposition would benefit public safety or [Jackson's] rehabilitation." (Id. ¶ 40.) Defendants suggest that, by providing notice and ten days to comment on future restrictions, they have rendered Jackson's complaint moot because the legal wrong he complains of could not reasonably recur. To address this argument, the Court would need to find that the process offered by defendants is sufficient to satisfy the Fifth Amendment and the APA. This is not a mootness argument but, rather, an invitation to rule on the merits of Jackson's claim, "which is precisely the dispute that the Court is tasked with deciding." See Goings, 786 F.Supp.2d at 64, 2011 WL 1837749, at *12.
For the reasons stated herein, the Court concludes that defendants have failed to show that there is "no reasonable expectation" that the alleged violation will recur and, therefore, the voluntary cessation