[00:00:01] Speaker 03: Case number 15-5154. [00:00:04] Speaker 03: Yassine Mahiri Arif et al. [00:00:06] Speaker 03: Appellant vs. Loretta E. Lynch, Attorney General for the United States et al. [00:00:11] Speaker 03: Ms. [00:00:11] Speaker 03: Maripol for the appellant, Mr. Gretke for the police. [00:00:35] Speaker 04: If it please the court, Rachel Mirable from the Center for Constitutional Rights for Plaintiffs Appellants. [00:00:41] Speaker 04: I am joined by my colleague, Alexia Gathicleas. [00:00:44] Speaker 04: My clients are low and medium security prisoners with clean disciplinary records who were singled out among hundreds of thousands of federal prisoners for segregation in a communication management unit where every form of communication with the outside world is restricted, recorded, and analyzed by counterterrorism unit officials. [00:01:06] Speaker 04: Now, the district court found that CMU segregation does not present an atypical and significant hardship understanding, and thus granted summary judgment for defendants. [00:01:17] Speaker 04: I'd like to begin with that issue, please. [00:01:19] Speaker 02: Before you get to the merits, do you want to address mutants? [00:01:23] Speaker 04: Sure, Your Honor. [00:01:24] Speaker 04: So this case is not moved for three reasons. [00:01:27] Speaker 04: First of all, the complainative procedures continue to affect plaintiffs in this case, and that is because the flawed information generated through the BOP CMU designation procedures continues to be relied on by the Bureau of Prisons. [00:01:42] Speaker 04: We explicitly requested expungement of that information, yet it remains in clients' files. [00:01:48] Speaker 04: And we know from the experiences of [00:01:50] Speaker 04: Mr. Jayusi, who was subjected to unusual restrictions after release from the CMU, and from the experiences of Mr. McGowan, who when re-designated to a CMU, the information formally generated formed the baseline for the court to consider whether he should be put back in a CMU. [00:02:11] Speaker 04: We know from those two examples that the Bureau of Prisons continues to rely on this flawed information. [00:02:18] Speaker 04: Second, there's a more than speculative chance that my clients will be re-designated back to a CMU. [00:02:24] Speaker 04: The Bureau of Prisons concedes that they are still eligible for CMU placement. [00:02:29] Speaker 04: Other prisoners have been re-designated to a CMU after being released from that unit, including one of the plaintiffs in this case, of course, Mr. McGowan. [00:02:40] Speaker 01: Finally, even... It doesn't appear to happen very often. [00:02:43] Speaker 04: Well, that's true. [00:02:44] Speaker 04: We have evidence of it happening four times, Your Honor. [00:02:47] Speaker 04: It's not clear if that includes Mr. McGowan or not. [00:02:49] Speaker 04: We can't tell from the documents. [00:02:52] Speaker 04: But it is clear that that is more than speculative four times. [00:02:56] Speaker 04: This isn't the kind of case that the court is generally faced with, where a prisoner challenges conditions in a prison unit, is removed from that prison, and it's possible that he or she could be sent back there. [00:03:08] Speaker 04: But there's no reason to think it might occur. [00:03:10] Speaker 04: It's just as likely as being transferred to any other prison. [00:03:13] Speaker 04: But the CMU is a specific program. [00:03:16] Speaker 04: Only 200, less than 200 prisoners have ever been sent there. [00:03:19] Speaker 04: So the prisoners who have gone through there are necessarily sort of under the scrutiny of the counterterrorism unit already. [00:03:27] Speaker 04: The counterterrorism unit made this explicit when Mr. Jaiusi was released from the CMU, when they said, you know, we need to keep monitoring him, we need to keep watching him. [00:03:37] Speaker 04: But even if the case would otherwise be moot, Your Honor, the district court was correct to apply the voluntary cessation exception to mootness here. [00:03:45] Speaker 04: And under that exception, it is defendants' very heavy burden to show that it is absolutely clear that the alleged illegal conduct will not reoccur, and they've done nothing to meet that burden here. [00:03:57] Speaker 04: All they argue is that voluntary cessation shouldn't apply. [00:04:02] Speaker 04: But given that there was three years when there was not a single transfer from the CMU and the very first transfer occurred on the eve of this lawsuit being filed of a plaintiff in this lawsuit, we would say voluntary cessation applies. [00:04:15] Speaker 04: Turning to the procedural due process issue. [00:04:19] Speaker 04: Hatch v. District of Columbia instructs this court to consider what are the restrictions that prison officials routinely impose for non-funitive purposes on similar prisoners. [00:04:31] Speaker 04: And under Hatch, that inquiry must start with the way the Federal Bureau of Prisons uses administrative segregation at Terre Haute and Marion, which are the prison facilities where the CMUs are located. [00:04:43] Speaker 04: Now, this is the first case where a party has ever presented statistical evidence about how administrative segregation actually works, what a typical stay in administrative segregation is. [00:04:54] Speaker 04: We've provided that information, and it is quite clear that administrative segregation is harsh, but it is short-lived. [00:05:01] Speaker 04: It lasts one to four weeks, typically. [00:05:04] Speaker 04: That's at Marion and Terre Haute, and it's consistent across the entire Federal Bureau of Prisons. [00:05:09] Speaker 04: So we have to compare one to four weeks in administrative segregation to three to five years in a CMU. [00:05:17] Speaker 04: Now, the district court acknowledged that the prolonged nature of CMU placement is argued and plaintiff state. [00:05:25] Speaker 01: Can I just get one clarification, which is that so you're focusing on duration, which I completely understand, because that's a meaningful and under your approach difference between administrative segregation and the CMU. [00:05:36] Speaker 01: But if you don't look at duration and you're only talking about the conditions, [00:05:40] Speaker 01: I take it you're not taking issue with the proposition that with respect to the conditions, there's not a meaningful difference. [00:05:46] Speaker 04: Well, Your Honor, we would concede that conditions in administrative segregation are harsher than conditions in CMU, but it's not just duration. [00:05:53] Speaker 04: It is duration, which is important when considering some of these communications restrictions. [00:05:58] Speaker 04: Lack of contact visits, for example, for five years is quite significant. [00:06:01] Speaker 04: But it is also typicality, right? [00:06:03] Speaker 04: And this is what Hatch emphasized, that we have to look at what prison administrators routinely do for institution security. [00:06:11] Speaker 04: Administrative segregation is incredibly routine. [00:06:14] Speaker 04: It can be used for a wide variety of reasons. [00:06:16] Speaker 04: And it is used for a wide variety of reasons. [00:06:18] Speaker 04: It's the type of thing prisoners can expect to experience at least once. [00:06:22] Speaker 04: The CMU is incredibly rare. [00:06:24] Speaker 04: There are thousands of prisoners in the Federal Bureau of Prisons eligible for CMU placement. [00:06:30] Speaker 04: Only about 200 have ever even been considered for CMU placement. [00:06:35] Speaker 04: And less than 200 have been placed there. [00:06:37] Speaker 04: Once prisoners are placed in this unit, they find themselves in a situation where they're in a small unit segregated from the general population with primarily a Muslim population. [00:06:48] Speaker 04: 60% Muslim compared to 6% in the prison population overall. [00:06:53] Speaker 04: This experience of segregation in a minority religion unit is a very atypical experience. [00:07:02] Speaker 04: This is not something a prisoner could expect to experience in the normal course of being incarcerated. [00:07:10] Speaker 04: And that is particularly so where there has been no misconduct. [00:07:16] Speaker 04: So CMU designation doesn't turn on the question of whether there's been a rule violation. [00:07:21] Speaker 04: Prison discipline is routine in the prison system. [00:07:23] Speaker 04: So the cases the district court relies on and that defendants rely on, where admittedly severe restrictions are placed on communication, [00:07:34] Speaker 04: after disciplinary process are really irrelevant to this situation because prisoners understand that they may be subjected to discipline if they violate a prison rule. [00:07:46] Speaker 04: That is accepted. [00:07:47] Speaker 04: It is routine, just as administrative segregation is routine. [00:07:51] Speaker 04: Being singled out for this treatment without misconduct is not routine. [00:07:56] Speaker 04: I'd like to turn for a moment to the retaliation claim unless the court has questions about procedural due process. [00:08:02] Speaker 04: So Mr. Jayusi was placed, Mr. Jayusi in 2008 gave a sermon when he served as rotational Juma prayer leader. [00:08:12] Speaker 04: And three years later, after his unit team had recommended him for release from a CMU and the warden had concurred, the counterterrorism unit recommended against his transfer from the CMU based on that sermon that had occurred three years earlier. [00:08:30] Speaker 04: the regional director concurred, and Mr. Jayusi was kept in a CMU. [00:08:35] Speaker 04: Now, the district court deferred to Mr. Smith's identification of JUC's sermon as presenting a security risk. [00:08:44] Speaker 04: The court held that it would not look beyond Smith's identification of that risk because Turner requires deference. [00:08:52] Speaker 04: But Turner does not require blind deference to a prison administrator's identification of a risk where there is evidence that that assessment has been exaggerated. [00:09:04] Speaker 04: We provided that evidence, which the district court declined to review or describe. [00:09:11] Speaker 04: And really that evidence starts with the text of Mr. Jiuci's sermon, which you can find at page 834 of the joint appendix. [00:09:21] Speaker 04: So the sermon is laid out in full there, Your Honors, and one must compare that sermon with Mr. Smith's description of it in his memo recommending that Mr. Jiuci be retained in a CMU. [00:09:34] Speaker 04: You can find that memo at page 791 of the joint appendix. [00:09:41] Speaker 04: So Mr. Jayusi's sermon to his fellow Muslims in the unit when he was rotational prayer leader talked about the fact that they felt as though they were in this unit because they were Muslim. [00:09:53] Speaker 04: It asked his brothers in the unit to have patience and to stand firm to their faith. [00:10:00] Speaker 04: He described Nelson Mandela and John McCain as examples of people who were incarcerated, who were tortured, and yet had patience and faith that someday they would be released. [00:10:11] Speaker 04: This sermon, and compared to those words about patience and faith and endurance, Mr. Smith described the sermon as inciting violence and denigrating other religions. [00:10:26] Speaker 04: This is simply a disconnect. [00:10:27] Speaker 04: The sermon does nothing like that. [00:10:29] Speaker 04: Where there is evidence of an exaggeration, Turner does not require deference. [00:10:36] Speaker 04: So for example, if the court considered Hatim v. Obama a recent case from this circuit, [00:10:42] Speaker 04: This court looked at the prison in Guantanamo's analysis that they required more strict search procedures prior to attorney-client visits for Guantanamo detainees based on the concern that detainees had been found with contraband. [00:11:03] Speaker 04: And this court said, well, that's a reasonable security concern and requiring additional search protocols is a reasonable response. [00:11:11] Speaker 04: We look no further. [00:11:12] Speaker 04: But what if there had been evidence of exaggeration in that case? [00:11:16] Speaker 04: What if Guantanamo Prison had justified the searches stating that there had been 20 instances of contraband being found at the prison? [00:11:24] Speaker 04: And then plaintiffs were able to produce evidence to the court that, in fact, there had not been a single instance of detainees possessing contraband at the prison. [00:11:33] Speaker 04: At that point, there is evidence of an exaggerated concern. [00:11:37] Speaker 04: And this court can look beyond a prison official's assessment of concern where there is that evidence of exaggeration. [00:11:44] Speaker 01: And what exactly are you pointing to for your evidence of exaggeration? [00:11:48] Speaker 04: Well, the strongest piece of evidence, Your Honor, is the sermon itself and the way in which Mr. Smith described it falsely. [00:11:58] Speaker 04: But we can also look at the possibility of other alternatives here, which Turner instructs us to do. [00:12:04] Speaker 04: The most obvious alternative if Mr. Jayusi's speech presents a security concern is to say stop giving political sermons to your fellow prisoners. [00:12:15] Speaker 04: Defendants themselves point out in their brief that Mr. Jayusi was never kept [00:12:20] Speaker 04: from giving other speeches in the CMU. [00:12:23] Speaker 04: So we have a situation where there's an identified security concern of sort of concerning rhetoric, and yet the prison's response is, keep this person in the unit. [00:12:34] Speaker 04: Don't tell him he can't engage in this kind of speech. [00:12:37] Speaker 04: Don't tell him he's being kept in the CMU because he's engaged in this kind of speech. [00:12:42] Speaker 04: And yet, three years later, used this speech as a reason to keep him in the CMU. [00:12:49] Speaker 02: But they are not keeping him in the CMU to isolate him from these other prisoners, but because the CMU allows them to do a kind of intensive monitoring of his communications. [00:13:03] Speaker 04: Well, that's true, Your Honor, but under the retaliation test, what we would need to prove is that there was First Amendment protected speech, and then retaliatory action taken of sufficient seriousness to deter an individual's usual firmness, and that the retaliation, that the speech was the but-for cause of that retaliation. [00:13:24] Speaker 04: So really what the court has to analyze there is whether being retained in the CMU, where you're not in isolation but you are in segregation with much harsher restrictions on communication than you would otherwise experience in general population, is whether that is sufficiently serious. [00:13:42] Speaker 04: And defendants have not argued that it is not. [00:13:46] Speaker 02: I want to go back to what you were saying about exaggeration, because I think this is sort of a difficult question for the court. [00:13:54] Speaker 02: You're looking at what he says, and you say, well, he exaggerated, the seriousness of that. [00:14:01] Speaker 02: But isn't there a difference between a dispute about facts, I mean, you read this differently, and a dispute [00:14:11] Speaker 02: about professional judgment. [00:14:13] Speaker 02: In other words, the head of this CTU was saying, in looking at this sermon, he came to the conclusion that he should be concerned about what was being said. [00:14:28] Speaker 02: So it seems to me, you know, what standard do we apply? [00:14:34] Speaker 02: It can't just be that you read it differently. [00:14:37] Speaker 04: Well, I think that's correct, Your Honor, and I think the standard underturner is deference to a reasonable identification of a security concern and a reasonable response in the absence of evidence, substantial evidence on the record of exaggeration. [00:14:52] Speaker 04: So if we look at how the Third Circuit and the Sixth Circuit dealt with this question in Abu Jamal and Flagner, those are situations, too, where prison administrators identified in their professional judgment particular security concerns. [00:15:08] Speaker 04: But because there was substantial evidence in the record before the court, the court looked behind that identification. [00:15:16] Speaker 04: to consider the evidence of exaggeration and to make its own determination of whether the challenge action was reasonable given the threat posed. [00:15:29] Speaker 01: So here's what we said in Khatim. [00:15:33] Speaker 01: The only question for us is whether the new policies are rationally related to security. [00:15:37] Speaker 01: We have no trouble concluding that they are in no small part because that is the government's view of the matter. [00:15:42] Speaker 01: And that just seems like a level of deference about the government's estimation of whether there's a security risk that's in some tension with the notion that we would look behind the government's reading of the comments to determine whether they present a security risk. [00:16:01] Speaker 04: Well, I think that's right, Your Honor. [00:16:02] Speaker 04: And that's because the court starts under Turner in a situation where unless there is actual evidence of exaggeration, that kind of deference is appropriate. [00:16:11] Speaker 04: the court won't judge for itself whether this was the best response to take or whether this is really such an important concern unless there is evidence of exaggeration. [00:16:21] Speaker 04: So in Hatim, the plaintiffs in that case argued that the searches weren't really necessary because it hadn't been shown that [00:16:29] Speaker 04: attorneys were passing contraband to the detainees, all these sort of theoretical reasons why perhaps this was not really so reasonable in this situation. [00:16:40] Speaker 04: They didn't present actual evidence, factual evidence, of either an exaggerated threat or an exaggerated response. [00:16:48] Speaker 04: Now, Turner directs us to sort of two different ways in which plaintiffs could produce that evidence. [00:16:55] Speaker 04: Turner requires the penological purpose to be legitimate and valid. [00:17:00] Speaker 04: It says that in the test itself. [00:17:03] Speaker 04: And if you can't look beyond a prison administrator's identification of a valid threat, then that has no [00:17:11] Speaker 04: meaning at all, then there is no protection beyond what administrators identify. [00:17:16] Speaker 04: Prison administrators can always say that there is a legitimate threat. [00:17:20] Speaker 04: There has to be a way for the court to look beyond that. [00:17:23] Speaker 04: And of course, second is the Turner test's reliance on the possibility of easy alternatives. [00:17:30] Speaker 04: If there is an easy alternative, this suggests what happens here wasn't reasonable. [00:17:34] Speaker 04: I see that I am out of time. [00:17:36] Speaker 04: I did want to say a word about the Prison Litigation Reform Act. [00:17:40] Speaker 04: May I say one brief word about that? [00:17:43] Speaker 04: Yes. [00:17:43] Speaker 04: Thank you. [00:17:44] Speaker 04: Thank you, Your Honor. [00:17:46] Speaker 04: So under the PLRA, prisoners are banned from bringing claims for mental and emotional injuries without a prior showing of physical injury. [00:17:55] Speaker 04: um, defendants and the district court have interpreted that to bar all claims unless there is a showing of physical injury. [00:18:03] Speaker 04: Now, this renders the language, mental and emotional injury in the PLRA superfluous, and it also flies in direct contrast [00:18:12] Speaker 04: to this court's decisions in Hobson and in Doe v. District Court, clearly stating that there are injuries distinct from mental and emotional injury and physical injury which are compensable and real injuries. [00:18:27] Speaker 04: First Amendment harms can be actual injuries. [00:18:30] Speaker 04: They may be intangible, but they are actual injuries that plaintiffs should have the opportunity to prove. [00:18:37] Speaker 04: Denial of release preparation programming here is an actual injury. [00:18:41] Speaker 04: My clients were kept from engaging in that programming, which has a market value outside of prison and has a value inside of prison. [00:18:49] Speaker 04: They were kept from family relationships. [00:18:52] Speaker 04: They experienced harm to reputation. [00:18:54] Speaker 04: All of these are injuries this court has recognized as distinct from mental and emotional or physical. [00:19:00] Speaker 04: The Prison Litigation Reform Act does nothing to change the reality that there are not only two forms of injuries which are compensable by the courts. [00:19:09] Speaker 04: And of course, if at the end of the day we are unable to place a dollar value on those injuries because they are so intangible, then at that point nominal damages becomes appropriate. [00:19:21] Speaker 04: Thank you. [00:19:22] Speaker 02: Any other questions? [00:19:24] Speaker 04: Thank you. [00:19:38] Speaker 05: May it please the court, Carly Zubricki, for the official capacity defendant and for the United States as amicus curae. [00:19:46] Speaker 05: I want to start by talking about the mootness arguments. [00:19:51] Speaker 05: Plaintiffs in this case brought this action to procure further procedures or procure their release from the communications management units. [00:19:59] Speaker 05: They have now, at this point, been out of those units for a matter of years. [00:20:03] Speaker 05: Mr. Jayusi was released in 2013. [00:20:07] Speaker 05: Mr. Aref was released in 2011. [00:20:15] Speaker 05: And there is no continuing ongoing injury as a result of those placements. [00:20:20] Speaker 05: CMU placement is not something that's punitive. [00:20:21] Speaker 05: Plaintiff cited cases, for instance, discussing disciplinary records that might follow an inmate sort of after they've been disciplined in a way that turned out to violate the law. [00:20:31] Speaker 05: We provide evidence that CMU placement is not something that operates like that. [00:20:35] Speaker 01: If we assume that the voluntary cessation doctrine applies, do you have an argument that you can satisfy your burden [00:20:44] Speaker 05: Yes. [00:20:46] Speaker 01: And have you made one? [00:20:48] Speaker 01: The thrust of your argument was that voluntary cessation just doesn't apply here. [00:20:51] Speaker 05: Yes, I think that is the thrust of our argument. [00:20:53] Speaker 01: But if we disagree, just assume, I'm not saying we necessarily would, but just for purposes of argument, if we assume that voluntary cessation does apply, then that puts a heavy burden on the government to show that there's only a speculative possibility of [00:21:07] Speaker 01: going back to the CMU. [00:21:09] Speaker 05: It does. [00:21:09] Speaker 05: And as you noted, Your Honor, we did put forward, there is evidence that only four of, you know, well over 100 inmates who as of 2013 had been released from the CMU had ever been returned to the CMU. [00:21:22] Speaker 05: And we think that that's, you know, a very small percentage and really a speculative possibility of being returned. [00:21:27] Speaker 05: There's also evidence [00:21:28] Speaker 05: in the record by the relevant decision makers at the time, establishing that the inmates would not have been returned to the CMU absent the development of new information that would have required them to be replaced in the CMU. [00:21:40] Speaker 05: So there's a declaration from the regional director who was the ultimate decision maker at that time, and also from Mr. Smith. [00:21:47] Speaker 05: So we do think it's speculative. [00:21:49] Speaker 05: And moreover, even if they were at some point reconsidered for CMU designation, at this point, there's more formalized procedures as a result of the 2015 regulations, which renders the possibility that many of the due process allegations, for instance, that they've discussed here [00:22:09] Speaker 05: involved, you know, early, you know, problems early in the development of CNUs where there was a little bit less clarity about exactly how some of the processes would work and there's no reason to think that that kind of a problem would occur even in the sort of hypothetical chain of events where there has been new information that resulted. [00:22:26] Speaker 01: That's not a mootness argument. [00:22:29] Speaker 01: I take it. [00:22:29] Speaker 05: Well, I think it goes to the question of the likelihood of the harm being repeated for purposes of sort of [00:22:36] Speaker 05: whether it's speculative to think that they would be injured in this way again. [00:22:39] Speaker 05: I think that's how I would think about that. [00:22:43] Speaker 05: But also we don't think that this is an appropriate case for the application of the voluntary cessation doctrine. [00:22:49] Speaker 05: The procedures by which the inmates were released or transferred out of the CMU began in 2009. [00:22:58] Speaker 05: Many, many inmates have been released pursuant to those procedures and it really [00:23:04] Speaker 05: The BOP absolutely would not have transferred Mr. Jaisby, for instance, in 2013, three years into this litigation. [00:23:11] Speaker 05: As a result of this litigation, that was the result of processes that I think are clearly demonstrated throughout the record that concluded that he no longer, his communications no longer warranted the sort of monitoring that a CMU could provide. [00:23:26] Speaker 02: So we- What is your response to counsel's argument that [00:23:31] Speaker 02: This information, which they say is flawed information, which was the basis of them being placed in the CMU in the first place could still be used and still might be a basis for them being returned. [00:23:46] Speaker 05: I think our response is that that doesn't present a concrete ongoing injury. [00:23:51] Speaker 05: That's not something that, first of all, there's not evidence that that would create any kind of actual concrete effect on the plaintiffs at any point or that it's likely to or going to. [00:24:03] Speaker 05: You know, again, this is not something that's like a disciplinary event where you've got a record. [00:24:10] Speaker 05: The fact that the inmates were in the CNU has no effect on their current placements. [00:24:15] Speaker 05: They're, I believe, currently low-security inmates housed in Pennsylvania. [00:24:20] Speaker 05: And so we don't think that that's an ongoing injury that would give rise to continuing jurisdiction over this matter. [00:24:30] Speaker 05: Turning to the due process claims, I want to emphasize that inmates in BOP systems or in BOP placements do not have a right to privacy in their communications. [00:24:44] Speaker 05: They do not have a right to not be monitored. [00:24:46] Speaker 05: There's extensive monitoring in all sorts of situations of communications in every BOP prison, and indeed many of them are required by regulations. [00:24:54] Speaker 05: And the kinds of monitoring that occurs in a CMU is really quite similar in many respects to the kinds of monitoring that a BOP can use all of the time in all of its facilities. [00:25:10] Speaker 01: But there must be something distinctive about a CMU. [00:25:12] Speaker 01: That's why you have it. [00:25:13] Speaker 05: Well, I think the most important reason for the CMU is that [00:25:16] Speaker 05: the CMU allows, makes it significantly more difficult to circumvent communications monitoring, right? [00:25:23] Speaker 05: So when you're in sort of a general prison population, there are ultimately limits on the extent to which the BOP can effectively monitor all communications, although it certainly does sort of attempt to target based on perceived risk levels and security threats and that sort of thing. [00:25:38] Speaker 05: But there are, as I think was explained in the proposed, or in the regulations that were passed in 2015, [00:25:45] Speaker 05: The primary purpose of the CMUs is to prevent there being a way to sort of get around those controls. [00:25:55] Speaker 05: The monitoring is something that can happen even in a sort of more general facility in terms of the expectations of privacy that in those facilities would have. [00:26:04] Speaker 02: Your argument is that it's a difference in degree, correct? [00:26:08] Speaker 02: It's a small difference in degree. [00:26:09] Speaker 02: It's more intensive. [00:26:11] Speaker 02: But is it a small difference when you're saying that because you're subjected to this monitoring, it changes visitation, it changes how often you can talk to your family, [00:26:22] Speaker 02: it changes several things that if you were in the general population you would have more freedom to do. [00:26:31] Speaker 05: Again, even in the general population, we think it is a relatively small difference of degree, yes. [00:26:36] Speaker 05: Even in the general population, wardens would have the discretion to limit particular inmates' levels of communications and the nature of visitation and that sort of thing in all sorts of instances. [00:26:48] Speaker 05: There are numerous cases that have addressed, for instance, bans on contact visitation, which we understand is probably one of the [00:26:55] Speaker 05: you know, more restrictive elements of being in a CMU. [00:26:58] Speaker 05: But taking into account that sort of the overall baseline that we're talking about is the baseline of conditions in sort of ordinary prison life, which in really every meaningful respect, except for these carefully tailored limitations designed to prevent circumvention of communications monitoring for inmates who are deemed to be at particularly high risk, with respect to that particular area, you know, [00:27:24] Speaker 05: Other than that, you know, the conditions in CMU are essentially identical to the conditions in any other. [00:27:31] Speaker 01: So with the contact visits, for example, which your understanding can be a significant issue. [00:27:38] Speaker 05: For point of say, I've suggested this. [00:27:39] Speaker 01: Yeah, it's the duration is quite a bit different from what you would have in other situations in which contact visits might be curtailed for a brief period. [00:27:51] Speaker 05: Well, I mean, there are certainly cases, for instance, the Sixth Circuit case in Bezzetta, and I think there's the Ninth Circuit case in Macedon. [00:27:58] Speaker 05: There are a number of, and the Third Circuit case in Henry, there are a number of courts that have addressed years long or even potentially permanent bans on contact visits and have concluded that those did not give rise to the kind of, it's a particular type of visitation. [00:28:14] Speaker 05: So it's a restriction on a particular type of a particular kind of communication. [00:28:19] Speaker 05: The BOP allows for visitation and other kinds of communications and essentially unlimited correspondence within the CMUs. [00:28:28] Speaker 05: And again, against this baseline that includes both the ordinary conditions of confinement and the most restrictive conditions that the BOP or a prison can impose over the course of [00:28:44] Speaker 05: you know, over the course of a particular kind of sentence, we don't think that that's a sufficient enough change to give rise to additional constitutional protections here. [00:28:53] Speaker 05: You know, this is really like, it's really analogous to, for instance, the decision to place somebody in a medium security facility as opposed to a low security facility. [00:29:04] Speaker 05: It's an administrative security-related determination. [00:29:07] Speaker 05: It may impose some greater burdens on the inmates. [00:29:11] Speaker 05: But those additional kinds of burdens or those additional changes in confinement are not a sufficiently substantial difference from the conditions of confinement that are part of the overall sentence. [00:29:24] Speaker 00: I thought the baseline for comparison was administrative segregation. [00:29:28] Speaker 00: I guess that means that's correct your honor and the reason that I'm arguing you know. [00:29:45] Speaker 05: not only is this an extraordinarily far cry from the conditions of administrative detention, which are in every meaningful respect, except for sort of with respect to communications, dramatically more restrictive. [00:29:58] Speaker 05: So for duration. [00:30:04] Speaker 05: That's correct, although I will know that administrative segregation can also go on for a very significant period of time. [00:30:10] Speaker 01: It can, but it looked like the averages that are in the record, there's a pretty stark difference between what we normally expect for administrative segregation and what we normally expect for CMU placement. [00:30:20] Speaker 05: Sure. [00:30:21] Speaker 05: Yes, there's certainly a significant difference. [00:30:23] Speaker 05: But again, I think that that's the extent to which this is a completely different sort of order of magnitude of kind of restriction than what we're talking about in the context of administrative segregation, where, again, there's evidence in the record that administrative segregation, you're in a single cell for 23 hours a day. [00:30:42] Speaker 05: There are five hours of exercise a week. [00:30:44] Speaker 05: When you're in a CMU, there's all of the normal sort of [00:30:48] Speaker 05: aspects of confinement, you're out of your cells with other inmates for 16 hours a day, you know, you have telephone calls, you have visitation, you know, even with respect to communications, there are still ample opportunities to communicate with the outside world. [00:31:05] Speaker 05: And so we just really don't think that this is the kind of a fundamental change in the conditions of confinement, certainly under the standard of Hatch, but really even against a lower baseline than the standard that this group must apply from Hatch to give rise to a protected liberty interest. [00:31:24] Speaker 02: I think what is puzzling here is how we actually apply the precedents that we usually look at and I think your responses have sort of [00:31:38] Speaker 02: And I think it's important to highlight that because normally we're looking at. [00:31:43] Speaker 02: Is it a typical? [00:31:45] Speaker 02: You know, is it different from what? [00:31:48] Speaker 02: Um. [00:31:49] Speaker 02: The prison officials normally do. [00:31:52] Speaker 02: And the problem here is the whole unit. [00:31:58] Speaker 02: You know, it doesn't look like the other things that we have used as a baseline in the past. [00:32:06] Speaker 02: In other words, it really doesn't look like administrative segregation. [00:32:10] Speaker 02: When you look at duration, it looks different. [00:32:13] Speaker 02: And it's a much smaller group. [00:32:17] Speaker 02: It's not done for discipline. [00:32:18] Speaker 02: So it's in just about every way, completely atypical. [00:32:23] Speaker 02: But that's what we're trying to gauge. [00:32:26] Speaker 05: I don't think the typicality question is a question about whether one particular set of restrictions, how frequently that's applied. [00:32:35] Speaker 05: I think the question is how it fits into the range of conditions that are a part of a term of confinement as a result of a conviction. [00:32:48] Speaker 05: So I don't think the fact that the BOP has made efforts to, you know, devote its resources with respect to the CMU, you know, in a reasonably targeted way. [00:32:57] Speaker 05: You know, that there are other measures that BOP takes that are, you know, relatively rare. [00:33:01] Speaker 05: For instance, there are special administrative measures that are [00:33:04] Speaker 05: you know, for more individualized restrictive restrictions on certain inmates, you know, that's something that's very rare, you know, and for instance, there might be need to, you know, separate or take certain aspects with respect to inmates with particular [00:33:21] Speaker 05: you know, gang affiliations or, you know, there might be, you know, relatively infrequent kinds of determinations that the BOP needs to make, but I don't think that within the meaning of, you know, the question of how the actual conditions imposed by that restriction relate to the overall expected conditions of confinement. [00:33:38] Speaker 05: I don't think that the rareness is, you know, if anything, I think it suggests that the BOP is making individualized [00:33:45] Speaker 05: careful determinations here but it's really a again it's really an administrative security related a housing determination that the particular forms of security risks that the BOP is concerned with with these inmates relate to communications and for that reason they are sort of [00:34:05] Speaker 05: you know, have in many ways, you know, significant freedom of flexibility throughout the day, given their incarceration with tailored limitations on their communications. [00:34:18] Speaker 05: With respect to Mr. Jayusi's First Amendment retaliation claims, I want to, I see that I am over time. [00:34:29] Speaker 05: With respect to Mr. Jayusi's First Amendment retaliation claims, I just want to emphasize that Mr. Jayusi was housed in a CMU as a result of the facts underlying his crime of conviction, which involved coded communications, participating in a covert cell to funnel resources, [00:34:45] Speaker 05: and recruits overseas to commit acts of terrorism. [00:34:48] Speaker 05: That's what he was convicted of, and that was sort of the backdrop against which every future determination about whether his housing placement was still warranted was made. [00:34:58] Speaker 05: And we think that the review of [00:35:04] Speaker 05: the determinations in this case, and the BIP's considerations to continue his housing, but plainly further legitimate penological interests. [00:35:14] Speaker 05: So we're within the bounds of reasonableness required by the Turner test. [00:35:19] Speaker 01: So how much do we defer? [00:35:20] Speaker 01: Because if you look at speech that gives rise to a consequence, and if we assume that the speech is completely innocuous, [00:35:28] Speaker 01: And just for assumption purposes. [00:35:30] Speaker 01: And then the VOP or the government or the CTU, whoever's making the determination says, you know, I see in that if you tease out of it, I can see some things that actually raise the security risk. [00:35:39] Speaker 01: And therefore, we're going to exact a consequence for the speech. [00:35:44] Speaker 01: Is the court just supposed to defer to that period? [00:35:48] Speaker 01: Or do we look behind it a little bit to find out whether there's some reason supporting the conclusion that there's a security risk from what seemingly fairly innocuous speech? [00:35:58] Speaker 05: I think the Turner test is essentially designed to answer this question. [00:36:03] Speaker 05: I think that the court has to assess whether there's a rational, logical foundation for the official action. [00:36:08] Speaker 05: It might be possible that there will be cases where that rational relationship didn't exist. [00:36:14] Speaker 05: I think it plainly does in this case when you consider especially the backdrop against which [00:36:20] Speaker 05: Mr. Taizi's statements were considered relevant to this analysis to the extent they were. [00:36:26] Speaker 05: But I think that the Turner test is designed precisely to answer this question. [00:36:33] Speaker 01: So does Turner, though, presuppose deference purely because the government reached the determination that there is a security risk? [00:36:40] Speaker 01: Or does it allow for judicial scrutiny of the rationale by which the government reached that conclusion? [00:36:51] Speaker 01: You see what I'm saying? [00:36:52] Speaker 01: Because there's a little bit of a difference. [00:36:53] Speaker 01: You could say, well, the government concluded that there's a security risk. [00:36:57] Speaker 01: Turner says that once the government reaches that conclusion, we defer to that. [00:37:01] Speaker 01: That's one thing. [00:37:02] Speaker 01: But another way to do it is the government reached the conclusion that there's a security risk. [00:37:07] Speaker 01: We as a court look at the logic by which the government made that determination and ask whether that's a sustainable determination. [00:37:17] Speaker 05: Well, I think the question the court asks under the Turner test is very deferential. [00:37:22] Speaker 05: I think it is a question that the court asks, and it's under the first step of the Turner test, and it's whether there was a valid rational connection. [00:37:29] Speaker 05: And I think Beard versus Banks also suggests that the relevant question is whether the ultimate determination was outside the bounds of reasonable professional judgment. [00:37:41] Speaker 05: There can't just be sort of a question of fact [00:37:43] Speaker 05: whether the decision was right or wrong. [00:37:48] Speaker 05: But I think the overarching inquiry is whether it was outside the bounds of reasonable professional judgment. [00:37:55] Speaker 05: And in this case, this is not a case where one official reached a conclusion. [00:38:03] Speaker 05: If you look at the email exchanges that are in the record in the immediate aftermath of Mr. Jay's speech, numerous BOP officials [00:38:10] Speaker 05: immediately viewed this as an indication that Mr. Jaycee's placement was appropriate and they viewed this as, you know, a problematic incident. [00:38:19] Speaker 05: This is not a case where there wasn't a sort of an official determination kind of unrelated to any [00:38:25] Speaker 05: sort of, or you know, there's one kind of rogue official here. [00:38:28] Speaker 05: There's no evidence in the record that it would be outside the bounds of professional judgment to believe that Mr. Jayusi's speech continued to warrant monitoring against the backdrop of his crime of eviction, again, which involved, you know, a sophisticated communications-related, terrorism-related offense. [00:38:47] Speaker 00: Isn't the significance of the case law that we make [00:38:51] Speaker 00: We don't do this the way we would normally do with respect to summary judgment because the burden is heavily on the plaintiffs to contest the exercise of professional judgment. [00:39:02] Speaker 00: That's what's different. [00:39:03] Speaker 00: You can't, as Judge Brown said a number of minutes ago, you can't simply come in and say, but we can. [00:39:12] Speaker 00: There's a disputed fact here in professional judgment. [00:39:14] Speaker 00: We give a strong presumption in favor of the government. [00:39:18] Speaker 00: And I think the case law says [00:39:20] Speaker 00: The burden of persuasion is on the plaintiffs. [00:39:22] Speaker 00: And it's a very heavy burden to me because of the deference that's given. [00:39:27] Speaker 05: That's correct. [00:39:27] Speaker 00: Well, but you see, what Judge Winn-Warson, I thought, was asking you is, and you seem to be buying into it, no, the court has a role to just kind of now assess it. [00:39:37] Speaker 00: And we second-guess the judgment. [00:39:38] Speaker 00: It seems to me, I thought the case law was saying, all I got to do is show they're in the category of professional judgment. [00:39:44] Speaker 00: That's it. [00:39:44] Speaker 00: And the government sits back. [00:39:46] Speaker 00: And the plaintiff has got to. [00:39:48] Speaker 00: That's my view of the case law? [00:39:50] Speaker 00: I'm just curious to hear what you're saying, because you're answering it very differently. [00:39:54] Speaker 00: I thought the case law said professional judgment has been established, burden is on the plaintiffs, they either make it or not, and it's a very, very heavy burden to meet because the deference is so high. [00:40:06] Speaker 05: I think that your understanding of the case law is correct. [00:40:08] Speaker 05: The only thing I would add to that is that I think under the first factor of the [00:40:13] Speaker 05: of the Turner test, I think that there's sort of this logical, there has to be sort of a logical nexus. [00:40:18] Speaker 05: And I think that the court can look and say, OK, that's apparently, you know, that's a ridiculous position that the government has taken here. [00:40:25] Speaker 05: And I don't think we're in that world. [00:40:27] Speaker 00: That's what gets us in the category of professional judgment. [00:40:30] Speaker 00: Yes. [00:40:30] Speaker 00: Yes. [00:40:31] Speaker 00: I think that's right. [00:40:33] Speaker 05: And just quickly turning to the Bivens claims, if I may. [00:40:38] Speaker 05: I just also want to emphasize, you know, we've presented arguments on the PLRA and we think that the PLRA has been correctly constrained by the circuit to require a broad restriction on damages, but I also want to really emphasize that, you know, even, you know, beyond as we've argued the fact that we don't think that these claims survive at this stage for numerous reasons, I also want to emphasize that under a straightforward qualified immunity analysis, we think that even if [00:41:08] Speaker 05: even if the claims did survive and went forward at this stage, there is no reason that... The district court didn't look at qualified immunity, right? [00:41:17] Speaker 01: Sorry? [00:41:17] Speaker 05: The district court did not consider qualified immunity, but it was on term of the motion to dismiss, and it was fully briefed below, and we think it would be well within... This court could certainly... [00:41:27] Speaker 01: the judgment of the district court on the basis of... We just have to do something the district court didn't look at already, which you're right that it's within our discretion to do that. [00:41:36] Speaker 01: That's correct. [00:41:37] Speaker 01: On the individual capacity claim, so what about nominal damages? [00:41:42] Speaker 01: At least in terms of a straightforward ground for nonaffirmance. [00:41:49] Speaker 01: If nominal damage is, the only question on nominal damage, as far as I could tell, is whether it's sufficient, it's requested with sufficient specificity. [00:41:58] Speaker 01: I think you would agree that if it's requested with sufficient specificity, then nominal damage is enough. [00:42:03] Speaker ?: Correct. [00:42:04] Speaker 01: Right, and so there is a general prayer for relief, and we know from the briefing that nominal damage is something that the plaintiffs are requesting. [00:42:13] Speaker 05: Again, that's all correct. [00:42:17] Speaker 05: The peripheral leaf requested expressly compensatory damages and punitive damages. [00:42:23] Speaker 05: It did not request nominal damages. [00:42:25] Speaker 01: But it wasn't limited to compensatory punitives. [00:42:28] Speaker 05: No, there was also a general peripheral leaf. [00:42:35] Speaker 05: The approach the Davis court took seemed to look pretty carefully at what exactly the plaintiff had asked for. [00:42:41] Speaker 05: And I also think there's good reason to require plaintiffs to plead nominal damages in a PLRA case, just given that the overall purpose of that PLRA limitation is to sort of prevent frivolous lawsuits and prevent sort of ongoing or, you know, prevent the [00:42:58] Speaker 05: sort of wide barrage of prisoner litigation and, you know, requiring prisoners to actually expressly allege the kind of damages that they're seeking and, you know, be aware that, you know, the only relief they're going to get is nominal damages. [00:43:12] Speaker 05: We think that does, you know, serve some purpose. [00:43:14] Speaker 01: But even if... But it's not the frivolousness of the claim. [00:43:17] Speaker 01: It's just a method of relief. [00:43:20] Speaker 01: And nominal damages, I mean, sure, you could tick off nominal damages in a complaint, but that doesn't seem to be accomplishing a great deal vis-a-vis the PLRA. [00:43:27] Speaker 05: Sure, I mean, I think that the thing that it would accomplish would be to sort of limit the overall tide of prisoner litigation, because prisoners would have to sort of know that they were only going to be able to get nominal damages. [00:43:42] Speaker 05: But even setting all that aside, you know, rather than- I don't think they'd ever say they're only going to get nominal damages. [00:43:45] Speaker 01: I think what they would say is we're asking for nominal damages, and then anything else. [00:43:49] Speaker 05: Sure, sure, I think that's right. [00:43:52] Speaker 05: But in any event, I think that even if this court thinks that nominal damages should be available here, in this case we think that turning to the qualified immunity analysis would be appropriate. [00:44:01] Speaker 01: Then you go to qualified immunity if nominal damages. [00:44:03] Speaker 05: Exactly, essentially. [00:44:04] Speaker 05: You know, we think that the communications related monitoring questions that Mr. Smith was faced with here are, you know, a far cry from anything addressed in any of the case law. [00:44:14] Speaker 05: And it would not have been beyond debate how he was entitled to consider speech in making the difficult determinations he was faced with. [00:44:23] Speaker 05: If there are no further questions. [00:44:26] Speaker 02: Nothing further. [00:44:27] Speaker 02: Thank you. [00:44:29] Speaker 02: Ms. [00:44:30] Speaker 02: Maripol, I think we used up all of your time, but we'll give you two minutes for rebuttal. [00:44:37] Speaker 04: Thank you, Judge. [00:44:39] Speaker 04: I'll just make three quick points. [00:44:41] Speaker 04: First of all, with respect to opposing counsel's point that the 2005 rule changes some of the procedures at issue in this case, the 2005 rule does not change anything that is at the heart of plaintiff's procedural due process challenge. [00:44:56] Speaker 04: Under the new rule, there is still no requirement that the decision maker write down the reasons for his or her decision. [00:45:03] Speaker 04: about why an individual is sent to the CMU. [00:45:06] Speaker 04: There's no requirement that the prisoner actually receive notice of the actual reason he was sent to the CMU, as opposed to one of the reasons why he was recommended for the CMU. [00:45:18] Speaker 04: The new rule does not change the fact that the administrative remedy process remains the only way a prisoner can review their CMU placement. [00:45:26] Speaker 04: And the new rule does not change the fact that when a prisoner is reviewed for potential release from the CMU, they are not provided evidence, information about why redesignation out of the CMU has been denied. [00:45:42] Speaker 04: None of those procedural deficiencies, core procedural deficiencies have been addressed. [00:45:47] Speaker 04: Second, opposing counsel made the point that being put in a CMU is really like being put in a medium security prison as opposed to a low security prison. [00:45:57] Speaker 04: And I just want to make clear that classification is a routine prison security measure that applies across the board. [00:46:05] Speaker 04: Now, we cannot take the government's invitation to read a typicality. [00:46:09] Speaker 04: out of Sandin's significant and atypicality standard. [00:46:14] Speaker 04: Atypicality is in there for a reason, and it's because when a small subset of individuals are singled out to be treated differently, especially so in a situation like this one where they primarily come from one religious group, due process is more important. [00:46:30] Speaker 04: It's not that the government may not be able at the end of the day to put communications restrictions on these individuals. [00:46:37] Speaker 04: It's that they must make some minimum procedural protections to ensure that individuals aren't being detained arbitrarily or discriminatorily. [00:46:50] Speaker 04: And finally, with respect to the Turner question, I think Judge Edwards, your point that once we're in the realm of professional judgment, the plaintiffs bear a heavy burden, that that is correct. [00:47:02] Speaker 04: But we have met that burden here. [00:47:03] Speaker 04: This is one of the rare cases where we have met that burden. [00:47:07] Speaker 04: And that is because not only does the court have the actual text of the sermon to look at and a description of that text that is just not a reasonable description [00:47:17] Speaker 04: It's outside reasonable professional judgment. [00:47:21] Speaker 04: Mr. Smith's entire memo is replete with misstatements. [00:47:25] Speaker 04: He says that the unit team at Terre Haute declined to recommend Mr. JUC for release from the CMU because of his radicalization. [00:47:34] Speaker 04: And that's just not the case. [00:47:36] Speaker 04: It's shown in the record. [00:47:37] Speaker 04: That was not the reason they recommended against his release. [00:47:41] Speaker 04: He says that Mr. Jayusi was banned from serving as rotational prayer leader. [00:47:45] Speaker 04: That's not the case. [00:47:47] Speaker 04: He says that Mr. Jayusi recruited Jose Padilla. [00:47:52] Speaker 04: That is not the case. [00:47:53] Speaker 04: This is not an exercise of professional judgment. [00:47:56] Speaker 04: This is simply an inattention to the actual facts. [00:47:59] Speaker 04: Thank you, Your Honors. [00:48:01] Speaker 02: Thank you. [00:48:02] Speaker 02: The case will be submitted.