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David Jackson v. United States Parole Commission

August 30, 2011


The opinion of the court was delivered by: Ellen Segal Huvelle United States 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."*fn1 (Id. ¶ 17.) On January 19, 2005, the Court Services and Offender Supervision Agency ("CSOSA"), which provides "community supervision oversight for D.C. Code offenders," assigned Jackson to its Sex Offender Unit. (Id. ¶¶ 9, 18.) Jackson alleges that the CSOSA assigned him to that Unit because of his 1981 conviction. (Id. ¶ 18.) In 2007, a CSOSA officer ordered Jackson to participate in a six-month Sex Offender Treatment program. (Id. ¶ 20.) Jackson completed the program in November 2007, and was found to pose a "low risk for the recurrence of deviant sexual acts." (Id.)

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 "need[ed] . . . substance abuse treatment," but that did not impose any sex offender monitoring. (Id. ¶ 22.) Nevertheless, CSOSA again assigned Jackson to supervision by the Sex Offender Unit. (Id. ¶ 23.) At some point between November 18 and November 30, Jamie Brand, a CSOSA officer, issued a notice of "Modification of Release Conditions" recommending that Jackson be subject to a number of "special conditions." (Id., Ex. 2, at 1.) The document stated: "[b]y copy of this proposal, NOTICE is hereby given to the releasee, who may object or comment to the Commission within ten days after he receives this NOTICE." (Id.) Although Jackson's complaint is ambiguous, he appears to allege that he never received this notice. (See id. ¶ 24.) On November 30, 2010, the USPC notified Jackson that it had adopted a Memorandum imposing special restrictions on his parole, including: (A) a required "mental health program with 'special emphasis' on long-term sex offender testing and treatment"; (B) required evaluation for sex-offense treatment therapy and periodic, random physiological testing, to be paid for, in part, by Jackson himself; (C) restrictions on any contact with children under eighteen, including his own children and step-children, without prior written approval, and a requirement that he provide the "name, address, and phone number of anyone he "socialized with," if the person cared for a child under the age of eighteen; (D) restrictions on coming within 200 yards of "any place where children under age eighteen often gather" without prior written approval; (E) restrictions on owning or using any "device with access to any on-line computer service" without prior approval; (F) restrictions on owning any pornographic material; (G) required, annual polygraph examinations; (H) periodic, unannounced examinations of his computer; and (I) GPS monitoring. (Id. ¶ 24.) Jackson alleges that these restrictions were instituted "without prior notice, a hearing or individualized investigation," were unjustified, and were an "atypical and significant hardship." (Id. ¶ 25.)

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 (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. See Jerome Stevens Pharms, Inc., 402 F.3d at 1253.


Article III of the Constitution limits the Court to adjudication of "actual, ongoing controversies." Sierra Club v. Jackson, No. 10-5280, 2011 WL 2600841, at *2 (D.C. Cir. July 1, 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." LLC v. Librarian of Cong., 394 F.3d 939, 950 (D.C. Cir. 2005) (quoting Mills v. Green, 159 U.S. 651, 653 (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.*fn2

A. Voluntary Cessation

"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 (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). Defendants have the "heavy burden" of showing that "'subsequent events'" make it "'absolutely clear that the allegedly wrongful behavior could not reasonably be ...

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