Mohammed v. Holder
| Decision Date | 17 June 2014 |
| Docket Number | Civil Action No. 07–cv–02697–MSK–BNB |
| Citation | 47 F.Supp.3d 1236 |
| Parties | Khalfan Khamis Mohammed, Plaintiff, v. Eric Holder, The U.S. Attorney, Harley Lappin, Director of B.O.P., Ron Wiley, ADX Warden, and Harrell Watts, Administrator of National Inmate Appeals, and Federal Bureau of Investigation, Defendants. |
| Court | U.S. District Court — District of Colorado |
Paul David Wolf, Attorney at Law, Denver, CO, for Plaintiff.
Carlotta P. Wells, David Michael Glass, Kyle R. Freeny, Washington, DC, Susan Begesse Prose, Juan Gonzalo Villasenor, U.S. Attorney's Office, Denver, CO, for Defendants.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
THIS MATTER came before the Court for a bench trial on May 5 to May 8, 2014. Having considered the evidenced and arguments presented, the Court makes the following findings of fact and conclusions of law, as well as resolving (implicitly, if not explicitly) the remaining pending motions in this matter (# 343, 352, 354, 359, 367, 387).
Mr. Mohammed is a terrorist currently serving a sentence for his participation in the bombing of the U.S. embassy in Tanzania. He is housed at the Federal Bureau of Prisons' (“BOP”) Administrative Maximum facility (“ADX”) in Florence, Colorado. He objects to certain Special Administrative Measures (“SAMs”) imposed upon him. SAMs are imposed pursuant to 28 C.F.R. § 501.3(a), which provides that the Attorney General of the United States may direct the BOP to “implement special administrative measures” upon the Attorney General's conclusion “that there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury” to others. These special measures “may include ... limiting certain privileges, including, but not limited to, correspondence, visiting, ... and use of the telephone.” Id. The SAMs at issue limit Mr. Mohammed's communications with members of his family and his friends. Mr. Mohammed contends that these restrictions violate his rights to freedom of speech and freedom of association guaranteed by the First Amendment to the United States Constitution.
There are several issues to be resolved. First, the Court must define the nature of Mr. Mohammed's claim and the standard of review. Second, the Court must determine the scope of evidence to be considered. Finally, the standard of review must be applied to the applicable record.
The first difficulty faced by the Court is defining the precise character of Mr. Mohammed's claim. Originally, he asserted claims with regard to his detention both against individuals and agencies—the BOP and FBI. In his closing arguments at trial, he clarified that he asserts his claims only against the named Defendants in their official, not individual, capacities and that he seeks no monetary relief, only prospective injunctive relief.
The Court had assumed Mr. Mohammed's claims were in the nature of those arising under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which recognizes “an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.” Correctional Serv's. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). Although sometimes described as a federal analogue to 42 U.S.C. § 1983, see e.g. King v. Federal Bureau of Prisons, 415 F.3d 634, 636 (7th Cir.2005), these type of claims are actually narrower. The United States Supreme Court in Malesko, expressly noted that Bivens type claims had been recognized in alleged violations of the 5th Amendment's Due Process clause and the 8th Amendment's Cruel and Unusual Punishments clause. 534 U.S. at 68–70, 122 S.Ct. at 519–20. It emphasized that these extensions were intended to “provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer's unconstitutional conduct,” and cautioned that “we have consistently refused to extend Bivens liability to any new context or new category of defendants.” Id. at 68, 122 S.Ct. at 520 (emphasis in original). The 10th Circuit has “note[d]” the Supreme Court's narrow construction of Bivens in subsequent opinions. See e.g. Reyes v. Sedillo, 222 Fed.Appx. 753, 754 (10th Cir.2007). In light of Mr. Mohammed's clarification in his closing arguments, the Court agrees that Bivens is not applicable.
Mr. Mohammed argues that his claims arise under the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq. That statute grants a right of action to “a person suffering legal wrong because of agency action.” 5 U.S.C. § 702. Under the APA, a court may “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “contrary to constitutional right.” 5 U.S.C. § 706(2)(A), (B). APA claims are limited to those “seeking relief other than money damages” and may only be brought against federal officers in an official capacity. 5 U.S.C § 702. (This would necessarily require the dismissal of Defendants Wiley and Watts, who are not officers of a federal agency amenable to suit under the APA.)
Treatment of Mr. Mohammed's claims as an APA challenge is a colorable approach, but not an exact fit. Imposition of SAMs is an administrative decision made pursuant to 28 C.F.R. § 501.3(a). But, there are several administrative entities involved in the creation, adoption and enforcement of the SAMs. The decision to impose, modify, and maintain SAMs against Mr. Mohammed is made by the FBI. Its recommendation was considered and approved by the Department of Justice's Office of Enforcement Operations (“OEO”), which then directed the BOP to enforce the SAMs.
There is some suggestion that an administrative review of SAMs is appropriate in the provisions of 28 C.F.R. § 501.3(e). It directs inmates subject to SAMs, such as Mr. Mohammed, to “seek review of any special restrictions imposed ... through the Administrative Remedy Program, 28 CFR part 542.” The referenced Administrative Remedy Program is the process for challenging BOP policies, however it does not reach to decisions made by the FBI and OEO. Thus, the Court finds that administrative type of review under the APA is appropriate,2 but because it was not the BOP that made the decisions to implement the SAMs that are challenged, the Court will examine the sufficiency of the FBI/OEO's decisionmaking.
An APA review is “very deferential to the agency,” presuming that the agency's action is valid and permissible. This places the burden on Mr. Mohammed to defeat that presumption. Council Tree Investors, Inc. v. FCC, 739 F.3d 544, 555 (10th Cir.2014). The Court reviews legal questions de novo, but as to matters confined to the agency's discretion, the Court merely considers whether the agency has abused that discretion, as the Court “is not to substitute its judgment for that of the agency.” Id. To establish that a decision is “arbitrary and capricious,” Mr. Mohammed must show that “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, ordered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. To the extent Mr. Mohammed alleges that the Defendants' actions are “contrary to law” because they violate his First Amendment rights, the constitutional analysis is controlled by Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and its progeny.
Turner recognizes that “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it reasonably related to legitimate penological interests.” Id. at 89, 107 S.Ct. 2254 ; see Beard v. Banks, 548 U.S. 521, 528, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) ( ). Turner identifies four factors that inform that inquiry: (i) there must be a valid and rational connection between the regulation and the legitimate governmental interest put forward to justify it (put differently, the regulation may not be based on arbitrary or irrational goals)3 ; (ii) whether there are alternative means of exercising the right; (iii) the impact that accommodation of the asserted right would have on other inmates, guards, and on the allocation of prison resources generally; and (iv) the presence or absence of ready alternatives to the regulatory path chosen. Id. at 89–90, 107 S.Ct. 2254. The inmate bears the burden of persuasion on these factors. Beard, 548 U.S. at 529, 126 S.Ct. 2572.
The first question with regard to the evidence presented is whether Mr. Mohammed's background and history is relevant. The Defendants contend that the particular SAMs that are at issue are justified because Mr. Mohammed is a terrorist and his behavior continues to demonstrate his risk to the United States. As is set out more fully later in this opinion, there is no issue as to whether Mr. Mohammed has properly been subjected to SAMs.4 The question is whether the specific SAMs imposed were arbitrary and capricious. Thus, the Court will consider the following background information only insofar as it bears on the particular SAMs at it issue.
Mr. Mohammed was one of several conspirators affiliated with the terrorist group al-Qaeda that participated in the bombing of the U.S. Embassy in Dar es Salaam, Tanzania on ...
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