this reasonable expectation is at the core of every doctrine relevant to this case so for example given mysteries reasonable expectation his case falls squarely within the capable of repetition doctrine because b o p s is not contesting that his sh is forfeited emma case has argued in its briefs that that argument wasn't forfeited there are reasons there are exceptional circumstances in the core polow and so that this court can can hear that argument and besides that that would have whose exceptional circumstances exceptional circumstances are that mr reed wouldn't have known about how the district court would treat the new evidence in the new argument that it got from the o p and so mr reed did not respond to that new argument in new evidence and furthermore your honor didn't the court you can lots of time and he just chose not to respond to be sure your honor the court did give him lots of time but mr reed wouldn't have known as a as a pro se litigant he wouldn't have known how the government how the court would have they used that new evidence and that new argument generally you know that the worst that happened 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 yes yes john the meanest question question was teed up but but this court can nevertheless hear arguments on voluntary sation because b o p has actually forfeited any argument against that they only mention it in a footnote and the they just cite the fact that he had raised this argument below and they cite a case saying that you can only do so under exceptional circumstances and furthermore your honors you can hear voluntary sation arguments because because g o p has  landed and to the extent there is a denial of either exercise or magazines it's going to be very case specific it's going to depend on the reason he's in the shoe it's going to depend on the judgment of the warden about security issues or or who knows what those are those are the regulations yes john he doesn't he doesn't have and so to the 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 shu how the new warden will respond what the justification will be you're asking us to  hypothetical case that we have no idea how it will play out no your honor respectfully it's not the whole we have a federal ministry has experienced these deprivations that on the merits he claims are illegal and in violation of the regulation program s past violations much less how the violations my play out in some hypothetical future case a year from now when a new warden might deny him privileges well so for example you the exercise that provision context or mystery has said is that he'll be denied his exercise for punitive reasons because it's bad isn't made up properly for example and that is totally outside which is inconsistent with the regulations yes john that's all we would have to assume we would have to assume that the hypothetical future warden will choose to violate his own regulations well you know he'd but who knows your honor would have to take as true mystery to allegations which it all that the bureau of prisons on a nationwide basis is violating regulations on the order of the director of the bureau of prisons that's what we have to accept no you are you would have to accept that are have actually violated the regulation would be more of a marriage question what your honor should 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 rights but your your theory for avoiding mo japans not 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 depends on the proposition that this will be 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 so your hon policy and that this is the way v o p operates and furthermore he's got an affidavit and you think the complaint is sufficient for pleading purposes to establish that a high ranking d o j official established his case survives because the reason much dictation but even if only if there's a reasonable likelihood that the same controversy will occur in the future whether you think about it smoothness or either of your two exceptions that's right your honor and that depends on the plausibility of your factual allegation that this is not simply a case by case different events that are happening for different reasons by different guards and wardens on the ground but this is being done pursuant to a a nationwide order by the head of the b o p to violate these regulations on a very categor and just and i deny these privileges willy nilly you don't even if it's not that category even if it's not nationwide as mr reed alleges east nevertheless faces a reasonable expectation because this is not an ordinary case where he he's been there repeatedly most recently he went from atlanta to oklahoma city there's no nationwide policy decreed by the head of b o p what possible reason do we have to think that this would happen  any reason other than whatever happens in the next case your honor because he could return to one of these facilities that has practiced these deprivations so in oklahoma city he specifically alleges that they practice that he's been in their shoe and four separate occasions and most recently he went from atlanta to oklahoma city then tucson back to oklahoma city then to call and then back to oklahoma city again is lewisburg now and b o p s normally when someone when an inmate is done at louisburg transfer them out again it may very well he goes right back to oklahoma city where he challenged where he will for experience that challenge conduct 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 he'll ledges are illegal and given that practice that the that he will probably be in one of those institutions will most certainly again be in shoe do with the core argument on the other side that he how he has alleged a nationwide policy and if you accept that promise this this controversy is reasonably likely to work or i don't think there's a fair reading of the petition even very liberal reading of the petition if you look at it it's a short pleading it's very clear informed that all of this is being done pursuant to be o p policy he's seeking relief against the head of b opiated get your house in order stop this policy stop this policy of  violating regulations that under certain circumstances guarantee these privileges how else are we construe that well i think that the as many courts across the country have held the in similar cases with similar circumstances that the transfer to the new facility moves the plane and here there's but not if there's a nation not if there is this nationwide policy if there's a nation my policy n institutions yes for example in our if case which the parties talk about in the briefs the those those petitions there is we're we're challenging a policy or a procedure and that face when those procedure challenge here it's very different this this inmate mr reid is not challenging in any policy he's just saying that suppose suppose i read this complaint as alleging a nation believe or you 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 i believe the nature of the claim and whether pleading for that purpose or do we just have to accept it somehow because we're assessing a jurisdictional issue rather than a merits if you know i don't think you need to divorce the the allegations and the pleading itself from the knowledge of jurisdiction so why isn't it enough to support a plausible inference that it's happened 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 yeah and in looking at the the movement issue i think you multiple facilities where mystery had been previously confined in the same thing allegedly had happened at each of those i think there were eight different facilities that does not mean that a warden or the opi prison official in some other facility is going to look at a  nationwide policy for example that the shoe program statement says that when inmates and ensure they should be entitled to reasonable amount of personal property which includes magazines 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 when the policy says otherwise so the the reasonable expectation of the reasonable likelihood to address specifically the people repetition exception is that is that because he may go to another institution i mean these institutions he's right i mean there's a well he was a very it's a habit of ending up in these places he was a great up to the filing a complaint but there's no indication anywhere in the record that those same deprivations had occurred at coleman or lewisburg and so for the for the kid will repetition exception i want to focus same deprivations as previously so we were not saying that there's no possibility that in the remainder of mr reed's term he could be recombined issue i would agree that based on his past performance and history incarceration that may happen of course since he's in the this new smoo not shew that those very there's additional things that have to happen first you have to graduate from this new program before that could even be speculative who knows whether he'll get back in the shoe because he'll be a new and improved prison after he gets through the smooth well i agree it is speculative whether he go back into the issue multiple things would have to happen he ducked the shows stay in compliance over time then he'd be released in the general population and then he would need to backslide into that behavior to put him back in the shoes of theoretical the correct result here should be that the  could file a new petition and that would be inappropriate district court probably would be here it should be here but as far as the existing allegations which now are matters of historical facts those claims are moved there's no reason litigate those claims about thank you hundred three quick points the first is as far as everything i've heard from view p they have not denied the nationwide policy there might be some dispute with respect to sound other than that they haven't denied the nationwide policy the second relates to s he expects him to be out within the next three to seven months and he will again be in the revolving door between general population and you even if he is a perfect well behaved inmate after that he can still be placed in shoe for holdover status and transfer purposes and has been so repeatedly as we point out in our reply brief 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 as we understand the district court's opinion w specific to declaratory judgment and if it was broader than that we point this court to our opening brief where we discussed the a p a and the cause of action from that what's what's the final agency action that you're challenging that you would have to challenge on the what's the administrative record how in the world do you go about showing that the agency's reasoning on the administrative record was arbitrary and capricious what would you gain from an order setting aside agency action just seems a really awkward fit a p a for what you're the kind of case you want to litigate mansion a questionnaire on your own and that would be there would be quite a bit of work for the district court to do and part of the answer would be that mr b didn't just says he didn't have access to the administrative relief so that's part of the exhaustion answer but that would need to be decided by this record in the first instance thank you