Doe v. United States Parole Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JOHN DOE,

Plaintiff,

v. Civil Action No. 12-1807 (JDB)

U.S. PAROLE COMMISSION and
COURT SERVICES AND OFFENDER
SUPERVISION AGENCY FOR THE
DISTRICT OF COLUMBIA,

Defendants.

MEMORANDUM OPINION

Plaintiff John Doe brings this action against the U.S. Parole Commission and the Court

Services and Offender Supervision Agency for the District of Columbia ("CSOSA"). He

challenges the imposition of a "Sex Offender Aftercare [Assessment]" condition on his

supervised release, and seeks declaratory and injunctive relief. Now before the Court are Doe's

motion for a preliminary injunction barring enforcement of the assessment condition and

defendants' motion to dismiss in part and for summary judgment. For the reasons set forth

below, defendants' motion for summary judgment will be granted and Doe's motion will be

denied.

BACKGROUND

In April 2010, Doe was convicted in D.C. Superior Court of assault with a deadly weapon

and carrying a pistol without a license. See Defs.' Mot. to Dismiss in Part & for Summ. J. &

Opp'n to Pl.'s PI Mot. [ECF 18] ("Defs.' MSJ"), Ex. 1 [ECF 22] 1-2. He was sentenced to 28
months' incarceration and a three-year term of supervised release, which he is currently serving.

See id., Ex. 2 [ECF 22-1]; Compl. [ECF 2] ¶ 32. Doe's conditions of supervised release are set

by the Parole Commission. See D.C. Code § 24-403.01(b)(6). CSOSA is responsible for Doe's

supervision during his supervised release term. See id. § 24-133(c)(2).

In November 2011, Doe was released from prison to a halfway house. See Compl., Ex. 6

[ECF 2-4]. He was told that he would not be required to register as a sex offender or undergo

sex offender treatment. Id. Doe returned to prison in February 2012 due to halfway house

program failure and was released again later that month. See Compl. ¶ 38. No sex offender

conditions were imposed. See id. ¶ 39.

In August 2012, Doe went to his regularly scheduled meeting with his Community

Supervision Officer ("CSO") and learned that he had been reassigned to CSOSA's Sex Offender

Unit. Id. ¶ 40. On August 20, Doe's CSO and Paul Brennan, a Supervisor CSO in the Sex

Offender Unit, submitted a request for modification of Doe's supervised release conditions to the

Parole Commission. See Compl., Ex. 5 [ECF 5-1]. CSOSA asked that Doe's conditions be

modified to include a "Special Sex Offender Aftercare Condition," which would have required

Doe to acknowledge his need for treatment and participate in a mental health program "with

special emphasis on long-term sex offender testing and treatment." Id. Doe learned of the

request to modify his conditions several weeks later. See Compl. ¶ 43. In response, on

September 19, 2012, his counsel sent the Parole Commission a written objection to the proposed

modification. See id. ¶ 44. Doe's CSO and Brennan then submitted a second request for

modification to the Parole Commission, asking that Doe be subject only to a "Special Sex

Offender Assessment." See Compl., Ex. 11 [ECF 5-2]. The Parole Commission granted this

request, and on October 17, 2012, issued a Notice of Action informing Doe that the following

2
had been ordered: "Sex Offender Aftercare [Assessment] – You shall undergo an evaluation to

determine the need for sex-offense treatment therapy." Compl., Ex. 1 [ECF 2-1]. The Notice

said that the decision was not appealable. Id.1 It did not give reasons for the decision.

The primary basis for imposing the special condition was a juvenile adjudication that

took place in 2003, when Doe was eleven years old. See Compl., Exs. 5 and 11 (CSOSA

requests); id., Ex. 13 [ECF 5-3] (memorandum of Parole Commission case analyst). Doe had

pled "involved" to second degree sexual abuse of his five-year-old god-sister. See Compl. ¶ 33;

id., Ex. 13.2 Also noted, by both CSOSA and the Parole Commission case analyst who

recommended imposition of the special condition, were two other incidents that allegedly

occurred around the time of Doe's juvenile adjudication. One involved Doe's presence among a

group of boys at school that surrounded a girl being raped; the other involved Doe's two-year-old

female cousin. See, e.g., Compl., Ex. 11, at 2-3. Neither incident resulted in an arrest or a

conviction. See id. Based on "the serious nature of [Doe's] past sexual behavior," it was

recommended that the Parole Commission impose the sex offender assessment condition "in the

interest of public safety." See Compl., Ex. 13.

After his juvenile adjudication, Doe was placed on probation for nine months and

underwent a court-ordered psychological evaluation. See Compl., Ex. 11, at 2. The examiner, a

1
Several months after Doe filed this lawsuit, the Parole Commission notified him that the
decision in the October 17, 2012 Notice of Action was in fact appealable. See Pl.'s Opp'n to
Defs.' MSJ & Reply in Supp. of PI Mot. [ECF 26] ("Pl.'s Opp'n & Reply"), Ex. 8 [ECF 28] (Jan.
25, 2013). Because Doe had filed suit before receiving this "correction," however, the Parole
Commission said that he was "not required" to pursue an administrative appeal. Id. Doe signed
his name on an appeal form on February 6, 2013, but did not provide any materials in support of
his administrative appeal. Id.
2
The Court interprets a plea of "involved" in a juvenile proceeding as the equivalent of a
guilty plea in an adult proceeding.

3
psychology intern, reported that Doe "[did] not seem to fit the typical definition of a 'sex

offender,'" that his acts did not appear to have been done in a predatory manner, and that he did

not seem "sexually deviant." Compl., Ex. 4 [ECF 5] 7. Rather, the examiner noted, Doe would

be classified as a "Naive Experimenter" in literature on juvenile sex offenders. Id. Since Doe's

2003 juvenile adjudication, there have been no reported instances of any sexual misconduct or

sexually deviant behavior on his part. Doe is not required to register as a sex offender, and

would not be required to do so under the special condition.

In November 2012, Doe brought this action challenging the imposition of the sex

offender assessment condition and sought a preliminary injunction. At that time, funding had

been authorized for sixteen fifty-minute individual assessment sessions, one ninety-minute group

assessment session, two polygraphs (an "Offense Specific Polygraph" and a "Sexual History

Polygraph"), and an assessment report. See Compl., Ex. 2 [ECF 2-2]. Defendants agreed to

postpone Doe's initial assessment session pending the resolution of Doe's motion for a

preliminary injunction and any dispositive motion filed by defendants. In January 2013,

defendants filed a motion to dismiss in part and for summary judgment. The Court held a

motions hearing on June 21, 2013. The parties' motions are now ripe for resolution.

LEGAL STANDARDS

Defendants move to dismiss Doe's due process claims under Federal Rule of Civil

Procedure 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain

sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). "If, on a [Rule 12(b)(6) motion], matters outside the pleadings are presented to and

not excluded by the court, the motion must be treated as one for summary judgment under Rule

4
56." Fed. R. Civ. P. 12(d). In resolving defendants' motion as it relates to all of Doe's claims,

including his due process claims, the Court will rely on matters outside the pleadings. Hence,

defendants' motion will be treated as one for summary judgment.

Summary judgment is appropriate when the pleadings and the evidence demonstrate that

"there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial

responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its

motion by identifying those portions of "the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including those made

for purposes of the motion only), admissions, interrogatory answers, or other materials," which it

believes demonstrate the absence of a genuine dispute of material fact. Fed. R. Civ. P. 56(c)(1);

see also Celotex, 477 U.S. at 323.

In determining whether there exists a genuine dispute of material fact sufficient to

preclude summary judgment, the Court must regard the non-movant's statements as true and

accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than

the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. Moreover,

"[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may

be granted." Id. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the

non-movant fails to offer "evidence on which the jury could reasonably find for the

[non-movant]." Id. at 252.

DISCUSSION

5
 In this action, Doe asserts three claims for relief: a statutory claim, a procedural due

process claim, and a substantive due process claim. Before turning to each of these claims, the

Court will address a matter of vigorous dispute between the parties: how to properly characterize

the "assessment" ordered by the Parole Commission.

Defendants have submitted three declarations from Paul Brennan, on which they rely in

offering their characterization of the assessment. Defendants stress that the assessment is "only

an evaluation as a preliminary step" and that the Parole Commission has neither "classified" Doe

as a sex offender nor required him to undergo sex offender "treatment." See Defs.' MSJ 20, 23.

According to Brennan: "A sex offender assessment is distinctly different from sex offender

treatment." Defs.' Reply [ECF 32], Attach. 1, Supp'l Decl. of Paul Brennan [ECF 32-1] ("Supp'l

Brennan Decl.") ¶ 6. He explains that an assessment involves up to sixteen individual sessions

with a therapist at the Center for Clinical and Forensic Services ("CCFS"), whose purpose it is to

identify risk factors and determine if there is a need for sex offender treatment. Id. ¶¶ 7, 13-14,

28.3 He further explains that the group assessment session listed on the funding authorization

form is actually "an orientation given to newly assigned offenders"; a therapist gives the

attendees an overview of the assessment process and "[n]o intimate information is discussed."

See Defs.' MSJ, Attach. 1, Decl. of Paul Brennan [ECF 19-1] ("Brennan Decl.") ¶ 11. Brennan

states that polygraphs are used in the assessment phase but that no incident- or offense-specific

polygraph will be administered if the person being assessed does not deny the occurrence of his

or her past offense. Supp'l Brennan Decl. ¶ 15. Regarding disclosure, Brennan states that Doe's

3
Brennan states that sixteen sessions are not always required to complete the assessment.
Supp'l Brennan Decl. ¶ 13. The number of sessions needed depends on the individual and is to
be determined after the assessment begins. See id.

6
juvenile adjudication is confidential and will not be disclosed to his "collateral contacts," such as

family, friends, and significant others. See id. ¶¶ 27, 37; see also Brennan Decl. ¶ 18 (stating that

CSOSA is "bound by confidentiality requirements regarding juvenile information and would not

be permitted to disclose protected information without consent"). He also notes that CSOSA

does not require its staff to tell a supervisee's collateral contacts that he or she is assigned to the

Sex Offender Unit, and that the door to the Sex Offender Unit is innocuously labeled "Special

Supervision Office." Supp'l Brennan Decl. ¶¶ 29, 32.

Doe argues that the term "assessment" is misleading. See Pl.'s Mot. for Prelim. Inj. [ECF

3] ("Pl.'s PI Mot.") 4. He contends that if the sex offender assessment condition is enforced he

will be subjected to mental health "treatment" of "the most intrusive sort." Id. Doe stresses that

the central component of CSOSA's evaluation process is a "psychosexual assessment" – a series

of detailed questions about a person's sexual history, thoughts, and practices.4 See id.; see also

4
Citing Wills v. U.S. Parole Commission, 882 F. Supp. 2d 60, 66 n.3 (D.D.C. 2012), in
which the plaintiff had already undergone such a psychosexual assessment, Doe asserts that he
will be asked, among other things:
• whether he describes himself as homosexual, heterosexual, or bisexual;
• what sexual experiences he had prior to the age of 10;
• at what age he first masturbated, and the number of times per day and per week he
masturbated at the height of his masturbation;
• at what age he first had sexual intercourse, and how many partners he has had;
• the level of sexual confidence he felt as an adolescent;
• the varieties of sex in which he has engaged, including vaginal, anal, oral and
sadomasochistic;
• numerous aspects of his sexual interactions with consenting adult partners, done in
private;
• at what age he first viewed pornography, and how frequently he looks at pornography;
• whether he has ever suffered from impotence, or from a sexually transmitted disease;
• how stimulated he would be by, among other things, seeing an attractive boy under
the age of 12; engaging in anal sex; having sex with a prostitute; looking through a
window at a woman masturbating; and watching two men having sex;
• the number of times that he has stolen underwear;
• the number of times that he has cross-dressed; and

7
Compl. ¶¶ 25-26; Compl., Ex. 3, Excerpt of CSOSA Policy Manual [ECF 2-3] ("CSOSA

Manual") 10-11. A sexual history polygraph covering Doe's answers to these questions would

follow the psychosexual assessment, and, should it be determined that Doe was "deceptive"

during the polygraph, he could be found in violation of his supervised release conditions. See

CSOSA Manual 33-35. Defendants do not deny that, if Doe is evaluated, the psychosexual

assessment and sexual history polygraph described by Doe will be administered. They respond,

however, that an in-depth assessment of a person's sexual history and thoughts is the only way to

determine that person's risk of committing a sex offense, and that the psychosexual assessment,

polygraph included, is still just an assessment and does not rise to the level of treatment. See

6/21/13 Tr. of Mots. Hr'g [ECF 37] 40-42, 54.

Doe additionally asserts that despite defendants' assertions to the contrary, his "status" as

a sex offender will be publicized pursuant to CSOSA policy, even though his juvenile records are

confidential by law. See Pl.'s Opp'n & Reply 8; see also D.C. Code § 16-2331(b). Doe relies in

large part on the chapter of CSOSA's Policy Manual on supervision in the Sex Offender Unit,

which contains some policies that apply only to registered sex offenders but others that appear to

apply to anyone being supervised in the Sex Offender Unit. The manual requires, for example,

that CSOs "notify all persons with whom the offender resides about the offender's supervision

status and conviction for any sexual offenses/for all registered sex offenders"; "establish contact

with other members of the offender's residence"; "have communication with all identified

collateral contacts"; and "regularly communicate with all valid collateral contacts to assess the

offender's compliance with the conditions of release, verify pertinent information, gather

• the number of times that he has had sexual contact with a dead animal or person.
See Pl.'s PI Mot. 4-5; see also Compl. ¶ 26.

8
intelligence and assess risk to community safety in accordance with the assigned supervision

level (i.e., family, therapists, employers, etc.)." See Compl. ¶ 31 (citing CSOSA Manual 4, 7).

Pointing to an incident that occurred last Halloween, Doe asserts that his supervision in the Sex

Offender Unit has already resulted in the disclosure of his status as a sex offender. On October

31, 2012, a police officer and two CSOSA officers came to Doe's grandmother's house and told

Doe, in front of his grandmother, that he could not go outside that night because he was a

registered sex offender (which he is not). Id. ¶ 54. Apparently, this incident happened as part of

a CSOSA "initiative" applicable to all supervisees in the Sex Offender Unit. See id.

With the parties' competing characterizations of the sex offender assessment condition in

mind, the Court now turns to Doe's claims in this case.

I. Statutory Requirements for Conditions of Supervised Release

District of Columbia offenders on supervised release, like Doe here, are subject to the

authority of the Parole Commission until completion of their term of supervised release. D.C.

Code § 24-403.01(b)(6). The Parole Commission has "the same authority" as is vested in federal

district courts by 18 U.S.C. § 3583(d)-(i). Id. Under § 3583(d)(1), any condition of supervised

release must be "reasonably related" to "the nature and circumstances of the offense, the history

and characteristics of the defendant, deterrence of criminal conduct, protection of the public, and

treatment of the defendant's correctional needs." See 18 U.S.C. § 3583(d)(1) (referencing factors

set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)); United States v. Accardi, 669 F.3d

340, 346 (D.C. Cir. 2012). Any condition must also "involve[] no greater deprivation of liberty

than is reasonably necessary" for purposes of deterrence, public protection, and effective

treatment, and must be consistent with any pertinent policy statements issued by the U.S.

Sentencing Commission under 28 U.S.C. § 994(a). 18 U.S.C. § 3583(d)(2)-(3). The Court

9
reviews the Parole Commission's imposition of a special condition of supervised release for

abuse of discretion. See United States v. Legg, 713 F.3d 1129, 1131 (D.C. Cir. 2013) (appellate

review of district court's imposition of supervised release conditions for abuse of discretion).5

Doe contends that the sex offender assessment condition (1) is not reasonably related to

the offenses of conviction, his history and characteristics, or the goals of deterrence, public

protection, and treatment, and (2) involves a greater deprivation of liberty than is reasonably

necessary. See Compl. ¶¶ 61-65.

Doe is currently on supervised release for assault with a deadly weapon and carrying a

pistol without a license. Although, as defendants point out, a victim of Doe's assault offense was

a woman, his current offenses were not of a sexual nature and bear no relation to the sex offender

assessment condition at issue. The question, then, is whether the condition is reasonably related

to Doe's history and characteristics and/or to deterrence, protection of the public, and treatment of

Doe's correctional needs. See 18 U.S.C. § 3583(d)(1); see also United States v. Barajas, 331

F.3d 1141, 1146 (10th Cir. 2003) ("[E]very circuit to have decided the issue has held that a

condition of supervised release may be imposed despite not being related to every enumerated

factor, so long as it is reasonably related to one or more of the factors.").

Defendants maintain that the assessment condition is reasonably related to Doe's history

and characteristics because his juvenile adjudication (and, to a lesser extent, the two other alleged

incidents in his juvenile history) provides cause to seek to determine whether any additional

conditions are needed to prevent future sex offenses. In this way, defendants argue, the condition

is also reasonably related to their efforts to protect the public and provide correctional treatment.

5
The parties agree that an abuse-of-discretion standard of review applies to Doe's
statutory claim. See Defs.' MSJ 10-11; 6/21/13 Tr. 5, 7.

10
 Doe responds that his juvenile adjudication is too remote in time to justify imposition of

the sex offender assessment condition. At the time the condition was imposed, more than nine

years had passed since Doe's juvenile adjudication, and there is nothing in the record to suggest

that Doe committed any sort of sexual misconduct during that time. And because Doe was just

eleven years old at the time of his prior offense, the passage of nearly a decade with no indication

that Doe is likely to commit future sex offenses is perhaps even more significant than it would be

for an individual with a history of sex offenses as an adult. See Compl., Ex. 4, at 7

(psychological evaluator's observation that Doe did not appear to fit typical definition of "sex

offender" but rather appeared to be "Naive Experimenter"). Thus, the evidence of Doe's

propensity to commit future sex offenses is not strong.

Nonetheless, Doe has a sex offense in his past. Although a considerable amount of time

has passed since that 2003 offense, nine to ten years is not so great a time gap as to render any

condition imposed today not "reasonably related." Doe cites several cases where courts have

found that old convictions, without more, did not justify the imposition of sex offender

conditions. See United States v. Dougan, 684 F.3d 1030, 1037 (10th Cir. 2012)

(seventeen-year-old conviction); United States v. Sharp, 469 F. App'x 523, 525 (9th Cir. 2012)

(sex offense "more than a decade old" at time of sentencing); United States v. Thomas, 212 F.

App'x 483, 487 (6th Cir. 2007) (twenty-year-old conviction); United States v. Carter, 463 F.3d

526, 531-32 (6th Cir. 2006) (seventeen-year-old convictions); United States v. T.M., 330 F.3d

1235, 1240-41 (9th Cir. 2003) (twenty-year-old conviction and forty-year-old charge); United

States v. Scott, 270 F.3d 632, 636 (8th Cir. 2001) (fifteen-year-old conviction); see also United

States v. Worley, 685 F.3d 404, 409 (4th Cir. 2012) (vacating sex offender conditions based

solely on twelve-year-old convictions but recognizing that record on remand might nevertheless

11
support imposition of conditions to advance goals of public protection and rehabilitation); United

States v. Kent, 209 F.3d 1073, 1077 (8th Cir. 2000) (condition requiring psychological

counseling not reasonably related to physical abuse or threats made by defendant more than

thirteen years prior). Yet in each of these cases, more time had passed between the prior sex

offense and the imposition of the challenged condition than passed in this case. The Court will

not strike the assessment condition solely because of the age of Doe's juvenile adjudication.

Moreover, in most of the cases relied on by Doe, the challenged conditions involved more

than just an assessment. See, e.g., Dougan, 684 F.3d at 1032 (sex offender assessment and

treatment, "potentially including a polygraph and a penile plethysmograph"); Sharp, 469 F. App'x

at 525 (conditions requiring sex offender evaluation and, if directed by probation officer,

treatment for sexual deviancy);6 Carter, 463 F.3d at 528 (sex offender treatment); T.M., 330 F.3d

at 1239 (conditions included sex offender treatment); Scott, 270 F.3d at 634 ("sex offender

and/or mental health treatment"). In the Court's view, the nature of any special condition

imposed is certainly relevant to whether that condition is reasonably related to a defendant's

history and characteristics. Where, as here, there is a past sex offense but no recent evidence of a

propensity to commit future sex offenses, it would be unreasonable to mandate treatment without

any determination that there is a current need for it. To require that such a determination be

made, on the other hand, is not inherently unreasonable. Doe contends that it is unreasonable to

require an assessment because he was "already evaluated" when he was eleven. See Pl.'s Opp'n

& Reply 2. But just as a 2003 adjudication does not definitively establish that Doe is likely to

commit a sex offense today, neither does a 2003 evaluation definitively establish that he is not.

6
Here, in contrast to Sharp, the assessment condition does not authorize treatment if
CSOSA determines that treatment is necessary.

12
The Parole Commission has a legitimate interest in not releasing untreated sex offenders into the

community and may take steps, within reason, to avoid doing so. Accordingly, the Court

concludes that an assessment condition is reasonably related to Doe's history and characteristics

and defendants' obligations to protect the public.

That does not end the inquiry, however. The particular condition imposed must

"involve[] no greater deprivation of liberty than is reasonably necessary." 18 U.S.C.

§ 3583(d)(2). As depicted by defendants, the condition is a reasonable means of determining

Doe's current risk to the public and need for treatment, if any. It requires only an assessment and

not treatment – a distinction that, if real, is significant. As the Ninth Circuit observed in United

States v. Johnson: "Sexual offender treatment programs can be very significant restraints on

liberty. Johnson must undergo only an assessment, which is a much less significant restraint."

697 F.3d 1249, 1251 (9th Cir. 2012) (citation omitted) (upholding assessment condition). Doe

argues, however, that a condition may cause a greater deprivation of liberty than is reasonably

necessary even if it nominally requires only an "assessment." See 18 U.S.C. § 3583(d)(2). He

points to United States v. Thomas, an unpublished Sixth Circuit case in which the court found a

greater deprivation of liberty than was reasonably necessary, even though the district court had

not imposed the special condition requested – which would have required participation in a sex

offender treatment program – and instead required only participation in an assessment program.

See 212 F. App'x at 487-88. That court reasoned: "As recognized by both the probation officer

and district court, the assessment program is an intensive program. It will require Thomas to

attend weekly group and individual counseling sessions over a period of approximately three

months, and require him to submit to a polygraph. The imposition of the assessment is in many

ways no less stringent than requiring sex-offender treatment." Id.

13
 Here, too, the assessment would be "intensive": Doe would be required to complete a

questionnaire probing every aspect of his sexual history, submit to a polygraph, attend a group

orientation session, and attend as many as sixteen individual sessions with a therapist. If

deciding what kind of assessment condition to impose in the first instance, the Court might have

chosen one less intensive than that imposed by the Parole Commission. But the Court is not now

faced with that task, and instead must only determine whether the Parole Commission abused its

discretion by imposing a condition of supervised release that involved a greater deprivation of

liberty than was reasonably necessary.

The Court has already concluded that some assessment is warranted. At the motions

hearing, defendants' counsel said that a searching probe into Doe's sexual history and thoughts is

the only way to determine whether he poses any risk or needs treatment. 6/21/13 Tr. 40-42, 54.

Although defendants have not made clear why the particular sexual history questionnaire used by

CCFS is necessary to make an informed determination in this case, or why a polygraph is

necessary to test Doe's responses to the questionnaire, or why as many as sixteen sessions may be

necessary to complete the assessment process, allowing discovery on these matters would, at

best, bring forward differing opinions about, say, the need to ask a particular question or the

added value of a polygraph. But that would not put the Court in a better position to draw a

principled line between aspects of the assessment that are reasonably necessary and those that are

not. And, moreover, the Court finds no genuine dispute that the sexual history questionnaire, the

polygraph, and the assessment sessions are all aimed at assessing Doe's need for treatment. Doe

has not questioned the usefulness or reliability of these tools in determining sex offender risk, nor

has he suggested that an equally effective assessment could be done through alternative means.

Instead, Doe focuses on the "deprivation of liberty" that purportedly will result if the

14
assessment goes forward. See 18 U.S.C. § 3583(d)(2); Pl.'s PI Mot. 20-21; Pl.'s Reply 18-19.

Doe does not contend that any one aspect of the assessment, standing alone, deprives him of a

liberty interest. In the Court's view as well, no single aspect impermissibly intrudes on Doe's

liberty. A psychosexual assessment and polygraph, for example, are intrusive into the mind, but

they are "different in kind" from the kind of intrusions that have been found to implicate

"significant liberty interest[s]." See United States v. Stoterau, 524 F.3d 988, 1006 (9th Cir. 2008)

(comparing Abel testing to polygraph testing and concluding that Abel testing "does not

implicate a particularly significant liberty interest"); see also, e.g., United States v. Mike, 632

F.3d 686, 695-96 (10th Cir. 2011) (recognizing that conditions requiring residential treatment or

penile plethysmograph testing implicate significant liberty interests); United States v. Weber, 451

F.3d 552, 567-68 (9th Cir. 2006) (listing self-reporting interviews and polygraph testing among

"alternatives available in the treatment of sexual offenders that are considerably less intrusive

than plethysmograph testing"). Doe contends that the assessment as a whole, if not any particular

part, does implicate "significant liberty interests." See Pl.'s PI Mot. 21. As explained below,

however, the Court disagrees: the challenged condition does not cross the line between

assessment and treatment, nor does it implicate a particularly significant liberty interest.

Accordingly, and because a thorough assessment is justified in this case, the Court concludes that

the assessment condition "involves no greater deprivation of liberty than is reasonably

necessary." See 18 U.S.C. § 3583(d)(2).

II. Due Process

The Fifth Amendment to the U.S. Constitution protects against deprivations of "life,

liberty, or property, without due process of law." U.S. Const. amend. V. A procedural due

process violation occurs when government action deprives a person of a liberty or property

15
interest without affording appropriate procedural protections. See Atherton v. D.C. Office of the

Mayor, 567 F.3d 672, 689 (D.C. Cir. 2009). A substantive due process violation occurs only

when government action interferes with a fundamental right or liberty interest. See Abigail

Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 702 (D.C.

Cir. 2007) (en banc). Doe raises both procedural and substantive due process claims in this

case.7

A. Procedural Due Process

In addressing a procedural due process challenge, the Court must first determine whether

the plaintiff has been deprived of a protected liberty or property interest. See Gen. Elec. Co. v.

Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010). Only after finding the deprivation of a protected

interest does the Court determine whether the government's procedures satisfied due process.

See id. At this second step, the Court applies "the now-familiar Mathews v. Eldridge balancing

test, considering (1) the significance of the private party's protected interest, (2) the government's

interest, and (3) the risk of erroneous deprivation and 'the probable value, if any, of additional or

substitute procedural safeguards.'" Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

1. Doe's claimed liberty interests

Although individuals on probation or supervised release "'do not enjoy the absolute

liberty to which every citizen is entitled,'" they nevertheless may have liberty interests protected

by the Due Process Clause. See Wills, 882 F. Supp. 2d at 75 (quoting Griffin v. Wisconsin, 483

U.S. 868, 874 (1987)); accord Morrissey v. Brewer, 408 U.S. 471, 480-82 (1972). Doe asserts

that the challenged condition implicates three significant liberty interests: his right to refuse

7
Doe asserts a procedural due process claim against the Parole Commission and a
substantive due process claim against both the Parole Commission and CSOSA. Compl. 15-16.

16
mental health treatment, his right to avoid the stigma of being classified as a sex offender, and

his right to privacy in sexual matters.

First, Doe tries to invoke his interest in refusing unwanted mental health treatment – "in

the form of an onerous 'assessment' that is indistinguishable from treatment." See Pl.'s PI Mot.

22. The Supreme Court has recognized a protected liberty interest in refusing medical treatment.

See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278 (1990). Doe's problem, however, is

that he cannot identify any "treatment" to be refused. Attempting to equate assessment with

treatment, Doe again cites Thomas, in which the Sixth Circuit found the assessment at issue to be

"intensive" and "in many ways no less stringent than" treatment. See Pl.'s PI Mot. 27 (citing 212

F. App'x at 487-88). As Doe rightly points out, he would be subjected to a psychosexual

assessment, a polygraph, a group orientation session, and up to sixteen individual sessions. See

id. From Doe's perspective, all of that may be quite intensive and nearly as unwelcome as

treatment. But "treatment" connotes an active step – doing something to "treat" or remedy an

identified problem – that is missing here. The assessment will only seek to identify the problem,

if any, and will stop short of doing anything about it: the psychosexual assessment and

questionnaire are designed to gather information (albeit very private information); the orientation

serves merely to give an overview of the assessment process and forms to be signed and address

any general questions or concerns, see Brennan Decl. ¶ 11; and the individual sessions, no matter

how many are needed to complete the assessment, are simply not for purposes of changing Doe's

behavior, see Brennan Supp'l Decl. ¶¶ 7, 9, 11 (in individual assessment sessions, therapist

"seeks to identify known risk factors related to sex offending behavior and determine if there is a

need for sex offender treatment"). There is, then, no genuine dispute that the assessment process

lacks any sort of behavior-modifying component. Hence, the Court concludes that Doe's liberty

17
interest in refusing unwanted medical treatment is not implicated here.

Doe next argues that the sex offender assessment condition implicates his liberty interest

in avoiding the stigma of sex offender classification and treatment. In Vitek v. Jones, a case

involving a prisoner's due process challenge to his transfer to a mental hospital, the Supreme

Court held that the "stigmatizing consequences" of the transfer, along with the prisoner's

subjection to "mandatory behavior modification as a treatment for mental illness," were "the kind

of deprivations of liberty that requires procedural protections." 445 U.S. 480, 494 (1980). In

evaluating due process challenges to sex offender conditions by prisoners and parolees, several

courts of appeals, and one judge in this district, have applied Vitek to find a protected liberty

interest in avoiding the stigma associated with sex offender classification and treatment. See

Wills, 882 F. Supp. 2d at 75-76 (discussing Vitek and cases from Third, Fifth, Ninth, Tenth, and

Eleventh Circuits).

In these cases, that combination – of classification and treatment – was critical. In Wills,

the plaintiff, who was serving a term of supervised release for drug offenses and had never been

convicted of a sex offense,8 was transferred to CSOSA's Sex Offender Unit and subjected to the

same "Special Sex Offender Aftercare Condition" that CSOSA initially requested for Doe. See

882 F. Supp. 2d at 64-65 & n.1; Compl., Ex. 5. By the time the plaintiff filed suit, he had already

undergone a psychosexual assessment, polygraph, and several sex offender treatment sessions.

Wills, 882 F. Supp. 2d at 66. He had also been forced to disclose the nature of his sexual offense

to his then-girlfriend and acknowledge his need for sex offender treatment. Id. at 65-66. The

8
In 1984, twenty-five years before the imposition of a sex offender condition on his
supervised release, the plaintiff had been charged with assault with intent to rape; the charge had
been dismissed in 1986. See Wills, 882 F. Supp. 2d at 64, 67.

18
court found that the Parole Commission's imposition of the sex offender condition "implicated

the plaintiff's liberty interest by (1) classifying the plaintiff as a sex offender, (2) publicizing his

sex offender status, and (3) mandating sex offender therapy." Id. at 76. These three factors

"jointly" resulted in "stigmatizing consequences," the court said, as first articulated by the

Supreme Court in Vitek and then applied to sex offender classification and conditions by five

courts of appeals. Id. (internal quotation marks omitted).

In the circuit decisions referenced in Wills, the courts similarly found a liberty interest

implicated by the combination of being labeled or classified as a sex offender and having to

undergo treatment, therapy, or behavior modification of some sort. See Renchenski v. Williams,

622 F.3d 315, 328 (3d Cir. 2010) (stating that "the stigmatizing effects of being labeled a sex

offender, when coupled with mandatory behavioral modification therapy, triggers an independent

liberty interest"); Coleman v. Dretke ("Coleman I"), 395 F.3d 216, 223 (5th Cir. 2004) (finding

"a liberty interest in freedom from the stigma and compelled treatment on which [prisoner's]

parole was conditioned"), reh'g en banc denied, 409 F.3d 665 (5th Cir. 2005); Chambers v. Colo.

Dep't of Corr., 205 F.3d 1237, 1238, 1242-43 (10th Cir. 2000) (finding liberty interest in

avoiding sex offender label and treatment conditioned on prisoner's admission that he committed

a sex offense); Kirby v. Siegelman, 195 F.3d 1285, 1288, 1291-92 (11th Cir. 1999) (per curiam)

(finding liberty interest in not being classified as sex offender, where classification meant

mandatory participation in group therapy sessions to be eligible for parole); Neal v. Shimoda,

131 F.3d 818, 830 (9th Cir. 1997) ("[T]he stigmatizing consequences of the attachment of the

'sex offender' label coupled with the subjection of the targeted inmate to a mandatory treatment

program whose successful completion is a precondition for parole eligibility create the kind of

deprivations of liberty that require procedural protections.").

19
 As already discussed, however, the assessment condition here does not require Doe to

admit his need for treatment, undergo any treatment or therapy, or otherwise change his behavior

in any way. Hence, the authority he relies on – Wills and the circuit decisions cited therein –

does not compel the conclusion that Doe has a protected liberty interest here. Compare Wills,

882 F. Supp. 2d at 77 ("[N]either party disputes that the [sex offender condition] 'required' that

the plaintiff, who was not a sex offender, 'undergo sex offender treatment.'").

Even assuming that classification plus something less than treatment can implicate a

liberty interest, the degree to which Doe has been "classified" as a sex offender is not clear.

Defendants insist that Doe "has not been classified as a sex offender," and Brennan has declared

as much. See Defs.' Reply 4-5 (citing Supp'l Brennan Decl. ¶ 19). But in Wills, the defendants

had similarly argued that the plaintiff was not "formally classified as a sex offender," and the

court disagreed, explaining: "The defendants assigned the plaintiff to CSOSA's Sex Offender

Unit; repeatedly coerced him to admit his 'need' for the mandated sex offender treatment;

routinely generated 'Adult Sex Offender Treatment Services Progress Reports' for the plaintiff;

and compelled the plaintiff to disclose the nature of his 'sex offense' to his then-girlfriend." 882

F. Supp. 2d at 76. Here, not all of these factors are present, but like the plaintiff in Wills, Doe

has been assigned to CSOSA's Sex Offender Unit. Even if that fact is not made public –

defendants emphasize, for example, that the door of the Sex Offender Unit is labeled "Special

Supervision Office" – Doe himself is fully aware of it and may well feel a stigma because of it.

See Supp'l Brennan Decl. ¶ 32; see also Renchenski, 622 F.3d at 327 (concluding that

classification of plaintiff "even as a possible sex offender" was stigmatizing).

Defendants assert, however, that neither Doe's supervision in the Sex Offender Unit nor

his juvenile adjudication will be disclosed. They say the following about CSOSA's disclosure

20
policy: a person undergoing a sex offender assessment is asked to sign a waiver of "Limited

Confidentiality," which allows information about the person's assessment or treatment to be

shared with only his or her therapist and supervision team; collateral contacts may not obtain

such assessment or treatment information without the person's written consent, which is not

required to be given; and, though CSOSA's manual does not specifically address juvenile

adjudications, CSOSA is bound by confidentiality requirements as to any such adjudications and

hence does not disclose information about a person's confidential juvenile adjudications without

his or her written consent. See Brennan Decl. ¶ 18; Supp'l Brennan Decl. ¶¶ 26-27, 37; see also

6/21/13 Tr. 76 (Doe's supervision in Sex Offender Unit disclosed "only [to] individuals in

CSOSA with a need to know").

Doe counters that CSOSA's manual indicates that disclosure of a supervisee's history is "a

fundamental aspect" of supervision in the Sex Offender Unit and that the manual makes no

exception for juvenile adjudications. In addition, Doe points to Wills, in which the plaintiff, who

had not been convicted of a sex offense and was not required to register as a sex offender, was

required to disclose the nature of his prior sex offense to his then-girlfriend months before his

assessment even began. See Pl.'s Surreply [ECF 34] 9 (citing Wills, 882 F. Supp. 2d at 65). This

anecdotal evidence is somewhat troubling and arguably "in tension" with defendants' assertion

that a supervisee's prior sex offense will be disclosed only if he or she is a registered sex

offender. See id.; Brennan Decl. ¶ 15; see also Supp'l Brennan Decl. ¶ 34. But significantly, the

prior offense at issue in Wills was an adult one, in contrast to the juvenile adjudication at issue

here, and according to defendants, CSOSA's disclosure policy distinguishes between adult and

juvenile criminal history. See Supp'l Brennan Decl. ¶¶ 35, 37. The Court reads the Brennan

declarations to say that the confidentiality of juvenile adjudications trumps any otherwise-

21
applicable CSOSA policies, and there is no hint that CSOSA has ever disclosed (or even come

close to disclosing) information about Doe's juvenile offense to anyone outside of CSOSA or

CCFS. Hence, the Court finds no genuine dispute that the sex offender assessment condition will

not result in "the revelation of the details of [Doe's] juvenile offense," which is of "primary

concern" to Doe. See Pl.'s Surreply 7.

Of secondary concern to Doe is the revelation of assessment or treatment information.

See id. On this score, Doe's concern is likely warranted. First, as part of the assessment, Doe

will have to attend a group orientation session. Although no personal information will be shared

at the orientation, the fact that Doe is undergoing a sex offender assessment will be disclosed to

the other attendees. In addition, the incident that occurred last Halloween at Doe's grandmother's

house constitutes a disclosure of sorts. Officers told Doe, in front of his grandmother, that he

could not go outside on Halloween because he was a registered sex offender. Compl. ¶ 54.

Presumably, that happened because Doe was being supervised in the Sex Offender Unit.

Defendants say the incident was an "anomaly" and that "[i]t is not what is going to happen going

forward in terms of disclosure," but such statements do not give the Court complete confidence.

6/21/13 Tr. 43. The chapter of CSOSA's manual on supervision in the Sex Offender Unit does

not generally distinguish between individuals undergoing an assessment and those undergoing

treatment, between individuals who are required to register as sex offenders and those who are

not, or between individuals who committed a sex offense as an adult and those who committed a

sex offense as a child. Although the Halloween incident perhaps should not have happened

under CSOSA's stated policy, see Supp'l Brennan Decl. ¶¶ 35, 37, it did in fact happen, and the

manual does not make clear what protocols should apply in supervising a person like Doe. Thus,

some other "anomaly" could easily occur, and the disclosure could be to a larger or different

22
audience (such as an employer) and could have significant stigmatizing effects.

The sex offender assessment condition, then, may result in a limited disclosure – of the

fact that Doe is being supervised as a sex offender or potential sex offender or the fact that he has

some sort of sexual misconduct in his past, or both. But any disclosure is likely to be limited,

and will not be accompanied by treatment. To the extent that a liberty interest in avoiding the

stigma of sex offender classification is implicated, then the process due will not be as great as in

Vitek and the other cases relied on by Doe.

The final liberty interest claimed by Doe is based on his right to sexual privacy. Relying

on Whalen v. Roe, 429 U.S. 589 (1977), Doe first argues that the sex offender assessment

condition implicates his interest in "'avoiding disclosure of personal matters'" because the

psychosexual assessment would delve deeply into Doe's sexual history, thoughts, and practices.

See Pl.'s PI Mot. 28-29 (quoting Whalen, 429 U.S. at 599).

Although the Supreme Court has on several occasions referred to the kind of privacy

interest asserted by Doe, it has declined to decide whether there is a constitutional privacy

interest in avoiding disclosure of personal matters. See NASA v. Nelson, 131 S. Ct. 746, 751,

756 (2011) (discussing Whalen, 429 U.S. at 599-600, 605, and Nixon v. Administrator of

General Services, 433 U.S. 425, 457 (1977)). The D.C. Circuit, moreover, has expressed "grave

doubts" about the existence of "a constitutional right of privacy in the nondisclosure of personal

information." Am. Fed'n of Gov't Emps. v. HUD, 118 F.3d 786, 791 (1997). And it has stated

that, assuming such a right exists, "the individual interest in protecting the privacy of the

information sought by the government is significantly less important where the information is

collected by the government but not disseminated publicly." Id. at 793; see also Nelson, 131 S.

Ct. at 751, 761 (assuming without deciding that informational privacy right existed but

23
concluding that right was not violated by challenged background check inquiries, in light of

government interests at stake and "substantial protections against disclosure to the public").

Here, even assuming that a constitutionally protected interest in nondisclosure of personal

information exists, Doe does not have an interest of this sort that can support a due process

claim. The interest he asserts is based on the intrusive questions that will be asked of him as part

of the assessment. See Pl.'s PI Mot. 29. But his answers to these questions will be used solely

for the purpose of determining whether and to what degree he needs treatment; they will not be

publicly disclosed in any way. In Goings v. Court Services & Offender Supervision Agency, the

court rejected the plaintiff's argument that a special condition requiring sex offender evaluation

and treatment implicated his privacy interest in avoiding disclosure of personal matters, stating:

"Although [the special condition] requires the plaintiff to undergo sex offender treatment, which

may involve demands for him to divulge deeply private information, this information is to be

used for the purpose of the plaintiff's treatment and not for public dissemination." 786 F. Supp.

2d 48, 75 (D.D.C. 2011). Doe tries to distinguish Goings by arguing that there will be "public

dissemination" in this case – pursuant to CSOSA's policy of disclosing supervisees' sex offenses

to their collateral contacts and through a "group therapy session." See Pl.'s PI Mot. at 30 & n.24.

But, as discussed above, Doe's juvenile adjudication will remain confidential by law, and no

personal information will be disclosed at the group orientation. See D.C. Code § 16-2331(b);

Brennan Decl. ¶¶ 11, 18 (stating that information about Doe's juvenile adjudication is protected

from disclosure "even if such protections are not spelled out in the manual"). And, perhaps more

importantly, the information that Doe claims will be made public (the details of his juvenile

offense) is not the same information he seeks to keep private (details about his personal sexual

experiences and innermost thoughts). Accordingly, because defendants' reason for conducting a

24
detailed probe into Doe's sexual history is a legitimate one, and because Doe's answers to the

sexual history questionnaire will be protected from disclosure, he does not have a liberty interest

in informational privacy that would be violated by the challenged condition. See Nelson, 131 S.

Ct. at 761-64.

Doe also argues that the condition would interfere with his right to independently make

"certain kinds of important decisions." See Whalen, 429 U.S. at 599-600. He says that CSOSA's

assessment is structured such that his "perfectly legal sexual decisions" may cause him to suffer

adverse consequences, in the form of further assessment or treatment. Pl.'s PI Mot. 31. But this

statement is little more than speculation, and if in fact CSOSA determines that Doe's past sexual

decisions make further assessment or treatment necessary, it will be because something about

them indicates a possible risk of future sexual misconduct. Taking these and other steps to

prevent Doe from committing unlawful sexual acts will not deprive him of his right to make

lawful sexual decisions.

2. What process is due

Because Doe may have a liberty interest in avoiding the stigma of sex offender

classification, the Court will turn to the question of what process is due. Defendants argue as an

initial matter that, because Doe was adjudicated of a sex offense, "'no further process [was] due

before imposing sex offender conditions.'" See Def.'s MSJ 24 (quoting Meza v. Livingston, 607

F.3d 392, 401 (5th Cir. 2010)); see also Neal, 131 F.3d at 831. Although Doe's juvenile

adjudication may bear on the strength of his liberty interest, if any, in avoiding stigma, the Court

is unwilling to conclude that it means that Doe was due no process at all. See Goings, 786 F.

Supp. 2d at 74 n.15 (finding no support in this circuit for proposition that "those convicted of sex

offenses have no liberty interest in being free from sex offender conditions").

25
 "The fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner." Mathews, 424 U.S. at 333 (internal quotation

marks omitted). Due process, however, is not "a technical conception with a fixed content

unrelated to time, place and circumstances," but rather is "flexible" and will call for different

procedural protections depending on the particular situation at hand. Id. at 334 (internal

quotation marks omitted). To determine the kind of notice and hearing required in this case, the

Court must balance (1) the significance of Doe's liberty interest, (2) the government's interest,

and (3) the risk of erroneous deprivation and the value of additional safeguards. See id. at 334-

35.

Doe asserts that, in imposing the sex offender assessment condition, defendants gave him

"no process at all." See Pl.'s PI Mot. 33. That is not entirely accurate, however. He was notified

of CSOSA's initial request to modify the conditions of his supervised release. Compl. ¶ 43. His

counsel submitted a written objection to such modification, which apparently had some effect, as

CSOSA changed its request – instead of asking for sex offender "testing and treatment," as it had

in its initial request, CSOSA asked only for an assessment. Id. ¶¶ 42, 44-46; see also Pl.'s Opp'n

& Reply 29-30 (surmising that, but for Doe's counsel's intervention, initially requested condition

would have been imposed). The form notifying Doe of the second request for modification also

notified him that he had ten days to object or comment to the Parole Commission, and Doe

initialed next to an option stating, "I object to the proposed modifications of conditions and my

reasons are stated on the reverse side of this form." See Defs.' MSJ, Ex. 11 [ECF 22-10]

(initialed by Doe September 26, 2012). But neither he nor his counsel provided reasons or

evidentiary support for this objection. His counsel's objection letter, sent one week prior,

challenged the imposition of the initially proposed condition requiring assessment and treatment,

26
and raised objections to treatment specifically. See Compl. ¶ 44; id., Ex. 10 [ECF 2-8] 8-11.9

Doe was thereafter notified that the later-requested sex offender assessment condition was being

imposed and was told that he could not appeal. He filed this lawsuit in November 2012. In

January 2013, Doe was told that he could appeal but did not have to for administrative

exhaustion purposes. See Pl.'s Opp'n & Reply, Ex. 8. Doe signed his name on the appeal form,

but again did not provide any supporting materials. See id.

To assess the sufficiency of this process, the Court looks to the Mathews factors. As

noted, any liberty interest Doe has is limited to avoiding the stigma that results from being

classified as a sex offender. However, the Court concludes that this interest is not particularly

significant for several reasons. First, treatment is not a "corresponding condition[]" of Doe's

supervision in the Sex Offender Unit or the sex offender assessment condition. See Wills, 882 F.

Supp. 2d at 75-77; see also Johnson, 697 F.3d at 1251 (stating that an assessment is "a much less

significant restraint" on liberty than treatment); Renchenski, 622 F.3d at 329-30 (noting with

approval other courts' focus on "highly stigmatizing" and "intrusive nature" of sex offender

9
Doe complains that his counsel's September 19, 2012 objection letter was "apparently
never considered" by the Parole Commission, as it did not appear in the Parole Commission case
analyst's memorandum and was improperly rejected as an "appeal." See Pl.'s PI Mot. 32-33; see
also Compl. 13 n.6; id., Ex. 12 [ECF 2-9]. But the letter pre-dated CSOSA's request for the
condition actually imposed, and following that request, Doe did not attach or reference his
counsel's letter in objecting to that condition, nor did his counsel re-submit an objection to the
later-requested assessment condition. See Compl., Ex. 13 (case analyst's memorandum noting
that Doe objected to modification but "did not support his objection with any statements or
documentation within the required time frame"). Although it could perhaps be inferred that Doe
objected to the second proposed condition for some of the same reasons set forth in his counsel's
letter objecting to the first proposed condition, he did not make this clear to the Parole
Commission. And despite mischaracterizing the objection letter as an "appeal," the Parole
Commission apparently considered it anyway (though belatedly, after the decision to order the
assessment condition had been made). See Compl., Ex. 12 ("Your appeal has been referred to
the Commission's Case Operations section for review and a recommendation on whether your
case should be reopened for new information of substantial significance.").

27
treatment). Because there is no treatment here, only an assessment, there is less potential harm

from classification as a sex offender; hence, the liberty interest in avoiding stigma, if any, is less

significant.10

It also bears noting, moreover, that, unlike the plaintiffs in Wills and the appellate cases

finding a liberty interest implicated by sex offender classification, Doe effectively pled guilty to a

sex offense. See e.g., Renchenski, 622 F.3d at 320; Coleman I, 395 F.3d at 225; Kirby, 195 F.3d

at 1287; Wills, 882 F. Supp. 2d at 62; see also Jennings v. Owens, 602 F.3d 652, 658-59 (5th Cir.

2010) ("The conclusion that the sex offender therapy condition stigmatized Coleman rested

heavily upon the fact that he had never been convicted of a sex offense – therefore, the label 'sex

offender' was false as applied to him." (discussing Coleman v. Dretke ("Coleman II"), 409 F.3d

665, 668 (5th Cir. 2005) (per curiam))). Although a juvenile adjudication is "not a conviction"

under District of Columbia law, see D.C. Code § 16-2318, any stigma resulting solely from the

imposition of the assessment condition is lessened by the fact that Doe admitted to committing a

sex offense in a judicial proceeding. See Jennings, 602 F.3d at 659 (stating that imposition of

sex offender conditions "would indeed cause stigma," if imposed on a person who had never

been convicted of a sex offense, but finding no liberty interest infringed because the plaintiff had

been convicted of a sex offense).11 As for stigma from disclosure, any disclosure of Doe's sex

offender "status" should be limited to the context of the group orientation session, at which the

10
Cf. Gen. Elec., 610 F.3d at 121 (stating rule of Paul v. Davis, 424 U.S. 693, 704-06
(1976), that "stigma alone is insufficient to invoke due process protections").
11
The plaintiff in Jennings had committed aggravated kidnaping of an eight-year-old boy
when he was fifteen years old. See 602 F.3d at 654. Unlike Doe, Jennings had been certified as
an adult and sentenced to eight years' imprisonment. See id. And Jennings apparently
committed a subsequent offense involving a thirteen-year-old boy when he was twenty-one. See
id.

28
fact of Doe's assessment will be disclosed to a small group of people. An "anomaly" such as the

Halloween incident should not happen again, but even if it did, it would pose a less serious

concern than if Doe's confidential juvenile records were disclosed, which Brennan has confirmed

will not happen. See Brennan Decl. ¶ 18; Supp'l Brennan Decl. ¶ 37.

Finally, the assessment is only a preliminary step. It is possible that defendants will

determine that Doe does not need treatment; and should they determine that he does need

treatment, greater due process protections will be triggered. Hence, to the extent Doe has been

classified as a sex offender (by virtue of being supervised in the Sex Offender Unit or the

imposition of the assessment condition), the liberty interest implicated is not the kind of interest

that merits the full panoply of due process protections.

The second Mathews factor is the government's interest. It is beyond dispute that

defendants have an important interest in determining whether the supervised releasees they

oversee are at risk of committing a sex offense. Defendants argue that it would be "impractical

and overly burdensome" to hold a full-fledged hearing as a matter of course every time they seek

to assess a releasee's risk. See Defs.' Supp'l Mem. [ECF 36] 4. They correctly note that in many

cases, such as where a releasee has a recent rape conviction, the need for an assessment will be

"obvious." See id. Hence, defendants reason, the written notice and comment procedures

currently in place are appropriate. See 28 C.F.R. § 2.204(c)(2)(i) (providing that releasee shall be

notified of proposed modification to conditions of release and given ten days to comment and

that, after ten-day comment period, Parole Commission shall have twenty-one days to decide

whether to order modification). Defendants thus raise legitimate concerns about the fiscal and

administrative burdens that an across-the-board hearing requirement would entail.

The third Mathews factor relates to the risk of erroneous deprivation and the probable

29
value of additional procedural safeguards. Defendants argue that providing more process at this

stage would do little to improve the accuracy of their determination. See Defs.' Supp'l Mem. 4.

They say that the evidence relied on is generally undisputed, and that a hearing would likely

consist of "contradictory testimony between witnesses offering opinions as to the need for an

evaluation." See id. The documentary evidence of Doe's past sexual behavior is generally

undisputed,12 and does not raise any issues of "witness credibility and veracity." See Mathews,

424 U.S. at 343-44. Accordingly, the Court agrees that a hearing would offer less value at the

pre-assessment stage than at the post-assessment, pre-treatment stage. A hearing at that later

stage would involve more than a battle of opinions about Doe's undisputed record and would

allow Doe to challenge any judgment by a psychologist or CSOSA that he presently needs

treatment.

Defendants have submitted to the Court the Parole Commission's proposed new rules

regarding the imposition of new conditions of release for sex offenders. See 78 Fed. Reg. 11,998

(Feb. 21, 2013). For an offender on supervised release who, like Doe, has not been convicted of

12
Doe does not contest the accuracy of the facts the Parole Commission had – and
actually relied on – in imposing the condition. He does, however, urge that the Parole
Commission did not have before it all of the evidence now before the Court, particularly the
court-ordered psychological evaluation. See 6/21/13 Tr. 6. He appears to be correct: CSOSA
informed the Parole Commission that the evaluation took place, but quoted selectively from the
evaluation and did not attach a full copy. Compl., Ex. 11. But as noted, neither the fact of the
evaluation nor the psychology intern's conclusions is really material to whether the condition
imposed was reasonably related to the § 3553 factors. See 6/21/13 Tr. 6. And in most cases, as
here, the basis for imposing an assessment condition will be a supervised releasee's undisputed
juvenile and/or adult criminal history. That is not to say, however, that there is not value to be
gained through improvements to defendants' current process for modifying conditions of release
– for example, better communication between CSOSA and the Parole Commission or ensuring
that supervised releasees are given reasons for any conditions imposed.

30
a sex offense,13 the proposed rules would allow the Parole Commission to impose a condition for

sex offender assessment "after using the notice and 10-day comment procedure" that was used in

this case. See id. at 11,999, 12,001 (proposed 28 C.F.R. § 2.204(d)(2)(i)). If, after the

assessment, the Parole Commission determined that treatment appeared warranted and the

offender objected, a hearing would be conducted. Id. at 11,999. The offender would be

provided: disclosure of the information supporting imposition of a treatment condition, the

opportunity to testify and present witnesses and evidence, the right to counsel, written findings

regarding the decision, and in most cases, if requested, the opportunity to confront and cross-

examine a person (i.e., a psychologist) who has given information relied on to support imposition

of the condition. Id. at 12,001 (proposed 28 C.F.R. § 2.204(d)(2)(ii)). The proposed rules would

also give offenders on supervised release the right to appeal post-release modifications of release

conditions. See id. at 11,999.

Weighing the Mathews factors, the Court concludes that Doe received constitutionally

adequate process here. The challenged condition does not implicate a particularly significant

liberty interest; defendants have made a reasonable judgment that, where a person has committed

a sex offense in the past, an assessment condition aimed exclusively at determining that person's

future risk may be imposed after giving notice and an opportunity for comment; and Doe was

given such notice and opportunity.14 In the Court's view, defendants' proposed approach to

13
See 42 U.S.C. § 16911(8) (defining "convicted," used with respect to a sex offense, to
include "adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years
of age or older at the time of the offense").
14
Regrettably, the Parole Commission's Notice of Action did not state any reasons for its
decision to impose the assessment condition. See Compl., Ex. 1 (space for "REASONS:" left
blank). This fact does not change the Court's conclusion, however, because, as evidenced by his
counsel's objection letter, Doe knew that the basis for requiring an assessment was his juvenile

31
assessing and treating supervised releasees with a history of sex offenses strikes a reasonable

balance. Compare Wills, 882 F. Supp. 2d at 78 (finding process inadequate where plaintiff "was

provided no notice of any sort prior to the Commission's initial imposition of the condition"

(internal quotation marks omitted)). Deferring a full-fledged hearing (and the accompanying

rights to testify, present evidence, confront and cross-examine witnesses, and be represented by

counsel) until after treatment has been recommended would account for both the heightened

individual interest implicated by a treatment condition and the government's interest in protecting

the public while at the same time making efficient use of its limited resources. See Goings, 786

F. Supp. 2d at 77-78 (noting that requiring CSOSA to hold a "post-risk assessment hearing" "may

be acceptable" for due process purposes, but finding that plaintiff was not given a meaningful

opportunity to be heard "before, during or after the initial risk assessment").

In concluding that Doe received constitutionally adequate process, the Court does not rely

on Doe's purported failure to pursue an administrative appeal. See Defs.' Supp'l Mem. 3-4. Doe

was at first told that the decision to impose the assessment condition was not appealable and then

told that the decision was appealable but that he did not have to appeal. He cannot be penalized

for not vigorously asserting rights that he learned of belatedly and was told were optional.

Moreover, as Doe points out, defendants expressly waived "any objection based on failure to

exhaust administrative remedies," Defs.' MSJ 4 n.1, and the Parole Commission's current

regulations do not give supervised releasees a right to appeal a change in their conditions of

release. See Pl.'s Resp. to Defs.' Supp'l Mem. [ECF 38] 2. Nevertheless, Doe was given the

process he was due. Because he is not entitled to a hearing at this time, sending this case back to

sex offense. Hence, Doe was not prejudiced by the Parole Commission's failure to tell him the
reasons for its decision.

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the Parole Commission would accomplish nothing.

If Doe undergoes the sex offender assessment and it is determined that he needs

treatment, it is not clear what process he would be given before treatment is imposed, as the

proposed rules submitted by defendants have not been implemented. As defendants noted at the

motions hearing, that issue is not now before the Court. It is not irrelevant to the Court's

decision, however. The Court's conclusion that Doe's due process rights have not been violated

is premised largely on its finding that the assessment condition does not require or authorize

treatment, and also on its determination that defendants' proposed approach to imposing sex

offender conditions of supervised release – affording notice and an opportunity for comment

before assessment and then affording a full-fledged hearing before treatment – is reasonable.15

Should the factual circumstances be different than defendants have represented them to be, the

Court might reach a different conclusion.

B. Substantive Due Process

Doe claims that defendants' imposition of the sex offender assessment condition violates

his substantive due process rights by "infring[ing] on [his] fundamental rights to refuse unwanted

mental health treatment and to privacy in sexual matters." Compl. ¶ 72. But for the same

reasons that the condition does not implicate protected liberty interests grounded in unwanted

mental health treatment or sexual privacy, it does not infringe on any fundamental rights. See

Abigail Alliance, 495 F.3d at 702 (noting that "the Supreme Court has cautioned against

15
Although defendants do not guarantee that Doe would be given a hearing before being
subjected to treatment, they stress the difference between assessment and treatment in their
briefing and appear to accept that a treatment condition would implicate a protected liberty
interest. Defendants also appear to recognize the practical benefit from conducting hearings at
the post-assessment, pre-treatment stage, as opposed to the pre-assessment stage, as they state
that a hearing "at this [earlier] stage" would be unduly burdensome. See Defs.' Supp'l Mem. 4.

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expanding the substantive rights protected by the Due Process Clause"); see also Coleman I, 395

F.3d at 223 (finding procedural due process violation based on liberty interest in avoiding sex

offender classification and compelled treatment but finding no substantive due process violation).

To reiterate, the condition does not require treatment, and Doe's right to privacy will not be

infringed because his juvenile adjudication is protected from disclosure by law. Accordingly, the

Court concludes that defendants are entitled to summary judgment on Doe's substantive due

process claim.

CONCLUSION

Because the Court finds that defendants are entitled to judgment as a matter of law on

Doe's statutory and due process claims, their motion for summary judgment will be granted;

because the Court has resolved the merits entirely in favor of defendants, Doe's motion for a

preliminary injunction will be denied. A separate order accompanies this memorandum opinion.

/s/
JOHN D. BATES
United States District Judge

Dated: August 5, 2013

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