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Aref v. Lynch

United States Court of Appeals, District of Columbia Circuit

August 19, 2016

Yassin Muhiddin Aref, et al., Appellants
Loretta E. Lynch, Attorney General of the United States, et al., Appellees

          Argued March 15, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-00539)

          Rachel Anne Meeropol argued the cause for appellants. With her on the briefs were Pardiss Kebriaei and Gregory Stewart Silbert. Shayana D. Kadidal entered an appearance.

          William R. Stein, Scott H. Christensen, and Elizabeth C. Solander were on the brief for amici curiae The Legal Aid Society of the City of New York, et al. in support of plaintiffs-appellants.

          Jonathan Hafetz was on the brief for amicus curiae Seton Hall University School of Law Center for Social Justice in support of appellants.

          Carleen M. Zubrzycki, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and H. Thomas Byron III, Attorney. Mark B. Stern and Joshua P. Waldman, Attorneys, entered appearances.

          Before: Brown and Srinivasan, Circuit Judges, and Edwards, Senior Circuit Judge.


          Brown, Circuit Judge

         Appellants are three federal prisoners who spent several years housed in specially designated Communication Management Units (CMUs), a classification that meant family visits and communications with the outside world were curtailed. Appellants contend their designation to CMUs violated their due process rights. One appellant also alleges his continued CMU placement was in retaliation for protected speech in violation of the First Amendment. Finally, appellants seek damages under the Prison Litigation Reform Act (PLRA) for a variety of injuries allegedly arising out of their confinement in CMUs, including the denial of certain educational and professional programming, violations of their constitutional rights, and harm to familial relationships. The district court granted summary judgment for the government on each claim.

         Because we find the duration and atypicality of CMU designation sufficient to give rise to a liberty interest, we reverse the district court and remand for further proceedings to determine whether appellants were afforded sufficient process. With respect to the retaliation claim, we affirm the grant of summary judgment for the government because appellant cannot show his First Amendment rights were violated. Unlike the district court, we hold appellants have alleged harms qualifying for compensation under the PLRA because their injuries were neither mental nor emotional in nature and so do not require a showing of physical injury. We nonetheless uphold the grant of summary judgment because we find the prison official entitled to qualified immunity.


         A. Communication Management Units

         The CMUs at the heart of this controversy are located at two federal correctional facilities in Terre Haute, Indiana, and Marion, Illinois. They were established in 2006 and 2008, respectively. See Aref v. Holder, 774 F.Supp.2d 147, 153 (D.D.C. 2011). The Bureau of Prisons (BOP) designed CMUs in response to a problem identified by the Department of Justice: a "deficiency" in the monitoring of inmate communications that allowed several inmates with terrorism-related convictions to communicate with extremist groups outside the prisons. CMUs thus house inmates who require communications monitoring beyond that which can feasibly be provided in the general population.

         CMU inmates have access to more limited and less private communications compared to general population inmates. All visits-aside from attorney visits-must be "non-contact, " meaning a glass wall separates the inmate and visitor and communication takes place via a microphone. See 28 C.F.R § 540.205(a). All visits must be conducted in English, live-monitored, and recorded by BOP. See id. Although BOP regulations allow visitation to be restricted to four one-hour visits each month, id., BOP currently permits up to eight hours a month. CMU inmates are also restricted in the frequency and length of their written correspondence, which is subject to inspection. See id. § 540.203. Finally, except for unmonitored attorney calls, CMU inmates can telephone only immediate family members, and the calls are monitored. Id. § 540.204. Under the regulation, telephonic communication can be limited to no more than three fifteen-minute calls per month, id., but BOP currently allows inmates two fifteen-minute calls per week.

         Aside from these restrictions, CMUs essentially function as "self-contained general population housing unit[s]." J.A. 108. Inmates typically are not confined to their cells except at night and during security checks. They have access to common areas for up to sixteen hours a day, recreational facilities, exercise equipment, and the library. They can keep personal property in their cells, participate in religious services, receive educational and professional training, and be designated for work assignments.

         An inmate can be designated to a CMU for several reasons, including having a conviction offense related to international or domestic terrorism; demonstrating a propensity for using communication channels to further illegal activity outside the prison or to contact victims; abusing approved communication methods; or presenting a potential threat to prison facilities or the public as a result of unmonitored communications with persons outside the prison. See 28 C.F.R § 540.201.[1] Designation to a CMU begins when BOP becomes aware of information relevant to any of these criteria. See id. § 540.202(a). BOP's Assistant Director evaluates and approves the designation if, after a review of the evidence, he concludes "designation . . . is necessary to ensure the safety, security, and orderly operation of correctional facilities, or protection of the public."[2] Id. § 540.202(b). Once in the CMU, the inmate receives a written Notice of Transfer (Notice) from the Warden explaining that the placement allows increased communications monitoring, the placement is non-punitive and will not affect the length of incarceration, and continued designation will be reviewed "regularly" with both notice and an opportunity to be heard. Id. § 540.202(c). The inmate also receives "an explanation of the [Assistant Director's] decision in sufficient detail, " unless the Assistant Director determines that providing this information would jeopardize the safety of the facility or the public. Id. § 540.202(c)(4). Finally, the inmate may challenge his CMU designation through BOP's administrative remedy program. Id. § 540.202(c)(6).

         In 2009-three years after the first CMU opened-BOP instituted periodic review of prisoners, allowing for potential redesignation every six months. See id. § 524.11(a)(2). The process begins with the inmate's Unit Team making an initial determination about whether continued CMU placement is necessary. The inmate must be given notice forty-eight hours before this review, which takes place in person. Id. § 524.11(b)(1). The recommendation considers factors like "whether the original rationale for CMU designation has been mitigated" and "whether the inmate no longer presents a risk." J.A. 689. The Warden then receives the transfer recommendation for his review. If he agrees, the recommendation is sent to the Counter-Terrorism Unit (CTU) for its independent assessment-which is then forwarded to the Assistant Director[3] for a final decision. The inmate is informed in writing of the decision and (at least theoretically) provided an explanation for the result. There is no limitation on the duration of a prisoner's CMU placement.

         B. The Plaintiffs

         (1) Yassin Aref. Aref is an Iraqi refugee convicted of helping a terrorist organization prepare to launch a missile attack on American soil by helping to finance the missile's purchase. United States v. Aref, 285 F.App'x 784, 790 (2d Cir. 2008). He is serving a fifteen-year sentence for money laundering, providing material support for terrorism, conspiracy, and making a false statement to the FBI. Aref, 774 F.Supp.2d at 154. He was initially classified as a "low security" inmate with no disciplinary record, but he was transferred to the Terre Haute CMU in May 2007. Id. Within a day, he received a one-page Notice stating his designation was because of his terrorism-related conviction and because his "offense conduct included significant communication, association, and assistance to Jaish-e-Mohammed (JeM), " a designated terrorist organization. Id. at 154-55. Aref appealed, arguing he had never made contact with any JeM members; he had instead unknowingly been communicating with an individual cooperating with the government. The Regional Director denied the appeal. After eighteen months, Aref was transferred to the Marion CMU.

         In September 2010, three years after Aref's initial designation, his Unit Team and the Warden recommended him for transfer. This request was denied after the CTU received confidential law enforcement information from the Joint Terrorism Task Force. He was notified about the denial, but the notification provided no explanation. He was again recommended for transfer in March 2011, and this time the CTU agreed. Since April 2011, he has been housed in Marion Prison's general population.

         (2) Kifah Jayyousi. In 2008, Jayyousi was sentenced to a 152-month term for conspiracy to murder, kidnap, and maim in a foreign country and conspiracy to provide material support to terrorism. He and his co-conspirators were found to have communicated in code and posed as a charitable organization to further these goals. See United States v. Jayyousi, 657 F.3d 1085, 1091-92 (11th Cir. 2011). Although he was originally classified as a "low security" prisoner, he was transferred to the Terre Haute CMU in June 2008. Upon arrival, he received a Notice pointing to his terrorism-related conviction and offense conduct-which involved communication and association with al-Qaida-as the basis for his transfer. He appealed administratively, arguing this information was inaccurate; BOP denied his appeal without responding to his factual challenges.

         Jayyousi was first considered for redesignation in December 2009, but his Unit Team recommended against it because of the severity of his offense. In October 2010, he was transferred to the Marion CMU. His Unit Team and Warden recommended him for transfer in 2011 based on good conduct. Leslie Smith-then-Chief of BOP's CTU- disagreed because of a sermon Jayyousi gave as part of a Muslim prayer meeting in which he participated in 2008 while at Terre Haute's CMU. Although Jayyousi received a disciplinary charge for that incident, he was cleared of any wrongdoing years before Smith considered this request. In March 2013, Jayyousi was again recommended for transfer, which was approved by the Regional Director without explanation. He continues to be housed in Marion Prison's general population.

         (3) Daniel McGowan. McGowan was a member of the Earth Liberation Front, a domestic terrorist organization. Aref, 774 F.Supp.2d at 155. He was sentenced to a seven year term in 2007 for two counts of arson. Id. McGowan was also originally classified as a "low security" prisoner with no prison disciplinary record. Nonetheless, he was transferred to the Marion CMU in August 2008. He received his Notice ten days later, which cited his offense conduct as involving arson and the "destruction of an energy facility, " as well as communicating in code and teaching others how to commit arson. See id. McGowan appealed, challenging the factual assertions in his Notice as demonstrably false-pointing out he had never been accused or convicted of any crime relating to the destruction of an energy facility. BOP did not respond directly to McGowan's challenge, denied his appeal, and directed him to his pre-sentence report, which contained no mention of any energy facility.

         McGowan was first recommended for transfer in 2010, which the Regional Director denied without explanation. In July 2010, he was again recommended for transfer, which the Regional Director granted without explanation. A few months later, BOP officials determined that McGowan was attempting to circumvent the communication monitoring controls imposed on the general population; he was thus redesignated to the CMU in 2011. He remained in the CMU until his release from prison in December 2012; he was fully released from BOP supervision in June 2013.

         C. Procedural History

         On April 1, 2010, seven plaintiffs filed suit against BOP, alleging a variety of claims related to their CMU placement: violation of their procedural due process rights due to inadequate notice and lack of opportunity to be heard; violation of their substantive due process and First Amendment rights to "family integrity"; violation of the Eighth Amendment's prohibition on cruel and unusual punishment; retaliatory transfer into the CMU in violation of the First Amendment; and unlawful discrimination on the basis of religion in violation of the First and Fifth Amendments. See Aref v. Holder, 953 F.Supp.2d 133, 138 (D.D.C. 2013). Plaintiffs sought declaratory and injunctive relief, transfer out of the CMUs, and an order requiring they be allowed the same communication privileges as other prisoners. See Aref, 774 F.Supp.2d at 157.

         The district court dismissed all but the procedural due process and First Amendment retaliation claims. See id. at 161-71. In November 2012, Aref, Jayyousi, and McGowan filed an amended complaint adding a retaliation claim against defendants in their official capacities and against Leslie Smith in his individual capacity. Aref, 953 F.Supp.2d at 138. At the motion to dismiss stage, the district court found the PLRA barred plaintiffs' individual-capacity claims and dismissed McGowan's equitable claims as moot because he had been released from BOP custody. See id. at 142-44, 147-49.[4]

         Defendants then filed motions for summary judgment on the remaining claims: Jayyousi and Aref's official-capacity due process claim and Jayyousi's First Amendment retaliation claim. In March 2015, the district court granted summary judgment in favor of defendants, finding plaintiffs lacked any liberty interest sufficient to trigger due process protections and that Jayyousi's First Amendment rights were not violated. See Aref v. Holder, No. 10-cv-0539, 2015 WL 3749621 at *1, *8-*9 (D.D.C. Mar. 15, 2015). Plaintiffs timely appealed.[5]


         We review the district court's grant of summary judgment de novo. See Pharm. Research & Mfrs. of Am. v. Fed. Trade Comm'n, 790 F.3d 198, 204 (D.C. Cir. 2015). In doing so, we must "view the evidence in the light most favorable to the non-moving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence." Baumann v. District of Columbia, 795 F.3d 209, 215 (D.C. Cir. 2015). We also review the district court's dismissal of appellants' individual-capacity claims de novo. See Kimberlin v. U.S. Dep't of Justice, 318 F.3d 228, 231 (D.C. Cir. 2003).


         Since this lawsuit's inception, the government has urged at least some if not all of plaintiff-appellants' arguments are moot because they were removed from the CMUs years ago. The parties agree McGowan's official-capacity claims are mooted by his full release from BOP custody, see Aref, 953 F.Supp.2d at 142-43, so we consider only whether Aref and Jayyousi's transfer into general population moots their claims.

         The mootness doctrine ensures compliance with Article III's case and controversy requirement by "limit[ing] federal courts to deciding actual, ongoing controversies." Am. Bar Ass'n v. Fed. Trade Comm'n, 636 F.3d 641, 645 (D.C. Cir. 2011). Accordingly, mootness must be assessed at "all stages" of the litigation to ensure a live controversy remains. 21st Century Telesis Joint Venture v. FCC, 318 F.3d 192, 198 (D.C. Cir. 2003). A case is moot if our decision "will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Am. Bar Ass'n, 636 F.3d at 645.

         The government argues that, because it has been years since any appellant was housed in a CMU, the appellants cannot identify any current injury for which this court can provide effective relief. While "[n]ormally[] a prisoner's transfer or release from a prison moots any claim he might have for equitable relief arising out of the conditions of his confinement in that prison, " Scott v. District of Columbia, 139 F.3d 940, 941 (D.C. Cir. 1998), appellants point to the likelihood of redesignation from general population to a CMU. See, e.g., Aref, 774 F.Supp.2d at 158 ("McGowan was designated to a CMU, transferred back into the general population and then redesignated to a CMU."). Appellants have also challenged BOP's reliance on flawed information used to justify their CMU designations, which remains in their prison files. See Rezaq v. Nalley, 677 F.3d 1001, 1009 (10th Cir. 2012) (holding prisoners' claims not mooted by transfer out of maximum security facility because, "[e]ven though the new transfer policies may provide adequate process, the case is not moot if the BOP made decisions under the old policies that have ongoing, long-term consequences for the plaintiffs that could be mitigated by an award of prospective relief").

         We need not decide that issue, however, because a defendant's voluntary cessation of allegedly unlawful conduct can moot a case only if (i) "there is no reasonable expectation . . . that the alleged violation will recur, " and (ii) "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Am. Bar Ass'n, 636 F.3d at 648. The government bears the "heavy" burden of showing it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis added). We agree with the district court that the government has not met this high bar. Moreover, as the district court observed, appellants are challenging the procedure used for designation-so even if new information would be needed to return them to the unit, they have not "obtained all the relief" they seek in their complaint with respect to the designation process. Schmidt v. United States, 749 F.3d 1064, 1068 (D.C. Cir. 2014). We therefore conclude the voluntary cessation exception applies and proceed to consider appellants' claims on the merits.[6]


         Having found jurisdiction, we turn now to appellants' due process claim. The Fifth Amendment ensures no individual is "deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. Appellants challenge as inadequate the procedures used to designate them to the CMUs, claiming their transfer and lengthy placement in the units deprived them of their liberty in violation of the Constitution. Outside the penal context, we simply would evaluate the procedures under the now familiar Mathews v. Eldridge balancing test: first identifying the liberty interest at stake, then considering the risk of erroneous deprivation under existing procedures, and finally weighing the government's interest against the burdens any additional process would entail. See424 U.S. 319, 335 (1976); Lepelletier v. Fed. Deposit Ins. Corp., 164 F.3d 37, 45-46 (D.C. Cir. 1999). This first step is complicated, however, by ...

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