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.