UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 22-1098 (TJK)

JONTE ROBINSON et al.,

Plaintiffs,

v.

FEDERAL BUREAU OF PRISONS,

Defendant.

MEMORANDUM OPINION AND ORDER

For many years, the Bureau of Prisons, or BOP, assessed kidney function differently for 

black inmates than for non-black inmates. Plaintiffs—one former and one current black inmate

whose kidneys were assessed under that method—sue BOP because they say that policy caused 

them medical injuries and resulted in denial of their compassionate-release requests. They claim 

that BOP’s race-based kidney-assessment method violated the Administrative Procedure Act, as 

well as their rights under the Fifth and Eighth Amendments. BOP, emphasizing that it has now 

changed the policy at issue to a race-neutral one, moves to dismiss for lack of subject-matter jurisdiction and failure to state a claim. The Court finds that BOP has not waived its sovereign 

immunity, so Plaintiffs may not pursue claims for monetary damages against it. And Plaintiffs 

lack standing to pursue their other claims seeking declaratory or injunctive relief. Thus, the Court 

will grant BOP’s motion to dismiss but will allow Plaintiffs time to seek leave to file an amended 

complaint if they so choose.

I. Background 

According to the operative complaint, BOP relies on the estimated Glomerular Filtration 

Rate (“eGFR”) to measure the level of kidney disease in an inmate. ECF No. 14 (“Compl.”) ¶ 2. 
2

When properly functioning, kidneys remove serum creatinine—a waste “byproduct of muscle activity”—from the bloodstream. Id. ¶ 28 n.12. To assess kidney function, the eGFR therefore 

measures blood concentration of serum creatinine, with lower eGFR scores generally reflecting

poorer kidney function. Id. ¶¶ 3, 28 n.12, 29. In the BOP context, eGFR scores below 60 for three 

straight months support a formal stage-three chronic-kidney-disease diagnosis. Id. ¶¶ 30 & n.14, 

34, 54; see also id. ¶ 43 n.28 (“Chronic kidney disease is defined as damaged kidneys or a glomerular filtration rate (i.e., a measure of kidney function) <60 mL/min/1.73 m2 for more than 3 

months.” (quotation omitted)). 

Until recently, BOP used a race-based multiplier to calculate eGFR scores for black inmates but not others.

1

 See Compl. ¶¶ 1–7, 88. To do so, BOP would multiply black inmates’ raw 

eGFR scores by 1.2. Id. ¶¶ 5, 30; see also id. ¶ 3 (BOP elevated black inmates’ raw eGFR scores 

by “approximately 21%.”). According to the complaint, the multiplier emerged in the 1990s based 

on “a faulty assumption that Black persons have, on average, greater muscle mass than White 

persons hence different blood creatinine levels.” Id. ¶ 4; see also id. ¶ 37. This view then supported “the use of race as a proxy for an artificial multiplier applied exclusively to a Black person’s 

eGFR results.” Id. ¶ 4. The result: black individuals’ kidneys “appear healthier,” causing their 

kidney disease to go “undetected” and leading to “negative clinical consequences.” Id. ¶ 38. According to Plaintiffs, the assumption underlying the multiplier has been “overwhelmingly debunked and rejected by the scientific community.” Id. ¶ 4; see also id. ¶¶ 36–37.

1 BOP refers to this as the “African-American eGFR Multiplier,” but it is more technically 

known as the “Modification of Diet in Renal Disease” and “CKD-EPI formula.” Compl. ¶ 3 & 

n.2. The Court will refer simply to “the multiplier.” 
3

Plaintiffs are two black inmates for whom BOP applied the multiplier to calculate their 

eGFR scores and whose compassionate-release requests were allegedly denied or delayed as a 

result. Compl. ¶¶ 1, 7, 67–68.

In 2000, Plaintiff Jonte Robinson pleaded guilty to aiding and abetting two murders and 

was sentenced to 25 years’ incarceration. Compl. ¶ 16. He alleges he has an “array of illnesses 

that include kidney disease and hypertension.” Id. ¶ 21. So, in September 2020, during the 

COVID-19 pandemic, Robinson requested compassionate release from BOP. Id. ¶ 23. He cited 

“progressive illness or a debilitating injury.” Id. BOP denied his request. Id.

Robinson next turned to the federal courts for compassionate release. Compl. ¶ 24. Robinson’s raw eGFR scores preceding his compassionate-release hearing were 56, 57, and 58. Id. 

¶¶ 29, 32. But BOP told the compassionate-release court that because Robinson is black, it had 

applied the multiplier and, based on his adjusted eGFR score above 60, it would not diagnose 

Robinson with chronic kidney disease. Id. ¶¶ 29–30, 33–34. Robinson alleges, however, that he 

“should have been diagnosed with [chronic kidney disease].” Id. ¶ 29. If BOP had so diagnosed 

him, and had the court instead considered his raw eGFR scores, Robinson alleges “he would have 

most likely been granted compassionate release.” Id. ¶¶ 32; see id. ¶ 39 (The multiplier “jeopardized his compassionate release application.”). In the end, the court denied Robinson’s compassionate-release request. Id. ¶ 26; see also United States v. Robinson, No. 04-cr-128 (RDM), 

2021 WL 1318027, at *9 (D.D.C. Apr. 8, 2021). Robinson appealed, again challenging BOP’s 

use of the multiplier, but the D.C. Circuit affirmed. Compl. ¶ 27; see also United States v. Robinson, 853 F. App’x 681 (D.C. Cir. 2021).

Beyond the denial of his compassionate-release application, Robinson alleges that he continues to receive “substandard medical care” as a result of the multiplier because he is not receiving 
4

treatment to prevent further damage to his kidneys. Compl. ¶¶ 32, 39, 40. As just one example, 

he claims, BOP has “repeatedly” prescribed him with high doses of ibuprofen, a drug toxic to 

kidneys, and which “may have contributed to his declining kidney function over time.” Id. ¶ 41 

(citation omitted). The medical expert that reviewed Robinson’s medical records for his compassionate-release hearing also determined that he faced a tenfold risk of dying from COVID-19 compared to the average healthy American. Id. ¶ 21.

Plaintiff Reginald Hicks was convicted for crimes “which involved murder” and began 

serving a life sentence for those crimes in 1995. Compl. ¶ 47. Like Robinson, Hicks moved for 

compassionate release. Id. ¶ 51. Among other things, Hicks argued to the Superior Court of the 

District of Columbia that he should be released because he had chronic kidney disease, which 

“placed him at a high risk of severe illness and death from COVID-19.” Id. ¶¶ 50–51. The court 

denied his motion in June 2021 because Hicks had not received the COVID-19 vaccine. Id. ¶ 51. 

Hicks later received his vaccine, so on appeal, the District of Columbia Court of Appeals remanded 

the case back to the Superior Court for it to consider his eligibility for compassionate release based 

on his new vaccination status. Id. ¶ 55.

On remand, the government argued that the Superior Court still should not grant compassionate release to Hicks based on a chronic-kidney-disease diagnosis because BOP had never so 

diagnosed him. Compl. ¶ 56. The government argued that Hicks’s then-recent eGFR score, 58,

would not support a chronic-kidney-disease diagnosis because the multiplier brought his adjusted 

score above 60. Id. A doctor that conducted an independent review of Hicks’s records, however, 

concluded that he should have been diagnosed with stage-three chronic kidney disease and that his 

condition had “deteriorated” because of the inadequate diagnosis and healthcare management during his incarceration. Id. ¶¶ 57–58. Ultimately, in August 2022, Hicks alleges that the Superior 
5

Court granted his compassionate-release motion. Id. ¶ 65.2 Although he is now no longer incarcerated, Hicks alleges that the “mismanagement of his medical care” while incarcerated by BOP 

“pose[s] severe consequences and health problems in restarting a healthy life” and that his “kidneys have been irreversibly damaged.” Id. ¶ 66.

In April 2022, Robinson (at first without Hicks) sued BOP over its use of the multiplier. 

ECF No. 1. Under Federal Rule of Civil Procedure 23(b)(1) and (2), Robinson also sued on behalf 

of a putative class action of other black inmates incarcerated by BOP and affected by the multiplier. 

ECF No. 1 ¶ 50; see also Compl. ¶ 73. 

Then, in July 2022, BOP replaced the multiplier with a race-neutral method for assessing 

kidney function. ECF No. 15-1 at 1–2. In a memorandum to “All BOP Regional Medical Directors & Clinical Directors,” BOP announced “that Effective July 12, 2022, our laboratories are 

changing the calculation of estimated glomerular filtration rate (eGFR) from creatinine to the new 

CKD-EPI 2021 equation that does not include a race coefficient.” Id. at 1. Unlike the multiplier, 

which differentiated between “raw” and “adjusted” or “inflated” eGFR scores for black inmates, 

Compl. ¶¶ 3, 30, 94, the new, race-neutral method reports only one value, ECF No. 15-1 at 1.

After BOP made this change, Robinson amended the complaint to add Hicks as a plaintiff 

and to address BOP’s new race-neutral method for assessing kidney function. Compl. ¶¶ 47–66, 

88; see also ECF No. 14-1 (redlined complaint). That operative complaint brings three claims. 

First, it alleges BOP’s use of the multiplier violates the Administrative Procedure Act (“APA”), 

2

In fact, the Superior Court’s order, attached to BOP’s motion to dismiss, reflects that it 

granted Hicks’s separate motion to reduce his sentence under the Incarceration Reduction Amendment Act for reasons unrelated to his kidney disease and that it denied as moot his motion for 

compassionate release based on COVID-19. See ECF No. 15-4 at 16–17. The Court may take 

judicial notice of such “related proceedings in other courts.” Dupree v. Jefferson, 666 F.2d 606, 

608 n.1 (D.C. Cir. 1981). In any event, Hicks was released and is no longer incarcerated. Compl. 

¶¶ 65–66.
6

5 U.S.C. § 551 et seq., as it is “contrary to constitutional right,” “not in accordance with law,” and 

“arbitrary and capricious.” See Compl. ¶¶ 82–90. Second, Plaintiffs claim BOP’s use of the multiplier violated Plaintiffs’ Fifth Amendment rights by treating similarly situated persons (i.e., black 

and non-black inmates) disparately without a rational basis for doing so. Id. ¶¶ 91–96. And third, 

Plaintiffs allege BOP’s use of the multiplier violated Plaintiffs’ Eighth Amendment rights to be 

free from cruel and unusual punishment, which includes a right not to be subjected to a substantial

risk of serious harm to their health and safety. Id. ¶¶ 97–104. Plaintiffs bring these claims on 

behalf of a similar putative class of black inmates as in the original complaint. See Compl. 

¶¶ 73–81; ECF No. 14-1 ¶¶ 73–81.

Plaintiffs seek several forms of relief. They ask the Court to certify the putative class and 

appoint Plaintiffs as lead plaintiffs and counsel as class counsel. Compl. at 28. They seek declarations that BOP’s use of the multiplier violates the APA. Id. They also seek a host of injunctive 

relief. They ask for an injunction preventing BOP’s future use of the multiplier. Id. Further, they 

request an order imposing various affirmative obligations on BOP to remedy the multiplier’s alleged effects, including, for example, an order that BOP “reevaluate all BOP decisions that resulted 

in denials of compassionate release applications from Black incarcerated individuals” based on the 

multiplier. See id. at 28–29. Lastly, they seek compensatory damages for Plaintiffs’ irreversible 

physical harm and emotional distress along with costs, expenses, and attorneys’ fees. Id. at 29–30.

BOP moves to dismiss on both Rule 12(b)(1) and 12(b)(6) grounds. ECF No. 15. As for 

the Rule 12(b)(1) grounds, BOP advances four arguments. First, Plaintiffs’ APA claims are moot 

because BOP has replaced the multiplier with a race-neutral method for assessing kidney function. 

Id. at 17–22. Second, the Court lacks subject-matter jurisdiction over Robinson’s claims that

sound in habeas. Id. at 22–24. Third, both Plaintiffs lack standing on injury and redressability
7

grounds. Id. at 24–36. And fourth, the Court lacks subject-matter jurisdiction over Plaintiffs’ 

money-damages claims because BOP has not waived sovereign immunity. Id. at 47–48. BOP

also argues that dismissal is appropriate under Rule 12(b)(6) for two reasons. First, Robinson’s 

claims are barred by res judicata. Id. at 36–41.3 Second, Plaintiffs fail to state any plausible Eighth 

Amendment claim. Id. at 41–47. Plaintiffs oppose the motion. ECF No. 17. 

II. Legal Standards

To avoid dismissal under Rule 12(b)(1) of the Federal Rules of Civil Procedure, “the plaintiff bears the burden of proving that the Court has subject matter jurisdiction.” United States ex 

rel. Bid Solve, Inc. v. CWS Mktg. Grp., Inc., 567 F. Supp. 3d 59, 66 (D.D.C. 2021).4 Sovereignimmunity claims are jurisdictional. Burkhart v. WMATA, 112 F.3d 1207, 1216 (D.C. Cir. 1997). 

Thus, where, as here, a defendant raises the doctrine of sovereign immunity as a bar to claims, the 

plaintiff must overcome that defense to survive a Rule 12(b)(1) motion to dismiss. Jackson v. 

Bush, 448 F. Supp. 2d 198, 200 (D.D.C. 2006).

Standing also implicates the Court’s subject-matter jurisdiction. Haase v. Sessions, 

835 F.2d 902, 906 (D.C. Cir. 1987). Thus, plaintiffs have the burden of establishing standing as 

3

“Although the defense of res judicata is jurisdictional in character, it is an affirmative 

defense, see Fed. R. Civ. P. 8(c)(1), and therefore is not a per se jurisdictional bar to court review 

as contemplated by Federal Rule of Civil Procedure 12(b)(1),” Youngin’s Auto Body v. District of 

Columbia, 775 F. Supp. 2d 1, 6 (D.D.C. 2011); see also Smalls v. United States, 471 F.3d 186, 189 

(D.C. Cir. 2006) (“[T]he defense of res judicata, or claim preclusion, while having a ‘somewhat 

jurisdictional character,’ does not affect the subject matter jurisdiction of the district court.” (citations omitted)).

4

“When confronted with . . . a motion to dismiss under both Rule 12(b)(1) and Rule 

12(b)(6), the Court must first consider whether it has subject-matter jurisdiction.” Hamilton v. 

United States, 502 F. Supp. 3d 266, 272 (D.D.C. 2020) (citing Steel Co. v. Citizens for a Better 

Env’t, 523 U.S. 83, 94–95 (1998)). As the Court is satisfied that it does not have subject-matter 

jurisdiction over the complaint for the reasons explained, it need not reach BOP’s remaining arguments for dismissal, including those implicating Rule 12(b)(6). See Schmidt v. U.S. Capitol Police 

Bd., 826 F. Supp. 2d 59, 64 (D.D.C. 2011).
8

well. Little v. Fenty, 689 F. Supp. 2d 163, 166 (D.D.C. 2010). Standing under Article III requires 

plaintiffs to “state a plausible claim that they have suffered an injury in fact fairly traceable to the 

actions of the defendant that is likely to be redressed by a favorable decision on the merits.” Food 

& Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (cleaned up). 

To determine standing, the Court may consider the allegations in the complaint, undisputed 

facts in the record, and, if necessary, its resolution of disputed facts. Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003). The Court must “assume the truth of all 

material factual allegations in the complaint” and grant Plaintiffs “the benefit of all inferences that 

can be derived from the facts alleged.” Am. Nat. Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 

2011) (quotation omitted). Still, factual allegations demand “closer scrutiny when resolving a Rule 

12(b)(1) motion than would be required for a Rule 12(b)(6) motion.” Tex. Low Income Hous. Info. 

Serv. v. Carson, 427 F. Supp. 3d 43, 52 (D.D.C. 2019) (quotation omitted). Thus, “threadbare 

recitals of the elements of standing, supported by mere conclusory statements, do not suffice” 

because courts cannot “accept inferences that are unsupported by the facts set out in the complaint.” See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (alterations adopted) (citations 

omitted).

III. Analysis

The Court will dismiss the complaint for lack of subject-matter jurisdiction. Plaintiffs cannot sustain their claims for money damages because the government has not waived its sovereign 

immunity. And neither Robinson nor Hicks has adequately alleged ongoing or future injury that 

would be redressed by the remaining declaratory and injunctive relief they seek.
9

A. The Court Lacks Subject-Matter Jurisdiction Over Plaintiffs’ Claims for 

Monetary Damages 

Among other forms of relief, Plaintiffs seek compensatory damages for the “irreversible 

physical harm and emotional distress” caused by BOP’s “inadequate medical care.” Compl. at 29. 

But “the United States may not be sued without its consent and . . . the existence of consent is a 

prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). And the United 

States has not waived sovereign immunity for damages claims under either the APA or the Constitution. See ECF No. 15 at 47; Fletcher v. DOJ, 17 F. Supp. 3d 89, 93 (D.D.C. 2014); 5 U.S.C. 

§ 702 (permitting APA actions against the “United States seeking relief other than money damages” (emphasis added)). Plaintiffs do not contest that they cannot seek compensatory damages 

under the APA, and they concede they are not seeking damages under the APA (or under the 

United States’ sovereign-immunity waiver under the Federal Tort Claims Act). ECF No. 17 at 

18–19. Thus, as far as Plaintiffs’ claims for monetary damages under the APA go, there is no 

dispute that the Court lacks subject-matter jurisdiction over them, and they must be dismissed.

As far as their constitutional claims go, Plaintiffs also concede that BOP has not waived 

sovereign immunity so that they can recover monetary damages for those claims. But they raise 

the prospect of seeking monetary damages against BOP officials in charge of their medical care 

under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 

See ECF No. 17 at 19. They ask the Court to “assum[e] that Plaintiffs would supply an amendment 

of pleadings naming specific federal prison officials who engaged in the violative conduct alleged 

in the complaint” to support their constitutional claims. Id.; see also id. (seeking “leave of court 

to cure this defect through an amendment of pleadings”). But, as it stands, the complaint neither

alleges any such Bivens claims nor identifies as defendants any named or unnamed prison officials. 

Indeed, the lone defendant identified in the complaint is BOP. Compl. ¶ 69. For now, the Court 
10

must ask whether it has jurisdiction over the current complaint as pleaded—not over some hypothetical amended complaint. See Wilcox v. Georgetown Univ., 987 F.3d 143, 150 (D.C. Cir. 2021)

(“The district court’s skepticism about aspects of [plaintiffs’] case was confined to the factual 

allegations in the complaint before it.”). Plaintiffs concede their pleading “defect” here. See ECF 

No. 17 at 19. Thus, the Court will dismiss all Plaintiffs’ claims for money damages for any past 

harm suffered because it lacks subject-matter jurisdiction over those claims.

B. The Court Lacks Subject-Matter Jurisdiction Over Plaintiffs’ Remaining 

Claims for Relief

Plaintiffs’ remaining claims are for various forms of injunctive and declaratory relief.

5

 

BOP argues that Plaintiffs lack standing to pursue these claims because neither can show injury or 

redressability. ECF No. 15 at 24–36. The “irreducible constitutional minimum of standing contains three elements”—injury-in-fact, causation, and redressability. Lujan v. Defs. of Wildlife, 504 

U.S. 555, 560–61 (1992). As explained above, monetary damages are unavailable for Plaintiffs’ 

alleged past injuries, meaning they cannot be redressed in that way. And Plaintiffs seek no other 

relief that would redress their past injuries. The Court notes that Plaintiffs’ allegations that they 

were injured when BOP applied the multiplier to them and denied or delayed their compassionate 

release are allegations of past injury. Compl. ¶¶ 1, 7, 24–32, 39, 52, 59, 89, 96. These are not 

ongoing or future injuries that would be redressed by prospective injunctive or declaratory relief 

because BOP has replaced the multiplier with a race-neutral method for measuring kidney function. And while, as explained in more detail below, Plaintiffs gesture at future injuries to support 

5

See Compl. at 28–29 (requesting an injunction preventing BOP from using the multiplier 

in its medical and compassionate-release decisions, and ordering BOP to reevaluate compassionate-release decisions and medical records, establish and develop new processes and guidance, and 

create a plan to prevent further violative conduct; requesting a declaration that the multiplier is 

unlawful). 
11

these forward-looking forms of relief, none qualifies as an injury-in-fact. Compl. at 28–29; ECF 

No. 17 at 12–15. Thus, the entire complaint must be dismissed for lack of standing.6

Before proceeding further, one point of clarification: BOP argues that its adoption of the 

race-neutral method for measuring kidney function moots Plaintiffs’ APA claims. ECF No. 15 at 

17–22. But in the Court’s view, this is a question of standing, because BOP changed its policy 

before Plaintiffs amended their complaint.

7

 Judges in this District have observed that “[n]either 

the Supreme Court nor the D.C. Circuit Court of Appeals has directly resolved the question [of] 

. . . whether the date of the commencement of an action or the date of the operative complaint is 

the relevant date for determining standing.” G&E Real Est., Inc. v. Avison Young-Washington, 

D.C., LLC, 168 F. Supp. 3d 147, 159 (D.D.C. 2016). But many judges have been “persuaded that 

the better reading of the applicable law is that the Court must measure standing by the state of the 

world as of the date of the Amended Complaint.” Id. at 160; see also Rockwell Int’l Corp. v. 

6 Although Plaintiffs seek class certification in the operative complaint, “[t]hat . . . adds 

nothing to the question of standing, for even named plaintiffs who represent a class must allege 

and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 

n.6 (2016) (cleaned up); see, e.g., Cason v. Nat’l Football League Players Ass’n, 538 F. Supp. 3d 

100, 110–12 (D.D.C. 2021).

7

In any event, even under a mootness analysis, Plaintiffs still come up short. When an 

agency has “already eliminated the [challenged] [p]olicy and plaintiffs never allege that the 

[agency] will reinstitute it, any injunction or order declaring it illegal would accomplish nothing—

amounting to exactly the type of advisory opinion Article III prohibits.” Akiachak Native Cmty. 

v. DOI, 827 F.3d 100, 106 (D.C. Cir. 2016) (quoting Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 

2008)). Plaintiffs do not allege that BOP will resurrect the multiplier. And of course “‘the mere 

power to reenact a challenged [rule] is not a sufficient basis on which a court can conclude that a 

reasonable expectation of recurrence exists’ absent ‘evidence indicating that the challenged [rule] 

likely will be reenacted.’” Id. (emphasis added) (quoting Nat’l Black Police Ass’n v. District of 

Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997)). Accordingly, and as explained more fully below

in the standing discussion, Plaintiffs have provided no reason to believe that BOP is about to revive 

the multiplier or will fail to apply the race-neutral method of assessing kidney function to Plaintiffs.
12

United States, 549 U.S. 457, 473–74 (2007) (“[W]hen a plaintiff files a complaint in federal court 

and then voluntarily amends the complaint, courts look to the amended complaint to determine 

jurisdiction.”). Thus, “standing may be assessed by the timing of the filing of the operative complaint in an action—whether the original complaint or a supplemental or amended complaint.” 

G&E Real Est., 168 F. Supp. 3d at 160.8 The Court does so here.

An injury-in-fact is “an invasion of a legally protected interest which is (a) concrete and 

particularized” and “(b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 

560 (internal quotation marks omitted). To “shift injury from ‘conjectural’ to ‘imminent,’ the 

petitioners must show that there is a ‘substantial probability’ of injury.” Chamber of Com. of U.S. 

v. EPA, 642 F.3d 192, 200 (D.C. Cir. 2011) (cleaned up). “When, as here, a plaintiff seeks prospective declaratory and injunctive relief, he must establish an ongoing or future injury that is 

‘certainly impending’; he may not rest on past injury.” Fuentes v. Biden, No. 21-cv-3106 (APM), 

2023 WL 1070545, at *1 (D.D.C. Jan. 27, 2023) (cleaned up). Allegations “of possible future 

injury are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (cleaned up). 

The requirement that plaintiffs show an “imminent future injury” to seek injunctive relief “creates 

a significantly more rigorous burden to establish standing than that on parties seeking redress for 

past injuries.” Swanson Grp. Mfg. LLC v. Jewell, 195 F. Supp. 3d 66, 77 (D.D.C. 2016) (citations 

omitted). Further, the Court’s standing inquiry must be “especially rigorous when,” as here, 

“reaching the merits of the dispute would force [it] to decide whether an action taken by one of the 

8

See, e.g., Maniar v. Mayorkas, No. 19-cv-3826 (EGS), 2023 WL 2709040, at *13 (D.D.C. 

Mar. 30, 2023) (The “relevant question is whether” plaintiffs could establish “standing as of ‘the 

state of the world’ when they filed their operative amended complaint.” (quotation omitted)); Kinsley v. Blinken, No. 21-cv-962 (JEB), 2021 WL 4551907, at *5 (D.D.C. Oct. 5, 2021) (similar); 

Gatore v. DHS, 327 F. Supp. 3d 76, 91 (D.D.C. 2018) (similar), aff’d, No. 21-5148, 2023 WL 

2576176 (D.C. Cir. Mar. 21, 2023).
13

other two branches of the Federal Government was unconstitutional.” Clapper, 568 U.S. at 408

(citation omitted).

Both Plaintiffs lack standing to seek injunctive and declaratory relief because at the time 

of the operative complaint, BOP had adopted a race-neutral method for measuring kidney function. 

Thus, they have not adequately pleaded an ongoing or future injury that this relief would redress.

Plaintiffs allege generally that they “continue to suffer harm” from the multiplier, which 

“has far-reaching impacts on the availability of life-saving medical resources, treatment outcomes, 

debilitating health of kidneys, and timely opportunities to seek compassionate release.” Compl. 

¶ 96; see also id. ¶ 88 (The multiplier is “still impacting Plaintiffs and will continue to cause discrimination based on race.”). For instance, Robinson alleges that BOP “continues to subject him 

to substandard medical care” and that he “continues to suffer physical and emotional harm as a 

result” of “continuing problems in BOP policies and practices that are not rectified.” 

Compl. ¶¶ 39, 46. But these allegations come up short for standing purposes for the simple reason 

that the source of the injury is no more. Indeed, BOP has not used the multiplier since before the 

filing of the operative complaint. Thus, there is nothing for the requested injunctive or declaratory 

relief to redress.

To be sure, Plaintiffs are right that they could demonstrate standing if BOP’s use of the 

multiplier continued to affect them in some way. Cf. Zukerman v. U.S. Postal Serv., 961 F.3d 431, 

443 (D.C. Cir. 2020) (“It is clear from [the plaintiff’s] allegations, which we accept as true and 

construe in his favor, that the effects of the alleged violation persist,” and thus it would be possible 

for the court to provide effectual relief.); Aref v. Lynch, 833 F.3d 242, 251 (D.C. Cir. 2016). For 

example, Plaintiffs could meet the standing requirement by showing that BOP did not actually

change its policy, or that it was likely (for some reason) that BOP would refuse to apply the new 
14

race-neutral policy to them. See Fuentes, 2023 WL 1070545, at *1; see also, e.g., City of Los 

Angeles v. Lyons, 461 U.S. 95, 105 (1983) (“[The plaintiff’s] standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the [defendant’s 

challenged practice].”).

But Plaintiffs have pleaded no facts to suggest any such thing. They allege in conclusory 

fashion that the race-neutral policy is a “façade to a new formula.” Compl. ¶ 88. And in their

opposition, they similarly brand BOP’s policy change as “superficial.” ECF No. 17 at 9. But the 

Court need not accept such “conclusory statements” that “are unsupported by the facts set out in 

the complaint.” Arpaio, 797 F.3d at 19. Similarly, Plaintiffs attack the new policy for not being 

an “absolute and complete change in policy.” ECF No. 17 at 9. They even go as far as to predict 

“it is likely that broad inconsistency and deviation from the proposed policy will likely occur, 

enabling more discriminatory eGFR assessments to continue taking place under BOP supervision.” 

Id. at 9–10. But again, this is speculation with no supporting factual basis.

For its part, BOP persuasively argues that “it can hardly be said that [BOP] implemented 

its policy change . . . with the intent to nevertheless continue utilizing a purported race-based formula,” especially given that BOP began considering a “newer, race-blind” method before this case 

was filed. ECF No. 19 at 8 (citation omitted). In fact, BOP’s policy change has all the trappings 

of a formal policy change implemented across the board, including for Plaintiffs. BOP sent a 

memorandum, titled “Implementation of the CKD-EPI 2021 Race-Free Calculation for Estimated 

Glomerular Filtration Rate (eGFR),” to “All BOP Regional Medical Directors & Clinical Directors.” ECF No. 15-1 at 1. In it, BOP said without qualification: 

Effective July 12, 2022, our laboratories are changing the calculation of estimated 

glomerular filtration rate (eGFR) from creatinine to the new CKD-EPI 2021 equation that does not include a race coefficient. The National Kidney Foundation and 
15

the American Society of Nephrology’s Task Force on Reassessing the Inclusion of 

Race in Diagnosing Kidney Disease recommended the new equation. 

Id. The memorandum also attached the medical evidence on which the race-neutral method is 

based. Id. at 3–52. On this record, Plaintiffs have not shown that the multiplier’s effects persist

in a way that gives them standing.9

In addition, Hicks would have to overcome another hurdle to show that BOP’s use of the 

multiplier continued to affect him—because he was released from BOP custody before he was 

even added as a plaintiff. Compl. ¶ 65. Thus, Hicks cannot show that he is likely to be affected 

by anything BOP does (or does not do) going forward.

10

 In response, he argues that he is likely to 

be injured in the future because he is serving five years of supervised release, which does not 

“foreclose the very undesirable possibility that he may be exposed to BOP’s discriminatory practices again.” ECF No. 17 at 14–15 (citing Brannon v. City of Gadsden, No. 4:13-cv-1229 (VEH), 

2015 U.S. Dist. LEXIS 28761, at *2 (N.D. Ala. Mar. 10, 2015)). But of course, Hicks will always 

face the possibility of reincarceration. Mere speculation about future contingent events will not 

do for standing purposes, even putting aside that this alleged injury is nowhere mentioned in the 

complaint. See Lujan, 504 U.S. at 561; Clapper, 568 U.S. at 409; see also Arpaio, 797 F.3d at 21 

(“When considering any chain of allegations for standing purposes, we may reject as overly 

9 Although the Court will dismiss the complaint, out of an abundance of caution it will 

allow Plaintiffs the opportunity to seek to file an amended complaint to address the deficiencies 

identified in this Memorandum Opinion if they so choose.

10 Similarly, the D.C. Circuit has held, “a prisoner’s transfer or release from a prison [after 

a complaint is filed] moots any claim he might have for equitable relief arising out of the conditions 

of his confinement in that prison.” Scott v. District of Columbia, 139 F.3d 940, 941 (D.C. Cir. 

1998); Aref v. Barr, No. 10-cv-539 (BJR), 2019 WL 11593252, at *3 (D.D.C. Nov. 1, 2019) (describing exceptions that do not apply here).
16

speculative those links which are predictions of future events (especially future actions to be taken 

by third parties).”).

Finally, the Court notes that Robinson has pleaded no facts to suggest that his past denial 

of compassionate release—allegedly brought about by BOP’s use of the multiplier—continues to 

affect him in some way that would support an ongoing or future injury. In other words, just as the 

operative complaint identifies nothing that stood in the way of Robinson receiving a kidney evaluation under BOP’s race-neutral method on the day it was filed, it also identifies nothing that 

prevented him from seeking compassionate release again from BOP or his compassionate-release 

court after he receives such a new evaluation. See, e.g., United States v. Baylor, No. 16-cr-180 

(ESH), 2020 WL 5970679, at *1–2 (D.D.C. Oct. 8, 2020) (granting a third compassionate-release 

motion). In fact, that court expressly left the door open to changing its mind “if Robinson’s medical condition worsens, or if further testing shows that his condition is, in fact, more severe than 

the Court understands.” Robinson, 2021 WL 1318027, at *11 (emphasis added). For his part, 

Hicks has also not pleaded anything suggesting that the results of his previous compassionaterelease proceedings continue to injure him in some way. But in his case, of course, that is because 

he is no longer in BOP’s custody.

* * *

Plaintiffs have the “rigorous burden to establish standing,” and neither has done so here. 

See Swanson, 195 F. Supp. 3d at 77. Thus, the Court must dismiss the complaint for lack of 

subject-matter jurisdiction.
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IV. Conclusion and Order

For these reasons, it is hereby ORDERED that BOP’s Motion to Dismiss, ECF No. 15, is 

GRANTED. Plaintiffs’ operative complaint, ECF No. 14, is DISMISSED WITHOUT PREJUDICE. Plaintiffs may seek leave to file a new complaint to correct the deficiencies identified by 

August 14, 2023. If they do not seek leave by that date, the Court will dismiss the case as well.

SO ORDERED.

/s/ Timothy J. Kelly 

TIMOTHY J. KELLY

United States District Judge

Date: July 13, 2023