Davis v. United States Parole Comm'n

MEMORANDUM OPINION AND ORDER

AMIT P. MEHTA UNITED STATES DISTRICT COURT JUDGE

I.

The United States Parole Commission (“Commission”) must hold a “local revocation hearing” for any individual who has allegedly violated the terms of their parole or supervised release, “not later than 65 days from [their] retaking” on a supervised release or parole violation warrant. 28 C.F.R. § 2.215(f); id. § 2.102(f); D.C. Code § 24-403.01(b)(6)(A) (requiring that the Commission follow the procedures set forth in the now-repealed chapter 311 of title 18 of the U.S. Code); 18 U.S.C. § 4214(a)(1)(B). These hearings provide the individual the opportunity to contest their alleged parole or supervised-release violations. See Compl., ECF No. 1 [hereinafter Compl.], ¶ 2.

Plaintiffs Dominique Davis and Rodney Spriggs brought this action on behalf of a putative class of “all District of Columbia code offenders on parole or supervised release who have not received a local revocation hearing within 65 days of having been retaken on a warrant issued by the Parole Commission.” Compl. ¶ 62. They claim that the Commission and its Acting Chair (collectively, “Defendants”) have violated their statutory, regulatory, and constitutional

obligations to hold timely, in-person local revocation hearings during the COVID-19 pandemic, and they seek as relief a writ of mandamus. Id. ¶¶ 89-93; Pet. for Writ of Mandamus, ECF No. 2. Plaintiffs assert that remote local revocation hearings deprive them of their rights to be physically present for such hearings before a hearing examiner; to receive effective representation of counsel; and to present favorable evidence, including in-person testimony.

The court has not yet certified a class in this action: simultaneously with their motion for class certification, Plaintiffs filed a consent motion with Defendants to stay briefing on the motion for class certification. Consent Mot. to Extend Answer Deadline & to Stay Briefing on Mot. for Class Certification, ECF No. 8. Since then, there have been two developments that Defendants argue render this putative class action moot: first, both Plaintiffs have been released from the Commission's custody, and second, the Commission has updated its local revocation hearing procedures in ways that, it asserts, significantly “narrow the potential issues.” Defs.' Mot. to Dismiss Pls.' Compl. & Deny Pls.' Pet. for Writ of Mandamus, ECF No. 16 [hereinafter Defs.' Mot.], Mem. in Supp. of Defs.' Mot., ECF No. 16-1 [hereinafter Defs.' Mem.], at 1. Specifically, the Commission has now fully resumed in-person revocation hearings-with the accused and their counsel physically present before a hearing examiner-with one exception: both adverse and friendly witnesses testify remotely, a requirement mandated by the D.C. Department of Corrections (“DOC”), which hosts the hearings. Based on these developments, Defendants have moved the court to dismiss the Complaint and deny the petition for mandamus on that basis^[1]; that

motion is now before the court. Defs.' Mot. For the reasons that follow, the court grants the motion to dismiss, without prejudice, on grounds of mootness.

II.

When deciding a motion under Rule 12(b)(1), a court must accept all well-pleaded factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA., 402 F.3d 1249, 1253 (D.C. Cir. 2005). Because the court has “an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority, ” however, the factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C. 2001) (internal quotation marks omitted). To that end, the court may consider “such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000); see also Mykonos v. United States, 59 F.Supp.3d 100, 103-04 (D.D.C. 2014) (applying rule in mootness context). Thus, “where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” See Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted).

Mootness is one ground for dismissal for lack of subject matter jurisdiction under Rule 12(b)(1). Indian River Cty. v. Rogoff, 254 F.Supp.3d 15, 18 (D.D.C. 2017) (“A motion to dismiss for mootness is properly brought under Rule 12(b)(1) because mootness itself deprives the court of jurisdiction.”). “Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.” Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013) (internal quotation marks omitted). “A case is moot

when the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated in circumstances where it becomes impossible for the court to grant any effectual relief whatever to the prevailing party.” United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009) (internal quotation marks omitted). Stated differently, a case becomes moot when “the court can provide no effective remedy because a party has already obtained all the relief that it has sought.” Conservation Force, 733 F.3d at 1204 (alteration and internal quotation marks omitted). “The initial heavy burden of establishing mootness lies with the party asserting a case is moot, but the opposing party bears the burden of showing an exception applies[.]” Honeywell Int'l, Inc. v. Nuclear Regul. Comm'n, 628 F.3d 568, 576 (D.C. Cir. 2010) (citations and internal quotation marks omitted).

III.

Defendants offer two independent arguments for mootness. First, they maintain that the entire action is moot because both Plaintiffs have been released, and so neither has a live claim with respect to an in-person revocation hearing. Defs.' Mem. at 10-11. Second, they assert that the Commission's return to in-person local revocation hearings narrows the live claims to only those involving remote witness testimony. Id.; Defs.' Mot., Mem., ECF No. 16-7 [hereinafter March 22 Memorandum]. Plaintiffs counter each argument with a different exception to mootness: the “inherently transitory” exception and the voluntary-cessation exception, respectively. Pls.' Opp'n to Defs.' Mot., ECF No. 17 [hereinafter Pls.' Opp'n], at 2. The court ultimately agrees with Defendants as to each theory of mootness and starts its discussion with Defendants' second argument (regarding the Commission's policy change).

A.

After the filing of this suit, the Commission issued a memorandum on March 22, 2021 (“March 22 Memorandum”) that “local revocation hearings are now to be held in person, with only the witnesses appearing via video conference.” Defs.' Mem. at 11. According to Defendants, “[a]ll of Plaintiffs' claims challenging various aspects of fully-video conferenced local revocation hearings . . . are therefore moot, ” and all that remains as live claims are “those that challenge the use of video conference technology for witness testimony.” Id. In response, Plaintiffs invoke the voluntary-cessation exception to mootness, Pls.' Opp'n at 2, under which “a defendant's voluntary choice to forgo the challenged conduct does not deprive the court of jurisdiction” unless “there is no reasonable expectation that the alleged violation will recur, and . . . interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Citizens for Responsibility and Ethics in Wash. (CREW) v. Wheeler, 352 F.Supp.3d 1, 13 (D.D.C. 2019) (internal quotation marks omitted). The party asserting mootness bears the “heavy” burden of “mak[ing] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to occur.” Id. (emphasis omitted). Importantly, however, “there is less concern about the recurrence of objectionable behavior” “where the defendant is a government actor.” Id.

Here, the Commission's policy change, made official through its March 22 Memorandum, suffices to carry Defendants' burden. The Commission has publicly announced its return to conducting local revocation hearings in person (with only witness testimony occurring remotely) and committed itself to not reverting to fully remote hearings. The March 22 Memorandum states that “it is the decision of the . . . Commission that all necessary parties to a local revocation hearing . . . will be required to attend the hearing in-person, ” and that “[t]he Commission will not revert to the use of video conference technology for the appearance of the above-defined necessary

parties.” March 22 Memorandum. A “presumption of regularity” attaches “when government officials express a clear intention to do as the complaint requests”; absent evidence to the contrary, the court assumes the Commission's good faith in announcing the policy changes set forth in the March 22 Memorandum. People for the Ethical Treatment of Animals (PETA) v. USDA, 918 F.3d 151, 158-59 (D.C. Cir. 2019); see also Worth v. Jackson, 451 F.3d 854, 861 (D.C. Cir. 2006); CREW, 352 F.Supp.3d at 14 (concluding that the agency's affirmation “that it intends to maintain the portion of the policy that was revised to address the Complaint[] . . . is sufficient to carry [the] [d]efendant's burden”).

Plaintiffs attempt to undercut Defendants' showing, casting the...