Aref v. Lynch

• Decision Date: 19 August 2016
• Docket Number: No. 15–5154,15–5154
• Parties: Yassin Muhiddin Aref, et al., Appellants, v. Loretta E. Lynch, Attorney General of the United States, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

833 F.3d 242

Yassin Muhiddin Aref, et al., Appellants,

v.Loretta E. Lynch, Attorney General of the United States, et al., Appellees.

No. 15–5154

United States Court of Appeals, District of Columbia Circuit.

Argued March 15, 2016

Decided August 19, 2016

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, Washington, DC, 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, Washington, DC. 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.

I.

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 Director³ 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 Fed.Appx. 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...