Aref v. Holder ( 2011 )


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  •                               UNITED STATES DISTRICT COURT
                                  FOR THE DISTRICT OF COLUMBIA
    
     YASSIN MUHIDDIN AREF et al.,                     :
                                                      :
                    Plaintiffs,                       :       Civil Action No.:    10-0539 (RMU)
                                                      :
                    v.                                :       Re Document Nos.: 9, 19, 29
                                                      :
     ERIC HOLDER et al.,                              :
                                                      :
                    Defendants.                       :
    
                                      MEMORANDUM OPINION
    
         GRANTING IN PART AND DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS;
          GRANTING THE DEFENDANTS’ SUPPLEMENTAL MOTION FOR PARTIAL DISMISSAL;
                      DENYING THE APPLICANTS’ MOTION TO INTERVENE
    
                                          I. INTRODUCTION
    
           This matter is before the court on the defendants’ motion to dismiss and supplemental
    
    motion to dismiss. The plaintiffs are a group of federal prisoners who are or were incarcerated in
    
    specially designated Communication Management Units (“CMUs”) established at the Federal
    
    Correctional Institutions (“FCI”) in Terre Haute, Indiana (“Terre Haute CMU”) and Marion,
    
    Illinois (“Marion CMU”) as well as two spouses of the prisoners. They contend that the
    
    defendants – the United States Attorney General, the Federal Bureau of Prisons (“BOP”), the
    
    Director of the BOP and the Assistant Director of the BOP’s Correctional Programs Division –
    
    violated their constitutional rights by designating them to the CMUs. The plaintiffs also allege
    
    that the defendants violated the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq.,
    
    by failing to engage in notice and comment rulemaking prior to establishing the CMUs.
    
           In their initial motion to dismiss, the defendants contend that the plaintiffs have failed to
    
    sufficiently plead their constitutional claims, that the plaintiffs’ APA claim is moot and that
    
    plaintiff Royal Jones lacks standing. In their supplemental motion for partial dismissal, the
    defendants argue that plaintiff Avon Twitty’s claims are moot because he is not currently
    
    designated to a CMU. For the reasons discussed below, the court grants in part and denies in
    
    part the defendants’ initial motion to dismiss and grants the defendants’ supplemental motion to
    
    dismiss.
    
           The matter is also before the court on the motion to intervene filed by four inmates at the
    
    Terre Haute CMU (“applicants”) who are not currently parties in this action. Because the current
    
    plaintiffs adequately represent the interests of the applicants, the court denies the applicants’
    
    motion to intervene.
    
    
    
                           II. FACTUAL & PROCEDURAL BACKGROUND
    
                                 A. Communication Management Units
    
           The BOP established the Terre Haute CMU in 2006 and the Marion CMU in 2008.
    
    Compl., Ex. A (“BOP Terre Haute CMU Institution Supplement”) at 1; see also id., Ex. B (“BOP
    
    Marion CMU Institution Supplement”) at 1. 1 The BOP describes the CMUs as follows:
    
           The CMU is established to house inmates who, due to their current offense of
           conviction, offense conduct, or other verified information, require increased
           monitoring of communication between inmates and persons in the community in
           order to protect the safety, security, and orderly operation of [BOP] facilities, and
           protect the public.
    
           The CMU is a self-contained general population housing unit where inmates
           reside, eat, and participate in all educational, recreational, religious, visiting, unit
    
    1
           The Institution Supplements are documents setting forth the policies and procedures of the
           CMUs. See Compl., Ex. A (“BOP Terre Haute CMU Institution Supplement”); id., Ex. B (“BOP
           Marion CMU Institution Supplement”). The Institution Supplements for both the Terre Haute
           CMU and the Marion CMU are nearly identical. Compare BOP Terre Haute CMU Institution
           Supplement with BOP Marion CMU Institution Supplement. Accordingly, the court will
           hereinafter cite to the BOP Terre Haute CMU Institution Supplement only.
    
                                                      2
           management, and work programming . . . . Additionally, the unit contains a range
           of cells dedicated to segregated housing of those inmates in need of being placed
           in administrative detention or disciplinary segregation status.
    
    BOP Terre Haute CMU Institution Supplement at 1. An inmate may be placed in a CMU
    
    because
    
           (a) [t]he inmate’s current offense(s) of conviction, or offense conduct, included
           association, communication, or involvement, related to international or domestic
           terrorism;
           (b) [t]he inmate’s current offense(s) of conviction, offense conduct, or activity
           while incarcerated, indicates a propensity to encourage, coordinate, facilitate, or
           otherwise act in furtherance of, illegal activity through communication with
           persons in the community;
           (c) [t]he inmate has attempted, or indicates a propensity, to contact victims of the
           inmate’s current offense(s) of conviction;
           (d) [t]he inmate committed prohibited activity related to misuse/abuse of
           approved communication methods while incarcerated; or
           (e) [t]here is any other evidence of a potential threat to the safe, secure, and
           orderly operation of prison facilities, or protection of the public, as a result of the
           inmate’s unmonitored communication with persons in the community.
    
    Compl., Ex. F (“Notice to Inmates”) at 1.
    
           With the exception of attorney visits, all visits with inmates housed in CMUs are “non-
    
    contact” visits, meaning that the visit takes place in a room with a partition separating the inmate
    
    from the visitor and both must communicate using a telephone. BOP Terre Haute CMU
    
    Institution Supplement at 2. All communication during the visits must be in English and the
    
    visits are live-monitored by BOP staff and are subject to recording. Id. at 2-3. CMU inmates are
    
    currently afforded eight visitation hours per month and no single visit may last more than four
    
    hours. 2 Compl. ¶ 57. Visiting hours are from 8:30 a.m. to 2:30 p.m. Sunday through Friday. Id.
    
           CMU inmates are entitled to at least one phone call per month lasting at least three
    
    
    2
           Prior to January 3, 2010, CMU inmates were allowed one four-hour visit or two two-hour visits
           per month on weekdays. Compl. ¶ 52.
                                                      3
    minutes. BOP Terre Haute CMU Institution Supplement at 2 (citing 28 C.F.R. §§ 540.100(b),
    
    540.101(d)). With the exception of legal phone calls, id., CMU inmates are allowed two fifteen-
    
    minute phone calls per week, 3 Compl. ¶ 65. Both the inmate and the call recipient must speak in
    
    English only. BOP Terre Haute CMU Institution Supplement at 2. The calls are live-monitored
    
    by BOP staff and subject to recording. Id.
    
           Within five calendar days of being transferred into a CMU, an inmate must be provided a
    
    “Notice to Inmate of Transfer to [CMU]” stating the reasons for his placement in the CMU. Id.
    
    at 1. An inmate may appeal his “transfer to [a CMU], or any conditions of his confinement,
    
    through the [BOP’s] Administrative Remedy Program, 28 C.F.R. §§ 542.10 through 542.18, and
    
    corresponding policy.” Id. at 5.
    
                                            B. The Plaintiffs
    
                                             1. Yassin Aref
    
           Yassin Aref is an Iraqi refugee who is serving a fifteen-year sentence for money
    
    laundering, providing material support for terrorism, conspiracy and making a false statement to
    
    the FBI. Compl. ¶¶ 16, 107. Prior to his convictions he served as an Imam of the Masjid-As-
    
    Salam Mosque in Albany, New York. Id. ¶ 104. His conviction arose from his participation in a
    
    loan transaction that would have helped to finance the purchase of a surface-to-air missile to a
    
    terrorist group called Jaish-e-Mohammed (“JEM”). Id. ¶ 107.
    
           At the time his incarceration began in 2007, the BOP classified Aref as a “low security”
    
    inmate. Id. ¶¶ 107, 112. He has no disciplinary history and “has never received an infraction of
    
    
    3
           Prior to January 3, 2010, CMU inmates were allowed one fifteen-minute phone call per week.
           Compl. ¶ 64.
    
                                                     4
    any kind at a BOP facility.” Id. ¶ 110. Aref was transferred from the Rensselaer County Jail in
    
    Troy, New York to the Terre Haute CMU in May 2007. Id. ¶ 113. After arriving at the CMU,
    
    he received a Notice of Transfer purporting to explain the reasons for his transfer:
    
           Your current offense of conviction includes Providing Material Support &
           Resources to a Foreign Terrorist Organization, & Conspiracy to Use a Weapon of
           Mass Destruction. Your offense conduct included significant communication,
           association and assistance to Jaish-e-Mohammed (JeM), a group which has been
           designated as a foreign terrorist organization.
    
    Id. Aref challenged his designation to the CMU through the prison’s grievance system, arguing
    
    that the Notice of Transfer “mischaracterized his offense conduct.” Id. ¶ 114. He applied for a
    
    transfer and was eventually sent to the Marion CMU. Id. ¶ 116.
    
                                             2. Avon Twitty
    
           In 1984, Avon Twitty was sentenced to a term of imprisonment of twenty years to life for
    
    murder and three to ten years for carrying a pistol without a license. Id. ¶¶ 17, 127. He was
    
    designated to the Terre Haute CMU in May 2007. Id. ¶ 132. On October 20, 2010, Twitty was
    
    placed in a halfway house in Washington, D.C. Defs.’ Supplemental Mot. to Dismiss on
    
    Mootness Grounds (“Defs.’ Suppl. Mot.”) at 2. He was paroled on January 21, 2011. Pls.’
    
    Notice Regarding Change in Confinement Status of Avon Twitty (“Pls.’ 1st Notice”) at 1.
    
                                  3. Daniel McGowan & Jenny Synan
    
           Daniel McGowan 4 is a former member of the Earth Liberation Front (“ELF”), Compl. ¶
    
    18, a domestic terrorist organization, Defs.’ Mot. at 4. In 2006, he pled guilty to two counts of
    
    arson and, in 2007, he was sentenced to seven years of incarceration. Compl. ¶ 151. Like Aref,
    
    McGowan has been classified by the BOP as “low security” and has had no disciplinary history
    
    
    
                                                     5
    during his incarceration. Id. ¶¶ 154, 159.
    
           In August 2008, McGowan was transferred to the Marion CMU. Id. ¶ 160. Ten days
    
    after the transfer, he received a Notice of Transfer stating as follows:
    
           Your offense conduct included acts of arson, destruction of an energy facility,
           attempted arson, and conspiracy to commit arson. You have been identified as a
           member and leader in the Earth Liberation Front (ELF) and Animal Liberation
           Front (ALF), groups considered domestic terrorist organizations. Your offense
           conduct included communicating in code and teaching others how to commit
           crimes of arson. Your actions had the primary purpose to influence and affect the
           conduct of government, commerce, private business and others in the civilian
           population by means of force, violence, sabotage, destruction of property,
           intimidation and coercion. Your contact with persons in the community requires
           heightened controls and review.
    
    Id.
    
           McGowan administratively appealed his transfer. Id. ¶¶ 162, 164. This effort ultimately
    
    proved unfruitful. Id. In October 2010, McGowan was transferred from the CMU into the
    
    general population at the Marion facility. Defs.’ Suppl. Mot. at 2. He was, however, transferred
    
    to the Terre Haute CMU on February 24, 2011. Defs.’ Notice Regarding Govt’s Supplemental
    
    Mot. To Dismiss (“Defs.’ Notice”) at 1.
    
                                              4. Royal Jones
    
           Royal Jones was convicted of solicitation of bank robbery, which also constituted a
    
    probation violation for an earlier gun possession conviction. Compl. ¶ 184. He was sentenced in
    
    2007 to ninety-four months of incarceration. Id. ¶¶ 184-85. Jones has had “no serious
    
    disciplinary infractions” and only “one minor communications[-]related infraction” during this
    
    period of incarceration. Id. ¶ 186.
    
    
    
    4
           McGowan is married to plaintiff Jenny Synan. Id. ¶ 175.
                                                      6
           Jones was transferred to the Marion CMU in June 2008. Id. ¶ 189. His Notice of
    
    Transfer, which he received shortly after his transfer, stated as follows:
    
           Your current offense of conviction is solicitation to commit a crime of violence.
           Reliable evidence indicates your crimes and incarceration conduct have included
           involvement in recruitment and radicalization efforts, including other inmates,
           through extremist, violence[-]oriented indoctrination methods to intimidate or
           coerce others.
    
    Id. ¶ 189.
    
           Jones’s efforts to administratively appeal his transfer were unsuccessful. Id. ¶ 194. Jones
    
    filed a pro se complaint in the United States District Court for the Southern District of Illinois,
    
    challenging, inter alia, his transfer to the CMU. Id. ¶ 195. Jones explains, however, that he
    
    voluntarily dismissed that complaint in August 2009 because CMU staff told him that such a
    
    dismissal would result in his transfer out of a CMU and to a facility where he could see his
    
    family. Id. In March 2010, Jones was transferred out of the Marion CMU and into the general
    
    population at the Marion facility. Id. ¶ 196.
    
                                 5. Kifah Jayyousi & Hedaya Jayyousi
    
           Kifah Jayyousi 5 was convicted in August 2007 of conspiracy to murder, kidnap and
    
    maim in a foreign country and conspiracy to provide material support to terrorism. Id. ¶ 205.
    
    Upon his incarceration, the BOP classified him as a “low security” prisoner. Id. ¶ 210.
    
           Jayyousi was transferred into the Terre Haute CMU in June 2008. Id. ¶ 212. Upon
    
    arriving there, he received a Notice of Transfer, which stated as follows:
    
           Your current offenses of conviction are for Conspiracy to Murder in a Foreign
           Country; Conspiracy to Kidnap, Maim, and Torture; and Provide Material
           Support to a Terrorist Organization. You acted in a criminal conspiracy to raise
    
    5
           Jayyousi is married to plaintiff Hedaya Jayyousi. Id. ¶ 221.
                                                       7
           money to support mujahideen operations and used religious training to recruit
           other individuals in furtherance of criminal acts in this country as well as many
           countries abroad. Your offense conduct included significant communication,
           association and assistance to al-Qaida, a group which has been designated as a
           foreign terrorist organization.
    
    Id. Jayyousi pursued administrative remedies, arguing that the Notice of Transfer contained
    
    inaccurate and erroneous information. Id. ¶ 213. His attempts have been “summarily rejected.”
    
    Id.
    
                                          C. Procedural History
    
           In their complaint, filed on April 1, 2010, the plaintiffs allege that their procedural due
    
    process rights were violated because they did not receive adequate Notices of Transfer or an
    
    opportunity to challenge their designation to the CMUs. See Compl. ¶ 253. The plaintiffs also
    
    allege that their substantive due process rights have been violated because the conditions at the
    
    CMU “intentionally or recklessly interfer[e] with [their] interests in family integrity without
    
    legitimate penological purpose.” Id. ¶ 258. Similarly, the plaintiffs allege that communications
    
    restrictions in the CMU interfere with their free speech and free association rights. Id. ¶ 263.
    
           The plaintiffs also bring an equal protection claim, arguing that there is “a pattern and
    
    practice throughout the BOP of designating individuals, including Plaintiffs, to the CMU in
    
    retaliation for their protected political and religious speech and beliefs, or based on their religion,
    
    national origin, and perceived political and/or ideological beliefs.” Id. ¶ 273. Further, the
    
    plaintiffs assert that the conditions of confinement in the CMUs, “including [the] prolonged and
    
    complete denial of any opportunity for physical contact with their loved ones,” constitutes cruel
    
    and unusual punishment. Id. ¶ 268. Lastly, the plaintiffs submit that the defendants’ failure to
    
    engage in notice and comment rulemaking prior to establishing the CMUs constitutes a violation
    
                                                       8
    of the APA. Id. ¶ 281. The plaintiffs seek a declaration that the defendants’ violated their First,
    
    Fifth and Eighth Amendment rights and the APA, an order requiring the defendants to transfer
    
    the plaintiffs out of the CMUs or to provide each plaintiff with constitutionally sufficient due
    
    process and an order requiring the defendants to provide the plaintiffs with the same
    
    communication privileges as “all other general population prisoners.” Id. at 76
    
           On April 19, 2010, four inmates at the Terre Haute CMU filed a motion to intervene in
    
    this action pursuant to Federal Rule of Civil Procedure 24(a). See generally Mot. to Intervene.
    
    The defendants filed a motion to dismiss on July 21, 2010, asserting that Jones does not have
    
    standing and that the other plaintiffs have not stated claims upon which relief can be granted, see
    
    generally Defs.’ Mot. to Dismiss. On November 9, 2010, filed a supplemental motion to dismiss
    
    Twitty’s claims as moot because he is no longer housed in a CMU, see generally Defs.’ Suppl.
    
    Mot. With the motions fully briefed, the court turns now to the applicable legal standards and
    
    the parties’ arguments.
    
    
    
                                             III. ANALYSIS
    
                                A. The Defendants’ Motions to Dismiss
    
                       1. The Court Denies the Defendants’ Motion to Dismiss
                                Jones’s Claims for Lack of Standing
    
                                     a. Legal Standard for Standing
    
           Article III of the Constitution limits the jurisdiction of federal courts to cases or
    
    controversies. U.S. Const. art. III, § 2, cl. 1. These prerequisites reflect the “common
    
    understanding of what it takes to make a justiciable case.” Steel Co. v. Citizens for a Better
    
    
                                                      9
    Env’t, 
    523 U.S. 83
    , 102 (1998). Consequently, “a showing of standing ‘is an essential and
    
    unchanging’ predicate to any exercise of [a court’s] jurisdiction.” Fla. Audubon Soc’y v.
    
    Bentsen, 
    94 F.3d 658
    , 663 (D.C. Cir. 1996) (quoting Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560 (1992)). Put slightly differently, “Article III standing must be resolved as threshold
    
    matter.” Raytheon Co. v. Ashborn Agencies, Ltd., 
    372 F.3d 451
    , 453 (D.C. Cir. 2004) (citing
    
    Steel Co., 523 U.S. at 96-102).
    
           As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing
    
    standing. Lujan, 504 U.S. at 561; Steel Co., 523 U.S. at 104; City of Waukesha v. Envtl. Prot.
    
    Agency, 
    320 F.3d 228
    , 233 (D.C. Cir. 2003) (per curiam). At the pleading stage, general factual
    
    allegations of injury resulting from the defendant’s conduct will suffice. Sierra Club v. Envtl.
    
    Prot. Agency, 
    292 F.3d 895
    , 898-99 (D.C. Cir. 2002).
    
           To demonstrate standing, a plaintiff must satisfy a three-pronged test. Sierra Club, 292
    
    F.3d at 898 (citing Lujan, 504 U.S. at 560). First, the plaintiff must have suffered an injury in
    
    fact, defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical.
    
    Byrd v. Envtl. Prot. Agency, 
    174 F.3d 239
    , 243 (D.C. Cir. 1999) (citing Steel Co., 523 U.S. at
    
    103). Second, the injury must be fairly traceable to the governmental conduct alleged. Id.
    
    Finally, it must be likely that the requested relief will redress the alleged injury. Id. This Circuit
    
    has made clear that no standing exists if the plaintiff’s allegations are “purely ‘speculative[,
    
    which is] the ultimate label for injuries too implausible to support standing.’” Tozzi v. Dep’t of
    
    Health & Human Servs., 
    271 F.3d 301
    , 307 (D.C. Cir. 2001) (quoting Advanced Mgmt. Tech.,
    
    Inc. v. Fed. Aviation Admin., 
    211 F.3d 633
    , 637 (D.C. Cir. 2000)). Nor does standing exist
    
    where the court “would have to accept a number of very speculative inferences and assumptions
    
                                                      10
    in any endeavor to connect [the] alleged injury with [the challenged conduct].” Winpisinger v.
    
    Watson, 
    628 F.2d 133
    , 139 (D.C. Cir. 1980).
    
                         b. Plaintiff Jones Has Standing to Pursue His Claims
    
           The defendants argue that Jones lacks standing because he is not currently designated to a
    
    CMU and, accordingly, is not suffering an injury in fact for which relief can be provided. See
    
    Defs.’ Mot. at 9-10. The defendants note that, in March 2010, Jones was transferred to the
    
    general population at the Marion facility and is not currently designated to a CMU. Id. at 9; see
    
    also Compl. ¶ 21. The plaintiffs respond that Jones was placed in a CMU without proper
    
    explanation or process and, as a result, he has no idea what conduct to refrain from in order to
    
    avoid being sent back. Pls.’ Opp’n to Defs.’ Mot. (“Pls.’ Opp’n”) at 69. Moreover, the plaintiffs
    
    note that McGowan was designated to a CMU, transferred back into the general population and
    
    then redesignated to a CMU without receiving sufficient notice or an opportunity to be heard.
    
    See generally Pls.’ Notice in Resp. to Defs.’ Feb. 25, 2011 Notice (“Pls.’ 2d Notice”). This, the
    
    plaintiffs contend, is evidence that Jones faces a realistic threat of being redesignated to a CMU.
    
    See id. at 5. The defendants reply that Jones’s injury is only hypothetical because has not
    
    demonstrated that there is a “sufficient likelihood” that he will be returned to a CMU. Defs.’
    
    Reply in Supp. of Mot. to Dismiss (“Defs.’ Reply”) at 2.
    
           The Supreme Court has explained that “application of the constitutional standing
    
    requirement [is not] a mechanical exercise, and that when standing is challenged on the basis of
    
    the pleadings[,] we accept as true all material allegations of the complaint, and . . . construe the
    
    complaint in favor of the complaining party.” Pennell v. City of San Jose, 
    485 U.S. 1
    , 7 (1988).
    
    “[A] prediction of injury based on experience suffices to show injury in fact to the extent that
    
                                                     11
    ‘past wrongs are evidence bearing on whether there is a real and immediate threat of repeated
    
    injury.’” Biggerstaff v. Fed. Commc’n Comm’n, 
    511 F.3d 178
    , 183 (D.C. Cir. 2007) (quoting
    
    O’Shea v. Littleton, 
    414 U.S. 488
    , 496 (1974)).
    
           Viewed through this prism, Jones has plainly stated facts that, accepted as true,
    
    demonstrate a realistic threat that he might be redesignated to a CMU. Jones’s Notice of
    
    Transfer indicated that he was placed in the CMU because of the nature of his underlying
    
    conviction and because of his alleged efforts to radicalize other inmates. Compl. ¶ 189. These
    
    facts are not going to change; thus, it appears entirely plausible that Jones will be redesignated to
    
    the CMU for the very reasons he was sent there in the first place. Indeed, as noted by the
    
    plaintiffs, McGowan who, like Jones, has also raised a claim of retaliation, was transferred out of
    
    the Marion CMU and placed in the general prison population only to be redesignated to the Terre
    
    Haute CMU four months later. See generally Pls.’ 2d Notice. The court, thus, determines that
    
    the plaintiffs have advanced sufficient evidence suggesting that Jones faces a realistic threat of
    
    redesignation to a CMU. See Pennell, 485 U.S. at 7-8 (explaining that the owners of a building
    
    subject to a City Ordinance satisfied standing by alleging that they were subject to the Ordinance
    
    even though no enforcement of the Ordinance had yet been sought against the owners);
    
    Biggerstaff, 511 F.3d at 183 (holding that the plaintiff had demonstrated standing based on his
    
    experience that it is “definitely likely” that the challenged agency order will be applied to him)
    
    cf. Los Angeles v. Lyons, 
    461 U.S. 95
    , 101-02 (1983) (ruling that a plaintiff did not have standing
    
    because “the odds that [a plaintiff seeking an injunction barring the use of chokeholds by police
    
    officers] would not only again be stopped for a traffic violation but would also be subjected to a
    
    chokehold without any provocation whatsoever are [in]sufficient to make out a federal case for
    
                                                      12
    equitable relief”). Accordingly, at this stage in the litigation, the court holds that Jones has
    
    standing.
    
          2. The Court Grants the Defendants’ Supplemental Motion for Partial Dismissal
    
                 a. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)
    
            Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies
    
    outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 
    511 U.S. 375
    , 377
    
    (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 
    363 F.3d 442
    , 448 (D.C. Cir. 2004)
    
    (noting that “[a]s a court of limited jurisdiction, we begin, and end, with an examination of our
    
    jurisdiction”).
    
            Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory
    
    requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal
    
    court.’” Akinseye v. Dist. of Columbia, 
    339 F.3d 970
    , 971 (D.C. Cir. 2003) (quoting Ins. Corp.
    
    of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 
    456 U.S. 694
    , 702 (1982)). On a motion to
    
    dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the
    
    burden of establishing by a preponderance of the evidence that the court has subject matter
    
    jurisdiction. Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 561 (1992).
    
            Because subject matter jurisdiction focuses on the court’s power to hear the claim,
    
    however, the court must give the plaintiff’s factual allegations closer scrutiny when resolving a
    
    Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a
    
    claim. See Macharia v. United States, 
    334 F.3d 61
    , 64, 69 (D.C. Cir. 2003); Grand Lodge of
    
    Fraternal Order of Police v. Ashcroft, 
    185 F. Supp. 2d 9
    , 13 (D.D.C. 2001). Thus, the court is
    
    not limited to the allegations contained in the complaint. Hohri v. United States, 
    782 F.2d 227
    ,
    
                                                      13
    241 (D.C. Cir. 1986), vacated on other grounds, 
    482 U.S. 64
     (1987). Instead, “where necessary,
    
    the court may consider the complaint supplemented by undisputed facts evidenced in the record,
    
    or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”
    
    Herbert v. Nat’l Acad. of Scis., 
    974 F.2d 192
    , 197 (D.C. Cir. 1992) (citing Williamson v. Tucker,
    
    
    645 F.2d 404
    , 413 (5th Cir. 1981)).
    
                                    b. Legal Standard for Mootness
    
            Under Rule 12(b)(1), a party may move to dismiss a case on grounds of mootness.
    
    Comm. in Solidarity with People of El Salvador v. Sessions, 
    929 F.2d 742
    , 744 (D.C. Cir. 1991);
    
    Super Sack Mfg. Corp. v. Chase Packaging Corp., 
    57 F.3d 1054
    , 1060 (Fed. Cir. 1995); Am.
    
    Historical Ass’n v. Peterson, 
    876 F. Supp. 1300
    , 1308 (D.D.C. 1995). Article III’s case-or-
    
    controversy requirement prohibits courts from issuing advisory opinions or decisions based on
    
    hypothetical facts or abstract issues. Flast v. Cohen, 
    392 U.S. 83
    , 96 (1968). “The doctrine of
    
    mootness is a logical corollary of the case or controversy requirement[.]” Better Gov't Ass’n v.
    
    Dep’t of State, 
    780 F.2d 86
    , 90 (D.C. Cir. 1986). In cases where challenged conduct ceases and
    
    “there is no reasonable expectation that the wrong will be repeated . . . it becomes impossible for
    
    the court to grant any effectual relief whatever to the prevailing party, and any opinion as to the
    
    legality of the challenged action would be advisory.” City of Erie v. Pap’s A.M., 
    529 U.S. 277
    ,
    
    287 (2000). Accordingly, a court may not rule on the merits of a case in which the claim for
    
    relief is moot.
    
            Courts must evaluate mootness “through all stages” of the litigation in order to ensure
    
    that a live controversy remains. 21st Century Telesis Joint Venture v. Fed. Commc’ns Comm’n,
    
    
    318 F.3d 192
    , 198 (D.C. Cir. 2003) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
    
                                                     14
    (TOC), Inc., 
    528 U.S. 167
    , 191 (2000) and Lewis v. Cont’l Bank Corp., 
    494 U.S. 472
    , 477
    
    (1990)). As a result, “[e]ven where litigation poses a live controversy when filed, the [mootness]
    
    doctrine requires a federal court to refrain from deciding it if ‘events have so transpired that the
    
    decision will neither presently affect the parties’ rights nor have a more-than-speculative chance
    
    of affecting them in the future.’” Id. (quoting Clarke v. United States, 
    915 F.2d 699
    , 701 (D.C.
    
    Cir. 1990)).
    
           A case is moot when “the issues presented are no longer live or the parties lack a legally
    
    cognizable interest in the outcome.” City of Erie, 529 U.S. at 287 (internal quotations omitted).
    
    An intervening event may render a claim moot if (1) there is no reasonable expectation that the
    
    conduct will recur and (2) interim relief or events have completely and irrevocably eradicated the
    
    effects of the alleged violations. Pharmachemie B.V. v. Barr Labs,, Inc., 
    276 F.3d 627
    , 631
    
    (D.C. Cir. 2002); Sellers v. Bureau of Prisons, 
    959 F.2d 307
    , 310 (D.C. Cir. 1992). A case is not
    
    moot, however, so long as any single claim for relief remains viable, as the remaining live issues
    
    satisfy the case-or-controversy requirement. Tucson Med. Ctr. v. Sullivan, 
    947 F.2d 971
    , 978
    
    (D.C. Cir. 1991) (internal quotations and citations omitted). The burden of establishing
    
    mootness rests on the party raising the issue, and it is a heavy burden. County of Los Angeles v.
    
    Davis, 
    440 U.S. 625
    , 631 (1979); United States v. W.T. Grant Co., 
    345 U.S. 629
    , 633 (1953);
    
    Motor & Equip. Mfrs. Ass’n v. Nichols, 
    142 F.3d 449
    , 458-59 (D.C. Cir. 1998).
    
    
    
    
                                                     15
                                 c. Plaintiff Twitty’s Claims Are Moot
    
           The defendants argue that because Twitty was placed in a halfway house in October 2007
    
    and paroled in January 2011, he is no longer in BOP custody and his claims are therefore moot. 6
    
    See generally Defs.’ Suppl. Mot.; Defs.’ Notice. The plaintiffs oppose dismissal of Twitty’s
    
    claims, arguing that the defendants’ voluntary transfer of Twitty to a halfway house does not
    
    render his claim moot pursuant to the “voluntary cessation” exception to the mootness doctrine.
    
    Pls.’ Opp’n to Defs.’ Suppl. Mot. at 2; see also Pls.’ 1st Notice at 1. The defendants respond that
    
    the voluntary cessation exception does not apply here because Twitty had been approved for
    
    halfway house placement prior to the filing of this lawsuit. See Defs.’ Suppl. Reply at 3-8, 12-
    
    15.
    
           “[A] defendant’s voluntary cessation of a challenged practice does not deprive a federal
    
    court of its power to determine the legality of the practice.” Friends of the Earth, Inc., 528 U.S.
    
    at 189. “[I]n order for this exception to apply, the defendant’s voluntary cessation must have
    
    arisen because of the litigation.” Pub. Util. Comm’n of Cal. v. Fed. Energy Regulatory Comm’n,
    
    
    100 F.3d 1451
    , 1460 (9th Cir. 1996).
    
           There is no dispute that prior to the commencement of this lawsuit, the BOP had already
    
    determined that Twitty was eligible for placement in a halfway house. Compl. ¶ 70 (“Twitty was
    
    approved for nine months pre-release placement at a halfway house.”); Defs.’ Suppl. Mot. at 2.
    
    Because the decision to release Twitty preceded this lawsuit, it is clear that the cessation of his
    
    
    6
           The defendants initially argued that McGowan’s claims are also moot because at the time the
           defendants filed their motion in July 2010, McGowan had been transferred out of the Marion
           CMU. See generally Defs.’ Suppl. Mot. Since that time, however, McGowan has been
           reassigned to the Terre Haute CMU and, accordingly, the defendants have withdrawn their
           argument that his claims are moot. See Defs.’ Notice.
                                                     16
    designation to a CMU was not the result of this litigation. Accordingly, the defendants have
    
    demonstrated that Twitty was not transferred “because of” this lawsuit and the voluntary
    
    cessation exception to mootness does not apply. See Pub. Util. Comm’n, 100 F.3d at 1460. The
    
    court, therefore, dismisses Twitty’s claims as moot.
    
               3. The Court Grants in Part and Denies in Part the Defendants’ Motion
                     to Dismiss the Plaintiffs’ Claims Pursuant to Rule 12(b)(6)
    
                        a. Legal Standard for a Rule 12(b)(6) Motion to Dismiss
    
            A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.
    
    Clinton, 
    292 F.3d 235
    , 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain
    
    statement of the claim, giving the defendant fair notice of the claim and the grounds upon which
    
    it rests. Kingman Park Civic Ass’n v. Williams, 
    348 F.3d 1033
    , 1040 (D.C. Cir. 2003) (citing
    
    FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 
    355 U.S. 41
    , 47 (1957)). “Such simplified notice
    
    pleading is made possible by the liberal opportunity for discovery and the other pretrial
    
    procedures established by the Rules to disclose more precisely the basis of both claim and
    
    defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48
    
    (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of
    
    his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 
    534 U.S. 506
    , 511-14 (2002),
    
    or “plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 
    211 F.3d 134
    , 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).
    
            Yet, “[t]o survive a 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, 129 S.
    
    Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 
    550 U.S. 17
    544, 562 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-46, instructing
    
    courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of
    
    facts in support of his claim [] would entitle him to relief”). A claim is facially plausible when
    
    the pleaded factual content “allows the court to draw the reasonable inference that the defendant
    
    is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at
    
    556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
    
    than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at
    
    556).
    
            In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual
    
    allegations – including mixed questions of law and fact – as true and draw all reasonable
    
    inferences therefrom in the plaintiff’s favor. Holy Land Found. for Relief & Dev. v. Ashcroft,
    
    
    333 F.3d 156
    , 165 (D.C. Cir. 2003); Browning, 292 F.3d at 242. While many well-pleaded
    
    complaints are conclusory, the court need not accept as true inferences unsupported by facts set
    
    out in the complaint or legal conclusions cast as factual allegations. Warren v. Dist. of
    
    Columbia, 
    353 F.3d 36
    , 39 (D.C. Cir. 2004); Browning, 292 F.3d at 242. “Threadbare recitals of
    
    the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
    
    Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).
    
                       b. The Court Grants the Defendants’ Motion to Dismiss
                            the Plaintiffs’ Substantive Due Process Claim
    
            The plaintiffs allege that that the defendants have violated their First Amendment right to
    
    “family integrity” through the restrictions placed on the plaintiffs’ communications. Compl. ¶
    
    258; see also Pls.’ Opp’n at 39 (arguing that the defendants have violated their right “to maintain
    
    
                                                     18
    vital relationships with family members and members of the community both through visitation
    
    and through phone calls”). The defendants argue that no such right exists and that, even if it did,
    
    the CMU restrictions “are valid because they are reasonably related to legitimate penological
    
    goals.” Defs.’ Mot. at 24.
    
             As an initial matter, the court notes that although the Supreme Court has acknowledged
    
    that “the Constitution protects certain kinds of highly personal relationships,” it is unclear to
    
    what extent such a right survives incarceration. Overton v. Bazzetta, 
    539 U.S. 126
    , 131 (2003)
    
    (internal quotation omitted). Regardless, because, as discussed below, the CMU regulations are
    
    rationally related to legitimate penological interests, the plaintiffs’ substantive due process claim
    
    fails.
    
             It is well settled that “when a prison regulation impinges on inmates’ constitutional
    
    rights, the regulation is valid if it is reasonably related to legitimate penological interests.”
    
    Turner v. Safley, 
    482 U.S. 78
    , 89 (1987). In determining whether this standard is met, the court
    
    looks to four considerations. See id. “First, there must be a ‘valid, rational connection’ between
    
    the prison regulation and the legitimate governmental interest put forward to justify it.” Id.
    
    (quoting Block v. Rutherford, 
    468 U.S. 576
    , 586 (1984)). Second, the court examines “whether
    
    there are alternative means of exercising the right that remain open to prison inmates.” Id. at 90.
    
    Third, the court must assess “the impact that accommodation of the asserted constitutional right
    
    will have on guards and other inmates, and on the allocation of prison resources generally.” Id.
    
    Fourth, the court must consider the availability of alternatives. Id. “Although [these] factors are
    
    intended as guides to a single reasonableness standard, the first factor looms especially large. Its
    
    rationality inquiry tends to encompass the remaining factors, and some of its criteria are
    
                                                       19
    apparently necessary conditions.” Amatel v. Reno, 
    156 F.3d 192
    , 196 (D.C. Cir. 1998) (internal
    
    citations omitted).
    
           According to the defendants, the penological interest furthered by the restrictions
    
    imposed by the CMUs is the “effective monitoring of the communications of high-risk inmates
    
    . . . to protect the safety, security and orderly operation of Bureau facilities, and to protect the
    
    public.” Defs.’ Mot. at 25. The plaintiffs do not dispute that this is a legitimate interest. Pls.’
    
    Opp’n at 46 (“Plaintiffs agree that protection of the safety and operations of a prison and
    
    protection of the public are legitimate penological interests . . . [and] that effective monitoring of
    
    the communications of high-risk inmates could serve those interests.”). Indeed, the weight of the
    
    relevant case law supports the conclusion that the types of communications restrictions imposed
    
    by the CMUs are rationally related to the legitimate penological interest of promoting the safety
    
    of correctional institutions and the public. See, e.g., Block, 468 U.S. at 588 (holding that a
    
    prohibition on contact visits is rationally related to the legitimate goal of promoting institutional
    
    security); Williams v. Mierzejewski, 401 F. App’x 142, 145 (7th Cir. 2010) (“We give
    
    considerable deference to a prison official’s determination that a communication between a
    
    prisoner and the outside world constitutes a security threat.” (citing Thornburgh v. Abbott, 
    490 U.S. 401
    , 407-08 (1989))); Maze v. Tafolla, 369 F. App’x 532, 535 (5th Cir. 2010) (applying
    
    Block and upholding a ban on contact visits for a pretrial detainee as rationally related to a
    
    legitimate penological interest); Perez v. Fed. Bureau of Prisons, 229 F. App’x 55, 57 (3rd Cir.
    
    2007) (holding that “restrict[ing] telephone calls to one per week [for] prisoners who have a
    
    history of using the telephone to conduct criminal activity is clearly reasonable because it relates
    
    to the legitimate penological goal of public and institutional safety”); Pope v. Hightower, 101
    
                                                      
    20 F.3d 1382
    , 1385 (11th Cir. 1996) (explaining that the imposition of a ten-person calling list is
    
    rationally related to the legitimate governmental objective of reducing criminal activity);
    
    Stojanovic v. Humphreys, 309 F. App’x 48, 51 (7th Cir. 2009) (“Safety and security are
    
    legitimate penological interests, and this is equally true in the visitation context.”); Searcy v.
    
    United States, 
    668 F. Supp. 2d 113
    , 122 (D.D.C. 2009) (holding that “regulations restricting
    
    inmates’ telephone use are reasonable as long as they further the government’s legitimate
    
    penological interests, including the safety and security of correctional institutions, inmates, staff,
    
    and the public” (citing Arney v. Simmons, 
    26 F. Supp. 2d 1288
    , 1293 (D. Kan. 1998))).
    
           Accordingly, because the plaintiffs have not adequately alleged that the CMU restrictions
    
    are not rationally related to the legitimate penological interest in monitoring the communication
    
    of high-risk inmates, the court dismisses the plaintiffs’ substantive due process claim. See
    
    Walker v. Sumner, 
    917 F.2d 382
    , 385 (9th Cir. 1990) (explaining that “[t]he first [Turner] factor
    
    constitutes a sine qua non”); Amatel, 156 F.3d at 196 (noting that the first rationality factor
    
    “tends to encompass the remaining factors”).
    
                        c. The Court Denies the Defendants’ Motion to Dismiss
                             the Plaintiffs’ Procedural Due Process Claim
    
           The defendants contend that the plaintiffs have not articulated the deprivation of a
    
    constitutional or government-created liberty interest as required to state a viable procedural due
    
    process claim. See Defs.’ Mot. at 10-20. According to the defendants, the BOP’s “transfer of
    
    Plaintiffs to a CMU and the imposition of the subject communication restrictions do not impose
    
    significant or ‘unduly harsh’ restrictions,” as required to trigger a government-created liberty
    
    interest in the prison context. Defs.’ Reply at 10. Furthermore, the defendants argue that even if
    
    
                                                      21
    the plaintiffs have a liberty interest at stake, the plaintiffs were not deprived of procedural due
    
    process because they received proper notice of the reasons for their CMU designation after
    
    arriving at the CMUs, as well as an opportunity to contest that designation. Defs.’ Mot. at 20-21.
    
           The plaintiffs maintain that they have a government-created liberty interest in avoiding
    
    the conditions of confinement that exist in the CMUs because those conditions impose an
    
    “atypical and significant hardship on the [plaintiffs] in relation to the ordinary incidents of prison
    
    life.” Pls.’ Opp’n at 9 (quoting Sandin v. Conner, 
    515 U.S. 472
    , 484 (1995)). Furthermore, the
    
    plaintiffs assert that any procedures the defendants have provided are insufficient to protect these
    
    rights. Id. at 20-25. Additionally, the plaintiffs contend that the BOP’s purported “reviews” of
    
    the plaintiffs’ designation to the CMUs “are merely an assessment of whether the ‘original
    
    reasons for CMU placement still exist’” and thus, meaningless because those original reasons
    
    “cannot change.” Pls.’ Opp’n at 23.
    
           The Fifth Amendment requires that no person be deprived of his liberty without due
    
    process of law. U.S. CONST. amend. V. To establish an actionable due process claim, the
    
    plaintiffs must show that (1) they have a constitutionally-protected life, liberty or property
    
    interest and (2) the defendants deprived the plaintiffs of that interest without constitutionally
    
    adequate procedure. See Propert v. Dist. of Columbia, 
    948 F.2d 1327
    , 1331 (D.C. Cir. 1991);
    
    Soeken v. Herman, 
    35 F. Supp. 2d 99
    , 104-105 (D.D.C. 1999). Liberty interests are generally
    
    derived from the Constitution, but “[t]he government may under certain circumstances create
    
    liberty interests which are protected by the Due Process Clause.” Sandin, 515 U.S. at 484; see
    
    also Marshall v. Fed. Bureau of Prisons, 
    518 F. Supp. 2d 190
    , 194 (D.D.C. 2007) (citing Ellis v.
    
    Dist. of Columbia, 
    84 F.3d 1413
    , 1415 (D.C. Cir. 1996)).
    
                                                      22
            Once a liberty interest is implicated, a “fundamental requirement” of due process is that
    
    an individual receive “the opportunity to be heard at a meaningful time and in a meaningful
    
    manner.” Mathews v. Eldridge, 
    424 U.S. 319
    , 333 (1976); see also Propert, 948 F.2d at 1331.
    
    In determining whether “an appropriate hearing has been provided at a meaningful time and in a
    
    meaningful matter,” the court considers three factors:
    
            [f]irst, the private interest that will be affected by the official action; second, the
            risk of an erroneous deprivation of such interest through the procedures used, and
            the probable value, if any, of additional or substitute procedural safeguards; and
            finally, the Government’s interest, including the function involved and the fiscal
            and administrative burdens that the additional or substitute procedural
            requirements would entail.
    
    Mathews, 424 U.S. at 335. All the while, the court must remain mindful that “due process is
    
    flexible and calls for such procedural protections as the particular situation demands.” Mathews,
    
    424 U.S. at 334 (citing Morrissey v. Brewer, 
    408 U.S. 471
    , 481 (1972)).
    
                      i. The Plaintiffs Have Plausibly Alleged a Liberty Interest
                                Protected by Procedural Due Process
    
    This Circuit has observed that
    
            a deprivation in prison implicates a [government-created] liberty interest
            protected by the Due Process Clause only when it imposes an “atypical and
            significant hardship” on an inmate in relation to the most restrictive confinement
            conditions that prison officials, exercising their administrative authority to ensure
            institutional safety and good order, routinely impose on inmates serving similar
            sentences.
    
    Hatch v. Dist. of Columbia, 
    184 F.3d 846
    , 856 (D.C. Cir. 1999) (quoting Sandin, 515 U.S. at
    
    484).
    
            At present, the plaintiffs designated to a CMU are allowed two fifteen-minute phone calls
    
    per week and eight hours of non-contact visits per month. Compl. ¶¶ 57, 65. Each visit may not
    
    
                                                      23
    exceed four hours and must be held in a partitioned room; no physical contact is permitted
    
    between the inmate and his visitor and visitors and inmates must communicate verbally using
    
    telephone handsets. Id. ¶ 57; BOP Terre Haute CMU Institution Supplement at 2. Pursuant to
    
    the “guidelines and procedures” articulated in the Institution Supplements, while housed at the
    
    CMUs, the plaintiffs are only entitled to one three-minute telephone call per month. BOP Terre
    
    Haute CMU Institution Supplement at 2.
    
           By contrast, BOP prisoners housed in the general population are typically allowed 300
    
    phone minutes per month. Compl. ¶ 63; Defs.’ Mot. at 6. BOP regulations governing visitation
    
    for prisoners housed in the general population provide no specific cap on the number or duration
    
    of visits, but do indicate that each inmate shall be allowed at least four hours of visiting time per
    
    month, 28 C.F.R. § 540.43, and that the visits should be contact visits “unless there is clear and
    
    convincing evidence that such contact would jeopardize the safety or security of the institution,”
    
    id. § 540.51(h)(2). Indeed, the plaintiffs allege that inmates at “the Administrative Maximum
    
    facility USP Florence, the only ‘supermaximum’ security facility in the federal system” are
    
    allowed up to five visits a month with each visit lasting for up to seven hours. Compl. ¶ 61.
    
           The plaintiffs note that at this early stage in the litigation – prior to discovery – they are
    
    unable to cite specific examples of the most restrictive conditions of confinement routinely
    
    imposed on inmates serving sentences similar to those being served by the plaintiffs. Pls.’ Opp’n
    
    at 15; see also Brown v. Plaut, 
    131 F.3d 163
    , 170 (D.C. Cir 1997) (explaining that the
    
    comparison of prison conditions is a “complex and fact-specific inquiry”). Nonetheless, the
    
    aforementioned allegations are specific and detailed and plausibly suggest a significant disparity
    
    in the treatment of CMU inmates and those housed in the general population. Compl. ¶¶ 37-68.
    
                                                     24
           The defendants for their part do not engage in any qualitative comparative analysis of the
    
    conditions of confinement faced by inmates with similar sentences to those of the plaintiffs. See
    
    generally Defs.’ Mot.; Defs.’ Reply. Although the defendants suggest that the restrictions in the
    
    CMU are no harsher than those found in solitary confinement, Defs.’ Reply at 9, the defendants
    
    do not address whether prisoners with similar sentences are routinely placed in solitary
    
    confinement. See generally Defs.’ Mot.; Defs.’ Reply. Thus, drawing all factual inferences in
    
    favor of the plaintiff, see Holy Land Found., 333 F.3d at 165, the court determines that it is
    
    plausible that the conditions of confinement in the CMUs constitute an atypical and significant
    
    hardship on the plaintiffs, Iqbal, 129 S. Ct. at 1949; Hatch, 184 F.3d at 856. Accordingly, the
    
    plaintiffs have plausibly alleged that they have a liberty interest in avoiding designation to a
    
    CMU and the confinements related to such a designation. See Wilkinson v. Austin, 
    545 U.S. 209
    ,
    
    228 (2005) (recognizing that inmates have a liberty interest in not being assigned to a
    
    “supermax” facility because the conditions – prohibition of almost all human contact, constant
    
    lighting and minimal exercise in confined quarters – imposed a “atypical and significant
    
    hardship” on the inmates).
    
    ii. The Plaintiffs Have Plausibly Alleged That They Were Denied Procedural Due Process
    
           As discussed, Mathews delineates a three-factor test for determining whether a plaintiff
    
    has received an opportunity to be heard at a meaningful time and in a meaningful manner.
    
    Mathews, 424 U.S. at 333. In this case, the first factor requires the court to consider the
    
    significance of the plaintiffs’ interest in avoiding erroneous placement in a CMU. See Wilkinson,
    
    545 U.S. at 225. The plaintiffs assert, and the defendants do not contest, that the plaintiffs have
    
    an interest in avoiding designation to a CMU. Pls.’ Opp’n at 23; see generally Defs.’ Mot.;
    
                                                     25
    Defs.’ Reply. Although the plaintiffs’ interest in their liberty is legitimately impacted by virtue
    
    of their imprisonment, their liberty interest is not “minimal” and merits procedural due process
    
    so long as it is evaluated “within the context of the prison system.” Wilkinson, 545 U.S. at 225.
    
           Next, the court considers the risk that procedures used by the defendants resulted in the
    
    erroneous deprivation of the plaintiffs’ liberty interest, as well as the “probable value, if any, of
    
    additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. “To insure that [a]
    
    review does not become simply a sham, the content and substance of that review must be
    
    scrutinized under the illumination” of the Fifth Amendment, Mims v. Shapp, 
    744 F.2d 946
    , 954
    
    (3d Cir. 1984), and “prison officials must be prepared to offer evidence that the . . . reviews held
    
    are substantive and legitimate, not merely a sham,” Giano v. Kelly, 
    869 F. Supp. 143
    , 150
    
    (W.D.N.Y. 1994).
    
           The defendants insist that the BOP’s standard administrative remedies are available to the
    
    plaintiffs designated to the CMU and contain a process for review of “an issue relating to any
    
    aspect of [the plaintiffs’] confinement.” Defs.’ Mot. at 21 n.5. The defendants further assert that
    
    the plaintiffs have “received reviews of their continued confinement in the CMU by the CMU’s
    
    Unit Team in connection with regularly scheduled program reviews.” Id. at 21. The plaintiffs
    
    allege that administrative remedies and periodic reviews are “illusory,” id. ¶ 90, and that the
    
    Notices of Transfer are “so vague and generic” that they effectively provide no notice at all. Id.
    
    ¶ 77. The plaintiffs allege that the administrative and periodic review process is insufficient
    
    because those procedures involve review at the institutional or regional level, but the decisions
    
    for CMU designation are only made by officials in Washington, D.C., id. ¶ 84, 90. The plaintiffs
    
    also argue that “[b]ecause CMU designation is not based on any ongoing misbehavior, the reason
    
                                                      26
    for designation will never change or diminish.” Compl. ¶ 83. Moreover, according to Jayyousi,
    
    his unit manager informed him that, apparently despite the periodic review procedures, he would
    
    serve the rest of his sentence at the CMU. Id. Accordingly, the plaintiffs seek procedures
    
    assuring that they receive detailed Notices of Transfer and ongoing reviews by officials with
    
    decision-making power who will review whether their continued placement in the CMU is still
    
    appropriate, see id. ¶¶ 73-91.
    
           In light of the plaintiffs factual allegations supporting their contention that reviews
    
    provided by the defendants are “illusory” and meaningless, the court determines that they have
    
    adequately alleged there is a high risk that the procedures used by the defendants have resulted in
    
    erroneous deprivations of their liberty interests. See Mathews, 424 U.S. at 335; see also
    
    Williams v. Norris, 277 F. App’x 647, 649 (8th Cir. 2008) (noting that the reason for segregation
    
    should “not only be valid at outset but must continue to subsist during period of segregation” and
    
    reversing the lower court’s grant of summary judgment because there remained unresolved
    
    issues of fact as to whether the prisoner “received meaningful reviews, rather than sham reviews,
    
    as he contend[ed]”); Lira v. Cate, 2009 U.S. Dist. Lexis 91292, at *90 (N.D. Cal. Sept. 30, 2009)
    
    (denying the defendant’s motion to dismiss because the plaintiff provided evidence that reviews
    
    of his administrative segregation were “largely perfunctory” and the prison “provided no
    
    substantive review of the propriety of [his] retention in administrative segregation”); Hogan v.
    
    Epps, 2009 U.S. Dist. Lexis 128449, at *6 (S.D. Miss. July 6, 2009) (denying summary judgment
    
    because the defendants did not provide any evidence to contradict the plaintiff’s claim that
    
    review of administrative segregation in prison was not meaningful nor explained “the
    
    circumstances under which an inmate may be removed from . . . segregation”).
    
                                                     27
           The third Mathews factor addresses the government’s interest and the burden that
    
    additional or substitute procedures would impose on the government. Mathews, 424 U.S. at 335.
    
    The defendants note that the BOP’s goal is “providing both increased and effective monitoring of
    
    high-risk inmates,” Defs.’ Mot. at 26, but neglect to address how the procedures sought by the
    
    plaintiffs – detailed Notices of Transfer and meaningful reviews – would create an unwarranted
    
    burden on the BOP’s resources, see generally id.; Defs.’ Reply. Without more, the court cannot
    
    conclude that the defendants cannot both accommodate the government’s interest while
    
    affording the plaintiffs their requested procedural due process.
    
           Accordingly, the court determines that at this stage in the proceedings, the plaintiffs have
    
    adequately alleged facts sufficient to satisfy the three Mathews factors. As a result, the plaintiffs
    
    have plausibly alleged that the defendants violated their procedural due process rights, see Iqbal,
    
    129 S. Ct. at 1949 (internal citation omitted), and the court denies the defendants’ motion to
    
    dismiss the plaintiffs’ procedural due process claim.
    
                       d. The Court Grants the Defendants’ Motion to Dismiss
                              the Plaintiffs’ Eighth Amendment Claims
    
            The defendants argue that the plaintiffs have not adequately alleged that they have been
    
    denied “the minimal civilized measure of life’s necessities” as required to sustain a cruel and
    
    unusual punishment claim under the Eighth Amendment. Defs.’ Mot. at 32. The plaintiffs
    
    respond that they have been deprived of “the essential human need for meaningful contact with
    
    one’s family,” and that accordingly, they have alleged a viable Eighth Amendment claim. Pls.’
    
    Opp’n at 52.
    
    
    
    
                                                     28
             To establish an Eighth Amendment violation, a prisoner must make an objective and a
    
    subjective showing. See Farmer v. Brennan, 
    511 U.S. 825
    , 834 (1994). Objectively, the alleged
    
    deprivation must be “sufficiently serious;” subjectively, the prison officials’ actions, must
    
    demonstrate a “deliberate indifference” to the prisoner’s health or safety. See id. A deprivation
    
    is “sufficiently serious” if it denies a prisoner the “minimum civilized measures of life’s
    
    necessities.” Wilson v. Seiter, 
    501 U.S. 294
    , 298 (1991) (internal citations omitted); see also
    
    Hudson v. McMillian, 
    503 U.S. 1
    , 8-9 (1992) (stating that “extreme deprivations are required to
    
    make out a conditions-of-confinement claim”). These necessities are typically “food, shelter,
    
    health care, and personal security.” Inmates of Occoquan v. Barry, 
    844 F.2d 828
    , 839 (D.C. Cir.
    
    1988).
    
             The plaintiffs’ allegations are based on the conditions of their confinement in the CMUs
    
    – namely the visitation and telephone restrictions imposed on their contact with their families.
    
    See Compl. ¶ 268; Pls.’ Opp’n at 52-53. It is far from clear, however, that family contact is a
    
    basic life necessity for Eighth Amendment purposes. Indeed, the Supreme Court has stated that
    
    a two-year ban on visitation did not “deprive inmates of basic necessities, or fail to protect their
    
    health or safety.” Overton, 539 U.S. at 136-37. Similarly, another court in this district has
    
    recently explained that “[d]eprivations such as infrequent or no visits from family . . . do not
    
    meet the threshold of ‘extreme deprivations’ required to state an Eighth Amendment claim
    
    regarding conditions of prison confinement.” Simmons v. Wolff, 
    594 F. Supp. 2d
    . 6, 9 (D.D.C.
    
    2009); see also Perez v. Fed. Bureau of Prisons, 229 F. App’x 55, 57 (3rd Cir. 2007) (“An
    
    altered security classification that allows limits on telephone privileges certainly does not rise to
    
    [the] level [of extreme deprivation].” (citing Inmates of Occoquan, 844 F.2d at 836)); Wirsching
    
                                                     29
    v. Colo., 
    360 F.3d 1191
    , 1205 (10th Cir. 2004) (“[V]isitation with a particular person does not
    
    constitute basic necessity, the denial of which would violate the Eighth Amendment.” (citing Ky.
    
    Dep’t of Corrections v. Thompson, 
    490 U.S. 454
    , 461 (1989))); Phillips v. Norris, 
    320 F.3d 844
    ,
    
    848 (8th Cir. 2003) (determining that thirty-seven days without contact visitation or religious
    
    services did not involve “life’s necessities,” such as water, food or shelter and as such did not
    
    constitute an Eighth Amendment violation); Saleem v. Helman, 
    1997 WL 527769
    , at *2 (7th Cir.
    
    Aug. 21, 1997) (“[D]enial of contact visitation altogether does not violate the Eighth
    
    Amendment.” (citing Caldwell v. Miller, 
    790 F.2d 589
    , 601 n.16 (7th Cir. 1986))); Ademola v.
    
    Bureau of Prisons, 
    2006 WL 2466840
    , at *4 (D.N.J. Aug. 23, 2006) (holding that the telephone
    
    restrictions challenged by the plaintiff did not constitute a “basic human need” (citing Wilson v.
    
    Seiter, 
    501 U.S. 294
    , 298 (1991))). Accordingly, because the plaintiffs have not plausibly
    
    alleged that they have been denied a basic life necessity, the court grants the defendants’ motion
    
    to dismiss this claim.
    
                        e. The Court Denies the Defendants’ Motion to Dismiss
                                  the Plaintiffs’ Retaliation Claims
    
           The plaintiffs allege that the defendants transferred Jones into the CMU in retaliation for
    
    his continued litigation against the BOP and that they transferred McGowan into the CMU in
    
    retaliation for his vocalization “about social justice issues and the rights of political prisoners.”
    
    Compl. ¶¶ 167, 188. The defendants contend that the plaintiffs have failed to allege that
    
    retaliation was the “but for” cause of their transfer. See Defs.’ Mot. at 34-39.
    
           A prisoner alleging a First Amendment claim of retaliation must allege that “(1) he
    
    engaged in conduct protected under the First Amendment; (2) the defendant took some
    
    
                                                      30
    retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from
    
    speaking again; and (3) a causal link between the exercise of a constitutional right and the
    
    adverse action taken against him.” Banks v. York, 
    515 F. Supp. 2d 89
    , 111 (D.D.C. 2007) (citing
    
    Rauser v. Horn, 
    241 F.3d 330
    , 333 (3d Cir. 2001); Friedl v. City of New York, 
    210 F.3d 79
    , 85
    
    (2d Cir. 2000)). To satisfy the causation link, a plaintiff must allege that his or her constitutional
    
    speech was the “but for” cause of the defendants’ retaliatory action. Hartman v. Moore, 
    547 U.S. 250
    , 256 (2006). “Evidence that actions by correctional officers were taken in retaliation
    
    for the exercise of protected conduct may be inferred from the fact that the acts occurred shortly
    
    after the filing of a grievance, and that the inmate previously had a good disciplinary record.”
    
    Garcia v. Dist. of Columbia, 
    56 F. Supp. 2d 1
    , 13 (D.D.C. 1998) (citing Colon v. Coughlin, 
    58 F.3d 865
    , 872 (2d Cir. 1995); Smith v. Deckelbaum, 
    1998 WL 433926
     (S.D.N.Y. July 27, 1998)).
    
           Here, the plaintiffs allege that Jones is “an outspoken and litigious prisoner” and that he
    
    has written books about improper prison conditions and filed grievances and complaints on his
    
    own behalf. Compl. ¶ 188. They further allege that his prison record contains “no serious
    
    disciplinary infractions” and “one minor communications[-]related infraction” from 1997. Id. ¶
    
    186. Although the timeline is somewhat unclear with respect to this plaintiff, it appears that he
    
    filed a complaint in 2007 after he was placed in FCI Englewood in Littleton, Colorado. See id.
    
    ¶¶ 185, 188-89. While there, he alleges that staff told him he would be “sent east” if he
    
    continued filing complaints. Id. ¶ 188. He filed a complaint about this alleged threat and, on
    
    June 6, 2008, he was transferred to the Marion CMU. Id. ¶¶ 188-89. In light of the plaintiffs’
    
    allegation regarding Jones’s relatively clean disciplinary history, his history of complaints and
    
    the threat allegedly directed at him by staff at FCI Englewood, Jones has plausibly alleged that
    
                                                     31
    he was transferred to the CMU in retaliation for his continued litigation against the BOP. See
    
    Garcia, 56 F. Supp. 2d at 13.
    
           Similarly, the plaintiffs allege that McGowan has a clean disciplinary record and has been
    
    “active in social justice movements during his incarceration.” Compl. ¶ 159; see also Pls.’
    
    Opp’n at 32. He was placed in the Marion CMU in August 2008. Compl. ¶ 160. The plaintiffs
    
    assert that the information in his Notice of Transfer is patently untrue and that the BOP has been
    
    unresponsive to his attempts to correct his record. Id. ¶¶ 462-64. Moreover, McGowan was
    
    released into the general population at FCI Marion in October 2010, see Defs.’ Suppl. Mot. at 2,
    
    but was redesignated to the Terre Haute CMU in February 2011, see Defs.’ Notice at 1. The
    
    plaintiffs allege that this redesignation was in direct response to a telephone conversation that he
    
    had with his wife, after being placed back in the general population, in which he requested that
    
    she ask his attorneys to send him certain legal documents. See Pls.’ 2d Notice at 3. In light of
    
    these allegations, the court concludes that McGowan has also stated a plausible claim of
    
    retaliation. See Garcia, 56 F. Supp. 2d at 13. Accordingly, the court denies the defendants’
    
    motion to dismiss the plaintiffs’ retaliation claims.
    
                       f. The Court Grants the Defendants’ Motion to Dismiss
                                the Plaintiffs’ Discrimination Claims
    
           The plaintiffs allege that the defendants transferred Aref, Jayyousi and Jones into CMUs
    
    because they are Muslim and therefore unlawfully discriminated against them in violation of the
    
    First and Fifth Amendment. Compl. ¶ 273. The plaintiffs base their claim entirely on statistics
    
    they allege they received from the BOP pursuant to a Freedom of Information Act request and
    
    from an article published by the BOP. Id. ¶¶ 97-100. According to the plaintiffs, the statistics
    
    
                                                     32
    demonstrate that in 2004, six percent of the total BOP prison population sought Islamic religious
    
    services, id. ¶ 100, while between sixty-five and sixty-eight percent of the inmates designated to
    
    the Terre Haute CMU are Muslim, id. ¶ 99, and seventy-two percent of the inmates designated to
    
    the Marion CMU are Muslim, id. ¶ 101. The defendants assert that “[t]he Complaint is devoid of
    
    allegations of any act, statement or other conduct that indicates any hostility whatsoever to
    
    Muslims on the part of [the defendants].” See Defs.’ Mot. at 39.
    
           Where, as here, a plaintiff claims that he was discriminated against in violation of the
    
    First and Fifth Amendments, “the plaintiff must plead and prove that the defendant acted with
    
    discriminatory purpose.” Iqbal, 129 S. Ct. at 1948. “Under extant precedent purposeful
    
    discrimination requires more than ‘intent as volition or intent as awareness of consequences[;]’
    
    . . . [i]t instead involves a decisionmaker’s undertaking a course of action ‘because of, not merely
    
    in spite of, [the action’s] adverse effects upon an identifiable group.’” Id. (quoting Personnel
    
    Adm’r of Mass. v. Feeney, 
    442 U.S. 256
    , 279 (1979)). Although “[p]roof of discriminatory
    
    intent must necessarily usually rely on objective factors[,] [t]he inquiry is practical.” Feeney,
    
    442 U.S. at 279 n.24.
    
           The statistics proffered by the plaintiff, without more, are not minimally sufficient to
    
    survive a motion to dismiss. See Club Retro, L.L.C. v. Hilton, 
    568 F.3d 181
    , 213 (5th Cir. 2009)
    
    (holding that plaintiffs’ statistics, even combined with allegations that the defendants used racial
    
    epithets, did not allege sufficient facts to survive a motion to dismiss its § 1983 claims); see also
    
    Segar v. Smith, 
    738 F.2d 1249
    , 1273-74 (D.C. Cir. 1984) (explaining that “to be legally
    
    sufficient” the proffered statistics must demonstrate not just a disparity of treatment, but they
    
    must “eliminate the most common nondiscriminatory explanations of the disparity, and thus
    
                                                     33
    permit the inference that, absent other explanation, the disparity more likely than not resulted
    
    from illegal discrimination”); Hollander v. Am. Cyanamid Co., 
    999 F. Supp. 252
    , 260 (D. Conn.
    
    1998) (noting that plaintiffs using statistics in disparate treatment cases must “take into account
    
    nondiscriminatory explanations for numerical disparities” (citing Doan v. Seagate Tech., Inc., 
    82 F.3d 974
    , 979 (10th Cir. 1996))). That is, even accepting as true the fact that there are a
    
    statistically disproportionate amount of Muslim prisoners designated to the CMUs, this fact
    
    alone does not “state a claim to relief that is plausible on its face,” Iqbal, 129 S. Ct. at 1949,
    
    because the plaintiffs have not alleged that the defendants acted with any discriminatory purpose,
    
    see generally Compl. The court also notes that Aref and Jayyousi were convicted of terrorism-
    
    related offenses – one of the grounds an inmate may place designated to a CMU, see Compl. ¶¶
    
    16, 107, 205; Notice to Inmates at 1 – a fact which provides an “obvious alternative explanation”
    
    for their designation to a CMU, Iqbal, 129 S. Ct. at 1951 (explaining that there was an “obvious
    
    alternative explanation” to discrimination for the increase in arrests of Arab Muslims after the
    
    September 11 terrorist attacks). Accordingly, the court grants the defendants’ motion to dismiss
    
    the plaintiffs’ discrimination claims.
    
                g. The Court Dismisses Without Prejudice the Plaintiffs’ APA Claims
    
           The plaintiffs also challenge the creation of the CMUs, arguing that the defendants did
    
    not engage in prior notice and comment rulemaking as required by the APA. Compl. ¶¶ 276-
    
    282. Although the defendants assert that notice and comment rule making were not required
    
    because the APA does not apply to the Marion and Terre Haute Institution Supplements that
    
    created the CMUs, they note that the BOP has, nevertheless, began the process for rulemaking as
    
    it pertains to the CMUs. Defs.’ Mot. at 39-43. In fact, the proposed rule was published in the
    
                                                      34
    Federal Register on April 6, 2010, and the comment period closed on June 7, 2010. See 75 Fed.
    
    Reg. 17324. Thus, as it now appears that the defendants have begun the process sought by the
    
    plaintiffs, the plaintiffs’ APA claim is moot. See Natural Res. Def. Council, Inc. v. U.S. Nuclear
    
    Regulatory Comm’n, 
    680 F.2d 810
    , 814 (D.C. Cir. 1982) (rendering a claim seeking full notice
    
    and comment rulemaking moot where a rule was promulgated without affording a comment and
    
    notice period, but was subsequently “repromulgated” in accordance with notice and comment
    
    requirements effectively curing any initial deficiencies in the rulemaking process). Accordingly,
    
    the court dismisses the plaintiffs’ APA claim without prejudice, allowing the plaintiffs’ to renew
    
    such a claim in the event that the defendants again abandon the rulemaking process.
    
                                       B. The Motion to Intervene
    
                        1. Legal Standard for a Rule 24(a) Motion to Intervene
    
           Federal Rule of Civil Procedure 24(a) sets forth the requirements for intervention as of
    
    right. FED. R. CIV. P. 24(a); Fund for Animals, Inc. v. Norton, 
    322 F.3d 728
    , 731 (D.C. Cir.
    
    2003). Rule 24(a) provides for intervention as of right, stating that
    
           [o]n timely motion, the court must permit anyone to intervene who: (1) is given
           an unconditional right to intervene by a federal statute; or (2) claims an interest
           relating to the property or transaction that is the subject of the action, and is so
           situated that disposing of the action may as a practical matter impair or impede
           the movant’s ability to protect its interest, unless existing parties adequately
           represent that interest.
    
    FED. R. CIV. P. 24(a).
    
           This Circuit has identified “four prerequisites to intervene as of right: ‘(1) the application
    
    to intervene must be timely; (2) the applicant must demonstrate a legally protected interest in the
    
    action; (3) the action must threaten to impair that interest; and (4) no party to the action can be an
    
    
                                                     35
    adequate representative of the applicant’s interests.’” Karsner v. Lothian, 
    532 F.3d 876
    , 885
    
    (D.C. Cir. 2008) (quoting Sec. Exch. Comm’n v. Prudential Sec. Inc., 
    136 F.3d 153
    , 156 (D.C.
    
    Cir. 1998)). In addition, an applicant must demonstrate that it has standing. Jones v. Prince
    
    George’s Cnty., Md., 
    348 F.3d 1014
    , 1017-18 (D.C. Cir. 2003).
    
                              2. The Court Denies the Motion to Intervene
    
           Four inmates at the Terre Haute CMU (“applicants”) seek leave to intervene as a matter
    
    of right in this action pursuant to Rule 24(a). See generally Applicants’ Mot. to Intervene. They
    
    argue that their “interest is not being adequately articulated nor represented nor protected by the
    
    existing parties.” Id. at 1. The plaintiffs assert that they have and will adequately represent the
    
    applicants’ interests, as well as the interests of all of the inmates currently designated to the two
    
    CMUs. See generally Pls.’ Opp’n to Mot. to Intervene. The applicants respond that their
    
    interests differ from those of the plaintiffs and, thus, intervention is required. Applicants’ Reply
    
    in Supp. of Mot. to Intervene at 1-2.
    
           The applicants bear the burden of demonstrating that the plaintiffs will inadequately
    
    represent their interests. See Trbovich v. United Mine Workers, 
    404 U.S. 528
    , 538 n.10 (1972).
    
    Although this burden is not onerous, see Dimond v. Dist. of Columbia, 
    792 F.2d 179
    , 192 (D.C.
    
    Cir. 1986), the applicants “must produce something more than speculation as to the purported
    
    inadequacy,” Moosehead Sanitary Dist. v. S.G. Phillips Corp., 
    610 F.2d 49
    , 54 (1st Cir. 1979).
    
           Other than generally arguing that their interests are not being adequately represented, the
    
    applicants state only that the “existing parties[’] representation may use bad or poor judgment in
    
    conducting or settling the cause of action.” Applicants’ Mot. to Intervene at 3. These allegations
    
    are insufficient to demonstrate inadequate representation for the purposes of intervention. See
    
                                                      36
    Jones, 348 F.3d at 1019-20 (explaining that “fil[ing] suit in an inappropriate forum, advanc[ing]
    
    a disadvantageous choice-of-law position, and fail[ing] to bring a state-law claim” does not rise
    
    to the level of inadequate representation necessary for intervention); Moosehead Sanitary Dist.,
    
    610 F.2d at 54-55 (holding that the applicant’s argument that the plaintiff may be tempted to
    
    settle a claim in a way unfavorable to the applicant, where the applicant made no indication that
    
    “any such settlement was in the offing,” was insufficient to demonstrate inadequate
    
    representation).
    
           Indeed, the applicants have not stated what their interests are or how they differ from
    
    those of the plaintiffs. See generally Applicants’ Mot. to Intervene; Applicants’ Reply.
    
    Although they allege that they have constitutional claims that have not been addressed by the
    
    plaintiffs, Applicants’ Reply at 2, the applicants do not state the nature of these claims, see
    
    generally id.; Mot. to Intervene at 3 (indicating that the applicants, like the plaintiffs, are seeking
    
    injunctive relief and removal from the CMU); Bldg. & Constr. Trades Dep’t, AFL-CIO v. Reich,
    
    
    40 F.3d 1275
    , 1282 (D.C. Cir. 1994) (holding that, where the applicant “offered no argument not
    
    also pressed by the defendant” intervention was not appropriate); Va. v. Westinghouse Elec.
    
    Corp., 
    542 F.2d 214
    , 216 (4th Cir. 1976) (denying intervention because the applicant sought the
    
    same relief as the plaintiff). Accordingly, because the applicants have not demonstrated that the
    
    plaintiffs will inadequately represent their interests, the court denies the motion to intervene as a
    
    
    
    
                                                      37
    matter of right. 7
    
    
    
                                              III. CONCLUSION
    
            For the foregoing reasons, the court grants in part and denies in part the defendants’
    
    motion to dismiss, grants the defendants’ supplemental motion for partial dismissal and denies
    
    the applicants’ motion to intervene. An Order consistent with the Memorandum Opinion is
    
    separately and contemporaneously issued this 30th day of March, 2011.
    
    
    
                                                                RICARDO M. URBINA
                                                               United States District Judge
    
    
    
    
    7
            The court notes that, in their reply, the applicants suggest for the first time that they also seek
            permissive intervention pursuant to Rule 24(b). See Applicants’ Reply in Supp. of Mot. to
            Intervene at 1 (stating that “[a]ll that is required in any Intervenor’s claim and the main action[] is
            that they have a question of law or fact in common”). The court does not address this argument
            which was raised for the first time in the reply. See Aleutian Pribilof Islands Ass'n, Inc. v.
            Kempthorne, 
    537 F. Supp. 2d 1
    , 12 n.5 (D.D.C. 2008) (noting that “it is a well-settled prudential
            doctrine that courts generally will not entertain new arguments first raised in a reply brief” (citing
            Herbert v. Nat'l Acad. of Scis., 
    974 F.2d 192
    , 196 (D.C. Cir. 1992))).
                                                         38