United States Court of Appeals, District of Columbia Circuit
March 15, 2016
from the United States District Court for the District of
Columbia (No. 1:10-cv-00539)
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
Jonathan Hafetz was on the brief for amicus curiae Seton Hall
University School of Law Center for Social Justice in support
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.
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.
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.
Communication Management Units
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.
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.
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
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. 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." 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. §
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 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.
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.
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.
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
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.
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.
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.
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.
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.
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
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).
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.
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.
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").
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.
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 ...