Jordan v. Sosa

FILED
United States Court of Appeals
Tenth Circuit

July 20, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARK JORDAN,

Plaintiff-Appellant,

v. No. 08-1326

MARY H. SOSA, ADX Florence
Acting Inmate Systems Manager;
ROBERT A. HOOD, ADX Florence
Warden; (FIRST NAME UNKNOWN)
TUCKER, FCI Englewood Inmates
Systems Officer; ANGELA SHENK,
FCI Englewood Inmate Systems
Manager; J. L. NORWOOD, USP
Victorville Warden, in their individual
and official capacities; W. A.
SHERROD, FCI Englewood Warden,
in his official capacity,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:05-CV-01283-EWN-KLM)

Michelle M. Berge, Reilly Pozner LLP, Denver, Colorado, for Plaintiff-Appellant.

Michael C. Johnson, Assistant United States Attorney (David M. Gaouette, Acting
United States Attorney, with him on the brief), Denver, Colorado, for Defendants-
Appellants.

Before BRISCOE, Chief Judge, TYMKOVICH and HOLMES, Circuit Judges.
 __________________________________

HOLMES, Circuit Judge.
__________________________________

Plaintiff-Appellant Mark Jordan was incarcerated in solitary confinement at

the administrative maximum security facility in Florence, Colorado (“ADX”),

when he commenced this action. Mr. Jordan was convicted of stabbing a fellow

inmate while incarcerated in federal prison for several offenses, including three

armed bank robberies. He brought a civil-rights action for a declaratory judgment

and injunctive relief against specifically named officials of the Federal Bureau of

Prisons (“BOP”), pursuant to 28 U.S.C. § 1331, to challenge the constitutionality

of a statutory and regulatory ban on the use of federal funds to distribute to

federal prisoners commercially published materials that are sexually explicit or

feature nudity. Following a two-day bench trial, the district court held that the

ban did not violate the First or Fifth Amendments to the United States

Constitution. Mr. Jordan now appeals the district court’s rejection of his First

Amendment claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

conclude that Mr. Jordan’s subsequent transfer to other prison facilities has

rendered his claims moot.

BACKGROUND

The BOP has regulated the distribution of sexually explicit publications to

federal prisoners for over thirty years. In 1979, the BOP promulgated a

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regulation granting wardens the discretion to reject incoming publications. 1

Control, Custody, Care, Treatment, and Instruction of Inmates, 44 Fed. Reg.

38,254, 38,260 (June 29, 1979) (codified at 28 C.F.R. § 540.71(b)). As codified,

this regulation authorizes wardens to reject “sexually explicit material which by

its nature or content poses a threat to the security, good order, or discipline of the

institution, or facilitates criminal activity.” 2 28 C.F.R. § 540.71(b)(7). Although

this regulation vests wardens with considerable discretion to reject publications, it

forbids them from rejecting a publication “solely because its content is religious,

philosophical, political, social or sexual, or because its content is unpopular or

repugnant.” Id. § 540.71(b). Wardens also may not “establish an excluded list of

publications,” meaning that they must review materials on an issue-by-issue basis.

Id. § 540.71(c). The Supreme Court upheld the facial constitutionality of this

regulation in Thornburgh v. Abbott, 490 U.S. 401, 419 (1989).

In 1996, Congress altered the regulatory landscape with the enactment of

the Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, 110

1
The BOP promulgated this regulation pursuant to 18 U.S.C.
§ 1791(a)(2) and (d)(1)(G), among other statutory authorities. Under
§ 1791(d)(1)(G), a federal prisoner is prohibited from obtaining “any . . . object
that threatens the order, discipline, or security of a prison, or the life, health, or
safety of an individual.”
2
In general, this regulation allows wardens to “reject a publication
only if it is determined detrimental to the security, good order, or discipline of the
institution or if it might facilitate criminal activity.” 28 C.F.R. § 540.71(b).
Although the regulation provides criteria for potentially banned publications, such
as “sexually explicit material,” the specified criteria are not exhaustive. Id.

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Stat. 3009 (1996) (“Act”). In Section 614 of the Act, known as the Ensign

Amendment, Congress exercised its power of the purse to ratchet up the

restrictions on incoming publications at federal prisons. See § 614, 110 Stat. at

3009-66. The Ensign Amendment, which is codified at 28 U.S.C. § 530C(b)(6),

now provides that “no [BOP] funds may be used to distribute or make available to

a prisoner any commercially published information or material that is sexually

explicit or features nudity.” 3 28 U.S.C. § 530C(b)(6)(D).

In response to the Ensign Amendment, the BOP promulgated an

implementing regulation that narrows the scope of the statute by defining key

statutory terms. 4 See 28 C.F.R. § 540.72. Under this regulation, “nudity” means

3
The Ensign Amendment applies only to commercial publications.
Nevertheless, the BOP interprets its statutory authority as permitting it to grant
wardens the discretion to reject non-commercial materials that contain sexually
explicit information or feature nudity. Incoming Publications: Nudity and
Sexually Explicit Material or Information, 67 Fed. Reg. 77,425, 77,426 (Dec. 18,
2002) (stating that wardens regulate such materials under the general restriction
in 28 C.F.R. § 540.12(a), which allows wardens to “establish and exercise
controls to protect individuals, and the security, discipline, and good order of the
institution”). The BOP claims that 28 C.F.R. § 540.12(a) “encompasses [its]
discretion to reject photographs featuring nudity and explicit sexuality from non-
commercial sources, such as an inmate’s wife or girlfriend” because “[s]uch
personal photographs typically cause disciplinary problems among inmates and
compromise institution security and good order.” Id.
4
The BOP continues to enforce the prior regulation, 28 C.F.R.
§ 540.71(b)(7), against incoming publications that pose a threat to “the security,
good order, or discipline of the institution, or [that might] facilitate[] criminal
activity,” but that fall outside of the scope of 28 C.F.R. § 540.72. Aplt. App.,
Vol. III, at 662–66 (BOP Program Statement 5266.10, dated Jan. 10, 2003); see
Ramirez v. Pugh, 379 F.3d 122, 125 n.1 (3d Cir. 2004).

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“a pictorial depiction where genitalia or female breasts are exposed.”

Id. § 540.72(b)(2). “Features” means that “the publication contains depictions of

nudity or sexually explicit conduct on a routine or regular basis or promotes itself

based upon such depictions in the case of individual one-time issues.” Id.

§ 540.72(b)(3). The definition of “features” carves out an exclusion, which is not

present in the Ensign Amendment, for “publications containing nudity illustrative

of medical, educational, or anthropological content.” Id. “Sexually explicit”

means “a pictorial depiction of actual or simulated sexual acts including sexual

intercourse, oral sex, or masturbation.” Id. § 540.72(b)(4). Although the Ensign

Amendment covers all material that is sexually explicit or features nudity,

whether pictorial or text, this regulation narrowly interprets the Ensign

Amendment to prohibit only pictorial depictions. See id.

The BOP has also adopted a program statement to establish procedures for

federal prisons to effectuate the Ensign Amendment and its implementing

regulation. See Aplt. App., Vol. III, at 661–69 (BOP Program Statement 5266.10,

dated Jan. 10, 2003). In Program Statement 5266.10, which was in effect at all

times relevant to this action, Section 7 elaborates on the restrictions in the Ensign

Amendment and in 28 C.F.R. § 540.72. 5 For example, the BOP explains that it

5
Program Statement 5266.10 references a pre-codification version of
the Ensign Amendment. For purposes of this analysis, however, the pre-
codification version is substantially similar to the codified version.

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may distribute certain periodicals to prisoners—such as National Geographic,

sports-magazine swimsuit issues, or lingerie catalogues—because they contain

nudity without featuring nudity. The BOP also indicates that written text “does

not qualify a publication as sexually explicit.” Aplt. App., Vol. III, at 669.

Furthermore, the BOP notes that publications may be banned under 28 C.F.R.

§ 540.71 and Program Statement 5266.10 § 6(b)(7) even if they are not sexually

explicit and do not feature nudity. Id.

BOP officials relied on § 540.72(b) and the program statement to reject

four commercial publications addressed to Mr. Jordan. First, on February 26,

2003, BOP officials rejected a book entitled Divas and Lovers – The Erotic Art of

Studio Manassé, which is a study of portraits from “a golden age of cinema and

cabaret in Vienna of the 1920s and 1930s,” Aplt. App., Vol. III, at 471, because

every page is sexually explicit or features nudity. Second, on April 15, 2004,

BOP officials rejected the May/June 2004 issue of JUXTAPOZ Art & Culture

Magazine because eleven pages contain images from an art show in Detroit that

are sexually explicit or feature nudity. Third, on May 21, 2004, BOP officials

rejected the July/August 2004 issue of JUXTAPOZ Art & Culture Magazine

because one page contains a re-print of an oil painting of a nude woman. Fourth,

on August 15, 2004, BOP officials rejected a book entitled Kama Sutra because

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depictions in the book are sexually explicit and feature nudity. 6 Mr. Jordan

exhausted his administrative remedies in appealing the rejection of these

publications.

On July 12, 2005, Mr. Jordan commenced this civil-rights action in the

United States District Court for the District of Colorado against the Warden and

the Inmate System Manager of the ADX, along with certain other BOP officials

assigned to penal institutions in Colorado and California in their individual and

official capacities. 7 Significantly, however, Mr. Jordan did not name as

defendants either the Director of the BOP or the BOP itself. By way of relief,

Mr. Jordan sought a declaratory judgment, an injunction, and damages, claiming

that (1) the Ensign Amendment violated the First Amendment, facially and as

applied to him; (2) the Ensign Amendment violated the Fifth Amendment; and (3)

the implementing regulation, 28 C.F.R. § 540.72(a), violated the First

Amendment, facially and as applied to him. 8 In a pre-trial order, the district court

6
The record casts doubt on whether this was the classic ancient
Sanskrit treatise or instead, as Mr. Jordan puts it, “a more recent photographic
version of someone’s interpretation of the Kama Sutra.” Aplt. Opening Br. at 9.
7
Specifically, Mr. Jordan identified the following people as
defendants: Mary H. Sosa, ADX Florence Acting Inmate Systems Manager;
Robert A. Hood, ADX Florence Warden; (First Name Unknown) Tucker, FCI
Englewood Inmate Systems Manager; J.L. Norwood, USP Victorville Warden;
and W.A. Sherrod, FCI Englewood Warden.
8
In his Complaint, Mr. Jordan neglected to specifically challenge the
implementing regulation, as applied to the individual publications. Because Mr.
(continued...)

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dismissed Mr. Jordan’s claims against the officials in their individual capacities

along with his request for damages.

A bench trial was held on July 7 and 8, 2008. On July 11, 2008, the district

court issued Findings of Fact and Conclusions of Law, upholding the

constitutionality of the Ensign Amendment and its implementing regulation under

the First and Fifth Amendments. 9 Mr. Jordan now appeals the district court’s

order with respect to the First Amendment.

DISCUSSION

Mr. Jordan challenges the constitutionality of the Ensign Amendment and

its implementing regulation. As an initial matter, we hold that Mr. Jordan has

standing to challenge the Ensign Amendment only to the extent that it is

embodied in the narrowly drafted implementing regulation. Additionally, because

8
(...continued)
Jordan proceeded pro se before the district court, we liberally construe his
complaint to raise those arguments. See Haines v. Kerner, 404 U.S. 519, 520–21
(1972) (noting that we hold pro se filings “to less stringent standards than formal
pleadings drafted by lawyers”); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1
(10th Cir. 2007). We do not, however, assume the role of advocate for him. See
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
9
Mr. Jordan’s Complaint also failed to challenge the program
statement. Nevertheless, the district court struck down the portion of the program
statement that allows the warden to return the rejected publication to the publisher
prior to the completion of administrative review. The district court held that this
portion of the program statement “deprive[s] [Mr. Jordan] of meaningful
administrative review and therefore does not meet the requirements of due
process” under the Fifth Amendment. Aplt. App., Vol. I, at 179 (Findings of Fact
& Conclusions of Law, filed July 11, 2008).

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Mr. Jordan was transferred from the ADX to other BOP facilities while his appeal

was pending, we must address whether any portion of this case is moot. We

conclude that Mr. Jordan’s First Amendment facial and as-applied challenges are

moot; thus, we need not consider whether the Ensign Amendment—insofar as it is

implemented through 28 C.F.R. § 540.72—is unconstitutional.

I. Standing

Article III of the United States Constitution limits the jurisdiction of

federal courts to the adjudication of “Cases” or “Controversies.” U.S. Const. art.

III, § 2, cl. 1. Although the parties and the district court neglected to address

whether Mr. Jordan had standing to challenge the constitutionality of the Ensign

Amendment, we raise the issue sua sponte “[b]ecause it involves the court’s

power to entertain the suit.” Green v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d

784, 792 (10th Cir. 2009) (quoting O’Connor v. Washburn Univ., 416 F.3d 1216,

1222 (10th Cir. 2005)) (internal quotation marks omitted), cert. denied, 130 S. Ct.

1687 (2010). “Standing is determined as of the time the action is brought.” Utah

Ass’n of Counties v. Bush, 455 F.3d 1094, 1099 (10th Cir. 2006) (alteration

omitted) (quoting Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir.

2005)) (internal quotation marks omitted); see Mink v. Suthers, 482 F.3d 1244,

1253–54 (10th Cir. 2007) (“[S]tanding is determined at the time the action is

brought, and we generally look to when the complaint was first filed, not to

subsequent events.” (citation omitted)); see also Utah Animal Rights Coal. v. Salt

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Lake City Corp., 371 F.3d 1248, 1263 (10th Cir. 2004) (“Standing doctrine

addresses whether, at the inception of the litigation, the plaintiff had suffered a

concrete injury that could be redressed by action of the court.”). To establish

Article III standing, the plaintiff bears the burden of demonstrating the following

three elements: (1) an injury in fact; (2) a causal connection between the injury

and the challenged action; and (3) a likelihood that a favorable decision will

redress the injury. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528

U.S. 167, 180–81 (2000).

The injury-in-fact element requires “an invasion of a legally protected

interest which is (a) concrete and particularized; and (b) actual or imminent, not

conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992) (citations omitted) (internal quotation marks omitted). Although a

plaintiff may present evidence of a past injury to establish standing for

retrospective relief, he must demonstrate a continuing injury to establish standing

for prospective relief. PETA v. Rasmussen, 298 F.3d 1198, 1202 (10th Cir. 2002).

“[A] plaintiff who challenges a statute on First Amendment grounds may satisfy

the injury-in-fact requirement ‘by showing a credible threat of prosecution or

other consequences following from the statute’s enforcement.’” Brammer-

Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1182 (10th Cir. 2010)

(quoting D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004)); see also Salvation

Army v. Dep’t of Cmty. Affairs, 919 F.2d 183, 192 (3d Cir. 1990) (“[T]he plaintiff

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must demonstrate that the probability of that future event occurring is real and

substantial, ‘of sufficient immediacy and reality to warrant the issuance of a

declaratory judgment.’” (quoting Steffel v. Thompson, 415 U.S. 452, 460 (1974))).

We evaluate the constitutionality of a statute by assessing the manner in

which it is implemented and enforced by the governmental officials who

administer it. See, e.g., Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S.

123, 131 (1992) (“In evaluating respondent’s facial challenge, we must consider

the county’s authoritative constructions of the ordinance, including its own

implementation and interpretation of it.”); see also Bronson v. Swensen, 500 F.3d

1099, 1108 (10th Cir. 2007) (“[T]he affirmative assurances of non-prosecution

from a governmental actor responsible for enforcing the challenged statute

prevents a ‘threat’ of prosecution from maturing into a ‘credible’ one.”);

Salvation Army, 919 F.2d at 192 (“[T]he current record reflects not only the

absence of a threat of enforcement but an express assurance that there will be no

enforcement . . . of the waived portions of the statute.”). Thus, we consider the

Ensign Amendment only as it is actually interpreted and applied by the BOP.

In so doing, we conclude that Mr. Jordan has standing to challenge the

Ensign Amendment only to the extent that it is embodied in the BOP’s narrowly

drafted implementing regulation. The record reveals that the BOP never applies

the Ensign Amendment directly to incoming publications; to the contrary, a BOP

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official agreed at trial that prison staff apply a narrower interpretation of the

statute through the implementing regulation and, secondarily, through the

program statement, which establishes procedures to implement the prescriptions

and restrictions of the regulation. The parties also stipulated that the BOP had

rejected the publications at issue pursuant to 28 C.F.R. § 540.72 and the program

statement and, throughout the administrative appeals process, the BOP issued

several documents in which it confirmed that it had denied Mr. Jordan’s

individual publications under its own regulatory scheme. Although some of these

appellate documents reference the Ensign Amendment, the BOP generally denied

Mr. Jordan’s appeals because it found that the rejection of the contested

publications was consistent with its program statement, which effectuates the

BOP’s regulation.

Because BOP officials apply the Ensign Amendment through that

implementing regulation and program statement, Mr. Jordan has not suffered an

injury in fact with respect to the portions of the Ensign Amendment that fall

outside the scope of the implementing regulation. 10 See Amatel v. Reno, 156 F.3d

192, 195 (D.C. Cir. 1998) (limiting the court’s focus of the appeal to the Ensign

10
The Ensign Amendment covers certain materials that are exempt
from the implementing regulation. For example, the Ensign Amendment (1) bans
non-pictorial material that is sexually explicit or features nudity; and (2) contains
no exception for “[p]ublications containing nudity illustrative of medical,
educational, or anthropological content.” Compare 28 U.S.C. § 530C(b)(6), with
28 C.F.R. § 540.72(b)(3)–(4).

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Amendment’s implementing regulation). Mr. Jordan has also not shown a

“credible threat” that the BOP will apply the full scope of the Ensign Amendment

to incoming publications in the future. See Brammer-Hoelter, 602 F.3d at 1182.

We therefore “decline to provide an advisory opinion regarding the

constitutionality” of the portions of the Ensign Amendment that are not embodied

by the implementing regulation. Salvation Army, 919 F.2d at 193.

II. Mootness

A. Factual Background

In reviewing documents in another case before this court, Jordan v. Wiley,

No. 09-1355, the panel learned that Mr. Jordan may have been transferred from

the ADX to another BOP facility. Taking judicial notice of this development, the

panel issued a show-cause order that directed both parties to file supplemental

briefs addressing: “(1) Mr. Jordan’s current location and conditions of

confinement (e.g., prison facility and solitary-confinement status, if any); and (2)

if Mr. Jordan is no longer housed in solitary confinement at ADX in Florence,

Colorado, whether consequently this appeal is now moot, in whole or in part.”

Order at 2, filed Nov. 26, 2010. 11

11
The parties’ failure to inform the court of this significant
development is inexplicable and inexcusable. It is the parties, not the court, who
are positioned to remain abreast of external factors that may impact their case;
this is of particular importance where, as here, those factors directly pertain to
(continued...)

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 The parties’ simultaneous filings confirmed that Mr. Jordan had been

transferred, but they reflected a puzzling disagreement concerning his new

location. Mr. Jordan, through representations of his counsel and in his own

affidavit, indicated that he was incarcerated in a federal penitentiary in Lee,

Virginia. The government, through representations of counsel and an affidavit of

a BOP official, initially indicated that he was being held at a federal penitentiary

in Lee, Pennsylvania. Our review of the parties’ briefs (with attachments) and the

record in the related case, Jordan v. Wiley, indicated (perhaps not surprisingly)

that Mr. Jordan knew where he was—the United States Penitentiary in Lee

County, Virginia. 12

Though the parties disputed Mr. Jordan’s precise geographic location, they

agreed that he was being held in administrative detention in a Special Housing

11
(...continued)
this court’s substantive inquiry. We look to the parties to inform us of such
developments, and we should be assured that they will do so diligently. Their
failure to do so in this case has resulted in the expenditure of significant judicial
resources on issues that, in light of the current procedural posture of this case, are
irrelevant.
12
The Administrative Detention Order designating Mr. Jordan for
placement in a Special Housing Unit listed the institution to which Mr. Jordan
was to be transferred as “USP Lee, VA.” Aplee. Supplemental Br., App., Decl. of
Clay C. Cook [hereinafter “Cook Decl.”], Attach. 3 (Administrative Detention
Order, dated July 10, 2010). Presumably, the “VA” refers to the State of
Virginia. Additionally, in Jordan v. Wiley, Mr. Jordan submitted a notice of
change of address and a document seeking to supplement the record, both of
which indicated that he had been relocated to a penal facility in Lee County,
Virginia.

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Unit (“SHU”) at the time that they submitted their supplemental filings. 13 They

also agreed that Mr. Jordan had been recommended for placement in a Special

Management Unit (“SMU”). A subsequent filing by the government in February

2011 confirmed that a BOP Regional Director had approved Mr. Jordan’s transfer

to a SMU on account of his “propensity for violence and continued disruptive

behavior.” Aplee. Status Report at 1, filed Feb. 14, 2011. It further indicated

that Mr. Jordan would therefore be transferred to a SMU “in the foreseeable

future.” Id. at 2. According to the government, the BOP’s SMU facilities are

located in Lewisburg, Pennsylvania; Talladega, Alabama; and Oakdale, Louisiana.

13
SHU inmates are generally subject to the same conditions of
confinement, and afforded the same privileges, as inmates housed within the
general population. See 28 C.F.R. § 541.22(d) (“If consistent with available
resources and the security needs of the unit, the Warden shall give an inmate
housed in administrative detention the same general privileges given to inmates in
the general population.”). Accordingly, SHU inmates may be housed with other
inmates, and Mr. Jordan’s counsel represented that he had a cell mate throughout
his term of incarceration at the SHU facility. See Aplt. Supplemental Br. at 14.
As a SHU inmate, Mr. Jordan also retained the right to possess reasonable
amounts of personal property including magazines, books, and other commercial
publications, as well as the right to receive mail. The government concedes that
the Ensign Amendment and its implementing regulation apply with full force to
prisoners held in SHU administrative detention, and Clay Cook, a Senior Attorney
Advisor at the BOP, stated in a sworn declaration that Mr. Jordan was unlikely to
receive the commercial publications at issue in this case in light of the
Amendment. See Cook Decl. at 12. Mr. Jordan himself has declared, under
penalty of perjury, that his “conditions of confinement ha[d] not materially
changed” at the time that he was being held in a SHU; thus, he “remain[ed]
subject to the Ensign Amendment and the published [f]ederal regulations
governing incoming publications and correspondence.” Aplt. Supplemental Br.,
Ex. 1, at 4 (Decl. of Mark Jordan, at 4) [hereinafter “Jordan Decl.”].

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Aplee. Supplemental Br. at 4. None of these facilities are within the jurisdiction

of this court.

Our review of the BOP’s online Inmate Locator indicates that an inmate

matching Mr. Jordan’s basic physical description (i.e., gender and race) and

possessing the BOP registration number associated with Mr. Jordan in this case is

currently being held at a SMU facility in Lewisburg, Pennsylvania. Given that

the parties have not informed us of any deviation from the BOP’s plan to place

Mr. Jordan in a SMU, we are content to proceed on the premise that he is

currently housed in a SMU facility and almost certainly the one located in

Lewisburg, Pennsylvania.

Inmates housed within a SMU, like those housed within a SHU, are not

necessarily held in solitary confinement. See Cook Decl., Attach. 4, at 5 (Special

Management Units Program Statement, dated Nov. 19, 2008) (“Living quarters

ordinarily house only the number of occupants for which they are designed. The

Warden, however, may authorize additional occupants as long as adequate

standards can be maintained.”); id. at 7 (“The Associate Warden is responsible for

determining which inmates may be housed or participate in activities together, as

necessary to protect the safety, security, and good order of the institution.”).

However, the “[c]onditions of confinement for SMU inmates [are] more

restrictive than for general population inmates.” Id. at 5. The SMU program

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consists of four progressive levels, differentiated by the degree of inmate

interaction allowed, the amount of personal property that inmates are permitted to

possess, and the programming that inmates must complete. Id. at 7–10; see also

Cook Decl. at 6. Inmates are expected to complete the SMU program within

eighteen to twenty-four months. See Cook Decl., Attach. 4, at 1. The

government concedes that SMU inmates remain subject to the Ensign Amendment

and its implementing regulation, and a senior BOP official represented that the

Amendment is likely to foreclose Mr. Jordan’s access to the requested

publications while he remains in the SMU program. See Cook Decl. at 12. Mr.

Jordan himself represents that “[f]or so long as [he] remains in the BOP, the

Ensign Amendment and the [applicable] mail regulations, and implementing

[p]rogram [s]tatements, will continue to apply to [his] receipt of correspondence

and publications.” Jordan Decl. at 6.

We must emphasize that these descriptions are lacking in concreteness and

specificity, recounting only the general conditions of confinement prescribed by

the BOP’s regulations and policy materials. Mr. Cook—the BOP official offering

testimony via affidavit for the government—is based in Colorado, and he does not

purport to have personal knowledge concerning Mr. Jordan’s current conditions of

confinement outside of Colorado. Moreover, as Mr. Cook noted, wardens of BOP

institutions ordinarily promulgate institutional supplements that provide

institution-specific guidance to subordinates tasked with implementing BOP

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policy. Consequently, as relevant here, BOP facilities may differ in the manner in

which they interpret and apply the Ensign Amendment through the BOP’s

implementing regulation, 28 C.F.R. § 540.72. Significantly, we do not have any

judicial findings of fact regarding Mr. Jordan’s current circumstances of

confinement. In light of the foregoing, the details of Mr. Jordan’s current

conditions of confinement are not entirely clear. In other words, we are not able

to gain from the record a completely accurate and comprehensive picture of those

conditions.

B. Constitutional and Prudential Mootness

Given Mr. Jordan’s multiple facility transfers, we must consider whether

any of Mr. Jordan’s claims are now moot. Mr. Jordan insists that his case is not

moot because, “[r]egardless of his current or final placement, [he] remains in the

custody of the BOP and is therefore subject to the Ensign Amendment, all

published federal regulations governing incoming publications and

correspondence, and the [BOP’s] . . . [p]rogram [s]tatements.” Aplt.

Supplemental Br. at 4. More specifically, he claims that “[b]ecause his challenge

is to the statute and the regulation, rather than to the specific conditions of

confinement at ADX, his transfer to a new institution does not operate to moot his

claims.” Id. The government acknowledges that the BOP enforces the Ensign

Amendment and its implementing regulation in all of its facilities, including its

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SMUs. It is noteworthy that the government does not contend that Mr. Jordan’s

First Amendment claims are constitutionally moot. Rather, the government

argues that we should declare Mr. Jordan’s claims to be prudentially moot due to

the changes in the location and circumstances of Mr. Jordan’s penal housing.

“The mootness doctrine provides that although there may be an actual and

justiciable controversy at the time the litigation is commenced, once that

controversy ceases to exist, the federal court must dismiss the action for want of

jurisdiction.” 15 James W. Moore & Martin H. Redish, Moore’s Federal Practice

§101.90, at 101-237 (3d ed. 2010) (italicization omitted); see United States v.

Juvenile Male, 131 S. Ct. 2890, No. 09-940, 2011 WL 2518925, at *3 (June 27,

2011) (per curiam) (“It is a basic principle of Article III that a justiciable case or

controversy must remain ‘extant at all stages of review, not merely at the time the

complaint is filed.’” (quoting Arizonans for Official English v. Arizona, 520 U.S.

43, 68 n.22 (1997))). In other words, “[m]ootness is found when events outside

the litigation make relief impossible . . . . Events may supersede the occasion for

relief, particularly when the requested relief is limited.” 13C Charles A. Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure

§ 3533.3.1, at 56, 59–60 (3d ed. 2008) (footnotes omitted).

The mootness doctrine relates to both “[t]he constitutional case or

controversy requirement of Article III . . . , as well as the prudential

considerations underlying justiciability.” 15 Moore, supra, §101.90, at 101-237.

-19-
Accordingly, “[c]ourts recognize two kinds of mootness: constitutional mootness

and prudential mootness.” Rio Grande Silvery Minnow v. Bureau of Reclamation,

601 F.3d 1096, 1121 (10th Cir. 2010); see also Evan Tsen Lee,

Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev.

605, 610 (1992) (observing that the mootness doctrine “has both constitutional

and prudential components”). 14 “Under the constitutional mootness doctrine, the

suit must present a real and substantial controversy with respect to which relief

may be fashioned. Also, the controversy must remain alive at the trial and

appellate stages of the litigation.” Fletcher v. United States, 116 F.3d 1315, 1321

(10th Cir. 1997) (citations omitted). Constitutional mootness is grounded in the

requirement that “any case or dispute that is presented to a federal court be

definite, concrete, and amenable to specific relief.” 15 Moore, supra, §101.90, at

101-237 (emphasis added). Consequently, the constitutional mootness doctrine

focuses upon whether “a definite controversy exists throughout the litigation and

14
As we noted in Rio Grande Silvery Minnow, a district court’s
constitutional and prudential mootness determinations are accorded different
standards of review. “[W]e apply a de novo standard of review [where] the case
presents a question of constitutional mootness.” 601 F.3d at 1123 (emphasis
added). In contrast, we ordinarily review a district court’s prudential mootness
determination for an abuse of discretion. Id. at 1122. In the present case,
however, we necessarily undertake the mootness inquiry in the first instance as
Mr. Jordan’s multiple facility transfers occurred after the district court had
completed its consideration of the merits of the case and had issued its Findings
of Fact and Conclusions of Law on July 11, 2008. Consequently, we operate on a
clean slate as to both our constitutional and prudential mootness analyses.

-20-
whether conclusive relief may still be conferred by the court despite the lapse of

time and any change of circumstances that may have occurred since the

commencement of the action.” Id.

“Even if a case is not constitutionally moot, a court may dismiss [a] case

under the prudential-mootness doctrine if the case ‘is so attenuated that

considerations of prudence and comity for coordinate branches of government

counsel the court to stay its hand, and to withhold relief it has the power to

grant.’” Rio Grande Silvery Minnow, 601 F.3d at 1121 (quoting Fletcher, 116

F.3d at 1321). Prudential mootness therefore “addresses ‘not the power to grant

relief[,] but the court’s discretion in the exercise of that power.’” S. Utah

Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997) (emphasis

added) (quoting Chamber of Commerce v. U.S. Dep’t of Energy, 627 F.2d 289,

291 (D.C. Cir. 1980)). In general, the prudential mootness doctrine only applies

where, as here, a plaintiff seeks injunctive or declaratory relief. See Rio Grande

Silvery Minnow, 601 F.3d at 1122; Bldg. & Constr. Dep’t v. Rockwell Int’l Corp.,

7 F.3d 1487, 1492 (10th Cir. 1993) (“All the cases in which the prudential

mootness concept has been applied have involved a request for prospective

equitable relief by declaratory judgment or injunction.”).

Where a plaintiff requests equitable relief, a mere showing that he

maintains a personal stake in the outcome of the controversy is insufficient. See

City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). Rather, a plaintiff must

-21-
additionally demonstrate “an adequate basis for equitable relief”—that is, “[a]

likelihood of substantial and immediate irreparable injury, and the inadequacy of

remedies at law.” O’Shea v. Littleton, 414 U.S. 488, 499, 502 (1974); accord

Randolph v. Rodgers, 170 F.3d 850, 856 (8th Cir. 1999) (“A claim for equitable

relief is moot ‘absent a showing of irreparable injury, a requirement that cannot

be met where there is no showing of any real or immediate threat that the plaintiff

will be wronged again.’” (quoting City of Los Angeles, 461 U.S. at 111)); see also

13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice

and Procedure § 3533.1, at 730 (3d ed. 2008) (“Mootness decisions are concerned

in large part with the determination whether any effective purpose can still be

served by a specific remedy.” (emphasis added)). Where a plaintiff seeks an

injunction, his susceptibility to continuing injury is of particular

importance—“[p]ast exposure to illegal conduct does not in itself show a present

case or controversy regarding injunctive relief . . . if unaccompanied by any

continuing, present adverse effects.” O’Shea, 414 U.S. at 495–96.

Moreover, a plaintiff’s continued susceptibility to injury must be

reasonably certain; a court will not entertain a claim for injunctive relief where

the allegations “take[] [it] into the area of speculation and conjecture.” Id. at

497; accord Rizzo v. Goode, 423 U.S. 362, 372 (1976) (concluding that

respondents’ claim for injunctive relief was moot where their allegations of “real

and immediate” injury were “even more attenuated than those allegations of

-22-
future injury found insufficient in O’Shea to warrant invocation of federal

jurisdiction”). Similarly, in the context of an action for declaratory relief, a

plaintiff must be seeking more than a retrospective opinion that he was wrongly

harmed by the defendant. See Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (per

curiam) (concluding that appellee’s claim for declaratory relief was moot where

his “primary claim of a present interest in the controversy is that he will obtain

emotional satisfaction from a ruling that his son’s death was wrongful”); Green v.

Branson, 108 F.3d 1296, 1299 (10th Cir. 1997) (“This ‘legal interest’ [impacted

by the litigation] must be more than simply the satisfaction of a declaration that a

person was wronged.” (quoting Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348

(10th Cir. 1994))).

The mootness of a plaintiff’s claim for injunctive relief is not necessarily

dispositive regarding the mootness of his claim for a declaratory judgment.

Where a plaintiff seeks both an injunction and declaratory relief, “the [d]istrict

[c]ourt ha[s] ‘[a] duty to decide the appropriateness and the merits of the

declaratory request irrespective of its conclusion as to the propriety of the

issuance of [an] injunction.’” Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115,

121 (1974) (quoting Zwickler v. Koota, 389 U.S. 241, 254 (1967)). “Declaratory

judgment actions must be sustainable under the same mootness criteria that apply

to any other lawsuit.” Rio Grande Silvery Minnow, 601 F.3d at 1109. When we

apply the mootness doctrine in the declaratory judgment context, “[i]t is well

-23-
established that what makes a declaratory judgment action a proper judicial

resolution of a case or controversy rather than an advisory opinion is the settling

of some dispute which affects the behavior of the defendant toward the plaintiff.”

Id. at 1109–10 (alteration in original) (emphasis added) (quoting Cox, 43 F.3d at

1348) (internal quotation marks omitted); see also Camreta v. Greene, 131 S. Ct.

2020, 2037 (2011) (Kennedy, J., dissenting) (reciting the “Article III prohibition

against issuing advisory opinions”); Herb v. Pitcairn, 324 U.S. 117, 126 (1945)

(“We are not permitted to render an advisory opinion . . . .”).

Thus, where a plaintiff seeks a declaratory judgment against his opponent,

he must assert a claim for relief that, if granted, would affect the behavior of the

particular parties listed in his complaint. See Rhodes v. Stewart, 488 U.S. 1, 4

(1988) (per curiam) (“A declaratory judgment . . . is no different from any other

judgment. It will constitute relief . . . if, and only if, it affects the behavior of the

defendant toward the plaintiff.” (emphasis added)); Hewitt v. Helms, 482 U.S.

755, 761 (1987) (same); Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (“[A]

federal court has neither the power to render advisory opinions nor ‘to decide

questions that cannot affect the rights of litigants in the case before them.’”

(emphasis added) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per

curiam))); Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941) (“[T]he

question in each case is whether the facts alleged, under all the circumstances,

show that there is a substantial controversy, between parties having adverse legal

-24-
interests, of sufficient immediacy and reality to warrant the issuance of a

declaratory judgment.” (emphasis added)); see also Rice, 404 U.S. at 246

(“[F]ederal courts are without power to decide questions that cannot affect the

rights of litigants in the case before them.” (emphasis added)).

That a declaration might guide third parties (i.e., those not parties to the

lawsuit) in their future interactions with a plaintiff is insufficient. “Under the

[f]ederal Declaratory Judgment[] Act, Congress has authorized declaratory

judgements only ‘[i]n . . . case[s] of actual controversy.’” Olin Corp. v. Consol.

Aluminum Corp., 5 F.3d 10, 17 (2d Cir. 1993) (third and fourth alterations in

original) (quoting 28 U.S.C. § 2201). Thus, “[t]he controversy must be ‘real and

substantial[,] . . . admitting of specific relief through a decree of conclusive

character, as distinguished from an opinion advising what the law would be upon

a hypothetical set of facts.’” Id. (ellipsis in original) (quoting Aetna Life Ins. Co.

v. Haworth, 300 U.S. 227, 241 (1937)); see Juvenile Male, 2011 WL 2518925, at

*3 (“True, a favorable decision in this case might serve as a useful precedent for

respondent in a hypothetical lawsuit challenging Montana’s registration

requirement on ex post facto grounds. But this possible, indirect benefit in a

future lawsuit cannot save this case from mootness.”). A declaratory judgment

that merely seeks to affect the (uncertain) future conduct of third parties—who

are not named in a plaintiff’s complaint—would involve the very sort of

speculative, “hypothetical” factual scenario that would render such a judgment a

-25-
prohibited advisory opinion.

Consequently, in a mootness inquiry in the declaratory judgment context, it

is critically important to determine whether the plaintiff has named, as

defendants, individuals or entities that are actually situated to have their future

conduct toward the plaintiff altered by the court’s declaration of rights. If the

plaintiff has not named such individuals or entities, courts are likely to determine

that they cannot accord the plaintiff effective declaratory relief and that the action

is moot. See id.; Note, Cases Moot on Appeal: A Limit on the Judicial Power,

103 U. Pa. L. Rev. 772, 775 (1955) [hereinafter Cases Moot on Appeal] (“For

obvious reasons, courts prefer not to enter decrees which will have no effect on

the present status of the parties, and will dismiss such cases in order to devote

their time to the decision of live controversies, which do give relief to those

whose rights have been violated.”); cf. Pritikin v. Dep’t of Energy, 254 F.3d 791,

799–800 (9th Cir. 2001) (dismissing plaintiff’s case for lack of standing where

she sought “to change [a defendant’s] behavior only as a means to alter the

conduct of a third party, not before the court, who [was] the direct source of [her]

injury” (emphasis added) (quoting Common Cause v. Dep’t of Energy, 702 F.2d

245, 251 (D.C. Cir. 1983)) (internal quotation marks omitted)); 15 Chicago & N.

15
We rely in our mootness analysis to a limited extent on cases
involving standing questions, recognizing that standing and mootness are “closely
related doctrines.” Utah Animal Rights Coal., 371 F.3d at 1263; see id. (noting
(continued...)

-26-
W. Transp. Co. v. Ry. Labor Execs.’ Ass’n, 908 F.2d 144, 149 (7th Cir. 1990)

(“[A]n order that is not actually or at least potentially coercive[,] . . . including

. . . a declaratory judgment[,] does not impose the sort of tangible harm that

Article III requires for standing to seek judicial relief, including relief in the form

of an appellate judgment.” Rather, “[i]t is just an advisory opinion” that may

“compel the dismissal of an appeal.”).

C. Prisoner Transfers and Mootness

When a prisoner files suit against prison officials who work in the

institution in which he is incarcerated, seeking declaratory and injunctive relief

on the basis of alleged wrongful conduct by those officials, and then that prisoner

is subsequently transferred to another prison or released from the prison system,

courts are presented with a question of possible mootness. See, e.g., Green, 108

F.3d at 1299 (“Since he has been transferred from state custody to federal custody

and has been released, Green concedes that his claim for injunctive relief against

state employees is moot.”); see also Muhammad v. City of New York Dept. of

Corr., 126 F.3d 119, 123 (2d Cir. 1997) (concluding that granting plaintiff’s

claim “would afford no ‘legally cognizable benefits’ to [plaintiff], who is no

15
(...continued)
that “[t]he Supreme Court has described the doctrine of mootness as ‘the doctrine
of standing set in a time frame’” (quoting Arizonans for Official English, 520
U.S. at 68 n.22)); Belles v. Schweiker, 720 F.2d 509, 513 n.7 (8th Cir. 1983)
(“The doctrines of standing and mootness are conceptually related.”).

-27-
longer imprisoned within the [New York City Department of Corrections]

system”). Where the prisoner’s claims for declaratory or injunctive relief relate

solely to the conditions of confinement at the penal institution at which the

prisoner is no longer incarcerated, courts have concluded that they are unable to

provide the prisoner with effective relief. 16 Because a prisoner’s transfer or

16
An analogous situation arises where a plaintiff sues a government
official who is subsequently “divested of responsibility for the challenged conduct
or activity during the pendency of the action.” 15 Moore, supra, §101.94[3], 101-
257. In that situation, as in the prisoner-transfer context, “mootness occurs either
because the plaintiff is no longer exposed to harm by that particular defendant, or
because the defendant can no longer comply with the remedy that may be ordered
by the court.” Id.; see also Spomer v. Littleton, 414 U.S. 514, 520–21 (1974)
(remanding for a determination as to whether respondents’ claims were moot
where they sought equitable relief against the State’s Attorney in his official
capacity, and he had since been succeeded by petitioner, and respondents had
failed to name petitioner as a defendant or “cite[] any conduct of [petitioner] as
the basis for equitable or any other relief” in their complaint); Nat’l Treasury
Emps.’ Union v. Campbell, 654 F.2d 784, 788 (D.C. Cir. 1981) (“[W]here the
conduct challenged is personal to the original named defendant, even though he
was sued in his official capacity, a request for prospective injunctive relief is
mooted when the defendant resigns.”). In other words,

in lawsuits against governmental officials based on specific
actions taken during their tenure in office, when the relief sought
is other than monetary damages, the potential of a mootness
challenge exists because once the governmental officials no
longer hold that position, the requisite adversity of interest
between the parties, which must exist throughout the duration of
the action, may be lost, and any remedy that might otherwise
have been provided by the court would therefore serve no
effective purpose.

15 Moore, supra, §101.94[3], at 101-257. The courts’ treatment of this analogous
situation is therefore instructive here.

-28-
release “signal[s] the end of the alleged deprivation of his constitutional rights,”

McKinnon v. Talladega Cnty., Ala., 745 F.2d 1360, 1362 (11th Cir. 1984), an

entry of equitable relief in his favor “would amount to nothing more than a

declaration that he was wronged, and would have no effect on the defendants’

behavior towards him.” Green, 108 F.3d at 1300. Consequently, courts have

routinely dismissed such penitentiary-specific conditions-of-confinement claims

as moot. See Sossamon v. Texas, 131 S. Ct. 1651, 1669 (2011) (“A number of . . .

suits seeking injunctive relief have been dismissed as moot because the plaintiff

was transferred from the institution where the alleged violation took place prior to

adjudication on the merits.” ); accord Abdulhaseeb v. Calbone, 600 F.3d 1301,

1311 (10th Cir.), cert. denied, 131 S. Ct. 469 (2010); Green, 108 F.3d at 1300;

Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (“[A] prisoner’s claim for

injunctive relief is moot if he or she is no longer subject to those conditions.”);

see also Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. 2000) (concluding that

plaintiff’s “claims for injunctive relief to correct procedures and practices at [the

Federal Detention Center in Oakdale, Louisiana] facility [were] moot” because he

had subsequently been transferred out of that facility). 17

17
Therefore, under our holdings in Green and Abdulhaseeb, where a
prisoner is no longer housed at the penal institution having the conditions of
confinement that form the basis of his suit, declaratory relief—as well as
injunctive relief—is ordinarily not available. Yet, we would be remiss if we did
not briefly mention our decision in Love v. Summit County, 776 F.2d 908 (10th
(continued...)

-29-
 However, where a prisoner brings a lawsuit challenging policies that apply

in a generally uniform fashion throughout a prison system, courts have been

disinclined to conclude that the prisoner’s declaratory or injunctive claims are

moot, even after he has been transferred to another prison in that system. See

Abdulhaseeb, 600 F.3d at 1311–12; accord Randolph, 170 F.3d at 856–57.

Critically, in determining that the transferred prisoners’ claims for declaratory or

injunctive relief were not moot, these courts have focused upon the fact that the

17
(...continued)
Cir. 1985), though we conclude upon examination that Love does not
meaningfully inform our analysis and that its conceivably relevant snippets of text
cannot reasonably be read as standing for a proposition contrary to the holdings of
Green and Abdulhaseeb. In Love, a prisoner plaintiff had been transferred from
the county jail that maintained the law-library policies forming the basis of his
lawsuit. The prisoner “acknowledge[d] that his transfer . . . rendered his claim
for injunctive relief moot,” 776 F.2d at 910 n.4, and the county defendant did not
assert that any other aspect of his case was moot. We concluded that the “only”
issues we were obliged to “determine” were “whether plaintiff was entitled to
damages or declaratory relief for injury to him in violation of his right of access
to the courts.” Id. at 912 (emphasis added). Conceivably, Love might be read to
allow for the possibility that declaratory relief may be a constitutionally viable
remedy in a conditions-of-confinement case, even where a prisoner is transferred
from the penal institution where the conditions exist.

However, there is virtually no discussion of mootness in Love. In
particular, the court did not expressly undertake a mootness analysis with respect
to the claim for declaratory relief. Moreover, Love has never been cited by us for
a proposition contrary to the holdings of Green and Abdulhaseeb. Consequently,
we would be hard-pressed to conclude that Love is actually at odds with those
cases; indeed, reaching such a conclusion from the snippets of conceivably
relevant text in Love would be more an act of speculation than judicial
explication. Thus, at bottom, Love does not meaningfully inform our analysis in
this case. Instead, Green and Abdulhaseeb (among other cases) chart the path for
our mootness analysis.

-30-
prisoners had sued defendants who were actually situated to effectuate any

prospective relief that the courts might see fit to grant—viz., that the prisoners

had sued the director of the prison system or the prison system itself. See

Abdulhaseeb, 600 F.3d at 1312 (“Even if Mr. Abdulhaseeb cannot recover money

damages against any defendant or injunctive relief against the prison-specific

defendants, the courts may still fashion some effective relief. The [Oklahoma

Department of Corrections (“ODOC”)] [d]efendants, particularly the director of

ODOC, remain parties to the litigation.”); Randolph, 170 F.3d at 857 (concluding

that a transferred prisoner’s claims were not moot where he “assert[ed] claims

directly against the Missouri Department of Corrections[] . . . which controls both

prisons and the funding necessary to provide the” relief that the plaintiff

requested). Conversely, these cases indicate that a transferred prisoner’s

challenge to system-wide prison policies is moot where he seeks equitable relief

and only sues prison officials at the transferor institution—that is, the institution

where he was formerly incarcerated. See Abdulhaseeb, 600 F.3d at 1312.

Consequently, federal prisoners seeking declaratory or injunctive relief frequently

sue not only the individual prison officials, in their official capacity, who work at

the particular facility at which they were housed at the time that the alleged

unconstitutional conduct purportedly occurred, but also the BOP’s Director in his

official capacity, and sometimes the BOP itself. See, e.g., Yousef v. Reno, 254

F.3d 1214 (10th Cir. 2001); Prows v. Fed. Bureau of Prisons, 981 F.2d 466 (10th

-31-
Cir. 1992); see also Nelson v. Carlson, 904 F.2d 560 (10th Cir. 1990) (per

curiam).

D. Mootness of Mr. Jordan’s Claims

Applying these principles to the present case, we conclude that Mr.

Jordan’s facial and as-applied First Amendment challenges are moot.

Specifically, unlike the government, we conclude that Mr. Jordan’s claims are

constitutionally moot: we cannot accord him prospective relief that would have

any effect in the real world. Moreover, even if we were to conclude that Mr.

Jordan’s challenges were not constitutionally moot, considerations of prudence

and comity would lead us to stay our hand in resolving them on the merits. In

other words, we would conclude that his claims are prudentially moot. We

therefore dismiss Mr. Jordan’s appeal.

1. Constitutional Mootness

Mr. Jordan contends that injunctive and declaratory relief are effective

remedies for his First Amendment claims because he does not challenge

conditions of confinement that are “specific to the transferring institution,” the

ADX. Aplt. Supplemental Br. at 7. Rather, as Mr. Jordan reasons, his claims

involve First Amendment challenges to the Ensign Amendment and its

implementing regulation—both of which are applied throughout the BOP system

in which he remains incarcerated. He therefore argues that his transfer to another

BOP facility—at which the Ensign Amendment and implementing regulation

-32-
continue to apply—does not prevent this court from fashioning effective equitable

relief. In other words, “because Mr. Jordan [allegedly] remains under the threat

of irreparable injury—the very real threat that future publications will be rejected

pursuant to the Ensign Amendment and 28 C.F.R. § 540.72,” id., he reasons that

he maintains a justiciable interest in seeking a declaration that those legal

pronouncements are unconstitutional under the First Amendment and enjoining

their enforcement against him.

However, there is a critical flaw in Mr. Jordan’s argument: he has never

sought relief on a system-wide basis against the BOP in this case. Instead of

suing the BOP or its director, he has pursued injunctive and declaratory relief

only with respect to individual BOP officials at specific penal institutions—most

notably, the Inmate Systems Manager and the Warden at the ADX in Florence,

Colorado, where Mr. Jordan was incarcerated at the time that he commenced his

lawsuit. Even a cursory examination of Mr. Jordan’s litigation history reveals

that he has not always taken this approach and that he knows how to seek system-

wide relief. 18 But he did not do so here. Therefore, Mr. Jordan has not sued

18
Mr. Jordan has previously filed suit against the BOP Director and the
BOP. For instance, in a 1997 lawsuit in the United States District Court for the
District of New Jersey—identified in his complaint in this action—Mr. Jordan
named Kathleen Hawk, then the Director of the BOP, as a defendant in an action
seeking unspecified relief for an Eighth Amendment violation. See Aplt. App.,
Vol. I, at 25 (Compl., filed July 12, 2005). See generally Shakur v. Hawk, 528
U.S. 896 (1999) (denying a petition for a writ of certiorari in an action filed
(continued...)

-33-
defendants who are actually situated to effectuate any prospective relief that this

court might afford him. See Abdulhaseeb, 600 F.3d at 1312; Randolph, 170 F.3d

at 857; cf. Pritikin, 254 F.3d at 798 (concluding that, in an action against a

federal governmental defendant, plaintiff lacked standing because she “sued the

wrong party”). Thus, the situation here is actually somewhat akin to that in the

conditions-of-confinement cases because Mr. Jordan is no longer housed in a

penal institution where he could experience the benefits of any prospective relief

ordered against the named defendants; those defendants perform their correctional

duties in penal institutions where Mr. Jordan is not incarcerated.

Any prospective relief that we might order against the named defendants

would be too abstract and lacking in real-world impact to satisfy the requirements

of the Constitution. For example, if we issued an injunction ordering those

named officials to cease applying the Ensign Amendment and its implementing

regulation to any sexually explicit publications that Mr. Jordan may request in the

future, such an injunction would have no “effect in the real world.” Abdulhaseeb,

600 F.3d at 1311 (quoting Kan. Judicial Review v. Stout, 562 F.3d 1240, 1246

18
(...continued)
against “Kathleen Hawk, Director, Federal Bureau of Prisons”). In 1999, Mr.
Jordan again filed suit—this time against the BOP itself—in the United States
District Court for the District of Colorado, alleging violations of his Fifth and
Eighth Amendment rights. See Aplt. App., Vol. I, at 43; Jordan v. Fed. Bureau of
Prisons, Dist. Ct. No. 99-F-2386 (filed Dec. 14, 1999). Thus, had Mr. Jordan
actually sought to sue the BOP or its director, he certainly knew how to do so.

-34-
(10th Cir. 2009)) (internal quotation marks omitted); see also O’Shea, 414 U.S. at

495–96. That is because those officials are not located in the same penal

institution as Mr. Jordan and, consequently, they would not be responsible for

actually issuing (or authorizing others to issue) sexually explicit publications to

Mr. Jordan. As it relates to Mr. Jordan, enjoining them would accomplish

nothing.

A similar problem would arise were we to issue a declaratory judgment

proclaiming the Ensign Amendment and its implementing regulation

unconstitutional. While a declaratory judgment opining that the Ensign

Amendment and its implementing regulation violated the First Amendment could

be directed toward the named officials, it would not affect the behavior of those

officials toward Mr. Jordan because he is no longer housed in a penal institution

over which they exert authority. Consequently, such “a declaratory judgment in

[Mr. Jordan’s] favor would amount to nothing more than a declaration that he was

wronged, and would have no effect on the defendants’ behavior towards him.”

Green, 108 F.3d at 1300. In other words, it would run afoul of the Supreme

Court’s proscription against advisory opinions. See, e.g., Camreta, 131 S. Ct. at

2037–38; Herb, 324 U.S. at 126; accord Rio Grande Silvery Minnow, 601 F.3d at

1110–12; Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 412 (3d Cir.

1992) (“[E]ven if a declaratory judgment would clarify the parties’ legal rights, it

should ordinarily not be granted unless ‘the parties’ plans of actions are likely to

-35-
be affected by a declaratory judgment.’” (emphasis added) (quoting Step-Saver

Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 649 (3d Cir. 1990))). And the mere

fact that such a declaratory judgment might provide some unspecified guidance to

non-party BOP officials in their future conduct toward Mr. Jordan is insufficient

to render this action a live case or controversy within the meaning of the

Constitution. Cf. Pritikin, 254 F.3d at 798; Chicago & N. W. Transp. Co., 908

F.2d at 149.

In resisting a conclusion of mootness, Mr. Jordan suggests that although he

has sued only certain subordinate BOP officials who operate at individual penal

institutions, the fact that he has sued those officials in their official capacity

requires us to construe his suit as effectively against the entity that they

represent—the BOP. Thus, as Mr. Jordan argues, this court is situated to grant an

injunction and declaratory judgment against the BOP in its entirety rather than

against the individual defendants that he has named in his complaint. This

argument, however, finds no support in this circuit’s case law.

Mr. Jordan relies upon our decision in Simmat v. United States Bureau of

Prisons, 413 F.3d 1225 (10th Cir. 2005), in which we held that an official-

capacity suit against prison officials—below the rank of director—is effectively a

suit against the United States. See id. at 1232 (“Although nominally brought

against the prison dentists, Mr. Simmat’s claim is in reality against the United

States.”); see also Aplt. Supplemental Br. at 8–9 (discussing Simmat). Mr.

-36-
Jordan’s reading of Simmat, however, conflates a suit against the United States

with a suit against the BOP. Simmat does not stand for the proposition that a suit

against certain BOP subordinate officials is to be construed as one against the

BOP or the BOP Director. Nor does it follow from Simmat’s holding that “an

injunction in this matter would be granted against the BOP rather than against the

individual ADX and FCI-Englewood defendants,” Aplt. Supplemental Br. at 9,

that Mr. Jordan has named in his complaint.

Simmat turned upon whether the district court had statutory subject matter

jurisdiction to entertain a claim for, inter alia, injunctive relief against prison

officials. Our attention, therefore, was neither upon the mootness doctrine

generally nor upon the more specific question of whether the district court was

situated to fashion effective prospective relief against the BOP in light of the

identity of the named federal defendants. Simmat, 413 F.3d at 1240 (“The district

court had subject matter jurisdiction in this case under 28 U.S.C. § 1331 or 1361.

The cause of action arose directly under the Eighth Amendment, and relief against

the prison dentists would take the form of a mandatory injunction or, more

precisely, relief in the nature of mandamus.”). Indeed, in Simmat, we recognized

the distinction between claims against individual BOP dentists in their official

capacities and claims against the BOP itself. In so doing, we found that Mr.

Simmat had failed to exhaust the requisite administrative remedies for his claim

against the named BOP dentists in their official capacity. Id. at 1238, 1240.

-37-
However, we separately concluded that Mr. Simmat had waived his Eighth

Amendment claim against the BOP by failing to raise it in the district court. Id.

at 1239–40.

Thus, the fact that Mr. Jordan’s suit against individual subordinate BOP

officials—most notably, those at the ADX—in their official capacities constitutes

a suit against the United States for statutory subject-matter jurisdictional purposes

does not necessarily mean that it constitutes a suit against the BOP for purposes

of the mootness analysis at issue here. Indeed, Simmat’s reasoning—recognizing

a distinction between suits against individual BOP officials and suits against the

BOP itself—suggests to the contrary. Absent further supportive authority, we

cannot endorse Mr. Jordan’s position, and we decline to read Simmat in the

manner that he proposes.

This rejection of Mr. Jordan’s reasoning is critical to our mootness inquiry:

it means that the nationwide conduct of the BOP in enforcing the Ensign

Amendment and its implementing regulation cannot directly enter into our

assessment of whether Mr. Jordan’s facial and as-applied claims are moot.

Instead, we must focus upon whether granting Mr. Jordan injunctive or

declaratory relief against the named BOP defendants will have any effect in the

real world, given that Mr. Jordan is no longer incarcerated at the ADX or any

other BOP facility that the named BOP officials administer and, as discussed

further below, there is no concrete prospect that Mr. Jordan will be returned to

-38-
any of those facilities in the foreseeable future.

As to the latter point, we reiterate that prisoners assigned to a SMU—as

Mr. Jordan has been—remain in SMU housing for at least eighteen to twenty-four

months. Moreover, the government represents that the “BOP has no plans in the

foreseeable future to transfer Jordan to a BOP facility within the Tenth Circuit.”

Aplee. Supplemental Br. at 10. Though Mr. Jordan asserts to the contrary, his

representation that “[t]here is . . . a reasonable possibility that Mr. Jordan will be

returned to the ADX in Florence, Colorado” is entirely speculative and based

upon faulty premises. Aplt. Supplemental Br. at 14 (emphasis added).

It should go without saying that we are disinclined to opine on important

constitutional issues based upon the speculative suggestion that a plaintiff might

be returned to a setting where he would be subject to allegedly unconstitutional

practices. See Preiser, 422 U.S. at 403 (“Any subjective fear [respondent inmate]

might entertain of being again transferred . . . is indeed remote and

speculative . . . .”); Armstrong World Indus., Inc., 961 F.2d at 411–12 (“Where

the plaintiff’s action is based on a contingency, it is unlikely that the parties’

interests will be sufficiently adverse to give rise to a case or controversy within

the meaning of Article III.”); see also Armstrong World Indus., Inc., 961 F.2d at

412 (“[T]o protect against a feared future event, the plaintiff must demonstrate

that the probability of that future event occurring is real and substantial, of

sufficient immediacy and reality to warrant the issuance of a declaratory

-39-
judgment.” (quoting Salvation Army, 919 F.2d at 192) (internal quotation marks

omitted)); cf. Pac. Gas and Elec. Co. v. State Energy Res. Conservation & Dev.

Comm’n, 461 U.S. 190, 201 (1983) (“If the injury is certainly impending, that is

enough.” (emphasis added) (quoting Blanchette v. Conn. Gen. Ins. Corps., 419

U.S. 102, 143 (1974)) (internal quotation marks omitted)); Columbian Fin. Corp.

v. BancInsure, Inc., — F.3d —, 2011 WL 2450969, at *11 (10th Cir. June 21,

2011) (noting that “the sine qua non [for consideration of a declaratory judgment

action] is an identifiable specific claim that has risen above the horizon”); Beshaw

v. Fenton, 635 F.2d 239, 242 (3d Cir. 1980) (“[T]here is in the present situation a

distinct possibility that Beshaw will once again suffer the ‘wrong’ of which he

complains, namely, transfer to a federal facility. Counsel for the government

stated at oral argument that Beshaw would likely be moved to a federal institution

if a position at a suitable facility became available. In light of these

circumstances, we find that Beshaw’s claim is still alive and that his appeal is not

moot.” (emphasis added)).

Indeed, the only evidence that Mr. Jordan offers in support of his assertion

that he may be returned to the ADX actually undercuts his position. Mr. Jordan

avers that “if the [BOP’s Designation and Sentence Computation Center]

disapproves the SMU referral[,] [he] will then be considered for return to the

ADX in Florence, Colorado.” Jordan Decl. at 3 (emphasis added). Of course, the

SMU referral was actually approved for Mr. Jordan; thus, the factual predicate for

-40-
his (already speculative) belief that he might be returned to the ADX in Colorado

has not materialized.

In sum, we must center our mootness analysis upon the individual BOP

officials that Mr. Jordan has identified as defendants, remaining mindful of the

fact that Mr. Jordan is no longer subject to their authority. With that focus, we

are hard-pressed to conclude that we may grant Mr. Jordan injunctive or

declaratory relief that would have any effect in the real world. See McAlpine v.

Thompson, 187 F.3d 1213, 1217 n.5 (10th Cir. 1999) (“[S]ince McAlpine is no

longer incarcerated at El Reno, no order from this court could presently provide

McAlpine with the relief sought, i.e., an order enjoining Warden Thompson to

provide McAlpine with peyote and other ceremonial items. Warden Thompson

presently has no custody over McAlpine.”). As such, we conclude that both his

facial and as-applied challenges to the Ensign Amendment, as it is embodied in

the BOP’s implementing regulation, are constitutionally moot.

2. Prudential Mootness

Even if we were to conclude that Mr. Jordan’s claims could survive our

constitutional-mootness inquiry, we would bar those claims on prudential-

mootness grounds. First, if we were to issue an injunction or declaratory

judgment to Mr. Jordan, we would be doing so without the benefit of specific,

concrete information concerning his current conditions of confinement. In

-41-
particular, we operate without the benefit of a district court’s findings of fact. 19

The affidavit that the government submitted regarding the conditions of

confinement at SMU facilities is a poor substitute. The affiant is a BOP official,

stationed in Florence, Colorado, who does not purport to have any personal

knowledge concerning Mr. Jordan’s current conditions of confinement. See Cook

Decl. at 1. Indeed, the BOP affiant was apparently unaware that Mr. Jordan had

been incarcerated in a SHU facility in Lee, Virginia. See id. at 2 (noting his

belief that Mr. Jordan is “currently confined at [USP] Lee, Pennsylvania”

(emphasis added)).

Mr. Jordan’s as-applied arguments highlight the problems created by the

19
Although the government has raised the possibility of a remand to
the district court for a resolution in the first instance of the mootness question, we
decline that invitation and, more specifically, reject the notion of remanding to
the district court to conduct factfinding regarding Mr. Jordan’s current conditions
of confinement. Our conclusion regarding constitutional mootness primarily turns
on a legal assessment of the mootness implications of Mr. Jordan’s designation of
defendants, in view of his transfer from the ADX. Moreover, although the
availability of judicial factfinding concerning Mr. Jordan’s current conditions of
confinement would aid our prudential-mootness analysis, considerations of
prudence disincline us to remand this case. This litigation has been ongoing for
almost six years and involved the expenditure of significant judicial resources.
We do not see the wisdom of starting down a path that would invariably result in
the passage of a considerable amount of time and the consumption of a good deal
more judicial resources, especially when the prospects of fashioning effective
prospective relief are so uncertain. Mr. Jordan is apparently not entirely
unsympathetic to this reasoning. See Aplt. Supplemental Reply Br. at 7
(“[C]onsidering the fact that this litigation has been pending since 2005, it would
seem a waste of judicial resources to delay a decision any further unless necessary
to do so.”).

-42-
dearth of information regarding his current conditions of confinement. Mr.

Jordan contends that his possession of the banned materials would have no impact

upon his fellow inmates because he “has no contact with other prisoners and is

under tight supervision from guards at all times.” Aplt. Opening Br. at 39. This

argument, however, pertains entirely to Mr. Jordan’s solitary-confinement status

at the ADX. As discussed above, the regulatory provisions governing SMU

housing suggest that it is unlikely that Mr. Jordan will be segregated from other

inmates in his current housing circumstances. Indeed, as an inmate progresses

through the SMU program, he is allowed greater contact with fellow inmates.

See, e.g., Cook Decl., Attach. 4, at 7–10. Thus, a critical factual predicate for Mr.

Jordan’s as-applied argument—i.e., solitary confinement—no longer applies to

his current penal placement, and any prospective relief that we might fashion with

respect to the named BOP defendant officials would not fully take into account

Mr. Jordan’s current confinement circumstances.

Furthermore, to the extent that Mr. Jordan’s requested prospective relief

could be said to have any effect in the real world, it would be only with respect to

non-party BOP officials outside of this circuit. Even assuming, arguendo, that

such an attenuated effect could permit us to conclude that this action was

constitutionally viable, considerations of prudence and comity would lead us to

stay our hand in according such relief. We have rejected the notion that “we [a]re

bound by opinions handed down in other circuits,” Hill v. Kan. Gas Serv. Co.,

-43-
323 F.3d 858, 869 (10th Cir. 2003), and any prospective relief that we might

accord to Mr. Jordan—if it operates as Mr. Jordan would have it—would seek to

bind non-party, extra-circuit BOP officials in the very manner that our case law

discourages. We are disinclined to go down this path. Conceivably, these

officials could be subject to conflicting advisements regarding the treatment of

Mr. Jordan, on the one hand, and similarly situated inmates, on the other, if our

First Amendment determinations diverged from those of a sister circuit where Mr.

Jordan is housed. Cf. Va. Soc’y for Human Life, Inc. v. Fed. Election Comm’n,

263 F.3d 379, 393 (4th Cir. 2001) (“The broad scope of the injunction has the

effect of precluding other circuits from ruling on the constitutionality of 11

C.F.R. § 100.22(b). Such a result conflicts with the principle that a federal court

of appeals’s decision is only binding within its circuit.”).

We therefore conclude that even if Mr. Jordan’s First Amendment facial

and as-applied challenges were not constitutionally moot, considerations of

comity and prudence would lead us to stay our hand and decline to reach the

merits of his claims. That is, those considerations would lead us to conclude that

Mr. Jordan’s claims are prudentially moot.

3. Capable of Repetition Yet Evading Review

Alternatively, Mr. Jordan contends that, even if his as-applied claims would

otherwise be moot, they are saved from a determination of mootness “because

they are capable of repetition yet evade review.” Aplt. Supplemental Br. at 12;

-44-
see Rex v. Owens ex rel. State of Oklahoma, 585 F.2d 432, 434 (10th Cir. 1978)

(explaining that the capable-of-repetition exception is a “special circumstance[]

whereby an action will not be dismissed as moot even though the party seeking

relief is no longer affected by the action complained of”); see also Turner v.

Rogers, __ S. Ct. __, No. 10-10, 2011 WL 2437010, at *6 (June 20, 2011)

(“[T]his case is not moot because it falls within a special category of disputes that

are ‘capable of repetition’ while ‘evading review.’” (quoting S. Pac. Terminal

Co. v. ICC, 219 U.S. 498, 515 (1911))). The “capable-of-repetition exception to

the mootness doctrine,” however, is a “narrow” one. McAlpine, 187 F.3d at 1216;

see United States v. Seminole Nation, 321 F.3d 939, 943 (10th Cir. 2002)

(addressing “the narrow exception to the mootness doctrine for conduct capable

of repetition, yet evading review”). Consequently, “[t]his exception ‘is only to be

used in exceptional situations.’” Chihuahuan Grasslands Alliance v. Kempthorne,

545 F.3d 884, 892 (10th Cir. 2008) (quoting White v. Colorado, 82 F.3d 364, 366

(10th Cir. 1996)). Thus, outside of the class-action context, the

doctrine [has been] limited to the situation where two elements
combine[]: (1) the challenged action was in its duration too short
to be fully litigated prior to its cessation or expiration, and (2)
there [is] a reasonable expectation that the same complaining
party [will] be subjected to the same action again.

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). Mr. Jordan bears

the burden of establishing both elements of this two-prong test. See Libertarian

-45-
Party v. Dardenne, 595 F.3d 215, 217 (5th Cir.) ( “[P]laintiffs[] bear the burden

of proving both prongs.”), cert. denied, 130 S. Ct. 3388 (2010); Lawrence v.

Blackwell, 430 F.3d 368, 371 (6th Cir. 2005) (“The party asserting that this

exception applies bears the burden of establishing both prongs.”). 20 We

20
We note at the outset that Mr. Jordan’s capable-of-repetition
argument may be misguided. By its terms, and in the manner that it is typically
applied, the “duration” element of the exception’s two-prong test pertains to the
duration of the governmental entity’s alleged infringement on a plaintiff’s rights,
not upon external circumstances pertaining to the plaintiff that may shorten the
duration of his exposure to the otherwise ongoing governmental action. See, e.g.,
Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 187 (1979)
(observing that the first element of the test was met where the Chicago Board of
Election Commissioners required new parties and independent candidates to
obtain more signatures to appear on the ballot in city elections than in statewide
elections where the Chicago Board’s “conduct” in enforcing that requirement
necessarily ceased after a local election was held); S.E.C. v. Sloan, 436 U.S. 103,
109 (1978) (concluding “[t]hat the first prong of [the] test [was] satisfied” where
the challenged Security and Exchange Commission suspension orders, which
suspended trade in the common stock of a corporation, “[would] last no more than
20 days, making effective judicial review impossible during the life of the
orders”); City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010)
(“Regarding the first prong of the exception, neither party disputes that the
challenged action”—the state’s decision to enforce a Utah statute which excluded
voters from voting in a November 2007 election to reduce the size of their school
district—“was too short in duration to be fully litigated before its conclusion.”);
Doe v. Sullivan, 938 F.2d 1370, 1376 (D.C. Cir. 1991) (finding that the capable-
of-repetition test was “securely satisfied” where the allegedly wrongful
action—the Federal Drug Administration’s grant of consent orders that allowed
nerve gas treatment to be used on servicemen—“w[as] withdrawn within three
months”); Rex, 585 F.2d at 435 (concluding that plaintiff’s “case fit[] within the
. . . two-pronged [capable-of-repetition] test” where (1) the State of Oklahoma
terminated his commitment to and involuntary detention in the state hospital prior
to the order of dismissal of his case, and (2) “it appear[ed] highly probable that
[plaintiff] w[ould] again be subjected to the processes of the Oklahoma
commitment statute”); see also Ruiz v. Johnson, 178 F.3d 385, 390 (5th Cir.
(continued...)

-46-
conclude that Mr. Jordan has not carried his burden regarding the first element

(i.e., the duration element), and we need not go further.

Referencing the BOP’s initial rejection of certain publications in 2003 and

2004, Mr. Jordan contends that “[i]n the seven years that have elapsed during the

course of this litigation, it is reasonable to expect that Mr. Jordan’s placement or

conditions of confinement would change at some point in that span of time.”

Aplt. Supplemental Br. at 13. Thus, he appears to reason that if we were to

20
(...continued)
1999) (“Both the prison officials and the government seem to agree that the action
at issue here—the district court’s refusal to apply the automatic stay provision—is
in its duration too short to be fully litigated prior to its cessation or expiration.”),
abrogated on other grounds by Miller v. French, 530 U.S. 327 (2000); United
States v. City of Detroit, 720 F.2d 443, 449 (6th Cir. 1983) (holding that a district
court order which effectively allowed the Administrator of the Environmental
Protection Agency to deprive plaintiff of funds for its project within fourteen days
constituted “time constraints . . . [that] were too short even when, as here, review
was diligently pursued”). But cf. Roe v. Wade, 410 U.S. 113, 125 (1973)
(concluding that “[p]regnancy”—as opposed to some allegedly unconstitutional
governmental conduct—“provides a classic justification for a conclusion of
nonmootness. It truly could be ‘capable of repetition, yet evading review.’”
(quoting S. Pac. Terminal Co., 219 U.S. at 515)).

Mr. Jordan’s argument, however, is premised upon the fact that his
subsequent facility transfers purportedly shortened the term of his exposure to the
Colorado ADX’s application of the Ensign Amendment and its implementing
regulation. Because this argument pertains to Mr. Jordan’s change in
circumstances rather than to the duration of the allegedly unconstitutional actions
of the ADX officials named in Mr. Jordan’s complaint, it does not seem to
comport with the vast majority of the case law in which the capable-of-repetition
exception has been applied. Ultimately, however, we need not definitively opine
on this subject. As discussed infra, even as Mr. Jordan has framed it, his capable-
of-repetition argument fails.

-47-
conclude that these types of First Amendment challenges are rendered moot by

changes in prison placement or conditions of confinement over the course of

several years, claims such as his would consistently evade review. However,

contrary to the kind of duration evidence proffered by plaintiffs in prior cases,

see, e.g., Napier v. Gertrude, 542 F.2d 825, 828 (10th Cir. 1976) (explaining that

the appellant, a child petitioner seeking release from her placement in a residence

for girls, had “cite[d] statistics compiled by the State of Oklahoma showing the

average length of detention for children adjudicated ‘in need of supervision’” in

an effort to meet the duration element of the two-prong exception), Mr. Jordan

offers us nothing to validate the reasonableness of his expectancy of changed

conditions of penal confinement. In other words, Mr. Jordan provides absolutely

no evidence from which we might infer that this sort of allegedly unconstitutional

behavior is necessarily of short duration—e.g., that an inmate is likely to be

moved from the institution where he is subject to the allegedly unconstitutional

action before he is able to litigate his claim. Cf. Turner, 2011 WL 2437010, at

*4, *7 (where state statute authorized imprisonment of certain parents “not for

more than one year” for civil contempt for failure to pay outstanding child

support, holding that the capable-of-repetition exception applied because “[o]ur

precedent makes clear that the ‘challenged action,’ [petitioner’s] imprisonment

for up to 12 months, is ‘in its duration too short to be fully litigated’ through the

state courts (and arrive here) prior to its ‘expiration.’” (emphasis added) (quoting

-48-
First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978))); Seminole

Nation, 321 F.3d at 943 (concluding that the National Indian Gaming Commission

Chairman’s “temporary closure orders” were of “a sufficiently limited duration to

ordinarily escape appellate review,” where the statute provided in every instance

for their dissolution or conversion to permanent status within ninety days);

Finburg v. Sullivan, 634 F.2d 50, 55 (3d Cir. 1980) (“[The plaintiff] must show

that the activity is ‘by its very nature’ short in duration, ‘so that it could not, or

probably would not, be able to be adjudicated while fully “live.”’” (quoting Dow

Chemical Co. v. EPA, 605 F.2d 673, 678 n.12 (3d Cir. 1979))). In the absence of

such evidence, Mr. Jordan cannot meet the first prong of the two-prong capable-

of-repetition test, and we cannot except his claim from a mootness determination

on this ground.

4. Voluntary Cessation

Finally, Mr. Jordan contends that “[t]he doctrine of voluntary cessation also

counsels against a finding of mootness” with regard to his as-applied claims.

Aplt. Supplemental Br. at 15. As we recently explained:

One exception to a claim of mootness is a defendant’s voluntary
cessation of an alleged illegal practice which the defendant is
free to resume at any time. The rule that voluntary cessation of
a challenged practice rarely moots a federal case . . . traces to the
principle that a party should not be able to evade judicial review,
or to defeat a judgment, by temporarily altering questionable
behavior. In other words, this exception exists to counteract the
possibility of a defendant ceasing illegal action long enough to

-49-
 render a lawsuit moot and then resuming the illegal conduct.

Rio Grande Silvery Minnow, 601 F.3d at 1115 (citations omitted) (internal

quotation marks omitted); accord Parents Involved in Cmty. Sch. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701, 719 (2007) (“Voluntary cessation does not moot a case

or controversy unless ‘subsequent events make it absolutely clear that the

allegedly wrongful behavior could not reasonably be expected to recur.’”

(alteration omitted) (quoting Friends of the Earth, 528 U.S. at 189)). “Voluntary

cessation of offensive conduct will only moot litigation if it is clear that the

defendant has not changed course simply to deprive the court of jurisdiction.”

Rio Grande Silvery Minnow, 601 F.3d at 1115 (alteration omitted) (emphasis

added) (quoting Nat’l Adver. Co. v. City of Miami, 402 F.3d 1329, 1333 (11th Cir.

2005) (per curiam)) (internal quotation marks omitted); see also Cases Moot on

Appeal, supra, at 785 (noting that “where the cause of the cessation was obviously

unrelated to the litigation, the cases have been dismissed” on mootness grounds

(emphasis added) (footnote omitted)).

Mr. Jordan has not cited to one case in which the voluntary-cessation

doctrine has been applied to facts such as these—where the defendants’ allegedly

unconstitutional conduct actually has not ceased but plaintiff has been

(involuntarily) removed from the ambit of that conduct. Therefore, Mr. Jordan

has done little to aid his cause. Furthermore, the most apposite case that we are

-50-
aware of works against him. In McKinnon, the Eleventh Circuit rejected a

prisoner’s argument, predicated on the voluntary-cessation doctrine, that “the

[prison official] defendants should not be permitted unilateral determination over

the mootness of his case” because “he should not be penalized with dismissal”

where “he had no control over his transfer.” McKinnon, 745 F.2d at 1363. In

rejecting this argument, the Eleventh Circuit noted that there was no evidence that

the defendants engaged in “subterfuge” or sought “to evade the jurisdiction of the

court.” Id. We similarly are presented with no evidence that the BOP officials’

transfer decisions were in any way a subterfuge. To the contrary, it is patent and

beyond peradventure that the BOP defendants did not transfer Mr. Jordan from

the ADX in an effort to escape our jurisdiction. Indeed, the named defendants

neither brought Mr. Jordan’s transfer to our attention nor sought a declaration of

mootness on that basis prior to our sua sponte inquiry into his housing

circumstances. But for that affirmative inquiry, it is virtually certain that the

BOP would never have informed us of Mr. Jordan’s transfer. Consequently, we

easily conclude that Mr. Jordan’s voluntary-cessation argument is without merit.

III. CONCLUSION

For the foregoing reasons, we conclude that Mr. Jordan’s First Amendment

claims are moot. We therefore DISMISS Mr. Jordan’s appeal.

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