[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12289

Non-Argument Calendar

____________________

JAMES ELTON ROBERTS, 

Plaintiff-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS, 

M. MILLER, 

Chaplain, 

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

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D.C. Docket No. 3:22-cv-00575-MMH-JBT

____________________

Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:

James Roberts sued the Florida Department of Corrections 

(“FDC”) and Chaplain Marcus Miller (collectively, the “FDC 

defendants”), alleging that they improperly removed him from the 

Religious Diet Program (“RDP”) in violation of his First 

Amendment rights and the Religious Land Use and 

Institutionalized Persons Act (“RLUIPA”). The district court 

dismissed Roberts’s amended complaint as moot because the FDC 

defendants had placed him back in the RDP after he sued. On 

appeal, Roberts argues that his claim was not mooted because of 

his pending request for costs. 

After careful review, we conclude that the district court 

erred in dismissing Roberts’s case as moot because an exception to 

the mootness doctrine, which arises when a defendant voluntarily 

ceases its allegedly illegal conduct, applies to Roberts’s case. 

Accordingly, we vacate and remand the district court’s decision.

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I. Background1

At one point while in the custody of the FDC, Roberts 

participated in the RDP and received kosher meals consistent with

his Jewish faith. On July 15, 2021, Roberts received a notice of 

violation “for no reason.” He promptly responded to the notice on 

July 23, 2021, but received another violation form stating that he 

never responded to the initial notice, was withdrawn from the 

program, and could reapply on January 23, 2022.

Roberts reapplied on January 23, 2022. He sent a request 

two days later asking about his status and received a response 

stating, “approval in process[,] allow 10 days.” Roberts then 

received a letter on February 2, 2022, explaining that he was denied 

participation in the RDP on January 27, 2022, because he did not 

properly describe the kosher diet, despite using the same 

description from his previously approved application. Roberts 

appealed the denial to the Secretary of the FDC and his appeal was 

denied. 

Roberts, proceeding pro se, sued the FDC defendants on May 

25, 2022. On July 11, 2022, he filed his amended complaint alleging 

violations of the First Amendment, pursuant to 42 U.S.C. § 1983, 

and RLUIPA, 42 U.S.C. § 2000cc-1, by the FDC defendants. He 

alleged that the FDC defendants improperly denied him 

participation in the RDP for kosher meals. He said that, after 

1 We draw the following facts from the allegations in Roberts’s complaint, 

“which on a motion to dismiss are accepted as true.” Doe v. Wooten, 747 F.3d 

1317, 1320 (11th Cir. 2014).

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reporting multiple times via formal and informal grievances that 

“[his] food was being withheld and tampered with,” Roberts had 

been on hunger strikes, reported “psychological emergencies,” and 

attempted suicide, which were all “covered up,” presumably by 

FDC employees. He also alleged that his property and paperwork 

had been stolen, destroyed, or “lost” in an attempt (again, 

presumably by FDC employees) to hinder his efforts “in these 

proceedings.” For relief, he requested to be placed in the RDP and 

that “all court costs be paid by the defendants including filing fees 

and whatever other costs that result from [the] case.” 

On July 27, 2022, after filing suit, Roberts submitted another 

request to participate in the RDP. Miller forwarded the request to 

his supervisor, writing, “I would really like your ‘take’ on this 

particular application. This is the inmate who is pursuing a lawsuit 

against me.” Less than thirty minutes later, his supervisor 

responded, “Go ahead and approve it.” Miller then placed Roberts 

in the RDP on July 29, 2022. Roberts formally started participating

in the RDP again on August 8, 2022. 

In a signed declaration,2 Miller explained that he asked his 

supervisor for guidance as “an independent decisionmaker” and 

2 While Miller’s declaration is unsworn, it carries the same force as an affidavit 

under 28 U.S.C. § 1746 because he signed and dated the document, and 

“declare[d] under penalties of perjury that” the facts within “are true and 

correct.” See Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 n.2 (11th Cir. 

2016) (clarifying that “[a]n affidavit is made under oath,” while “a declaration 

is not sworn, but is subject to the penalty of perjury” and that, under § 1746,

“declarations are afforded the same legal weight as affidavits, and are treated 

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that the lawsuit against him did not influence his decision to 

include Roberts in the RDP. Miller stated that “there is no intention 

to remove [Roberts] from the [RDP],” and that Roberts would only 

be removed from the program if he violated the rules. 

Then, on September 14, 2022, the FDC defendants moved to 

dismiss Roberts’s amended complaint. They argued that Roberts’s 

suit had been moot “since August 8, 2022, when he was afforded 

the relief he requested in his Amended Complaint due to his being 

placed in the RDP.” They added that during a phone call with 

opposing counsel on August 15, 2022, Roberts admitted that he was 

in the RDP. The FDC defendants asked the district court to dismiss 

the case with prejudice.

Roberts responded by arguing that the action was not 

moot.3 He attached to his response various grievances and 

accordingly” (alteration in original) (quotations omitted)); Roy v. Ivy, 53 F.4th 

1338, 1348 (11th Cir. 2022) (“[U]nder § 1746, a declaration executed within the 

United States will substitute for a sworn affidavit if the declarant dates and 

subscribes the document as true under penalty of perjury in substantially the 

following form: ‘I declare (or certify, verify, or state) under penalty of perjury 

that the foregoing is true and correct. Executed on (date). (Signature).’”

(quoting 28 U.S.C. § 1746(2)).

3 Although Roberts argued this point in a motion to show cause, rather than a 

response to the FDC defendants’ motion to dismiss, we still take note of his 

argument. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)

(“Pro se pleadings are held to a less stringent standard than pleadings drafted 

by attorneys[.]”).

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responses from 2020 to 2022 showing that his attempts to be placed 

in the RDP had been repeatedly rejected. 

The district court determined that Roberts’s case was moot 

because he had been placed in the RDP. It explained that although 

a “narrow” exception to the mootness doctrine applies to injuries 

that are capable of repetition yet evade review, that exception did 

not apply to Roberts’s case (citing Al Najjar v. Ashcroft, 273 F.3d 1330, 

1336 (11th Cir. 2001)). The court therefore concluded that Roberts

“failed to satisfy his burden of demonstrating that jurisdiction 

exists” and dismissed his amended complaint without prejudice.4 

This appeal followed. 

II. Standard of Review

“A [d]istrict [c]ourt’s decision on mootness is a question of 

law we review de novo.” Wooten, 747 F.3d at 1321–22 (italics added). 

“[B]ecause the question of mootness is jurisdictional in nature,” we 

may apply exceptions to the mootness doctrine sua sponte,

“regardless of whether the district court considered it or if the 

4 The district court also found that Roberts’s request for punitive damages, 

fees, and court costs did not save his case from mootness. It said that, even if

Roberts had properly requested such relief in the amended complaint, he was 

“not a prevailing party who may recover court costs” because no “judicial 

imprimatur on the change in the legal relationship between the parties” 

occurred (quoting Smalbein v. City of Daytona Beach, 353 F.3d 901, 904–05 (11th 

Cir. 2003)). Although the FDC defendants make this argument on appeal, we 

need not evaluate it because we conclude that Roberts’s case is not moot under 

the voluntary-cessation exception.

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parties briefed the issue.” Nat’l Advert. Co.v. City of Miami, 402 F.3d 

1329, 1331–32 (11th Cir. 2005).

III. Discussion

On appeal, Roberts challenges the dismissal of his suit as 

moot. After careful review, we conclude that the district court 

erred in dismissing Roberts’s case as moot because it falls within 

the voluntary-cessation exception to the mootness doctrine.

Article III of the Constitution limits federal courts to 

deciding “Cases” and “Controversies.” U.S. Const. art. III § 2. 

When an appeal does not present a case or controversy as to which 

we can give meaningful relief, the appeal is moot and should be 

dismissed. De La Teja v. United States, 321 F.3d 1357, 1362 (11th Cir. 

2003). A case becomes moot “when the issues presented are no 

longer ‘live’ or the parties lack a legally cognizable interest in the 

outcome.” Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of 

Health & Rehab. Servs., 225 F.3d 1208, 1216 (11th Cir. 2000) 

(quotations omitted). A motion to dismiss based on mootness can 

challenge jurisdiction in fact, irrespective of the pleadings, and a 

district court can consider evidence outside the pleadings to 

determine whether it has jurisdiction. Lawrence v. Dunbar, 919 F.2d 

1525, 1529 (11th Cir. 1990).

The district court considered the capable-of-repetition-yetevading-review exception to the mootness doctrine when it found 

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that Roberts’s claims were moot.5 But we conclude that a different 

exception to the mootness doctrine—the voluntary-cessation 

doctrine—applies to Roberts’s case. 

The voluntary-cessation exception may apply when a 

defendant voluntarily ceases its allegedly illegal conduct. Doe, 747 

F.3d at 1322 (“[W]hen a defendant chooses to end a challenged 

practice, this choice does not always deprive a federal court of its 

power to decide the legality of the practice.”). “A defendant 

claiming that its voluntary compliance moots a case bears the 

formidable burden of showing that it is absolutely clear the 

allegedly wrongful behavior could not reasonably be expected to 

recur.” Id. (brackets omitted) (quoting Friends of the Earth, Inc. v. 

Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)); Rich v.

Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 531 (11th Cir. 2013) (“Since 

the defendant is free to return to his old ways, he bears a heavy 

5 The Supreme Court and our Court have recognized a narrow exception to 

the mootness doctrine where the original injury is “capable of repetition, yet 

evading review.” Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170

(2016) (quotations omitted); Al Najjar, 273 F.3d at 1336 (explaining the 

exception is a narrow one). To satisfy this standard, a plaintiff must 

demonstrate (1) “a reasonable expectation or a demonstrated probability that 

the same controversy will recur involving the same complaining party,” and (2) 

that “the challenged action [was] in its duration too short to be fully litigated 

prior to its cessation or expiration.” Al Najjar, 273 F.3d at 1336 (emphasis in 

original) (quotations omitted). 

Because we conclude that Roberts’s case is not moot under the voluntarycessation exception to mootness, we need not also address whether the 

capable-of-repetition-yet-evading-review exception applies.

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burden of demonstrating that his cessation of the challenged 

conduct renders the controversy moot.” (quotations omitted)).

The voluntary-cessation exception applies to cases involving

government actors. Doe, 747 F.3d at 1322. “Because of the unique 

characteristics of public defendants, this Court often gives

government actors more leeway than private parties in the 

presumption that they are unlikely to resume illegal activities,” 

which we have called a “rebuttable presumption” or a “lesser 

burden.” Id. (quotations omitted). Under this presumption, the 

controversy “will be moot in the absence of some reasonable basis 

to believe that the policy will be reinstated if the suit is terminated.” 

Id. (quotations omitted). That said, “[a] government actor is 

entitled to this presumption only after it has shown unambiguous 

termination of the complained of activity.” Id. 

We have considered various factors when conducting both 

“the initial inquiry” of whether a government actor has shown

unambiguous termination as well as “the following evaluation 

about whether there is a reasonable basis the challenged conduct 

will recur.” Id. at 1322–23. While not an exhaustive list, we have 

considered the following: (1) “whether the termination of the 

offending conduct was unambiguous,” (2) “whether the change in 

government policy or conduct appears to be the result of 

substantial deliberation, or is simply an attempt to manipulate 

jurisdiction,” and (3) “whether the government has consistently 

applied a new policy or adhered to a new course of conduct[.]” Id.

at 1323 (quotations omitted). “The timing and content of the 

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cessation decision are also relevant in evaluating whether the 

defendant’s stopping of the challenged conduct is sufficiently 

unambiguous.” Id. And we are “more likely to find a reasonable 

expectation of recurrence when the challenged behavior 

constituted a continuing practice or was otherwise deliberate.” Id.

We first take the “crucial first step” of asking whether the 

FDC defendants, as government actors, unambiguously

terminated the challenged action. See id. If the FDC defendants 

unambiguously terminated the challenged action, then there is a 

“rebuttable presumption” that “they are unlikely to resume illegal 

activities.” Id. at 1322. If they have not unambiguously terminated 

the action, then they do not enjoy the “leeway” that “this Court 

often gives government actors.” Id. (quotations omitted). Rather, 

the FDC defendants would “bear[] the formidable burden of 

showing that it is absolutely clear the allegedly wrongful behavior 

could not reasonably be expected to recur.” Id. (quotations

omitted). 

We first conclude that the FDC defendants did not shoulder 

their burden of showing unambiguous termination. We reach this 

conclusion by analyzing the three factors considered in a 

voluntary-cessation inquiry. Applying the first factor, the FDC 

defendants did not show that they unambiguously terminated its 

pattern of excluding Roberts from the program. Although they 

formally included him on August 8, 2022, a one-time approval of 

Roberts’s application, particularly given the persistent rejections 

from 2020 to 2022, is not a permanent guarantee that Roberts will 

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not be wrongfully removed again from the RDP. See id. at 1324 

(explaining that plaintiff’s request for injunctive relief was not 

moot because, despite receiving the requested injunctive relief, 

there was no showing of unambiguous termination of the pattern 

of allegedly wrongful conduct). 

Addressing the second factor in our initial inquiry of 

whether the FDC defendants have shown unambiguous 

termination, we conclude that the timing and content of the FDC 

defendants’ decision to place Roberts in the RDP “appears to 

be . . . an attempt to manipulate jurisdiction[.]” Id. at 1323 

(quotations omitted). The FDC defendants, after a years-long

pattern of refusing Roberts’s requests to participate in the RDP, 

changed position only after Roberts sued. After Miller forwarded 

Roberts’s July 27, 2022, request to join the RDP to his supervisor, 

explaining that the application came from “the inmate who is 

pursuing a lawsuit,” the supervisor told Miller to “[g]o ahead and 

approve” the request less than thirty minutes later. Neither Miller 

nor his supervisor specified how Roberts’s future requests would 

be evaluated or why they approved his participation in the 

program after so many years of refusing Roberts kosher meals. See 

id. at 1325 (concluding that the timing and substance of the BOP’s 

decision did not “indicate an unambiguous termination” because, 

after years of misconduct, it “suddenly changed its position days 

before [] trial” and without any indication of how it “intends to 

hold steady” in its new course). The FDC defendants’ actions thus 

do not appear to be “the result of substantial deliberation,” id. at 

1322–23 (quotations omitted), nor do they appear to be “wellUSCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 11 of 14
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reasoned and therefore likely to endure.” Id. at 1325 (quotations 

omitted). Instead, they appear to be a short-term attempt to avoid 

the court’s jurisdiction. 

As for the third factor, there is no evidence at all that the 

FDC defendants “ha[ve] consistently applied a new policy or 

adhered to a new course of conduct,” leading us to the conclusion 

that the FDC defendants have not unambiguously terminated the 

challenged action. Id. at 1323. And, as noted, there is no evidence 

of why Roberts was removed from the RDP in the first place. 

Considering the circumstances of Roberts’s case, we thus 

conclude that the FDC defendants failed to carry their burden of 

demonstrating that they unambiguously stopped their pattern of 

excluding Roberts from the RDP. As a result, the FDC defendants 

“bear[] the formidable burden of showing that it is absolutely clear 

the allegedly wrongful behavior could not reasonably be expected 

to recur.” Id. (quotations omitted). 

We conclude that the FDC defendants failed to meet this 

“formidable burden.” Id. at 1322 (quotations omitted). Miller 

merely stated in his declaration that “there is no intention to 

remove [Roberts] from the [RDP],” and that Roberts would only 

be removed from the program if he violated the rules of the RDP. 

But we have said that a non-permanent decision that “could change 

for any number of unrelated reasons,” including the plaintiff’s own 

behavior, does not alone show that “the allegedly wrongful 

behavior could not reasonably be expected to recur.” See id. at 

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1323–24.6 “To the contrary, the fact that [Roberts] has been 

[rejected] repeatedly over a period of years supports a finding of 

likely recurrence.” Id. at 1324.

Our conclusion is fortified by Rich v. Secretary, Florida

Department of Corrections, 716 F.3d 525 (11th Cir. 2013). Rich also 

involved a Florida prisoner who filed a pro se complaint alleging 

that the FDC violated his rights by denying him “a strictly kosher 

diet.” 716 F.3d at 528. We concluded that the prisoner’s claims 

were not moot even though Florida implemented “a plan to 

provide kosher meals to qualified inmates.” Id. at 530–32. 

Evaluating the timing of the policy change in question, we found 

ambiguity where the change “was not made before litigation was 

threatened, but was instead late in the game.” Id. at 532 (quotations 

omitted). We explained that “Florida announced that it was going 

to change its policy only after [the prisoner] filed his counseled brief 

to this Court and after the U.S. Department of Justice filed suit 

against it,” which “ma[d]e it appear that the change in policy [was]

an attempt to manipulate jurisdiction.” Id. (quotations omitted). 

Further, we said that “[t]here [was] nothing to suggest that Florida 

6 Indeed, Roberts’s opening brief on appeal says that the allegedly wrongful 

conduct did recur because the FDC defendants “suspended [him] again for no 

reason” after the district court dismissed his case. Of course, if Roberts’s 

assertion is true, then we may easily conclude his case is not moot because 

“we look at the events at the present time, not at the time the complaint was 

filed or when the federal order on review was issued.” Dow Jones & Co. v. Kaye,

256 F.3d 1251, 1254 (11th Cir. 2001). But we need not investigate the matter 

because, as explained in this opinion, this case is not moot due to the 

voluntary-cessation doctrine. 

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[would] not simply end the new kosher meal program at some 

point in the future,” as it had years earlier. Id. We therefore 

concluded that FDC had not unambiguously terminated its policy 

that had deprived the prisoner of his meals, and the prisoner’s 

claims were not moot. Id. at 532. The same analysis holds here. 

In sum, the district court erred by failing to analyze 

mootness under the voluntary-cessation doctrine. In doing so, it 

improperly placed the burden on Roberts to show jurisdiction 

existed, when that burden falls on the shoulders of the FDC 

defendants. See Doe, 747 F.3d at 1323 (stating that “[t]he District 

Court skipped [the] crucial first step by failing to require the 

government to shoulder its initial burden” of showing 

unambiguous termination and “therefore improperly shifting the 

burden to [the plaintiff]”). Because the FDC defendants failed to 

show both that they have unambiguously terminated the 

complained of activity and that the complained of activity could 

not reasonably be expected to recur, Roberts’s case is not moot.

See id. at 1322.

IV. Conclusion

Because the district court erred in dismissing Roberts’s case

as moot, we vacate and remand.

VACATED AND REMANDED.

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