Robinson v. Palmer

• Decision Date: 18 March 1988
• Docket Number: 86-5166,Nos. 86-5093,s. 86-5093
• Citation: 841 F.2d 1151
• Parties: Ada ROBINSON, et al. v. James F. PALMER, Director, Department of Corrections, et al., Appellants. Ada ROBINSON and Albert Robinson, Appellants, v. James F. PALMER, Director, Department of Corrections, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1151

841 F.2d 1151

268 U.S.App.D.C. 326

Ada ROBINSON, et al. v. James F. PALMER, Director, Department of Corrections, et

al., Appellants.

Ada ROBINSON and Albert Robinson, Appellants, v. James F. PALMER, Director, Department of Corrections, et al.

Nos. 86-5093, 86-5166.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 20, 1987.

Decided March 18, 1988.

Michael G. Roberts, with whom Jeffrey F. Lawrence, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief for Robinson, et al. appellees in No. 86-5093 and cross-appellants in No. 86-5166.

Karen S. Dworkin, Asst. Corp. Counsel, with whom James R. Murphy, Acting Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief for Palmer, Director, Dept. of Corrections, et al. appellants in No. 86-5093 and cross-appellees in No. 86-5166.

Before GINSBURG and BUCKLEY, Circuit Judges, and FAIRCHILD ^*, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

Albert Robinson is a prisoner incarcerated in the District of Columbia Department of Corrections' (Department) facility in Lorton, Virginia. The visiting privileges of his wife, Ada Robinson, were suspended for one year when she attempted to bring a quantity of marijuana, wrapped in a plastic bag secreted in her undergarments, into the prison. Eleven months later, the Department amended its contraband policy directive to prescribe permanent suspension of the visiting privileges of anyone who attempts to introduce contraband into a Department institution. Mrs. Robinson was not permitted to resume visits with her husband when the initial one-year suspension term elapsed. She and her husband thereupon commenced this action seeking reinstatement of her visiting privileges and damages; they alleged deprivation of several constitutional rights, and failure to promulgate the permanent suspension policy pursuant to the notice and comment requirements of the District of Columbia Administrative Procedure Act (D.C.APA).

Citing dispositive precedent, the district court rejected all but one of the Robinsons' constitutional claims, and it declined to rule on the D.C.APA claim. The court held for the Robinsons to this extent: it concluded that Mrs. Robinson had a protected liberty interest in recommencing visits after one year's suspension, and that the fixed term could not be converted into a permanent ban without according her notice and an opportunity to be heard. We affirm to the extent that the district court rejected the Robinsons' other constitutional claims, and reverse that court's disposition to the extent that it determined Mrs. Robinson had a constitutionally protected expectation that suspension of her visiting privileges would be limited to one year. Further, we remand the case with instructions to dismiss, without prejudice, the D.C.APA claim.

I.

On March 8, 1983, Ada Robinson, wife of prisoner Albert Robinson, was apprehended at Lorton's Central Facility with marijuana in her possession. Department officials Salanda V. Whitfield and James W. Freeman thereupon notified her:

This is to advise you that your visiting privileges at all District of Columbia Department of Corrections Facilities have been suspended for a period of one year....

You may apply in writing for reinstatement of your visiting privileges after March 8, 1984....

Letter from Salanda V. Whitfield and James W. Freeman to Ada D. Robinson (Mar. 8, 1983), reprinted in Record Excerpts (R.E.) at Tab 3, Exhibit 1. A 1978 Department directive, still in force at the time of Mrs. Robinson's suspension, provided that "[l]egal or administrative sanctions are exercised against those who either attempt to introduce or are in possession of contraband." Department Service Order No. 5010.3B, p 5(e), June 28, 1978, quoted in Robinson v. Palmer, 619 F.Supp. 344, 346 (D.D.C.1985).

A month before expiration of the one-year suspension initially imposed on Mrs. Robinson, the Department amended the 1978 directive to provide:

Any visitor who introduces contraband or attempts to introduce contraband into a Department of Corrections Institution will be permanently suspended from all Department of Corrections Facilities.

Service Order No. 5010.3B, Change Transmittal 1, February 6, 1984, reprinted in R.E. at Tab 3, Exhibit 3. ¹ Both Albert and Ada Robinson wrote to James F. Palmer, the Department Director--Albert in February and Ada in March 1984--requesting reinstatement of Mrs. Robinson's privileges. By letter dated February 29, 1984, the Director informed Albert Robinson that his wife was "permanently barred ... based on her attempt to introduce contraband." Letter from James F. Palmer to Albert Robinson (Feb. 29, 1984), reprinted in R.E. at Tab 3, Exhibit 5. The Director wrote Mrs. Robinson:

I am concerned about preventing contraband from entering the Department institutions. Therefore, your suspension of visting [sic] privileges will remain in effect.

Letter from James F. Palmer to Ada D. Robinson (Apr. 9, 1984), reprinted in R.E. at Tab 3, Exhibit 6. ²

Endeavoring to achieve reinstatement of Mrs. Robinson's permission to visit, Ada and Albert Robinson, in April 1984, commenced the instant action. Seeking injunctive and declaratory relief as well as damages under 42 U.S.C. Sec. 1983, they named as defendants Corrections Department Director James F. Palmer, and two Department officials, Salanda V. Whitfield and James W. Freeman. ³ In addition to asserting that the permanent withdrawal of Mrs. Robinson's visiting privileges trenched impermissibly on the Robinson's first, fifth, eighth, and ninth amendment rights, the complaint asserted noncompliance with the D.C.APA, D.C.Code Secs. 1-1501 et seq.

The district court disposed of the case, pursuant to the parties' cross motions for summary judgment, in two successive published opinions: Robinson v. Palmer, 619 F.Supp. 344 (D.D.C.1985); and Robinson v. Palmer, 631 F.Supp. 52 (D.D.C.1986). Of the various constitutional claims the Robinsons asserted, the district court found merit in only one. As that court stated its ruling, the Whitfield-Freeman March 8, 1983 letter

gave Mrs. Robinson a protected interest and expectation that suspension of her visitation privileges would be limited to one year. That suspension could not be permanently extended without notice and without affording her an opportunity to be heard.

Robinson v. Palmer, 619 F.Supp. 344, 350 (D.D.C.1985). To implement this ruling, the court ordered the defendant Department officials to convene a hearing for "purposes of justifying the decision to suspend permanently the visitation privileges of the plaintiff, Ada Robinson." Order, Robinson v. Palmer, No. 85-1044 (D.D.C. Aug. 8, 1985), reprinted in R.E. at Tab 1. The court deferred ruling on the D.C.APA claim, and it awarded nominal damages of one dollar under 42 U.S.C. Sec. 1983 based on its conclusion that Mrs. Robinson had been denied procedural due process. Id.; see 619 F.Supp. at 350-51.

After an August 27, 1985 hearing at which Department Director Palmer presided, the Department adhered to its decision to bar Mrs. Robinson from visiting D.C. penal facilities. Both sides then renewed their motions for summary judgment. The court granted the Robinsons' motion, stated that adequate relief could be afforded plaintiffs without passing on their D.C.APA claim, and ordered Mrs. Robinson's visiting rights restored. Robinson v. Palmer, 631 F.Supp. 52 (D.D.C.1986). No "valid justification or reason" has been presented for retroactively imposing on Mrs. Robinson the revised contraband policy, the court declared, id. at 55; nor did Department Director Palmer, who chaired the hearing, serve as an impartial decisionmaker, the court added. Id. at 56.

Both sides appealed. The Department defendants challenge the determination underpinning all the relief granted to the plaintiffs; they assert that Mrs. Robinson had no protected liberty interest in the restoration of her visiting privileges. The Robinsons challenge the rejection of their first amendment/marital association rights claim. Conditionally, i.e., only if we reject their constitutional claims, the Robinsons urge us to instruct the district court to rule on issues they raise under the D.C.APA.

II.

We hold that, under governing Supreme Court precedent, Mrs. Robinson had no constitutionally-shielded liberty interest in the restoration of her visiting privileges. We therefore reverse all district court rulings tied to the conclusion that she possessed such an interest. We further hold, in accord with the district court, that the Robinsons' first amendment/right to sustain a marriage relationship claim must be rejected, and that--in view of the dismissal of all their federal claims--the Robinsons' D.C.APA contentions should not be adjudicated in a federal court.

A. The Alleged Liberty Interest

The district court held that the Department's March 8, 1983 letter "gave Mrs. Robinson a [constitutionally] protected interest and expectation that suspension of her visitation privileges would be limited to one year." 619 F.Supp. at 350. We find that determination incorrect. The March 8, 1983 Whitfield-Freeman letter, we do not doubt, led the Robinsons to expect that Mrs. Robinson's suspension would last only one year. Director Palmer's subsequent February 29 and April 9, 1984 letters to the Robinsons just as surely disappointed those expectations. But expectation of a benefit is not enough to generate a liberty interest protected by the Constitution. See, e.g., Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981) (felon's expectation that his sentence will be commuted is "simply a unilateral hope"); Meachum v. Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976) (felon's expectation that he will remain at a particular prison too "insubstantial"...