944 F.3d 868
10th Cir.2019Background:
- Prison Legal News (PLN) is a publisher of a monthly magazine for inmates; ADX (a BOP facility) rejected 11 PLN issues between Jan. 2010 and Apr. 2014, often citing publications that referenced ADX inmates or staff (“name-alone content”).
- BOP regulations allowed wardens to reject incoming publications as detrimental to security; rejection notices were signed by the Warden and provided to inmates and publishers but PLN alleged they were vague and overbroad.
- PLN sued the BOP (Oct. 2015) asserting as-applied First Amendment claims (content censorship and non-redaction), a Fifth Amendment procedural due process claim, and an APA claim; it sought declaratory and injunctive relief (delivery of past issues and relief for future rejections), not damages.
- During litigation ADX: issued a Feb. 2016 supplement increasing review personnel; Warden Jack Fox reviewed and ordered delivery of the 11 issues (Mar. 2017); and issued a Dec. 2017 supplement forbidding rejection solely for name-alone content, requiring individualized assessment, specific notice (ordinarily within 10 business days), and improved procedures and training.
- ADX Warden Andre Matevousian filed a declaration promising to abide by the Dec. 2017 supplement and stating the 11 issues would not be rejected under it; the district court granted BOP summary judgment as the claims were moot, and the Tenth Circuit affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of as-applied First Amendment content-censorship claim | Rejections caused ongoing injury; policy can change and BOP failed its heavy burden to show wrong won’t recur | Delivery of rejected issues, Dec. 2017 supplement, and warden’s sworn declaration eliminate ongoing injury | Moot; claim dismissed; voluntary-cessation exception does not apply |
| Mootness of as-applied non-redaction (wholesale-rejection) claim | Whole-issue rejections continued practice and present stronger basis for voluntary-cessation exception | Same intervening actions and as-applied scope foreclose recurrence for substantially similar issues | Moot for same reasons; no voluntary-cessation exception |
| Procedural due process claim (notice and opportunity to contest) | Notices were perfunctory and inadequate; injunctive/declaratory relief needed to ensure proper process | Dec. 2017 supplement requires prompt, specific notice and review; warden’s declaration commits to compliance | Moot; administrative changes and declaration redress the claimed procedural injury |
| APA claim (arbitrary and capricious) | BOP acted arbitrarily in rejections | APA claim rests on same facts as constitutional claims and is rendered moot by administrative changes | Moot for same reasons as constitutional claims |
Key Cases Cited
- Brown v. Buhman, 822 F.3d 1151 (10th Cir. 2016) (discussing mootness and the voluntary-cessation exception for government self-correction)
- Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) (explaining how formal withdrawal or alteration of policies can moot claims)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (defendant cannot automatically moot a case by ceasing challenged conduct)
- Knox v. Service Employees Int’l Union, Local 1000, 567 U.S. 298 (2012) (mootness after offer of relief and relevance to reasonable expectation of recurrence)
- Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) (standing and mootness nuances regarding recurrence and injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements)
- Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004) (publishers’ procedural-due-process rights when publications are rejected)
- Teets v. Great-West Life & Annuity Ins. Co., 921 F.3d 1200 (10th Cir. 2019) (standard of review for summary judgment)