[00:00:00] Speaker 01:
Fakes number 20-5368.

[00:00:02] Speaker 01:
Yasin Muhyiddin Aref and Daniel McGowan, Keefa Jeyusi, appellant, versus Merrick B. Garland, attorney general of the United States, et al.

[00:00:11] Speaker 01:
Ms.

[00:00:11] Speaker 01:
Mirapel, party appellant, Mr. Soder, party appellees.

[00:00:17] Speaker 02:
May it please the court, Rachel Mirapel, from the Center for Constitutional Rights.

[00:00:21] Speaker 02:
Along with my colleagues at the law firm of Weill Gatcha, I represent plaintiff, appellant, Keefa Jeyusi.

[00:00:27] Speaker 02:
Mr. Jayusi was sent to a communication management unit in 2008, at a time when the Bureau of Prisons had no written criteria for CMU placement and no method for reviewing prisoners for release from those units.

[00:00:41] Speaker 02:
Through his five years in the unit, he was given shifting explanations for why he was there, what he needed to do to get out, and was explicitly told he had no due process rights.

[00:00:52] Speaker 02:
He seeks a ruling that those shifting and inconsistent procedures

[00:00:55] Speaker 02:
do not satisfy Hewitt v. Helms minimal requirements of notice of the basis for designation, an opportunity to rebut that basis, and periodic review.

[00:01:06] Speaker 02:
I'll begin with notice.

[00:01:09] Speaker 02:
The district court erred for two reasons.

[00:01:11] Speaker 02:
The district court ruled that providing a summary of some, but not all,

[00:01:16] Speaker 03:
Before you get to the substance, can you just explain to me what is the redressable, how do you have redressability in this case, right?

[00:01:27] Speaker 03:
Because it's your obligation to show that there is Article III case or controversy throughout the pendency of a case.

[00:01:37] Speaker 03:
And so I'm wondering why his suit is not moot at this stage.

[00:01:43] Speaker 02:
Thank you, Judge Rao.

[00:01:44] Speaker 02:
Since the pleading stage, Mr. Jayusi has been seeking expungement of the erroneous and inflammatory information about him that was created through the counterterrorism units, flawed CMU designation and review procedures.

[00:02:01] Speaker 02:
So a request for expungement saves a case from mootness, so long as there is a real risk, a more than speculative chance, that that information may harm the plaintiff in the future.

[00:02:13] Speaker 02:
What is the harm here?

[00:02:16] Speaker 02:
Here, the potential for harm is that the counterterrorism unit was designed to monitor individuals like Mr. Jayusi and to share information about them with law enforcement.

[00:02:28] Speaker 02:
So as the district court held, we already know that the FBI visited Mr. Jayusi after his release from the CMU, asking him questions about his time at the CMU and his current life.

[00:02:42] Speaker 02:
We know that the information that the counter-terrorism unit holds about Mr. Jayusi goes far beyond what the basis of his convictions.

[00:02:53] Speaker 02:
For example, Mr. Jayusi was not found at trial to have used religious training to recruit anyone towards his conspiracy.

[00:03:01] Speaker 02:
He was not found at trial to have communicated directly with Al-Qaeda.

[00:03:05] Speaker 02:
And yet, because the CMU designation procedures are so flawed,

[00:03:10] Speaker 05:
that information is in what do you mean it was not found at trial i mean in the criminal case there aren't like special verdicts where where you know facts about going beyond kind of like the elements are found um it's just a question of whether there was evidence that was introduced during the trial that could leave you know someone to to so conclude right

[00:03:39] Speaker 02:
Well, that's true, Your Honor.

[00:03:41] Speaker 02:
Now, the counterterrorism unit states that this information, which appears on Mr. Jayusi's notice of transfer, comes from his pre-sentence report.

[00:03:50] Speaker 02:
But we have the pre-sentence report, and it does not say that about Mr. Jayusi in his pre-sentence report.

[00:03:57] Speaker 02:
It does say that about a co-defendant of his.

[00:03:59] Speaker 02:
And actually, there's been a pattern at the counterterrorism unit of including reasons about individuals who are being considered for designation

[00:04:09] Speaker 02:
that replicate what has been said about their co-defendants and not them.

[00:04:16] Speaker 02:
So here, Mr. Jayusi's notice of transfer says that he was sent to the CMU based on his crime of conviction and his offense conduct.

[00:04:26] Speaker 02:
And it describes his offense conduct as involving providing support to Mujahideen, using religious training to recruit others towards a conspiracy, and communicating with al-Qaeda.

[00:04:38] Speaker 02:
Now, when Mr. Jayusi used the administrative remedy program, which is the only way individuals sent to a CMU may challenge their designation, he used that program to say, you know, this is not part of my conviction.

[00:04:52] Speaker 02:
I was never shown to have done this.

[00:04:55] Speaker 02:
And the warden who reviewed his administrative remedy at the first level ignored that factual rebuttal.

[00:05:04] Speaker 02:
instead saying that Mr. Jayusi's connection to terrorism was shown through his terrorism enhancement, and that he was also sent to the communication management unit based on sensitive law enforcement information, even though nothing like that appeared in Mr. Jayusi's notice of transfer.

[00:05:24] Speaker 05:
So, you know- But didn't the PSR discuss his involvement with Al-Qaeda at paragraph 11 and paragraph 59?

[00:05:33] Speaker 02:
My recollection of the PSR, and I'll look at the paragraph you're citing to in a moment, Your Honor, is that there's no direct communication with Al-Qaeda.

[00:05:40] Speaker 02:
There was information in the PSR about groups that Mr. Jayusi communicated with, who themselves communicated with Al-Qaeda, but no communication between Mr. Jayusi and Al-Qaeda itself.

[00:05:56] Speaker 02:
You said paragraphs 12 and 13, Your Honor?

[00:05:59] Speaker 05:
I said paragraphs 11 and 59.

[00:06:02] Speaker 02:
Oh, sorry.

[00:06:04] Speaker 02:
Eleven.

[00:06:06] Speaker 05:
So you can maybe respond in your rebuttal on that.

[00:06:12] Speaker 05:
But I guess.

[00:06:15] Speaker 05:
Even if for the sake of the standing and redress ability, we have to kind of assume you would prevail on the merits.

[00:06:25] Speaker 05:
If we get to the merits, what I'm trying to understand is

[00:06:32] Speaker 05:
is exactly what would have been different had you had notice because the report from the CTU chief did not say that Mr. Jayusi had been disciplined under the disciplinary kind of system.

[00:06:57] Speaker 05:
for leading the Muslim prayer and explicitly said that he had no disciplinary record that he had been sanctioned for, but it just described the prayer and said that they believe that that was concerning.

[00:07:13] Speaker 05:
So I'm trying to understand like what

[00:07:18] Speaker 05:
what would have been different had he had noticed that he would have responded to and said, well, this is false.

[00:07:25] Speaker 05:
And where was that argued in your brief?

[00:07:28] Speaker 02:
Well, two responses, your honor.

[00:07:30] Speaker 02:
First, on the question of the Juma prayer service that he led, that really went to the counterterrorism unit's reasons for declining to transfer Mr. Jayusi out of the CMU after he had already been there for a period of three years.

[00:07:46] Speaker 02:
And our primary argument with respect to the inadequacy of the CMU's review process is that they were untimely.

[00:07:54] Speaker 02:
Mr. JDC was not reviewed for the first 18 months that he was in a CMU.

[00:07:59] Speaker 02:
Bureau of prisons didn't even have a review process for that period of time.

[00:08:02] Speaker 02:
And that once he was reviewed for potential release from the CMU, he was not told what he needed to do to change his behavior.

[00:08:11] Speaker 02:
And that gets at your honor's question.

[00:08:13] Speaker 02:
What would have been different if he had learned that

[00:08:16] Speaker 02:
his Kumar prayer service played a role.

[00:08:19] Speaker 02:
Well, there were inaccuracies in the way that the counterterrorism unit was describing that service.

[00:08:25] Speaker 02:
For example, the counterterrorism unit said that it was an example of radicalization and that his unit team had recommended against his release from the CMU because he was involved in radicalizing other prisoners.

[00:08:40] Speaker 02:
This is incorrect.

[00:08:41] Speaker 02:
His unit team had recommended

[00:08:43] Speaker 02:
initially against his release from the unit because of his crimes of conviction.

[00:08:50] Speaker 02:
By the time his potential release from the unit was up before the counterterrorism unit at the three-year mark, they recommended for his release from the CMU, noting his good conduct and his good rapport with staff.

[00:09:04] Speaker 02:
So had he had notice of the reasons, he could have explained that the counterterrorism unit did not have a full picture of his conduct in the CMU.

[00:09:12] Speaker 02:
But moving back, Your Honor, to what he was initially told about his CMU placement, he was told that the reasons for his CMU placement included these aspects of his offense conduct that he felt were contradicted by his pre-sentence report.

[00:09:28] Speaker 02:
When he pointed out the errors, he received ever shifting explanations for why he was in the unit.

[00:09:34] Speaker 02:
There wasn't a defense by someone in the Bureau of Prisons saying, no, we looked at your PSR and this is correct, or,

[00:09:41] Speaker 02:
Well, it doesn't really matter whether that was air-fence conduct or not, because you're eligible by virtue of your crime of conviction.

[00:09:48] Speaker 02:
Instead, he was told by the warden, sensitive law enforcement information is the reason you're there.

[00:09:53] Speaker 02:
Then when he appealed to the regional director, he was given yet another description of what led to his CMU placement.

[00:09:59] Speaker 02:
Really, I think the problem here is that there is no way to tell for the record

[00:10:05] Speaker 02:
why the decision maker actually sent Mr. Jayusi to the CMU, because the decision maker did not write down his reasons for Mr. Jayusi's CMU placement anywhere.

[00:10:15] Speaker 02:
Now due process requires that an individual have the opportunity to learn the decision maker's reasons.

[00:10:22] Speaker 02:
When asked at his deposition why Mr. Jayusi was sent to the CMU, the regional director said, it would have been based on all the information that

[00:10:33] Speaker 02:
I got from the counter-terrorism unit.

[00:10:36] Speaker 02:
It was probably his offense conduct.

[00:10:38] Speaker 02:
And that is at, I wanna make sure I give you the record site for that.

[00:10:45] Speaker 02:
That is at JA 1638.

[00:10:48] Speaker 02:
So it's clear the regional director had no individual specific knowledge of why he sent Mr. JUC to the CMU.

[00:10:56] Speaker 02:
So Mr. JUC's opportunities to rebut those reasons were meaningless.

[00:11:01] Speaker 02:
He was left stumbling towards a moving target.

[00:11:04] Speaker 02:
I see I'm out of time, unless Your Honors have any more questions.

[00:11:09] Speaker 05:
Judge Rao, Judge Randolph?

[00:11:11] Speaker 04:
No.

[00:11:11] Speaker 05:
All right, we'll give you some time on rebuttal.

[00:11:16] Speaker 05:
Thank you.

[00:11:18] Speaker 05:
All right, we'll hear from counsel for the government.

[00:11:22] Speaker 00:
Thank you, Your Honor.

[00:11:22] Speaker 00:
Kevin Soder from the Department of Justice for the government.

[00:11:26] Speaker 00:
I'd like to begin on mootness and explain why I sort of spoke

[00:11:30] Speaker 00:
What's important to keep in mind is that at all previous stages of this case, including the prior appeal to this court, the injury was an injury to liberty.

[00:11:39] Speaker 00:
And that injury is indisputably gone from this case.

[00:11:42] Speaker 00:
And now all we're left with as some of the questions we're getting at is figuring out whether there is any injury that can still be traced to the records that BOP has maintained.

[00:11:53] Speaker 00:
And there simply isn't.

[00:11:54] Speaker 00:
Everything that is being relied upon

[00:11:57] Speaker 00:
by the plaintiff here is too speculative to support the exercise of Article 3 jurisdiction.

[00:12:02] Speaker 00:
And that's made clear when you look at the fact-specific inquiry at what these specific records actually reflect and how they might be used in the future according to the plaintiff.

[00:12:13] Speaker 00:
And when you try to pair those two together, you end up with just too much speculation layered on top of speculation to support jurisdiction.

[00:12:21] Speaker 04:
So the CMU records are available to whom?

[00:12:26] Speaker 00:
So the plaintiff has requested expungement of a number of records within BOP's possession, including any reference to the fact that he was in the CMU, which appears kind of throughout.

[00:12:40] Speaker 04:
My question is the records themselves, the documents, are they available to the men on the street?

[00:12:49] Speaker 04:
Are they available to state law enforcement?

[00:12:52] Speaker 04:
Are they available to the FBI?

[00:12:55] Speaker 00:
So the BOP has a detailed set of processes related to when it can share records with other law enforcement agencies and with probation offices in particular, which are relevant here.

[00:13:06] Speaker 00:
And so the request would have to be made or a process would have to be in place for you to kind of conclude that these records end up shared with anyone.

[00:13:17] Speaker 00:
And here plaintiff has only pointed to two ways in which he expects that these records might be used.

[00:13:24] Speaker 00:
One is by law enforcement.

[00:13:26] Speaker 00:
And for that, there is just no basis to conclude that any records have been provided that would be detrimental to him or will be provided in the future.

[00:13:38] Speaker 00:
And the other is the supervised release court, which we know there's a BOP policy about what gets shared with the probation office in the supervising district.

[00:13:46] Speaker 00:
And that policy lays out the documents that would be sent.

[00:13:50] Speaker 00:
And those wouldn't include

[00:13:51] Speaker 00:
just sort of as a matter of usual course.

[00:13:53] Speaker 00:
They wouldn't include things like the notice of transfer that he's alleging missummarized his offense conduct and wouldn't include the internal memoranda summarizing why he was kept in a CMU.

[00:14:06] Speaker 00:
And of course, I think it's also important to keep in mind that there's an additional layer of speculation about someone even relying on this information given kind of factual disputes about the accuracy of it.

[00:14:19] Speaker 00:
The due process claim here is primarily as plaintiffs council was discussing about an adequate opportunity to respond to statements that were made as part of the basis for maintaining the plaintiff in the CMU and those statements are not inaccurate.

[00:14:39] Speaker 00:
But kind of the remedy for that would be to allow the plaintiff to air those responses in, for example, the supervised release proceeding.

[00:14:48] Speaker 04:
Okay, thank you.

[00:14:50] Speaker 03:
I was interested in the government's argument in footnote seven about whether this court could even order expungement of the records here.

[00:15:02] Speaker 03:
Are you suggesting that expungement is not a remedy that's even available to this court?

[00:15:09] Speaker 03:
And we have expunged records in the past as a remedy.

[00:15:13] Speaker 00:
So the point we were making there is that there is a specific standard that must be met for expungement to actually be an appropriate exercise of a court's equitable discretion.

[00:15:21] Speaker 00:
And here we think we are far away from a situation in which that standard is met in part because of the disconnect between the due process claim and the records here that we're talking about.

[00:15:34] Speaker 00:
This isn't a situation like the court's prior cases in Doe, for example, where

[00:15:40] Speaker 00:
the allegation was that the government shouldn't have the records at all.

[00:15:45] Speaker 00:
And that was an unconstitutional search claim.

[00:15:49] Speaker 00:
And so that's a further reason why it's speculative to think that expungement would end up even helping the plaintiff is that it doesn't really redress a due process violation.

[00:16:02] Speaker 03:
And Mr. Center, could you tell me also, so now there are some new procedures for placing someone in,

[00:16:10] Speaker 03:
you know, is being designated for the CMU unit.

[00:16:15] Speaker 03:
So how did those procedures differ from the ones that Mr. JUC was subjected to?

[00:16:22] Speaker 00:
So in the main, the procedures have not changed.

[00:16:25] Speaker 00:
They've been codified at a regulation that states kind of the core requirements that are necessary for due process that have been satisfied here are notice and an opportunity to respond.

[00:16:34] Speaker 00:
And they also provide for the additional protection of periodic review at six month intervals.

[00:16:40] Speaker 03:
Those have been main difference the periodic review.

[00:16:45] Speaker 00:
The periodic review has been in place, at least since 2009 there's a policy that's in the record.

[00:16:51] Speaker 00:
It's a memo from the assistant director for the correctional programs division and that's at page 975 of the record.

[00:16:59] Speaker 00:
So that's been in place since well before the regulation was finalized.

[00:17:04] Speaker 00:
Of course, that that came into effect shortly after

[00:17:09] Speaker 00:
Mr. Jhussi had been in the unit.

[00:17:11] Speaker 00:
So his initial period of his confinement didn't include the specific policy requiring explicit re-examination by the BOP at six-month intervals.

[00:17:23] Speaker 00:
But other than that, the policies have been the same since 2009 and since before that for the notice and opportunity to respond.

[00:17:31] Speaker 00:
And I think on the merits, it's important to keep in mind just what the due process clause requires.

[00:17:36] Speaker 00:
As this court's previous decision recognized,

[00:17:39] Speaker 00:
degree of process due here is minimal and needs to account for the interests of prison administrators making difficult judgments predicting who in the prison population is most in need of these additional communications restrictions to ensure that other communications restrictions that might be in place in other units can't be circumvented.

[00:18:04] Speaker 00:
And here,

[00:18:06] Speaker 00:
the processes that are in place amply satisfy that requirement.

[00:18:11] Speaker 00:
To address some of the points that were made previously, I think it's important to see how far away this case actually is from shifting explanations or something where you are unable to respond.

[00:18:24] Speaker 00:
If you look at the the notice that was given to the plaintiff here, the objection that he made and the response that he received in the record, those show

[00:18:34] Speaker 00:
no reasonable dispute that he was placed in this unit because of his convictions, because his offense conduct included communicating in code.

[00:18:42] Speaker 00:
You can see that in the PSR at the paragraphs that were being discussed.

[00:18:46] Speaker 00:
You can also see kind of the connections to Al-Qaeda, the paragraph that Judge Wilkins was pointing to, as well as I would point to the 11th Circuit's decision in the direct appeal at page 1105 goes through some of the offense conduct that's relevant there.

[00:19:03] Speaker 00:
And it mentions, I think it's also, you can look at the PSR.

[00:19:06] Speaker 00:
I think it was paragraph, sorry, I believe paragraph 59 maybe mentions communications received from foreign terrorist organizations.

[00:19:18] Speaker 00:
I'm happy to address any questions the court has about either Mutenis or the merits.

[00:19:23] Speaker 05:
Judge Rao, Judge Randolph?

[00:19:25] Speaker 05:
No, I don't have any.

[00:19:28] Speaker 05:
Yes.

[00:19:28] Speaker 05:
All right.

[00:19:28] Speaker 04:
Thank you.

[00:19:29] Speaker 05:
Thank you.

[00:19:32] Speaker 05:
We'll hear from Council for appellant on rebuttal.

[00:19:38] Speaker 05:
Give Council two minutes.

[00:19:42] Speaker 02:
Thank you.

[00:19:43] Speaker 02:
First, to answer your question, Judge Wilkins, I reviewed paragraphs 11 and 59.

[00:19:49] Speaker 02:
Paragraph 11 does talk about Al-Qaeda, but not any connection Mr. Jayusi specifically had to Al-Qaeda.

[00:19:56] Speaker 02:
And paragraph 59 is a connection to someone with a connection.

[00:20:00] Speaker 02:
not a direct connection himself.

[00:20:03] Speaker 02:
And there again is nothing in the PSR that speaks of Mr. Jayusi using religious training to recruit anyone toward a conspiracy.

[00:20:12] Speaker 02:
Moving to the question of whether the injury in this case is too speculative.

[00:20:17] Speaker 02:
There is no difference between this case and Abdel Fattah, which the district court relied on, except that Mr. Jayusi has provided more information about how the evidence

[00:20:28] Speaker 02:
the allegations about him could harm him in the future.

[00:20:32] Speaker 02:
And it's not surprising that in Abdel Fattah, this court didn't require, you know, specific evidence of how the information could be used against that plaintiff, because it's sort of common sense that when a government agency, especially an agency designed to share information, has negative information about you, that creates a risk of harm.

[00:20:52] Speaker 02:
Indeed, in HedgePath, then judge, now Chief Justice John Roberts used this common sense approach

[00:20:58] Speaker 02:
when considering that a child plaintiff's request for expungement of her arrest record saved her case from mootness, given that the child would not have to face the possibility in the distant future of answering questions on an employment form about whether she had an arrest record.

[00:21:17] Speaker 02:
Now, the child had no pending applications for employment that I'm aware of, nor did she testify that she wanted to work in a field where these kinds of questions were answered.

[00:21:26] Speaker 02:
Rather, it was a common sense approach about a real risk of harm.

[00:21:31] Speaker 02:
Judge Randolph asked about whether the documents are available to the FBI.

[00:21:35] Speaker 02:
And I find it notable here that throughout this case, the Bureau of Prisons has never taken the step of getting a declaration from the counterterrorism unit disavowing their intent to share this information with the FBI in the past or in the future, when it would have been quite easy for them to do so.

[00:21:53] Speaker 02:
And finally, the new procedures that are at issue in this case, which Judge Rao asked about, notably the administrative remedy program remains the only way that individuals in the CMU can rebut the factual basis for their placement, though not a single individual has ever used that program successfully.

[00:22:12] Speaker 02:
Thank you, Your Honors, unless there are any other questions.

[00:22:17] Speaker 05:
All right, thank you.

[00:22:17] Speaker 05:
We'll take the matter under advisement.