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Case number 12-5361, Darrell James DeRue, Appellant versus Atwood, Bureau of Prisons Trust Fund Manager at ELLE.

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Mr. Satten for the amicus cari, Mr. F.D.

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Bonnejo for the appellees.

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Good morning.

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May it please the court, Michael Satten, counsel for amicus in favor of appellant.

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I'd like to reserve two minutes for rebuttal.

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In our brief, we addressed three issues.

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sovereign immunity, exhaustion under the Prison Litigation Reform Act, and the reasonableness of one FOIA search.

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During my argument, I'd like to focus mostly on the exhaustion issue, but before I do that, I want to briefly address the other two issues.

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On the issue of sovereign immunity, the District Court dismissed Mr. Debru's complaint on sovereign immunity grounds based on its belief that it was a suit only for money damages.

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But Mr. Debru's suit also sought equitable relief.

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And sovereign immunity is waived for suit seeking equitable relief.

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On FOIA, on the FOIA issue, the district court relied on the affidavit of Wilson Moore.

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And the law in this jurisdiction is clear that an affidavit must be reasonably detailed, which means that it must include the search terms and the type of search performed,

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And it must state that all files likely to contain responsive materials were searched.

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And that did not happen here.

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The declaration of Wilson Moore, the third declaration of Wilson Moore.

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This is for the documents relating to the 408?

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Is it called code 408?

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Correct.

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Code 408 is the term.

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What about the memos for the DNA Act?

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What's your response to

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You all didn't pursue them.

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He didn't follow up, right?

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We didn't pursue that one, right.

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Are you abandoning it altogether?

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Well, we're presenting the arguments we think are the clear cut winners for Mr. Debru.

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He certainly raised that one in his own brief, so it's still an issue.

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There'd be nothing preventing him from asking for them tomorrow, right?

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That's correct.

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That's always the case in FOIA.

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If the case gets dismissed, he can always file another FOIA complaint.

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But at least with respect to Code 408, we are very much presenting that argument.

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And the reason is, as I said, that the affidavit that was presented, which is the only thing the district court relied on, it doesn't state the search terms that were used.

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It just identified the people involved in the search, right?

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Right.

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Just who did it, why they did it, and what they found.

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But they never state how they went about doing those searches.

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So clearly the FOIA search was not reasonable with respect to Code 408.

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Can I ask you a question?

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Can Mr. De Bru be appointed counsel when he can't proceed, for the certification purposes, when he can't proceed in former paupers?

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Well, I think appointment of counsel is always an appropriate possibility, and I think there's a number of factors.

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Well, he three strikes out.

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He can't succeed under any form of property.

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He can't be appointed counsel.

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Doesn't that take care of the class certification issue?

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As I understand the local rules on appointment of counsel, there's a number of factors to consider.

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One of them is the inability of the pro-state party to retain counsel.

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the question of whether or not the three strikes that would apply to that.

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But that's not a dispositive factor.

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There are other factors at issue under that standard.

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The nature and complexity of the case, the merit of the pro se party's claims, whether the interest of justice would be served by the appointment of counsel.

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So we would submit that.

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So you think it's an open question whether you can be appointed counsel but not under informer-pauperist?

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Correct.

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I see.

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We do.

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And interestingly enough, the district court

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did not deny appointment of counsel in this case.

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It initially did, but it did so in an order in which the court also dismissed the case, but later vacated that order.

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So as the record stands below right now, the court hasn't ruled on his appointment of counsel.

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But our position is once this case gets remanded, in our view it should be remanded, then the district court should consider the

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appointment of counsel based on those four factors that the local rules provide.

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And then once local counsel is provided to him, that counsel can decide whether or not class certification should be pursued, and the district court can make that determination.

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With respect to the exhaustion issue I'd like to spend the rest of my time on, the district court held that Mr. De Bru failed to exhaust remedies for two of his claims.

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the interest retention on the trust fund accounts and prices of goods.

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I would point out, because this is where the government and we disagree, the district court did not rule that he had failed to absolve on the Code 408 claim.

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We pointed that out in a couple of our footnotes in our brief, but we did not address

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did not find that there was a failure to exhaust.

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But on the other two claims, the district court found a failure to exhaust based on two reasons.

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What did the district court say about 408?

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Didn't address it.

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Nothing.

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That's right.

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OK.

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And I think the record, though, shows for Code 408 that the general counsel below had addressed the merits and denied it on the merits.

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So it makes sense that the district court would not have addressed that issue, not found a failure to exhaust with respect to the 408.

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It was only, I believe, in a declaration of the government that they determined that there was a failure to exhaust Pro-408.

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The district court didn't make that finding.

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And the finding, the determination by the government's action is simply wrong, because the D.O.P.

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had reached the merits on that particular case.

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So wouldn't it have been appropriate for the district court to reach the merits?

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Well, on Code 408, it doesn't appear anywhere in the opinion, is that correct?

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Code 408 does not appear anywhere in the district court's opinion, does it?

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With respect to the exhaustion, if that's correct.

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Okay, and does it appear with respect to anything else?

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to address those claims in which it specifically found that it was a failure to adopt.

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And the record is clear down below that the general counsel of the DOP had reached the merits with respect to that claim.

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On the two other claims, the district court gave two reasons.

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One, that his appeal to the general counsel was late, and second, that he failed to attach the regional director's response.

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And the district court was wrong with respect to both of those.

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As to lateness,

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if the government, in their brief, concedes, quote, the BOP had excused his untimely.

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The government had not pursued that argument before the district court, even though the district court made its finding.

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And that makes sense, because the BOP's grievance system, in saying that timelines, allows flexibility.

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Though there's 30 days to file that appeal, it says that those deadlines, those timelines, can be extended when the inmate gives a valid reason for the delay.

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And that's what happened in this particular case.

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After Mr. Debru filed his first appeal to the general counsel, and it was rejected, in his subsequent appeals, he explained to the reason that why he filed it when he did.

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And then after that, the BOP, though they continued to reject his appeal, they did not do so based on any timeliness.

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But timeliness is not an issue here.

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as the government themselves recognized.

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So the real issue here is whether or not Mr. Cabroux's failure to attach the regional director's responses to his fourth level of appeal amounts to exhaustion or not.

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And in this case, it's not really a failure to do so, it's his inability to do so.

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He was unable to attach those responses, and as a result, those administrative remedies were not available to him.

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After Mr. Debru filed his BP-10 appeal, the third level appeal, he'd gone to the first level without any incident, the regional director said they'd respond by early October.

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On September 15, 2007, Mr. Debru got what appeared to be two responses from the regional director.

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And he got them just as he was about to board the bus to go to another person.

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Now, he received two letters in the mail.

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He had filed six claims.

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So at that point, he didn't actually know which of the two claims he had just received a response from.

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He didn't know if it were the two that we're discussing here or four other ones.

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In any event, knowing that he could not take them with him on the bus, he returned them to the mail room or gave them back to the person who had given them to him because he knew that under prison regulations, they should be forwarded to the next location where

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the bus, he gets there, he never received those documents, so eventually he files his BP-11 appeal, his appeal to the general counsel, without those documents.

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He tried to obtain those forms, but he was unable to do so.

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After that first appeal was rejected, one reason was the untimeliness, but the other one, the fact that he had attached those regional directors responses, he filed a second appeal, and he explained the circumstance that he didn't have those documents.

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Meanwhile, he is seeking all along to try and obtain those documents.

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He wrote letters back to the mail room at the prison he was at, to the administrative remedy index clerk, the person who's in charge of these forms, trying to get them, the general counsel's office, the warden's office.

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He's doing everything in his power to try and obtain those documents, but he never does.

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So what we have here is not an individual who's trying to bypass the regulation, who's trying to go to court before he's supposed to, or who is negligent.

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We have an individual who is trying to comply with the regulation, and through no fault of his own, he was unable to do so.

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And so for that reason, the administrative remedy was simply not available to him, and he did not fail to exhaust.

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And there is another case.

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So is the government's response only that he received those two letters?

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That seems to be, as I understand their response, they claim he received them, which is wrong for two reasons.

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First of all, it's not clear that he actually received the two that pertained to this case, because we don't know if it was these two or the other four that he had filed about.

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But it's also wrong, because even if he had received those and opened them up as the government seems to think that he should have, because he was going on the bus at that moment, he couldn't take them.

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to his appeal.

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Notably, the government never says in a brief what Mr. Debruce should have done, given that he received them on the very moment that he's boarding the bus and was not allowed to take them with him.

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And the case before the court now is actually very similar to another case, Risher v. Lapin, a Sixth Circuit case.

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And the reason those cases are so similar is that, like Mr. DeBroux, the individual had gone through the first three levels of appeal without incident, he filed his fourth appeal to the general counsel without the regional director's response, because he didn't receive them.

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In that case, the sixth circuit said he had exhausted.

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He did everything he was supposed to do.

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The court used this language.

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Risher did not attempt to bypass the administrative grievance process detailed above.

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He affirmatively endeavored to comply with.

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And that's what we have here.

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Mr. De Bruyff, affirmatively attempting to comply with the procedures.

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And in fact, this case is easier to decide than that case because that

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for field would reject it.

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He never tried to get those regional directors' responses, even though the Sixth Circuit noted that he might have been able to do so.

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Here, Mr. Debru tried very hard to do that.

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In fact, I think he used the language in his brief at some point, which I think is correct, that he was relentless in trying to get those forms.

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He was unable to do so.

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So finally, after three levels of appeal to the general counsel, he brought his suit here in federal court.

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Could I ask you, the government raises a standing issue in its brief.

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Yes.

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You want to respond?

[00:12:37] Speaker 02:
Sure.

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Mr. Debru does have standing to present his claims.

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Constitutional standing requires three things.

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A concrete injury that's traceable to the government and can be redressed by a favorable decision.

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With respect to Code 408, he had concrete injuries.

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And there were three that were set forth in his complaint.

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He received disciplinary violations.

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He was ordered to remove his web page, and he couldn't use the mail with respect to his books or manuscripts.

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He clearly had injury with respect to Code 408.

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For the one, telephone prices and markups, he says that inmates are subject to high prices, high markups, high phone rates, high handling fees, and so forth.

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Mr. de Bruyck is an inmate at the prison.

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It's not as if this is a case that's being brought by some nonprofit organization on behalf of inmates.

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He is in prison, subject to those policies.

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And the same thing with the interest on trust fund accounts.

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He states that the Bureau of Prisons

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is taking inmates' interest in doing so without due process of law.

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So could I ask you, and I'll ask the government as well, do the Bureau of Prison Regulations establish trust funds for all prisons?

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My understanding is they do.

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They have trust funds.

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And then one of the issues with respect to the trust fund is whether or not the inmates are entitled to the interest on those trust funds.

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And there's actually a circuit split on that issue right now.

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I don't believe this court has addressed that issue.

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So there's injury.

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These injuries are traceable to government policies, the second prong of the standing issue.

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If those policies change with respect to the interest in the telephone, well, the injury would go away.

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They're traceable to government policies, and they can be redressed by this court if they found it in his favor, the district court found it in his favor.

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Now, I know this court affirmed part of his case and the part we affirmed

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included his request for the trust fund financial reports?

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Is that correct?

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I know this court affirmed part of the case.

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And in affirming, did we not affirm the denial of his FOIA request for the financial records for the inmate trust funds?

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That is one of the issues that the court, this court did say, did affirm, some area did affirm.

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So we have not made that indication.

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I understand.

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So to the extent the government argues that he hasn't shown any injury because he first has to show that these funds were used in a certain way that adversely affected him, has our affirmance

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disenabled him from obtaining the information the government says he needs.

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In other words, the affirmation with respect to FOIA?

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Well, he was asking for these financial records.

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And that part of the case is gone.

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But the government's brief now says that he can't show standing.

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unless he can show somehow that money in the Inmate Trust Fund was misused.

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And so my question is, how is he able to do that?

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Does he file another request?

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Well, I think the government has certainly rated the wrong

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It would be nice if he had that information.

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But I think the question, all he needs to show is that he is not receiving the interest on the trust fund account.

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Well, they cite a Sixth Circuit case, Washington versus Reno.

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So that's what I was alluding to.

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whether or not he has shown that the interest on those accounts is being taken from him as a deprivation of his property.

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Is that where his royalty check was deposited, do you know?

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In his inmate trust fund?

[00:17:04] Speaker 02:
Presumably that's where it would have gone, in his trust fund account.

[00:17:08] Speaker 05:
Thank you.

[00:17:11] Speaker 05:
Why don't we hear from Appoli and then we'll give you a couple of minutes in response.

[00:17:22] Speaker 04:
Good morning.

[00:17:24] Speaker 07:
Good morning, and may it please the Court.

[00:17:26] Speaker 07:
My name is Kenneth Adebanajah on behalf of the Government.

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Your Honour, the District Court's ruling should be affirmed because they are based on facts in the record and this circuit and other controlling rules specifically with regard to the

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the interest, retention of interest claim and the failure to exhaust administrative remedies.

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The district court specifically said that Mr. Debru was both untimely

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and he failed to attach the BP-10.

[00:18:10] Speaker 01:
How could he have attached that?

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What more could he have done?

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Normally when we talk about failure of his Gaussian there are steps that someone can take and they fail to do so.

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Now just tell me what he could have done differently than he did.

[00:18:23] Speaker 07:
The district court specifically addressed that and the district court said

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that he could have obtained a staff certification that his inability to meet the time requirement and or add the BP 10 was not his own fault.

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And the district court said that in the appellant's appendix at 297 and 298, also at

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the appendix of 205 and 206.

[00:18:52] Speaker 01:
What would that staff certification look like?

[00:18:55] Speaker 01:
I mean, he had verred himself that he had taken these steps.

[00:18:59] Speaker 07:
Well, Your Honor, thanks for asking that question.

[00:19:03] Speaker 07:
At AA 210, it's not a specific staff certification, but it is a letter

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that De Bru was able to obtain from a counselor at his institution that indicated that he had received some administrative remedy documents, I assume.

[00:19:21] Speaker 07:
So I assume that's what the document would look like.

[00:19:23] Speaker 07:
The letter that was given to him, the letter that denied his request,

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indicated that he could obtain the staff certification and he didn't do that.

[00:19:36] Speaker 07:
And presumably if he had done that... Did anybody mention that?

[00:19:41] Speaker 05:
He wrote all these letters.

[00:19:43] Speaker 07:
Pardon me?

[00:19:44] Speaker 05:
He wrote all these letters.

[00:19:46] Speaker 07:
Yeah, well, he didn't have to.

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He could have just gone.

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And I can't think of a better reason to get a staff certification than to say, when I was at that other place, I gave the BP10s that I received back to the mail handler and expected to receive it.

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And I didn't.

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I couldn't think of a better excuse or any reason why I feel.

[00:20:12] Speaker 01:
Is there a law that requires that?

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Is that something that we've required?

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of inmates before that they get this so-called staff certification.

[00:20:20] Speaker 07:
No, it's not, but it's in the regulation that permits him to have an alternative means to, just like the regulation also has other provisions that deal with timeliness.

[00:20:33] Speaker 07:
In this case, if he wasn't able to comply with the time requirement, probably maybe because of a transfer or some other reason, he could obtain the staff certification.

[00:20:43] Speaker 07:
And he was specifically advised that he could do that, and he didn't.

[00:20:47] Speaker 05:
It's a little odd here, since the record is

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in, it's your record, it's the Bureau of Prisons record.

[00:20:55] Speaker 07:
Actually, I believe that the staff certification or the letters that he received indicating that he could obtain the staff certification were in his motion for summary judgment.

[00:21:14] Speaker 05:
You agree these documents were in the possession of the Bureau of Prisons?

[00:21:19] Speaker 05:
Do you agree that the documents he failed to attach were in the possession of the Bureau of Prisons?

[00:21:30] Speaker 07:
I would assume that probably the regional office, considering that that was where the denial would have come from, probably had it.

[00:21:41] Speaker 07:
But I don't know whether his specific institution would have had it.

[00:21:46] Speaker 05:
Well, so I'm clear.

[00:21:47] Speaker 05:
The document he failed to attach, do you agree that was a Bureau of Prisons document?

[00:21:56] Speaker 07:
Yes.

[00:21:56] Speaker 05:
All right.

[00:21:57] Speaker 03:
Thank you.

[00:21:58] Speaker 03:
Counsel, one more time.

[00:22:00] Speaker 03:
What would the staff certification certify?

[00:22:05] Speaker 07:
It's basically supposed to say that the untimeliness is not the inmate's fault.

[00:22:11] Speaker 01:
And how would the staff know that?

[00:22:14] Speaker 01:
I'm just wondering how this takes place.

[00:22:15] Speaker 01:
He goes to them and says the following events took place.

[00:22:19] Speaker 01:
The same thing that he said that we have before us now.

[00:22:23] Speaker 01:
He says that to someone on staff and they make a judgment as to whether he's being truthful or not?

[00:22:29] Speaker 07:
Presumably that's how it works, but we don't know because he didn't try.

[00:22:34] Speaker 05:
What about in this case where

[00:22:36] Speaker 05:
Initially, the Bureau raised timeliness, but then in the last two go-rounds, it did not.

[00:22:42] Speaker 07:
I believe that the VOP waived timeliness as to two specific claims only.

[00:22:49] Speaker 07:
I think the fire codes and inmate pay, I believe.

[00:22:57] Speaker 07:
And the timeliness issue still existed as to the other.

[00:23:05] Speaker 03:
I'm sorry, the two, as to which it was raised, by which?

[00:23:10] Speaker 07:
He was able to, even within the midst of this inability, difficulty that he might have experienced, or that he alleges he experienced, he was able to exhaust the inmate pay claim, and I believe there was a fire codes claim, eight amendment file.

[00:23:29] Speaker 03:
Neither of those is in the current... Neither of those is in the court.

[00:23:33] Speaker 05:
And is the assumption that the regional director's denial, he received it when he requested it?

[00:23:42] Speaker 06:
I'm sorry, Your Honor.

[00:23:44] Speaker 05:
You say he was able to exhaust as to the fire codes and inmate pay.

[00:23:51] Speaker 05:
Correct.

[00:23:51] Speaker 05:
And is that because he received the regional director's denial and therefore was able to attach it?

[00:23:59] Speaker 07:
Correct, Your Honor.

[00:24:00] Speaker 05:
So some regional directors responded to his request and others didn't.

[00:24:05] Speaker 07:
I wouldn't say that, Your Honor.

[00:24:07] Speaker 07:
I would say that, even if... It's just odd.

[00:24:10] Speaker 05:
He's writing all these letters, including to the General Counsel.

[00:24:15] Speaker 07:
Well, this could have been cured simply by him making an attempt.

[00:24:19] Speaker 01:
It's not incumbent upon him... Or it could have been cured by them answering his letter.

[00:24:23] Speaker 07:
Yes.

[00:24:24] Speaker 07:
It's not incumbent upon him to prejudge what the outcome... Why didn't they answer the letter?

[00:24:29] Speaker 01:
It's a simple thing.

[00:24:30] Speaker 01:
Inmate writes a letter, answer the letter.

[00:24:34] Speaker 01:
But the, I presume that the reason- The staff certification, I just don't know what it means.

[00:24:39] Speaker 01:
Anyway.

[00:24:40] Speaker 07:
There's an example of a document that De Bruy was able to obtain, and that's AA 210.

[00:24:48] Speaker 07:
It's not a staff certification, but it's certainly the result of a memorial of a conversation he had with some counselor about obtaining some document.

[00:24:58] Speaker 01:
Do you agree with opposing counsel that Debru's complaint clearly asks for declaratory and injunctive relief?

[00:25:08] Speaker 07:
I wouldn't say clearly, Your Honor, but it appears that he did ask for it.

[00:25:12] Speaker 01:
So the sovereign immunity analysis of the district court on that regard is wrong.

[00:25:18] Speaker 07:
It's correct with regard to money damages.

[00:25:21] Speaker 01:
But that's not what I asked.

[00:25:22] Speaker 01:
With regard to the equitable relief, it's wrong.

[00:25:24] Speaker 01:
Correct.

[00:25:25] Speaker 01:
Now, on the Bivens claim, he tried to amend his complaint to allege that the individual officials were involved in the policy.

[00:25:40] Speaker 01:
He tried to amend his complaint to do that, correct?

[00:25:42] Speaker 07:
I don't know that he did that.

[00:25:48] Speaker 07:
and with regard so, and this is the absorption.

[00:25:51] Speaker 03:
Your brief, maybe I'm misreading this, but at twenty-five to six, your brief says, I want to make sure that I understand your, just this answer to Judge Griffith, you write, it now appears that because the district court's dismissal, he has backtracked, the group has backtracked, and is now arguing for the first time that he sought injunctive relief under the APA.

[00:26:13] Speaker 03:
You've just abandoned that proposition, right?

[00:26:17] Speaker 07:
To the extent that he sought equitable relief, he didn't mention the APA.

[00:26:25] Speaker 07:
I believe that was raised specifically by Amit.

[00:26:28] Speaker 03:
Okay, so the emphasis on that sentence is under the APA.

[00:26:32] Speaker 07:
That's what Amit was talking about.

[00:26:34] Speaker 03:
Declaratory and injunctive relief.

[00:26:37] Speaker 03:
You're saying not under the APA, is that it?

[00:26:39] Speaker 07:
I'm saying he could obtain equitable relief under the APA, which he didn't raise, but that amicus raised.

[00:26:47] Speaker 07:
And there's a case that addresses that issue, questions that amicus raised, that are raised by the first time by amicus.

[00:26:59] Speaker 07:
In that case, Elliott versus Department of Agriculture.

[00:27:04] Speaker 07:
That's at 596 SBB 842.

[00:27:08] Speaker 05:
De Bruyne didn't be... But I think back to Judge Griffith's question, that's not the reason that the district court ruled.

[00:27:21] Speaker 07:
The reason that the district court... District court said sovereign immunity.

[00:27:25] Speaker 07:
For money damages, correct.

[00:27:28] Speaker 03:
But dismissed without entirely, it didn't keep alive the claim for injunctive injury, correct?

[00:27:36] Speaker 07:
No, it did not.

[00:27:38] Speaker 03:
You acknowledge that was an error.

[00:27:43] Speaker 07:
No, the court didn't deal with the 408 issue from an equitable plaintiff's, De Bru's request for equitable relief.

[00:27:54] Speaker 03:
in which he says he seeks issue of preliminary injunction, et cetera, issue of declaratory judgment, et cetera, issue of declaratory judgment, that 408 violates the First Amendment and so on.

[00:28:05] Speaker 07:
Correct.

[00:28:06] Speaker 07:
And I will add, though, that De Bru did fight.

[00:28:10] Speaker 07:
There were two foray issues that De Bru raised or was disciplined for.

[00:28:19] Speaker 07:
The website and the telephone issue and the royalty check issue.

[00:28:24] Speaker 07:
Dabrou has raised both of those issues before the Third and Fourth Circuits.

[00:28:29] Speaker 07:
And the Third Circuit said that, in the discussion about the website, the Third Circuit said, I believe on Riman, the Western District said that Dabrou had, that the

[00:28:48] Speaker 07:
mail and website claims had been vacated against him because I think there was an issue of

[00:28:54] Speaker 07:
whether there were telephone records to substantiate the claim that he was, quote unquote, conducting a business.

[00:29:00] Speaker 07:
And on remand, those telephone records weren't located.

[00:29:06] Speaker 07:
So that charge was vacated.

[00:29:08] Speaker 07:
So to the extent that he raised the website claim and the phone and that he was asked to remove the website, it's in that case indicates that those claims,

[00:29:21] Speaker 05:
So I tried to follow up and find out what this Code 408 is.

[00:29:27] Speaker 07:
The Code 408 doesn't even exist anymore, which is another issue in fact.

[00:29:31] Speaker 05:
I know, but the response he received referred him to a Federal Register site, which I looked at that doesn't tell you anything.

[00:29:41] Speaker 05:
And then when I go to 334, that doesn't tell me anything either.

[00:29:46] Speaker 05:
In other words, I understand what operating a business is,

[00:29:51] Speaker 05:
But if I'm an author and I'm talking to my agent and my agent gets my book published and then I get a royalty check, is that what the Bureau of Prisons encompasses to be operating a business?

[00:30:07] Speaker 05:
That's what I was trying to find out and I couldn't find any guidance on that.

[00:30:13] Speaker 05:
And I think that's what he asked for.

[00:30:16] Speaker 07:
I think there was some issue about that because

[00:30:20] Speaker 07:
The BOP also has a policy that allows inmates to write manuscripts.

[00:30:26] Speaker 07:
And so there was an issue that might have been one of the reasons why the claim was vacated, why the disciplinary violation was vacated.

[00:30:38] Speaker 05:
So we ought to let the district court figure out what the status of this 408 matter is?

[00:30:47] Speaker 05:
It seems to be a moving target here.

[00:30:49] Speaker 07:
Well, no, because this court has already decided that Oral Age is constitutional and Barry vs. Hawke Sawyer.

[00:30:59] Speaker 01:
But does it apply to here, to when you're dealing with an agent?

[00:31:04] Speaker 01:
You've written a book and you're dealing with an agent.

[00:31:06] Speaker 01:
Is that operating a business?

[00:31:07] Speaker 07:
Under 408.

[00:31:10] Speaker 07:
Well, right now, the Regulation 334 says that you can operate a business, but you have to obtain staff authorization.

[00:31:21] Speaker 07:
So 408 doesn't exist anymore, which, based on what I've already said, this claim may very well be moved.

[00:31:29] Speaker 03:
It's not moved unless the discipline is revoked.

[00:31:33] Speaker 03:
The discipline for the website and telephone has been... Okay, but now with regard to the claim on operating a business because he received a royalty, he has a demerit or something in his file.

[00:31:49] Speaker 03:
As far as we know, it hasn't been removed.

[00:31:52] Speaker 07:
As far as I know, I haven't seen anything in the record.

[00:31:59] Speaker 03:
And if it had been, you would have said it's now moot, and you would probably be right.

[00:32:07] Speaker 07:
Well, but it could also be moot, because 408 doesn't exist anymore.

[00:32:12] Speaker 07:
Perhaps Dabrou should attempt to

[00:32:15] Speaker 03:
get staff authorization to conduct business under 334, and then he would have a... Well, if he's arguing in the district court that this discipline was applied under an unconstitutional standard, and the answer is the discipline has been revoked, that will presumably end the matter.

[00:32:37] Speaker 03:
But that discussion hasn't taken place.

[00:32:41] Speaker 07:
Not that I know of.

[00:32:43] Speaker 03:
I mean, to say he has to now go and file another complaint saying, in view of the change in the code, you should remove the discipline.

[00:32:53] Speaker 07:
That may be a process that leads to him actually obtaining... That may be one way to do it, but if he has a well-clad complaint here, he doesn't have to go another route because you've changed your system.

[00:33:10] Speaker 05:
Also, I looked at 334.

[00:33:13] Speaker 05:
It doesn't tell me anything about staff authorization, does it?

[00:33:18] Speaker 07:
My reading of it was that it says that with staff authorization.

[00:33:22] Speaker 05:
And so what do I need to do?

[00:33:24] Speaker 05:
Any staff?

[00:33:26] Speaker 05:
I mean, I'm an inmate, and I can hear the argument now you didn't go to the right staff or whatever.

[00:33:30] Speaker 05:
I mean, where do you find out precisely what you need to do?

[00:33:36] Speaker 07:
You have staff who certifies that, right?

[00:33:41] Speaker 07:
Possibly.

[00:33:42] Speaker 07:
The institutions have counselors, and the counselor's job is to sort of answer these questions.

[00:33:50] Speaker 07:
And if the counselor can't answer these questions,

[00:33:53] Speaker 07:
then perhaps they escalated to somebody who can.

[00:33:56] Speaker 07:
And ultimately, just like we don't know what would have happened if he had attempted to obtain a staff certification instead of prejudging the process, we don't know.

[00:34:06] Speaker 05:
No, but you see, I think at least my concern is that you're setting up a system that's full of failure.

[00:34:15] Speaker 05:
Because either you didn't get the right staff, or you don't have a document saying that this staff person said you had to go to somebody else,

[00:34:24] Speaker 05:
I mean, you can just see.

[00:34:24] Speaker 07:
334 is three, four years old now.

[00:34:28] Speaker 07:
I think it's 2011.

[00:34:30] Speaker 05:
It may be.

[00:34:30] Speaker 05:
I couldn't find anything about it.

[00:34:32] Speaker 05:
That's all I'm saying.

[00:34:33] Speaker 07:
I actually found it in the program statements on the BOP website, I believe.

[00:34:38] Speaker 05:
Right.

[00:34:39] Speaker 05:
Does it tell me exactly what kind of person I need to go to, what rank, what I need to get from him?

[00:34:45] Speaker 05:
Is there a form?

[00:34:46] Speaker 05:
Is there a letter?

[00:34:48] Speaker 07:
I think that the counselors probably answer those questions, but we just don't know.

[00:34:54] Speaker 05:
That's right.

[00:34:55] Speaker 05:
Yes, we don't know.

[00:34:58] Speaker 07:
because he didn't try it with regards to staff certification.

[00:35:03] Speaker 05:
Anything further?

[00:35:04] Speaker 01:
Can I ask you to respond to your friend's argument that with respect to the FOIA request for the Code 408 documents that the response was inadequate because it only identified the people involved in the search and didn't identify the scope and method of search.

[00:35:22] Speaker 01:
What is your response to that?

[00:35:25] Speaker 07:
Actually, what the record shows is that

[00:35:28] Speaker 07:
Mr. Moore prepared the declaration, but he didn't conduct the search.

[00:35:33] Speaker 07:
The person who conducted the search has left the BOP.

[00:35:37] Speaker 07:
And what basically Mr. Moore says is that when the FOIA requests come in,

[00:35:45] Speaker 07:
They review them.

[00:35:46] Speaker 07:
They determine whether a response to the FOIA request can be answered by them or has to be sent to some other department of the BOP.

[00:35:58] Speaker 07:
In his affidavit, he says that

[00:36:05] Speaker 07:
was a determination was probably made likely made that the program statement was the response was the appropriate response.

[00:36:17] Speaker 01:
But do you disagree with your friend's characterization that we don't have a sense of the scope of the search?

[00:36:23] Speaker 01:
We know who was involved in it.

[00:36:25] Speaker 01:
but there's no description of what sort of search was undertaken.

[00:36:30] Speaker 01:
That's sort of the basic that we require, isn't it?

[00:36:34] Speaker 07:
By regression, Mr. Moore stated that the search would have included terms like

[00:36:46] Speaker 07:
conducting a business, quote, quote, conducting the business, unquote, or quote, quote 48, unquote.

[00:36:54] Speaker 07:
And that's at AA 320.

[00:36:57] Speaker 07:
And in addition to that, he has a third affidavit that says that not only did, that BOP believes that

[00:37:11] Speaker 07:
the program statement was the appropriate response because the request was, quote, all documentation for making, conducting a business, parents for a prohibited act.

[00:37:24] Speaker 07:
And it was just like the district court held that under those circumstances, it was reasonable for the BOP to say that

[00:37:36] Speaker 07:
The program statement that makes for a prohibited act is this program, is this specific program statement, and that that would have been a sufficient response.

[00:37:44] Speaker 07:
But the third mora declaration also indicates that beyond that, two separate subject matter experts were consulted.

[00:37:54] Speaker 07:
And one said, all I found was a program statement.

[00:37:59] Speaker 07:
And the other said, all I found were public documents.

[00:38:07] Speaker 07:
I believe that the government's position is that the district court was correct.

[00:38:14] Speaker 05:
Anything further?

[00:38:19] Speaker 07:
For that, I would just cite the case Trude versus Department of State 897, FPP 540.

[00:38:33] Speaker 07:
Just with regard to

[00:38:35] Speaker 07:
the telephone records FOIA, the BOP didn't retain transcripts of the conversation, and there's no requirement for BOP to produce those records, and I think the Supreme Court said that in Kissinger v.s.

[00:38:52] Speaker 07:
Reporters Committee.

[00:38:53] Speaker 05:
And what about the statement that is in the pro-sabri about

[00:39:04] Speaker 05:
If he had been in trouble, I just would have reprinted.

[00:39:06] Speaker 05:
Reprinted the recording of the telephone conversation.

[00:39:18] Speaker 07:
Well, what we know from the record is that the

[00:39:23] Speaker 07:
The tapes are destroyed?

[00:39:25] Speaker 07:
The tapes didn't exist anymore, correct.

[00:39:27] Speaker 07:
And that's also mentioned in the Third Circuit or the Western District case that that was probably one of the reasons why the 408 claim website wasn't brought up.

[00:39:40] Speaker 05:
And can you just, do you have in your notes where it is in the record that it says the tapes were destroyed?

[00:39:47] Speaker 05:
So you couldn't reprint the call?

[00:39:52] Speaker 07:
It's in the second war declaration.

[00:39:55] Speaker 07:
Oh, sorry, the first war declaration.

[00:39:57] Speaker 07:
I'm sorry, Your Honor, I don't have a second.

[00:39:59] Speaker 05:
No, that's good enough.

[00:40:01] Speaker 05:
All right, thank you.

[00:40:02] Speaker 07:
Thank you.

[00:40:14] Speaker 05:
All right, Amicus.

[00:40:15] Speaker 02:
Thank you, Your Honor.

[00:40:16] Speaker 02:
It was remarkable to hear the government use the language he didn't try to describe Mr. DeGroote's actions, given how hard, in fact, he did try to follow all of the procedures that are laid out by the Administrative Remedy Program.

[00:40:32] Speaker 05:
Well, in fairness, counsel said he didn't try the right way, and there was another procedure there he could have tried, and he was told about it.

[00:40:45] Speaker 02:
What it seems to me, the government is trying to impose obligations on Mr. de Bruyne that are not set forth in the Administrative Remedy Program.

[00:40:54] Speaker 02:
And that is not right.

[00:40:55] Speaker 01:
The government cannot post-hoc say... What are the obligations set forth in the Administrative Remedy Program?

[00:41:02] Speaker 02:
You have to go through four levels of rooming.

[00:41:04] Speaker 02:
Informal resolution with the staff member, a letter to the warden,

[00:41:09] Speaker 02:
an appeal to the warden on the right form, and then an appeal to the general counsel once that's passed, and finally to the general counsel, stating the basis of the appeal and attacking the response from the prior, you know, reject the prior, the lower levels.

[00:41:25] Speaker 01:
And there's nothing in those policies that describes staff certification?

[00:41:30] Speaker 02:
I think there is, and I was looking through that, I think there is at some point a discussion about whether the opportunity to do staff certification

[00:41:38] Speaker 02:
with respect to timeliness, but not with respect to the failure to attach, the inability to attach the regional director's response.

[00:41:47] Speaker 02:
So it was remarkable to hear the government say, raise the timeliness issue.

[00:41:51] Speaker 02:
I think they actually conflated the two.

[00:41:52] Speaker 02:
They said that the staff verification applied to both.

[00:41:54] Speaker 02:
I think that's wrong.

[00:41:55] Speaker 02:
It only applies to the timeliness issue.

[00:41:57] Speaker 02:
And that's the only one the district court mentioned was the staff verification of the form.

[00:42:02] Speaker 02:
But again, the V.O.P.

[00:42:04] Speaker 02:
did not find that to be a problem.

[00:42:06] Speaker 02:
Perhaps Mr. Debru, though he said how was he supposed to get staff verification of a non-event.

[00:42:11] Speaker 02:
But even if he was supposed to do that, the V.O.P.

[00:42:14] Speaker 02:
did not tell him to do that after he pleaded the circumstances out of his control.

[00:42:19] Speaker 02:
Nor did they say to him, you should get staff verification that you didn't receive these

[00:42:33] Speaker 02:
the court should only look at the procedures that were required and whether they were available.

[00:42:38] Speaker 01:
Could I ask you to reply to your friend's argument about the 408 search and its adequacy?

[00:42:44] Speaker 01:
You heard his response to my question.

[00:42:45] Speaker 01:
Your reply would be?

[00:42:47] Speaker 02:
But he didn't answer the question, essentially.

[00:42:50] Speaker 02:
I understood it.

[00:42:51] Speaker 02:
He explained that someone didn't work there, or there was some reason why they didn't do it a different way.

[00:42:57] Speaker 02:
But both in his brief and in his answer to the court, he did not say, nor could he say, because it's pretty clear from the affidavit itself, that they used the search terms

[00:43:06] Speaker 02:
They actually listed the search term to use the type of search or how they went about doing it, whether they searched in their life materials.

[00:43:16] Speaker 05:
What about the argument that the timeliness was waived only to some of his claims, not all of them?

[00:43:23] Speaker 02:
That's incorrect as a matter of the record.

[00:43:26] Speaker 02:
The two that are at issue here, which is interest on trust fund accounts,

[00:43:33] Speaker 02:
and also telephone prices and markups.

[00:43:37] Speaker 02:
The record is clear, and I can find the site in a second, that in both of those, though they did say that they were untimely the first go-around, he refiled it.

[00:43:45] Speaker 02:
They did not say that for them.

[00:43:47] Speaker 02:
The government also makes the argument that he had successfully exhausted inmate pay and therefore

[00:43:54] Speaker 02:
he could have or should have done it for these.

[00:43:57] Speaker 02:
But that's a non sequitur, because there's really two possibilities.

[00:44:00] Speaker 02:
One is that he actually got the regional director's response for inmate pay, and that's why he was able to do it for the inmate pay claim, whereas he couldn't do it for this one.

[00:44:08] Speaker 02:
Or the other possibility is that the DOP goofed, and they didn't realize that he never got, he didn't attach the regional director's response with that one.

[00:44:21] Speaker 02:
off with respect to this one.

[00:44:23] Speaker 02:
When I look at the record, it's clear that Mr. Debru used probably the exact same steps with respect to inmate pay as he did for the two that are at the shooting.

[00:44:34] Speaker 02:
If my time is up, unless there are any other questions or the court would like me to continue arguing.

[00:44:39] Speaker 05:
All right.

[00:44:39] Speaker 05:
If you don't have anything further, thank you.

[00:44:41] Speaker 05:
Counsel, you were appointed by the court.

[00:44:44] Speaker 05:
And we appreciate your assistance.

[00:44:46] Speaker 05:
And thank you.

[00:44:46] Speaker 02:
Thank you.