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Case number 17-5012, Gordon C. Reed, Appellant, which is Mark S. Inch, Director, Federal Bureau of Prisons.

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Mr. Redmond for the amicus carri, Mr. Schieffer for the FLE.

[00:00:40] Speaker 03:
Good morning.

[00:00:42] Speaker 01:
Good morning.

[00:00:42] Speaker 01:
Erica Hashimoto, court appointed amicus for Mr. Gordon Reed.

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And with the court's permission, Caleb Redmond, a third year law student, will be presenting the argument for Mr. Reed.

[00:00:55] Speaker 03:
Good morning, Mr. Redmond.

[00:00:56] Speaker 05:
Good morning.

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May it please the court, we respectfully request two minutes for rebuttal.

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Mr. Reed's case remains alive because he reasonably expects to suffer the same deprivations when BOP places him in special housing units.

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Now this reasonable expectation is at the core of every doctrine relevant to this case.

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So for example, given Mr. Reed's reasonable expectation, his case falls squarely within the capable of repetition doctrine because BOP does not contest that his shoe deprivations are too temporary to fully litigate.

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Mr. Reed reasonably expects to suffer the same deprivation as… That's the exception to the mootness doctrine you're relying on and not the voluntary cessation exception.

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There's a pretty substantial argument that you forfeited that, right?

[00:01:47] Speaker 05:
Your Honor, it would go to both capable of repetition and voluntary cessation, because voluntary cessation also turns on Mr. Reed's reasonable expectation of injury recurring.

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And with respect to whether that argument is forfeited, Amicus has argued in its briefs that that argument wasn't forfeited.

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There are exceptional circumstances in the court below, and so that this court can hear that argument.

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And besides that, that- What are those exceptional circumstances?

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The exceptional circumstances are that Mr. Reed wouldn't have known about how the district court would treat the new evidence and the new argument that it got from BOP.

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And so Mr. Reed did not respond to that new argument and new evidence.

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And furthermore, Your Honor.

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Didn't the court give him lots of time and he just chose not to respond?

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To be sure, your honor, the court did give him lots of time, but Mr. Reed wouldn't have known as a pro se litigant.

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He wouldn't have known how the government, how the court would have used that new evidence and that new argument.

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Generally, you know, the worst that would happen to him if he didn't respond to his own motion for summary judgment is that maybe that motion for summary judgment would be dismissed.

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But in Mr. Reed's case, his case was actually, his entire case was thrown out.

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But Your Honor, even if that argument doesn't- On a pending motion to dismiss for mootness, right?

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The mootness issue was teed up.

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Yes, Your Honor, the mootness question was teed up.

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But this Court can nevertheless hear arguments on voluntary cessation because BOP has actually forfeited any argument against that.

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They only mentioned it in a footnote and there they just cite the fact that

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He hadn't raised this argument below, and they cite a case saying that you can only do so under exceptional circumstances.

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And furthermore, Your Honors, you can hear the voluntary cessation arguments because BOP has done that forfeiture.

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And so going to Mr. Reed's reasonable expectation, because that's really what this entire case turns on, Mr. Reed has a reasonable expectation for two interrelated reasons.

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First, so long as he is within BOP's custody, he'll almost certainly be at an institution that practices the deprivations that he challenges.

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So long as BOP places... Why?

[00:04:03] Speaker 04:
Why?

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Why?

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That's because he challenges... You've embraced regulations which you say are perfectly fine.

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That's right.

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And to the extent

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There is a denial of either exercise or magazines.

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It's going to be very case specific.

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It's going to depend on the reason he's in the shoe.

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It's going to depend on the judgment of the warden about security issues or who knows what.

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Those are the regulations, right?

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Yes, Your Honor, he doesn't challenge.

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And so to the extent he might or might not end up in a shoe a year from now, we have no idea why he'll be in the shoe, how the new warden will respond, what the justification will be.

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You're asking us to litigate a wholly hypothetical case that we have no idea how it will play out.

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No, Your Honor, respectfully, it's not wholly hypothetical.

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Mr. Reed has experienced these deprivations that, on the merits he claims are illegal and in violation of the regulation program statements, he's experienced them at eight separate BOP institutions.

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For example, in the exercise,

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And the complaint has no detail whatsoever about the circumstances of the past violations, much less how the violations might play out in some hypothetical future case a year from now when a new warden might deny him privileges.

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Well, so for example, Your Honor, in the exercise deprivation context, what Mr. Reed has said is that he'll be denied his exercise for punitive reasons because his bed isn't made up properly, for example, and that that is totally outside of bounds.

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Which is inconsistent with the regulations.

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Yes, Your Honor, that's right.

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So we would have to assume that the hypothetical future warden will choose to violate his own regulations.

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Maybe, but who knows?

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Your Honor would have to take as true Mr. Reed's allegations, which it must at this stage in the litigation, that Mr. Reed has faced this repeatedly.

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A one word, a one sentence, otherwise unfounded conclusory allegation, which wouldn't stand a prayer of surviving review under Twombly and Hickball, that the Bureau of Prisons on a nationwide basis

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is violating regulations on the order of the director of the Bureau of Prisons.

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That's what we have to accept.

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No, Your Honor, you wouldn't have to accept that they have actually violated the regulation.

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That would be more of a merits question.

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What Your Honors would have to accept is that he has experienced these practices, that he is alleged, he's faced at eight separate facilities and it's not just

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Right, but your theory for avoiding mootness depends not simply that there will be recurrence in the sense that he might get into a shoe in the future and he might have a problem in the future.

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It depends on the proposition that this will be

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sort of the same case, because every deprivation is done on the command of the director of the Bureau of Prisons to, on a nationwide basis, violate these regulations.

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So, Your Honor, besides the experience that Mr. Reed has had at eight separate facilities, he also has been told repeatedly that this is something, just the way BOP operates.

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He's been told invariably, his complaint says, that this is BOP policy, de facto policy to be sure,

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But a policy.

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And this is the way BOP operates.

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And furthermore, he's got an affidavit.

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And you think the complaint is sufficient for pleading purposes to establish that a high-ranking DOJ official established a nationwide policy to go violate regulations?

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That sounds a lot like ickball.

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I apologize, Your Honor.

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For mootness purposes, yes, because for mootness purposes, this court must take Mr. Reed's allegations as true.

[00:08:09] Speaker 03:
But, Your Honor, even if... So are you suggesting maybe under 12b6 it wouldn't survive, but the dismissal here was 12b1, so it's a different inquiry?

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Your Honor, I wouldn't concede that, but what is here is the mootness question, and under the mootness doctrine, his case survives because of the reasonable expectation, but even if... Only if there's a reasonable likelihood that the same controversy will occur in the future, whether you think of that as mootness or either of your two exceptions.

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That's right, Your Honor.

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And that depends on the plausibility of your factual allegation that this is not simply case by case different events that are happening for different reasons by different guards and wardens on the ground, but this is being done

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pursuant to a nationwide order by the head of the BOP to violate these regulations on a very categorical basis and just deny these privileges willy-nilly.

[00:09:15] Speaker 05:
Your Honor, even if it's not that category, even if it's not nationwide as Mr. Reed alleges, he nevertheless faces a reasonable expectation because this is not an ordinary case where he faced the deprivations at one prison.

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He faced them at eight separate BOP institutions and he's got a reasonable expectation of going back to them.

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For example, in Oklahoma City, which he specifically named as an institution that practices the sheet deprivations, he's been there repeatedly.

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Most recently, he went from Atlanta to Oklahoma City.

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If there's no nationwide policy decreed by the head of BOP, what possible reason do we have to think that this would happen for any reason other than whatever happens in the next case?

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Your honor, because he could return to one of these facilities that has practiced these deprivations.

[00:10:07] Speaker 05:
So in Oklahoma City, he specifically alleges that they practice that.

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He's been in their shoe on four separate occasions.

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that most recently he went from Atlanta to Oklahoma City, then Tucson, back to Oklahoma City, then to Coleman, then back to Oklahoma City.

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Again, he's in Lewisburg now, and BOPs normally, when an inmate is done at Lewisburg, transfer them out again.

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It may very well be that he goes right back to Oklahoma City, where he will experience the challenge conduct.

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So even if it's not nationwide, there's a very reasonable likelihood that he's going to go back to an institution that does practice these deprivations that he alleges are illegal.

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And given that practice, that he will probably be in one of those institutions, he'll almost certainly again be in shoo because BOP has put him there repeatedly.

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And so that gives rise to his reasonable expectation.

[00:11:00] Speaker 03:
Okay, great.

[00:11:00] Speaker 03:
We'll give you some time back.

[00:11:01] Speaker 05:
Thank you.

[00:11:02] Speaker 03:
Let's hear from the government now.

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May it please the Court, Dan Schafer for the Bureau of Prisons.

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Your Honors, I'd like to start by addressing just very briefly the forfeiture argument.

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Judge Katz, I believe you're right that Mr. Reed did waive this argument by not raising, I'm sorry, the voluntary cessation exception argument was waived by not raising it below.

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And this Court's decision in Elliott, for example, makes clear that amicus cannot raise entirely new arguments on appeal that weren't raised below.

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When arguing waiver, a footnote is gonna trump not making an argument at all.

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What do you do with the core argument on the other side that he has alleged a nationwide policy and if you accept that premise, this controversy is reasonably likely to recur?

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I don't think that's a fair reading of the petition, even under a very liberal reading of the petition.

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If you look at it, it's a short pleading.

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It's very clear that what the petitioner is alleging is not a challenge against some system-wide or nationwide policy.

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He's merely saying

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that here are the policies, and he references them, the program statements in the codified regulations specifically.

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He says, this is what the policies say, and my experience in these institutions where I've been confined to... Isn't it a plausible inference?

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He's alleged that he's gone to eight separate institutions and the same things happen at every one.

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It's a pro se plan.

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Isn't it a plausible inference that what he's alleging here is a nationwide policy?

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I don't think so, because he's not... Did he just happen to hit the eight that do it?

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And we don't dispute that he's alleging that this has happened in multiple facilities.

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What I'm saying is that he's not taking issue with a language or a specific provision of any policy.

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He's saying, here's what the policy says.

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My experience in these institutions has been different.

[00:13:18] Speaker 04:
So he sued the head of BOP.

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He alleges, however conclusively, that he's invariably informed that all of this is being done pursuant to BOP policy.

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He's seeking relief against the head of BOP to get your house in order, stop this policy, stop this policy of violating regulations that under certain circumstances guarantee these privileges.

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How else would we construe that?

[00:13:48] Speaker 02:
Well, I think that as many courts across the country have held, in similar cases with similar circumstances, that the transfer to the new facility moves the claim.

[00:14:00] Speaker 04:
But not if there is this nationwide policy.

[00:14:05] Speaker 02:
If there's a nationwide policy, and that seems to be more of an issue.

[00:14:07] Speaker 04:
Or a policy that cuts across all these institutions.

[00:14:11] Speaker 02:
Yes, for example, in the RF case, which the parties talk about in the briefs, those petitioners were challenging a policy or a procedure.

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In that case, when those inmates filed their complaint, for example, there were no written codified program statements when the complaint was filed.

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They were just saying that they were challenging the procedures for designation to a communication management unit.

[00:14:40] Speaker 02:
And so the release of those prisoners from that CMU, the acronyms do get a little bit confusing, but CMU in that case being RF, the release of those prisoners from the CMUs didn't move their challenge because they were making a policy or procedure challenge.

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Here it's very different.

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This inmate, Mr. Reed, is not challenging any policy.

[00:15:00] Speaker 04:
He's just saying that... Suppose I read this complaint as alleging a nationwide policy.

[00:15:09] Speaker 04:
Do we get to assess the plausibility of that allegation under Twombly and Iqbal as relevant to mootness?

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Or do we just have to accept it as a given no matter how conclusory, no matter how devoid of factual support, no matter how implausible the ultimate inference?

[00:15:34] Speaker 02:
I believe the nature of the claim and whether something is a cognizable, legally sufficient claim does have relevance to the misinquiry.

[00:15:44] Speaker 02:
Yes, Your Honor.

[00:15:46] Speaker 04:
Right.

[00:15:46] Speaker 04:
The question is, do we get to assess the pleading for that purpose or do we just have to accept it somehow because we're assessing a jurisdictional issue rather than a merits issue?

[00:16:02] Speaker 02:
No, I don't think you would need to divorce the allegations and the pleading itself from the analysis of jurisdiction.

[00:16:12] Speaker 04:
So why isn't it enough to support a plausible inference that it's happened eight times and we're now beyond the pleadings a little bit and we have the affidavit from one other inmate at the same facility who says, gee, the same thing happened to me.

[00:16:31] Speaker 02:
Yeah, and looking at the mutinous issue, I think Your Honor can go, as the district court could, below, beyond the face of the pleadings and start looking at some of the extrinsic evidence, because it's a 12b1 jurisdictional issue.

[00:16:46] Speaker 02:
And here, where even though there were multiple facilities where Mr. Reed had been previously confined, and the same thing allegedly had happened at each of those, I think there were eight different facilities, that does not mean that a warden

[00:17:00] Speaker 02:
or a BOP prison official in some other facility is going to look at a nationwide policy, for example, that the SHU program statement says that when inmates in SHU, they should be entitled to a reasonable amount of personal property, which includes magazines.

[00:17:18] Speaker 02:
And so there's no indication that just because it happened in Tucson or some other place that the prison official in Lewisburg, for example, is going to do the same thing when the policy says otherwise.

[00:17:31] Speaker 02:
The reasonable expectation or the reasonable likelihood of recurrence goes to the threshold question of whether it's moot, it goes to voluntary cessation, and it goes to capable repetition.

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And on all three issues, I think the conclusion is the same, that there's no reasonable expectation of recurrence.

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And to address specifically

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the capable of repetition exception.

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Is that because he may go to another institution?

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I mean, at these institutions, he's eight for eight, right?

[00:18:02] Speaker 02:
Well, he was eight for eight.

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He has a habit of ending up in these places.

[00:18:05] Speaker 02:
He was eight for eight up to the filing of the complaint.

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But there's no indication anywhere in the record that those same deprivations had occurred at Coleman or Lewisburg.

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And so for the capable of repetition exception, I want to focus on a point.

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seems to characterize the idea that a single stint in shoe is not long enough to be fully litigated.

[00:18:34] Speaker 02:
And that seems, we agree that a single stint in shoe, in Mr. Reed's case, is often a couple weeks, maybe even a couple months.

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You can't fully litigate a case in that amount of time.

[00:18:45] Speaker 02:
But that's only half of the test.

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That's the first half of the kickball's repetition exception.

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The other part is where you look at the reasonable

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whether there's a reasonable expectation of recurrence.

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And here, it's not just the fact that Mr. Reed could possibly be reconfined in shoe.

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It's that he'd be reconfined in shoe and subjected to the same deprivations as previously.

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So, we're not saying that there's no possibility that in the remainder of Mr. Reed's term, he could be reconfined to shoe.

[00:19:18] Speaker 02:
I would agree that based on his past performance,

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in history of incarceration, that may happen.

[00:19:24] Speaker 02:
Of course, since he's in the SMU, SMU, not SHU, at Lewisburg, there's additional things that have to happen first.

[00:19:31] Speaker 02:
You'd have to graduate from the SMU program before that could even be.

[00:19:35] Speaker 04:
And SMU is some different program that's designed to reform troublesome prisoners, right?

[00:19:43] Speaker 02:
It is.

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It's a different program.

[00:19:45] Speaker 04:
How do we know whether the SMU experience will

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improve his behavior or not?

[00:19:54] Speaker 02:
Well, he can only graduate, the policy statement says he can only graduate from level one to level two to level three if he demonstrates compliance with prison rules.

[00:20:04] Speaker 02:
So he can't get out of the SMU program.

[00:20:05] Speaker 04:
So why isn't it speculative?

[00:20:07] Speaker 04:
Who knows whether he'll get back in the SHU because he'll be a new and improved prisoner after he gets through the SMU.

[00:20:16] Speaker 02:
Well, I agree it is speculative, whether he'd get back into SHU.

[00:20:20] Speaker 02:
Multiple things would have to happen.

[00:20:22] Speaker 02:
He'd have to show sustained compliance over time.

[00:20:26] Speaker 02:
Then he'd be released into the general population, and then he would need to backslide into bad behavior to put him back in his shoes, theoretical.

[00:20:33] Speaker 02:
The correct result here should be that the court affirms the district court's dismissal of Newtonist.

[00:20:40] Speaker 02:
Of course, that would not be with prejudice to, if Mr. Reed is in fact subject to the same deprivations at Lewisburg,

[00:20:49] Speaker 02:
Either in smooth or after he could file a new petition and that would in the appropriate district court probably wouldn't be here or shouldn't be here, but.

[00:20:58] Speaker 02:
As far as the existing allegations, which now are matters of historical fact, those claims are moved.

[00:21:04] Speaker 02:
There's no reason to litigate those claims about Tucson and previous facilities.

[00:21:07] Speaker 04:
Can we affirm on?

[00:21:10] Speaker 04:
the ground that there's no cause of action, which is referenced obliquely in the district court opinion.

[00:21:21] Speaker 02:
I'd have to go back and look at the district court opinion.

[00:21:26] Speaker 04:
I don't recall it being... She says, in the absence of a cognizable cause of action, a plaintiff has no basis on which to seek declaratory relief.

[00:21:38] Speaker 04:
So it's sort of embedded in the mootness analysis, but it is a...

[00:21:42] Speaker 04:
It is a statement that there's no cause of action here.

[00:21:45] Speaker 02:
Yes.

[00:21:46] Speaker 02:
I think that that aspect of the district court's opinion can be affirmed as well.

[00:21:49] Speaker 02:
And of course, we raised a number of other thresholds.

[00:21:51] Speaker 04:
An exhaustion seems very obvious, though not addressed below.

[00:21:57] Speaker 02:
That's right.

[00:21:57] Speaker 02:
That's right.

[00:21:59] Speaker 02:
Thank you very much.

[00:22:00] Speaker 02:
No further questions.

[00:22:00] Speaker 02:
Thank you.

[00:22:02] Speaker 03:
How much time did Mr. Redmond have?

[00:22:06] Speaker 03:
We'll give you one minute back.

[00:22:08] Speaker 03:
I'd shoot up a lot of it.

[00:22:16] Speaker 05:
Thank you, Your Honor.

[00:22:17] Speaker 05:
Three quick points.

[00:22:19] Speaker 05:
The first is, as far as everything I've heard from BOP, they have not denied the nationwide policy.

[00:22:24] Speaker 05:
There might be some dispute with respect to Tucson, but other than that, they haven't denied the nationwide policy.

[00:22:29] Speaker 05:
The second relates to SMU.

[00:22:31] Speaker 05:
Mr. Reed, BOP expects him to be out within the next three to seven months.

[00:22:35] Speaker 05:
Then he will again be in the revolving door between general population and SHU.

[00:22:39] Speaker 05:
Even if he is a perfect, well-behaved inmate after that, he can still be placed in SHU for holdover status and transfer purposes.

[00:22:46] Speaker 05:
and has been so repeatedly as we point out in our reply brief.

[00:22:51] Speaker 05:
And third, with respect to the cause of action point and other issues that are revolving around in this case such as exhaustion, the cause of action issue is we understand the district court's opinion was specific to declaratory judgment and if it was broader than that we point this court to our opening brief where we discuss the APA and the cause of action from that.

[00:23:11] Speaker 04:
What's the final agency action that you're challenging, that you would have to challenge under the APA?

[00:23:17] Speaker 04:
And what's the administrative record?

[00:23:20] Speaker 04:
How in the world do you go about showing that the agency's reasoning on the administrative record was arbitrary and capricious?

[00:23:33] Speaker 04:
What would you gain from an order setting aside agency action?

[00:23:36] Speaker 04:
It just seems a really awkward fit.

[00:23:39] Speaker 04:
APA for the kind of case you want to litigate.

[00:23:43] Speaker 05:
May I answer the question, Your Honor?

[00:23:47] Speaker 05:
Your Honor, there would be quite a bit of work for the district court to do, and part of the answer would be that Mr. Reed says he didn't have access to the administrative relief, so that's part of the exhaustion answer.

[00:23:57] Speaker 05:
But that would need to be decided by the district court in the first instance.

[00:24:01] Speaker 05:
Thank you.

[00:24:02] Speaker 03:
Okay, thank you.

[00:24:03] Speaker 03:
Mr. Redmond, you were appointed by the court to represent the defendant in this case, and we thank you for your assistance.

[00:24:09] Speaker 05:
Thank you.

[00:24:10] Speaker 03:
The case is submitted.