Kimberlin v. U.S. Dept. of Justice, 021103 FEDDC, 01-5387

Docket Nº:01-5387
Party Name:Kimberlin v. U.S. Dept. of Justice
Case Date:November 18, 2002
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit




No. 01-5387


Argued November 18, 2002


February 11, 2003

Appeal from the United States District Court for the District of Columbia (No. 97cv02633)

Arthur B. Spitzer argued the cause for the appellants.

Robin M. Earnest, Assistant United States Attorney, argued the cause for the appellees. Roscoe C. Howard, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on brief.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed Per Curiam.

Concurring opinion filed by Circuit Judge HENDERSON.

Separate opinion concurring in part and dissenting in part filed by Circuit Judge TATEL.

PER CURIAM: The appellants, Brett C. Kimberlin and Darrell Rice are, respectively, a former inmate and a current inmate of the Federal Correctional Institution in Cumberland, Maryland (Cumberland).1 Kimberlin and Rice appeal an order of the district court dismissing in part their challenge to Bureau of Prisons (BOP) regulations that prohibit federal inmates from possessing electric or electronic musical instruments (other than for religious purposes). See Kimberlin v. Dep't of Justice, 150 F.Supp.2d 36 (D.D.C. 2001). The appellants contend the regulations both exceed the BOP's statutory authority, in violation of the Administrative Procedure Act (APA), and infringe their rights under the First Amendment to the United States Constitution to freedom of (musical) expression. We conclude the district court correctly rejected each contention.

On July 26, 1995 a then congressman from New Jersey introduced a budget rider (Zimmer Amendment) to prohibit the use of appropriated funds to provide for several enumerated ''amenities or personal comforts in the federal prison system,'' including ''the use or possession of any electric or electronic musical instrument.'' 147 Cong. Rec. H7751, H7768 (July 1995) (statement of Rep. Zimmer)

On November 15, 1995 the BOP issued a memorandum ''providing guidance to wardens on how provisions of the Zimmer Amendment will be implemented in all [BOP] institutions.'' JA 50. The memorandum expressly noted that, while ''[p]rovisions of the Zimmer Amendment relate only to the use of appropriated funds,'' given the BOP's ''understanding of the intent,'' ''the guidance provided [in the memorandum] ... may vary slightly from a literal reading of the amendment.'' Id. With regard to electric and electronic musical instruments, the memorandum provides:

Use or Possession of any Electric or Electronic MusicalInstrument:

This section prohibits the use of funds for inmates' use or possession of electric or electronic musical instruments.

1. Institutions which currently have electric or electronic instruments may retain these instruments. No appropriated funds will be used to purchase new or to repair existing equipment.

2. New institutions will not purchase electric or electronic instruments.

3. Trust Fund profits or inmate organization funds will not be used to purchase or repair electric or electronic equipment. Donations of these types of instruments will not be accepted.

4. The only authorized exception is electric or electronic equipment which is used in conjunction with religious activities, stored in the chapel area and is under the supervision of the Religious Services Department. Appropriated funds may be used to purchase or maintain such equipment in all BOP facilities.

JA 54-55.

On December 28, 1995 the BOP issued an ''Institution Supplement'' for Cumberland (No. CUM 5370.08),2 which directed that ''[t]he only musical instrument an inmate may possess is a harmonica,'' with the proviso that ''[i]nmates with authorized possession of a guitar or keyboard at the time this supplement is issued may retain possession of the instrument while at this institution.'' The document also recited that ''the institution will provide a limited number of musical instruments for the music program.'' No. CUM 5370.08 at 3-4.

On April 26, 1996 the Congress enacted the Zimmer Amendment as section 611 of the Omnibus Budget Act of Fiscal Year 1997, Pub. L. No. 104-208, 110 Stat. 3009, § 611. The enacted language, identical to that initially proposed by Representative Zimmer, was as follows:

None of the funds made available in this Act shall be used to provide the following amenities or personal comforts in the Federal prison system-

(1) in-cell television viewing except for prisoners who are segregated from the general prison population for their own safety;

(2) the viewing of R, X, and NC-17 rated movies, through whatever medium presented;

(3) any instruction (live or through broadcasts) or training equipment for boxing, wrestling, judo, karate, or other martial art, or any bodybuilding or weightlifting equipment of any sort;

(4) possession of in-cell coffee pots, hot plates, or heating elements; or

(5) the use or possession of any electric or electronic musical instrument.

The Zimmer Amendment has since been regularly incorporated into appropriations acts in identical form. See Pub. L. No. 107-77, 115 Stat. 748 (fiscal year 2002); Pub. L. No. 106-113, 113 Stat. 1501, § 611 (fiscal year 2000); Pub. L. No. 105-277, 112 Stat. 2681, § 611 (fiscal year 1999); Pub. L. No. 104-134, 110 Stat. 1321, § 611 (fiscal year 1998).

On December 28, 1996 the BOP issued another ''Institution Supplement'' (No. CUM 5370.08A) setting out the same restrictions on musical instruments as No. CUM 5370.08 except that the grandfather proviso was revised to prohibit retention of previously authorized guitars or keyboards as of November 1, 1997. No. CUM 5370.808A at 3-4 .

Appellant Kimberlin filed an initial complaint in this action on November 7, 1997. The amended complaint, filed on behalf of both appellants on May 17, 2001, alleged that the BOP musical instrument regulations violate the APA and infringe the appellants' First Amendment rights to express themselves musically (specifically by playing electric guitars) and, insofar as they make an exception for use of electric/electronic musical instruments in conjunction with religious activity, their Fifth Amendment rights to equal protection.

In a memorandum opinion and order dated May 22, 2001 the district court granted the BOP's motion to dismiss the complaint's APA and First Amendment claims and granted summary judgment in favor of Kimberlin and Rice on the Equal Protection claim. Kimberlin and Rice appeal the dismissal.3


'' 'On appeal, we review the dismissal of the plaintiffs'.... complaint de novo, Moore v. Valder, 65 F.3d 189, 196 (D.C. Cir. 1995), and ''accept all of the factual allegations in [the] complaint as true,'' ' United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 540, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)).'' Sloan v. HUD, 236 F.3d 756, 759 (D.C. Cir. 2001) (alteration original). Applying this standard, we conclude the district court's dismissal should be affirmed.

The appellants first contend the challenged regulations exceed the BOP's statutory authority, and therefore violate the APA, because the Zimmer Amendment prohibits only expenditure of public funds on electric and electronic instruments, not their mere possession by inmates. In reviewing the BOP's interpretation of the Zimmer Amendment, we use the familiar Chevron analysis:

If ... '' 'Congress has directly spoken to the precise question at issue,' '' we ''must give effect to Congress's 'unambiguously expressed intent.' '' Secretary of Labor v. [Fed. Mine Safety & Health Review Comm'n], 111 F.3d 913, 917 (D.C. Cir. 1997) (quoting Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)). ''If 'the statute is silent or ambiguous with respect to the specific issue,' we ask whether the agency's position rests on a 'permissible construction of the statute.' '' Id. (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694).

National Multi Housing Council v. EPA, 292 F.3d 232, 234 (D.C. Cir. 2002) (quoting Cyprus Emerald Resources Corp. v. Fed. Mine Safety & Health Review Comm'n, 195 F.3d 42, 45 (D.C. Cir.1999)). We conclude the BOP's absolute ban on electric and electronic musical instruments reflects, at a minimum, a reasonable interpretation of the Zimmer Amendment under Chevron.

As the BOP points out, Appellees' Br. at 15-16, the express language of the Zimmer Amendment supports its interpretation because the ban on using appropriated funds for ''the use or possession'' of electric and electronic instruments may reasonably be construed to prohibit paying for costs incidental to such use or possession, notably, those incurred for storage, supervision and electricity. Cf. Envtl. Def. Ctr. v. Babbitt, 73 F.3d 867, 871-72 (9th Cir. 1995) (holding ''use of any government resources-whether salaries, employees, paper, or buildings-to accomplish a final listing [of a species as endangered] would entail government expenditure'' and therefore would run afoul of statutory moratorium on spending for such purpose). Further, the blanket ban on electric and electronic instruments is consistent with the rationale underlying the amendment, as announced by its sponsor, that ''[p]risons should be places of detention and punishment'' and that ''prison perks undermine the concept of jails as deterrence.'' 147 Cong. Rec. at H7768; see Nat'l Sec. Archive v. United States Dep't of Def., 880 F.2d 1381, 1384-85...

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