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Challenge to BOP’s Ban on Sexually Explicit Publications Dismissed

The U.S. Court of Appeals for the Tenth Circuit dismissed an appeal challenging the Bureau of Prisons’ (BOP) implementation of the Ensign Amendment, a law that prohibits the expenditure of federal funds “to distribute or make available to a prisoner any commercially published information or material that is sexually explicit or features nudity.” 28 U.S.C. § 530C(b)(6)(D).

According to the appellate court’s decision, prisoner Mark Jordan’s appeal was rendered moot as a result of his subsequent transfers to other facilities.

When Jordan originally filed suit, he was incarcerated at the BOP’s supermax prison in Florence, Colorado. He alleged that the Ensign Amendment, both facially and as applied to him, was unconstitutional. Jordan also challenged the BOP’s implementing regulations. Following a two-day bench trial, the district court upheld the Ensign Amendment and the BOP’s regulations. Jordan appealed.

While his appeal was pending, Jordan was transferred from the supermax in Colorado to the Special Housing Unit at the U.S. Penitentiary in Lee, Virginia. He was then transferred to the Special Management Unit in Lewisburg, Pennsylvania.

Due to the transfers, the Tenth Circuit directed the parties to submit supplemental briefing as to whether Jordan’s appeal was moot.

Jordan argued that his appeal was not moot because he was seeking declaratory and injunctive relief concerning the BOP’s regulations related to the Ensign Amendment, which were applied uniformly throughout the BOP. The Tenth Circuit disagreed.

The Court of Appeals acknowledged that when “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.”

This exception to the constitutional mootness doctrine was inapplicable in Jordan’s case, however, because he “never sought relief on a system-wide basis against the BOP,” the appellate court wrote. Instead, he “pursued injunctive and declaratory relief only with respect to individual BOP officials at a specific penal institution.” In other words, Jordan failed to sue the right defendant – such as the director of the BOP – that would have afforded him system-wide relief.

Further, even if Jordan’s claims were not constitutionally moot, the Tenth Circuit indicated that it would decline to decide his appeal on grounds of prudential mootness. The doctrine of prudential mootness allows a court to withhold its power to grant relief where, among other things, the plaintiff’s “continued susceptibility to injury” is speculative. Such was the situation with Jordan’s case, the appellate court reasoned, based on the changes in his conditions of confinement as a result of the transfers.

Accordingly, Jordan’s appeal was dismissed as moot. See: Jordan v. Sosa, 654 F.3d 1012 (10th Cir. 2011).

Ironically, Senator John Ensign, who had sponsored the Ensign Amendment, resigned from the U.S. Senate in May 2011 following a sex scandal in which it was revealed that he had an extramarital affair with a campaign staffer, Cynthia Hampton. [See: PLN, Nov. 2009, p.24].

At the time of his resignation Ensign was being investigated by the Senate Select Committee on Ethics, which released its findings on May 12, 2011. The Committee found that Ensign had “aided and abetted violations of the one-year post-employment contact restriction; conspired to violate that restriction; made false statements to the Federal Election Commission; violated campaign finance laws; and obstructed the committee’s preliminary inquiry.”

Those findings were referred to the U.S. Department of Justice.

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Related legal case

Jordan v. Sosa