UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) DAVID JACKSON, ) ) Plaintiff, ) ) v. ) Civil Action No. 11-0474 (ESH) ) UNITED STATES PAROLE COMMISSION, ) et al. , ) ) Defendants. ) ) MEMORANDUM OPINION David Jackson has sued Isaac Fulwood, Jr., Cr anston J. Mitchell, Patricia K. Cushwa, Patricia Wilson Smoot, Aprille Cole, and Jamie Bra nd in their official cap acities, as well as the United States Parole Commission (“USPC”), alleging that the special restrictions imposed on his parole deprive him of his Fifth Amendment righ t to due process and his First Amendment right to freedom of speech and freedom of associati on, and that the imposition of these restrictions was arbitrary and capricious unde r the Administrative Procedur e Act (“APA”). The USPC voluntarily withdrew the parole conditions Jackson complained of on March 30, 2011, and subsequently moved to dismiss the case under Fe d. 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. BACKGROUND Jackson pled guilty to Attempted Carnal Knowledge, a misdemeanor, in Superior Court on September 25, 1981, and was sentenced to thr ee years’ probation. (Compl. ¶¶ 12-13, 18.) Jackson was not required to re gister as a sex offender. ( Id. ¶ 15.) Jackson was subsequently incarcerated and, on January 3, 2005, was “released af ter serving time for a technical violation of2 the terms of his parole.” 1 ( 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 Un it because of his 1981 conviction. ( Id. ¶ 18.) In 2007, a CSOSA officer ordered Jackson to participate in a six-month Se x Offender Treatment program. ( Id. ¶ 20.) Jackson completed the program in No vember 2007, and was found to pose a “low risk for the recurrence of deviant sexual acts.” ( Id. ) In November 2009, Jackson was incarcerated fo r an “administrative violation” of his parole conditions and, on Novemb er 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 supe rvision by the Sex Offender Unit. ( Id. ¶ 23.) At some point between November 18 and November 30, Ja mie Brand, a CSOSA officer, issued a notice of “Modification of Release Conditions” recommendi ng that Jackson be subject to a number of “special conditions.” ( Id. , Ex. 2, at 1.) The document stat ed: “[b]y copy of this proposal, NOTICE is hereby given to the releasee, who ma y 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 ne ver 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) require d evaluation for sex-offense treatment therapy and periodic, random physiological testing, to be paid for, in part, by Jackson himself; (C)

1 The Complaint and pleadings do not speci fy why Jackson was on parole or what “technical violation” he committed.3 restrictions on any contact w ith children under eight een, including his own children and stepchildren, without prior written appr oval, 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 servi ce” 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 signifi cant hardship.” ( Id. ¶ 25.) On December 6, 2010, Jackson sent a letterto 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 li fted.” (Defs.’ Mem. of P. & A. In Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) at 1.) On July 6, de fendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1). ANALYSIS I. STANDARD OF REVIEW 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 subj ect 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.4 Cir. 2005). A court may dismiss for lack of s ubject 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 ju risdiction is called into que stion, 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. II. MOOTNESS Article III of the Constitution limits th e 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 whatev er’ to a prevailing party, the appeal must be dismissed.” Beethoven.com LLC v. Librarian of Cong. , 394 F.3d 939, 950 (D.C. Cir. 2005) (quoting Mills v. Green , 159 U.S. 651, 653 (1895)). However, in “at least two ki nds 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 d eclaratory relief will notbe moot if the claim “fits the exception for cases that are capab le of repetition, yet ev ading 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 ci tations and quotation marks omitted). Defendants argue that the case is moot b ecause the USPC has removed the parole conditions to which Jackson objected and, therefor e, the violation Jackson alleged is no longer occurring. (Defs.’ Mot. at 5-6.) Jackson c oncedes that the defendants have “removed the5 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 th e 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 comp laint seeks nominal damages. ( Id. at 12-13.) Because the Court agrees that the voluntary cessation doctrine a pplies, it need not determine whether Jackson’s claim is capable of repetition, yet evading review. 2 A. Voluntary Cessation “As a general rule, ‘voluntary cessation of al legedly 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 effect s 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). Defe ndants have the “heavy burden” of showing that “‘subse quent events’” make it “‘absolutely clear that the allegedly wrongful behavior could not reason ably be expected to recur.’” 3 Parents Involved in Cmty. Sch.

2 Defendants argue in their reply that sove reign immunity bars Jackson from seeking nominal damages from the USPC or USPC and CSOSA officials in their official capacities. (Defs.’ Reply at 6-7 (citing Fletcher v. Dist. of Columbia , 481 F. Supp. 2d 156, 161-62 (D.D.C. 2007)).) Because the Court finds that the voluntary cessation doctrine applies, and because defendants have not separately moved to dismi ss this claim for damages, the Court need not address this argument.

3 There is law in this Circuit suggesting th at, at least when a plaintiff challenges an agency’s policy, the burden may shift to plain tiff to point to “evide nce indicating that the challenged [policy] will likely be reenacted.’” Larsen , 525 F.3d at 4 (quoting Nat’l Black Police Ass’n v. Dist. of Columbia , 108 F.3d 346, 349 (D.C. Cir. 1997). Here, however, Jackson challenges specific action taken by defendants, not a general policy. Moreover, unlike in Larsen , Jackson has alleged that defendants are “lik ely to” reimpose the parole restrictions. See id.6 v. Seattle Sch. Dist. No. 1 , 551 U.S. 701, 719 (2007) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 189 (2000)). Defendants point out that Jackso n’s parole restrictions have been completely withdrawn. (Defs.’ Mot. at 9.) Therefore, they argue, th e effects of the alleged violation have been “completely eradicated,” and there is no reasona ble expectation that th e restrictions will be reimposed. (Defs.’ Mot. at 9-10.) To support this claim, they have attached a declaration from Deirdre Jackson, a Case Services Administrator for the USPC. 4 (Defs.’ Mot., Ex. 2, Decl. of Deirdre Jackson (“Jackson D ecl.”) at 1.) Ms. Jackson, whose duties include “making recommendations to the [USPC] concerning conditions of supervis ion for releasees,” states: because the United States Probation Office [“USPO”] for the Eastern District of Virginia . . . determined that [Jackson] was no longer in need of sex offender special conditions, and because he has notcommitted any sex-related offenses since that time, I do not expect that the USPO supervising Mr. Jackson will request any such conditions unless new sexual misconduct by Mr. Jackson were to raise a legitimate concern that such c ondition(s) have become newly necessary. (Jackson Decl. ¶ 10.) Defendants suggest that a declar ation that “it is unlike ly that [Jackson] will be subjected to the conditions ag ain” (Def.’s Mot. at 9) is suffi cient to make it “absolutely clear that the allegedly wrongful be havior could not reasonable be expected to recur.” Parents Involved in Cmty. Sch. , 551 U.S. at 719. Perhaps recognizing the weakness of this argument, defendants also argue that even if Jackson’s parole officer were inclined to reimpose the restrictions, she could not do so without providing Jackson ten days to comment and, therefore, the wrongful behavior Jackson alleges ca nnot recur. (Defs.’ Reply at 4.)

4 As noted above, the Court may consider mate rials outside of the pl eadings in order to assure itself that it has su bject matter jurisdiction. See supra , Part I.7 1. No Reasonable Expectation That Conduct Will Recur “[T]he government cannot escape the pitfalls of litigation by simply giving in to a plaintiff’s individual claim wit hout renouncing the challenged polic y, at least where there is a reasonable chance of the dispute arising again betw een the government and the same plaintiff.” Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs , 74 F.3d 1308, 1311 (D.C. Cir. 1996), vacated on other grounds , 519 U.S. 1 (1996). Thus, because defendants have merely withdrawn the sp ecial parole restrictions, without explanation, the voluntary cessation doctrine will apply if there is a reasonable chance the dispute could arise again. Jackson argues that the violations he allege could recur because he could be again imprisoned and again released on parole, because defendants could simply conduct a new review of his case, or because defendants could re-impose th e restrictions if the supervision of his parole is transferred back to the District of Columbia or to another jurisd iction. (Pl.’s O pp’n at 7-9.) Jackson’s argument that the re strictions could be re-imposed “if he were found to have violated his parole, returned to prison, and again released on pa role” (Pl.’s Opp’n at 9) fails because Jackson himself is “able – and indeed required by law – to prevent such a possibility from occurring.” Lane v. Williams , 455 U.S. 624, 632 n.13 (1982) (rejecting argument that case was not moot because a “possibility exists under state law that respondents’ parole violation may be considered in a subsequent parole determination”). Indeed, the Supreme Court has “rejected analogous claims to Article III standing in other contexts.” Spencer v. Kemna , 523 U.S. 1, 15 (1998) (citing O’Shea v. Littleton , 414 U.S. 488, 497 (1974) (no sta nding where threat of injury depended on plaintiffs being “prosecute d for violating valid criminal laws”); Los Angeles v. Lyons , 461 U.S. 95, 102-03 (1983)). C ourts are “reluctant to find a reasonable probability of repetition where the action will be repeatedbased on the petitioner’s own wrongdoing.” See8 Pierce v. Thomas , No. 08-705, 2009 WL 2476606, at *3 (D. Or. Aug. 10, 2009); cf. also Toor v. Holder , 717 F. Supp. 2d 100, 106 (D.D.C. 2010) (case was moot because it was “quite unlikely” that plaintiff would be “charge d, convicted, and incarcerated in the United States for another crime and then appl[y] for transfer”). Thus, the possibility that Jackson could violate his parole, return to prison, and be paroled once agai n does not prevent the case from being moot. Jackson’s argument that his pa role conditions may be reexamined at any time, or that the restrictions may be re-imposed if supervision of his parole is tran sferred to a different location, is more convincing. (Pl.’s Opp’n at 8-9.) In a similar case in which the plaintiff challenged “Special Conditions” on his parole , the Court found that the volunt ary cessation doctrine applied. Goings v. Court Servs. & Offender Supervision Agency , No. 11-501, 2011 WL 1837749, at *4-*5 (D.D.C. May 3, 2011). In that case, the governme nt revoked two of the conditions plaintiff complained of, then argued that the case was moot. Id. at *10. Although the Court found that the case was not moot because only a “porti on” of the conditions had been modified, id. at *9, it also found that, “even with respect to the modi fied conditions,” the defendant’s “subsequent modification of the conditions am ounts to a voluntary cessation.” Id. Specifically, the Court noted that CSOSA “remain[ed] free to re-impose conditions” on the pl aintiff at any point, because the “conditions placed on the plaintiff’s pr obation are assessed on ‘an ongoing basis.’” Id. at *11. Defendants attempt to distinguish Goings by pointing out that, in that case, the CSOSA had altered “ some , but not all” of the conditions, while here, all of the conditions that Jackson objects to have been removed. 5 (Defs.’ Reply at 5.) However, the Court in Goings was

5 Defendants also observe that Jackson, unlike the plaintiff in Goings , raises a “general challenge to an alleged blanket fa ilure to provide notice and an oppor tunity to be heard.” (Defs.’ Reply at 4-5.) Defendants do not explain how or why this should affect th e Court’s inquiry into the likelihood that the conditions on Jackson’s parole may be reinstated.9 clear that even those conditions that had been a ltered could be “re-impose[d],” and, therefore, the defendants had failed to show that there was “no reasonable expectation that the alleged violation will recur.” 2011 WL 1837749, at *11. The “rationale supporting” voluntary cessation “as an exception to mootness” is that, without an order from the Court preventing it from continuing the allegedly illegal practice, “the defendant is ‘free to return to [its] old ways’ – thereby subjecting the plaintiff to the same harm but, at the same time, avoi ding judicial review.” Qassim v. Bush , 466 F.3d 1073, 1075 (D.C. Cir. 2006) (quoting United States v. W.T. Grant Co. , 345 U.S. 629, 632 (1953)). This case illustrates the importance of this doctrine. Defendants do not allege that they have altered their procedures for imposing special parole restrictions or that th e type of restrictions they impose have changed. Nor do they promise to refrain from imposing thos e restrictions on Jackson. All defendants offer is a declaration from a USPC administrator statin g that she “does not expe ct” the parole officer supervising Jackson to request that the special parole restrictions be reimposed. (Jackson Decl. ¶ 10.) The declaration fails to even comment as to whether such a request would or could be approved. Because defendants remain free to “return to [their] ol d, allegedly illegal ways,” the voluntary cessation doctrine will be applied. See Natural Law Party v. Fed. Election Comm’n , 111 F. Supp. 2d 33, 40-41 (D.D.C. 2000). Defendants argue that even if there were a re asonable expectation th at Jackson’s parole officer would re-impose the special restrictions , it would be impossible for the precise legal wrong alleged by Jackson – “the imposition of parole provisions without notice and an opportunity to be heard” – to recur because U SPC regulations prevent “amending or modifying parole conditions” without a ten-day notice and comment period. (Defs.’ Reply at 2 (citing 28 C.F.R. § 2.204(c)(2)).) Because the “specific sa feguards . . . governing the amendment of parole10 conditions” render defendants “incap able of re-imposing the provisions at issue without notice and opportunity to be heard,” it is impossible for the alleged constitutional violations to recur. (Defs.’ Reply at 2.) This argument fails for two reasons. First, defendant s ignore the fact that the original notice of the restrictions “modi fy[ing] the conditions of release,” which Jackson apparently never received (Compl. ¶ 24), offered him the opportunity to “object or comment to the Commission within ten days.” (Compl. Ex. 2, at 1.) They do not attempt to explain why he was not sent the original notice and offer no a ssurances that they will notify him of proposed restrictions in the future. Second, and more importantly, Jackson’s co mplaint does more than simply allege that he was denied “notice and opp ortunity to be heard,” – it alleges that the process of imposing restrictions on his parole wa s deficient because there was no notice, hearing, or individualized investig ation, and that the restrictions were “unjustified.” (Compl. ¶ 25.) Moreover, it alleges that the USPC violated the APA by imposi ng the restrictions “without any findings that their imposition would benefit public safety or [Jackson’s] rehabilitation.” ( Id. ¶ 40.) Defendants suggest that , by providing notice and ten days to comment on future restrictions, they have rendere d Jackson’s complaint moot because the legal wrong he complains of could not reasonably recur. To address this argument, the Cour t would need to find that the process offered by defendants is sufficient to satis fy the Fifth Amendment and the APA. This is not a mootness argument but, rather, an invitation to rule on the merits of Jackson’s claim, “which is precisely the dispute that the Court is tasked with deciding.” See Goings , 2011 WL 1837749, at *12. CONCLUSION For the reasons stated herein, the Court conc ludes that defendants have failed to show that there is “no reasonable expe ctation” that the alleged viola tion will recur and, therefore, the11 voluntary cessation doctrine applies. 6 Defendants’ motion to dismi ss for lack of subject matter jurisdiction will be denied, and a separate Order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge DATE: August 30, 2011

6 Because defendants have failed to show thatthere is no reasonable expectation that the conduct at issue will recur, the C ourt need not consider whether th e effects of the violation have been “completely eradicated.”