from the United States District Court for the District of
Colorado No. 1:15-CV-02184-RM-STV.
Matthew S. Shapanka of Covington & Burling LLP,
Washington, D.C. (Peter A. Swanson, Terra W. Fulham, Alyson
R. Sandler of Covington & Burling LLP, Washington D.C.;
Steven D. Zansberg of Ballard Spahr LLP, Denver, Colorado,
with him on the briefs) for Plaintiff - Appellant.
Bishop Grewell, Assistant United States Attorney (Jason R.
Dunn, United States Attorney with him on the brief), Denver,
Colorado, for Defendant - Appellee.
Nicholas J. Siciliano, Dylan Glenn of Latham & Watkins
LLP, Chicago, Illinois, filed an amicus curiae brief in
support of Plaintiff - Appellant for Danielle C. Jefferis,
Nicole B. Godfrey, and Uptown People's Law Center.
HARTZ, SEYMOUR, and MATHESON, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
Legal News ("PLN") publishes a monthly magazine to
help inmates navigate the criminal justice system. Between
January 2010 and April 2014 (the "Rejection
Period"), the Federal Bureau of Prisons
("BOP") rejected the distribution of 11
publications PLN sent to inmate subscribers at the BOP's
United States Penitentiary, Administrative Maximum Facility
in Florence, Colorado ("ADX").
sued the BOP, claiming the rejections violated PLN's
First Amendment rights, its Fifth Amendment procedural due
process rights, and the Administrative Procedure Act
("APA"). ADX responded by distributing the 11
publications, revising its institutional policies, and
issuing a declaration from its current Warden. Based on these
actions, the BOP moved for summary judgment, arguing that
PLN's claims were moot or not ripe. PLN filed a
cross-motion for partial summary judgment on its First and
Fifth Amendment claims. The district court granted the
BOP's motion and dismissed the case as moot.
jurisdiction under 28 U.S.C. § 1291, we affirm.
Developments during litigation mooted PLN's claims, and
the voluntary cessation exception to mootness does not apply.
present in chronological order the BOP actions and district
court proceedings leading to this appeal. These events
overlapped because the BOP continued to take actions relevant
to, but outside of, the court proceedings.
ADX's Review of Incoming Publications
describe (1) the BOP regulations set forth in 28 C.F.R.
§§ 540.70 to 540.72 and (2) the ADX institutional
supplement, a document establishing policies specific to a
BOP prison facility. Both govern ADX's review of incoming
the Rejection Period, the BOP regulations permitted inmates
to receive publications without prior approval unless the
publications were (a) statutorily prohibited or (b) rejected
by the Warden as "detrimental to the [facility's]
security, good order, or discipline" under 28 C.F.R
§ 540.71(b). See 28 C.F.R. §§
540.70-.72. For any rejection, the regulations required the
Warden to promptly notify the inmate in writing, provide
reasons, and identify the objectionable content. Id.
§ 540.71(d). The Warden also had to provide the
publisher with a copy of the rejection notice. Id.
§ 540.71(e). These regulations have not changed since
the Rejection Period.
institutional supplement in effect during the Rejection
Period listed a sequence of ADX personnel responsible for
screening incoming publications before the Warden's
review. Only the Warden may revise the
January 2010 to April 2014 - The Rejection Period
the Rejection Period, ADX officials flagged for potential
rejection any publication that referred to an ADX inmate or
staff member ("name-alone content"). After further
review, the BOP rejected 11 PLN publications in their
entirety. For each rejection, the ADX Warden signed a notice.
Each notice said the publication was rejected under 28 C.F.R.
§ 540.71(b), identified the objectionable pages, and
explained why the content was problematic, including that the
objectionable pages contained name-alone
contends, and several former ADX Wardens have stated, that a
publication's "name-alone content" was not a
sufficient reason for rejection. Aplt. Br. at 26; App. at
1577-78, 1606. Former ADX Wardens provided examples of
specific reasons for the rejections other than name-alone
content,  and
the record shows that two notices listed a reason other than
October 2015 - PLN's Complaint
October 1, 2015, PLN sued the BOP in the United States
District Court for the District of Colorado. It alleged the
BOP violated (1) its First Amendment rights, (2) its Fifth
Amendment due process rights, and (3) the APA.
PLN alleged the BOP censored First Amendment-protected speech
(the "content censorship claim"). PLN averred this
"censorship . . . [was] not rationally related to any
legitimate and neutral government purpose" because
"the allegedly objectionable information [did] not pose
any risk to the security, discipline, or good order of
ADX." Id. at 23. PLN also claimed the BOP's
rejection of publications in their entirety constituted
improper censorship because redaction was "an obvious
and easy alternative" (the "non-redaction
censorship claim"). Id.
PLN alleged the BOP's rejections "failed to provide
PLN with timely and adequate notice" and an opportunity
to contest (the "procedural due process claim").
Id. at 24. PLN claimed the rejection notices'
"uninformative, perfunctory language" provided
insufficient detail to place PLN on notice. Id.
PLN alleged the BOP violated the APA by taking actions
"constitut[ing] arbitrary and capricious decision
making." Id. at 25.
requested the following relief:
(1) A declaration that the BOP's censorship of Prison
Legal News violated the First and Fifth Amendments and
(2) injunctive relief compelling the BOP to deliver (a) the
rejected publications and (b) all future Prison Legal
News publications, unless the BOP had a valid
penological reason to reject them;
(3) injunctive relief compelling the BOP to provide PLN with,
for any future rejections, (a) timely and individualized
notice with a justifying explanation and (b) timely
opportunity to contest;
(4) "further relief as the [c]ourt deem[ed] just and
Id. at 27-28.
not request monetary damages.
February 2016 - Updated ADX Supplement
February 2, 2016, ADX issued an updated institutional
supplement (the "February 2016 Supplement"). It
required additional ADX personnel, including the legal
department, to review incoming publications. Section IV.Q
also required the legal department to "conduct quarterly
training" with ADX personnel regarding procedures for
reviewing incoming publications. Id. at 234. The
February 2016 Supplement did not explicitly address
July 2016 - BOP's Motion to Dismiss
27, 2016, the BOP filed a motion to dismiss. It argued
various grounds for dismissal of PLN's claims, including
that PLN's claims were mooted by the February 2016
supplement, PLN lacked standing, and PLN had failed to state
March 2017 - ADX Delivered the Rejected Publications
early 2017, then-Warden Jack Fox examined the rejected
publications in consultation with the BOP's legal
He concluded the BOP's initial reasons for rejection were
Based on Warden Fox's review, ADX delivered the 11
rejected publications to inmate subscribers in March 2017.
August 2017 - Denial of BOP's Motion to Dismiss
August 14, 2017, the district court said the case was not
moot and denied the BOP's motion to dismiss. It reasoned
that the BOP's February 2016 Supplement "change[d]
very little" regarding ADX's review of incoming
publications. Id. at 582. The court also would have
found the voluntary cessation exception applied because the
BOP's updated supplement was a "ploy" to avoid
its jurisdiction. Id. at 588.
December 2017 - Updated ADX Supplement
December 21, 2017, ADX issued an updated institutional
supplement that remains effective (the "December 2017
Supplement"). Section III.C of the supplement states
that a publication "may not be rejected solely because
it discusses an ADX or [BOP] inmate, or BOP staff
member," and instead requires incoming publications to
undergo "an individualized assessment."
Id. at 1787. For any rejection, the Warden must give
prompt written notice to the inmate and the publisher of the
decision and the ability to obtain independent review. ADX
also will "[ordinarily] . . . mail [the rejection
notice] to the publisher within ten business days from the
Warden's signature date." Id. Any rejection
notice must identify the reasons for rejection, "refer
to the specific article(s) or material(s) considered
objectionable," and include page references and quotes.
May 2018 - Cross-Motions ...