[00:00:01] Speaker 00: Case number 22-5240, Kiboney Savage Appellant versus United States Department of Justice et al. [00:00:10] Speaker 00: Mr. Hicks for the appellant, Ms. [00:00:13] Speaker 00: Lilly for the appellees. [00:00:25] Speaker 04: Good morning whenever you're ready. [00:00:28] Speaker 03: Good morning, your honors. [00:00:30] Speaker 03: May it please the court. [00:00:32] Speaker 03: Kiboney Savage has exhausted his administrative remedies as required by law, and the district court's decision to grant summary judgment in this case should be reversed. [00:00:42] Speaker 03: As this court is aware, the Supreme Court in Ross v. Blake has stated that in order to determine whether a prisoner has exhausted their administrative remedies, that we should look to the, quote, facts on the ground, end quote, [00:00:57] Speaker 03: to determine whether there is an available avenue for exhausting administrative remedies. [00:01:03] Speaker 03: I would assert that the facts on the ground here, if the court examines them, will prove that Mr. Savage has exhausted his administrative remedies and that the BOP grievance process is not an available remedy as contemplated by Ross V. Blake. [00:01:19] Speaker 04: The facts on the ground are that [00:01:22] Speaker 04: Savage on some occasions has used the BOP process and has secured relief through it. [00:01:31] Speaker 03: Your Honor, that is true. [00:01:32] Speaker 03: In 2019, Mr. Savage sought to have an imam added to his SAMs as well as to engage in a correspondence course. [00:01:43] Speaker 03: Mr. Savage did that because BOP regulations required that Mr. Savage contact the BOP and make those requests to the BOP. [00:01:50] Speaker 03: The BOP then transferred those requests to the DOJ, which ultimately made the decision to whether to grant or not to grant those requests. [00:01:58] Speaker 04: The process produced relief. [00:02:02] Speaker 04: Well, Your Honor, the only pretty conclusively that it's not a sham process. [00:02:09] Speaker 03: Well, Your Honor, I would point I would disagree with that if you would point to [00:02:14] Speaker 03: Go back to 2014 when Mr. Savage, Mr. Savage has been talking to the DOJ directly to Mr. Troyer, the AUSA Troyer. [00:02:22] Speaker 03: for almost a decade. [00:02:23] Speaker 03: And in 2014, Mr. Savage's counsel had asked Mr. Troyer to make various alterations to his SAMs, including adding his niece and nephew to the SAMs. [00:02:35] Speaker 03: At that point, Mr. Troyer came back. [00:02:40] Speaker 03: Mr. Fisher asked, OK, the SAMs have been renewed. [00:02:45] Speaker 03: Should we assume that Mr. Savage's request had been denied? [00:02:51] Speaker 03: At that point, Mr. Troyer came back and said, quote, you can assume that the newly enacted SAMS is the department's response to your letter. [00:02:58] Speaker 03: As you can see, your request to add Savage's niece and nephew to the list of visitors were in fact adopted and implemented while some of your other requests were not, end quote. [00:03:08] Speaker 03: Now, after that point, Mr. Savage for every year for eight years made the same request to the DDOJ and every year his SAMS were reissued without modification. [00:03:21] Speaker 04: The reissuance has no reissuance happens independently of any requests that you make or don't make. [00:03:33] Speaker 04: The SAMs are time limited by their terms. [00:03:36] Speaker 04: And if DOJ wants them to continue, they have to undergo their own internal process. [00:03:44] Speaker 04: So the fact of renewal doesn't really tell us anything. [00:03:48] Speaker 03: Well, Your Honor, the only information that my client had was from AUSA Troyer, who said that if we renew your SAMs, you can consider that a rejection of your request to alter the SAMs. [00:04:01] Speaker 04: You have one email from 2015, which does seem to blur a little bit. [00:04:08] Speaker 04: I'll give you that. [00:04:10] Speaker 04: It's an instance where you're going through the US Attorney's Office [00:04:16] Speaker 04: to short circuit the BOP process and you seem to get something out of that. [00:04:22] Speaker 04: But that's one time six years ago, we're talking about 2021 and you have more than this email, you have the face of the regulations which say that the administrative remedy program is available for complaints about the SAMs. [00:04:43] Speaker 03: Well, your honor, I would point so once Mr Savage after eight years of requesting modifications to a Sam's and having a Sam's reissued without modification. [00:04:53] Speaker 03: Mr Sam's did engage again in the BOP grievance process in 2021. [00:04:58] Speaker 03: He filed a grievance, and in that grievance, it went to the warden of ADX. [00:05:04] Speaker 03: The warden, in his response to Mr. Savage, makes it clear. [00:05:07] Speaker 03: He says, quote, any such modification must be approved by the US Attorney's Office for the Eastern District of Pennsylvania and the Federal Bureau of Investigation, end quote. [00:05:17] Speaker 03: Mr. True, the warden, goes on to say, quote, forwarded to and reviewed by the USAO slash EDPA and the FBI, end quote, and only, quote, [00:05:26] Speaker 03: These agencies may take action as necessary to grant the relief requested." [00:05:32] Speaker 03: He finishes his letter by saying, quote, this response to your request for administrative remedy is for information or purposes only, end quote. [00:05:42] Speaker 03: Your Honor, I would submit that Mr. Savage attempted to use the BOP process. [00:05:47] Speaker 03: The warden at ADX Florence told Mr. Savage, we have no power to grant your request. [00:05:52] Speaker 03: The only power we have is to forge your request to the response in this case, who will ultimately make a decision on the merits as to your request. [00:06:00] Speaker 03: Mr. Savage, in that case, Mr. Savage would basically be, the BOP would be transferring [00:06:07] Speaker 03: the request for relief back to the respondents who had already denied his request by reissuing his SAMs without modification. [00:06:15] Speaker 03: So that is not an available avenue of relief as contemplated by Ross V Blake. [00:06:21] Speaker 05: We know that there are instances in which the warden of the facility has been able to not necessarily this particular warden but in cases in which the warden has been able to [00:06:37] Speaker 05: accommodate requests within the constraints imposed by the SAMs. [00:06:45] Speaker 05: That is, minor adjustments in the way things are done in order to provide some relief for the prisoner. [00:06:56] Speaker 05: Since sometimes the warden can do that, depending on the request, [00:07:04] Speaker 05: I think we know that the BOP is not entirely relevant in this process. [00:07:11] Speaker 05: It's not, in other words, simply a transmission belt to the Department of Justice. [00:07:17] Speaker 05: We also know from Booth [00:07:19] Speaker 05: the Booth case that even though in that particular case there was no material prospect of relief, the court said because the request was for monetary relief and that was not available, the court said that some relief still met the some relief standard, some relief being available. [00:07:41] Speaker 05: And I can only imagine that is because when some petitions could be handled by BOP, it only makes sense to filter them all through the warden and then on to justice when the warden can't take the required action. [00:07:59] Speaker 05: So given Booth, I don't understand how you can say that here there is no prospect of relief. [00:08:07] Speaker 03: Well, Your Honor, I believe that, again, I think that the differences in the facts here, two things. [00:08:13] Speaker 03: Number one, the request that Mr. Savage was making in this case was the addition to additional contacts to his SAMs. [00:08:19] Speaker 03: It was not to the conditions of his confinement. [00:08:21] Speaker 03: It was not what? [00:08:22] Speaker 03: Not to the conditions of his confinement. [00:08:25] Speaker 03: There was no request that Mr. Savage change the number of phone calls. [00:08:29] Speaker 03: the number of emails, or mail, anything else about his conditions of confinement. [00:08:33] Speaker 03: Rather, he was asking to add additional people to the SAMs. [00:08:36] Speaker 03: The only, the regulations in this case are clear, that the only people who have the power to add additional contacts to Mr. Savage's SAMs are the DOJ, respondents to the DOJ. [00:08:47] Speaker 03: So in this particular case, also given the fact that the DOJ told Mr. Savage that that was his own, that they were willing to grant him the relief in that avenue, and that [00:08:58] Speaker 05: Well, the only way you can get relief from this court is from the judges. [00:09:03] Speaker 05: But you have to file first with the clerk. [00:09:06] Speaker 05: And the clerk can look at your papers and say they are not appropriate for filing. [00:09:12] Speaker 05: It can be rejected. [00:09:15] Speaker 05: And that serves to make the system work reasonably more efficiently than it otherwise would. [00:09:21] Speaker 05: It seems to me that something like that is going out here by requiring [00:09:27] Speaker 05: exhaustion of the ARP, such relief as can be given at the first level is given, and the rest are passed on to justice. [00:09:39] Speaker 03: Well, I would set forth, Your Honor, that Mr. Savage has actually exhausted his administrative remedies, as was set forth to him by the defendants of the DOJ, that they have reissued his SAMs without modification, and that by doing that, his administrative remedies were exhausted. [00:09:54] Speaker 05: How can that constitute exhaustion? [00:09:57] Speaker 05: The fact that you're saying that that because he's asked before and has always been denied that for not asking is sufficient. [00:10:07] Speaker 03: Well, Your Honor, the [00:10:10] Speaker 03: I would say that the DOJ had every opportunity to clarify that the only methodology for which Mr. Savage could seek redress was through the DOP grievance process. [00:10:20] Speaker 03: It never did so. [00:10:21] Speaker 03: Instead, it granted his previous request to add contacts by direct contact and told him that any denial going henceforth was a denial of his request. [00:10:34] Speaker 04: Thank you. [00:10:45] Speaker 01: Good morning, Your Honors. [00:10:46] Speaker 01: Janie Lilly for the federal government. [00:10:49] Speaker 01: I'd like to begin by responding to the argument that the Bureau of Prisons has no authority. [00:10:57] Speaker 01: As Judge Ginsburg pointed out, the Bureau does have authority to make certain modifications, and it importantly has [00:11:05] Speaker 01: input about on the on the ground information about both the inmate perhaps the requested contacts in the case of an educational institution might have some information about how that institution has performed under similar restrictions in the past and so in any event the the [00:11:30] Speaker 01: Bureau's administrative scheme remained available to Mr Savage and continues to be available. [00:11:35] Speaker 01: It's clear in the regulation. [00:11:36] Speaker 01: That is how we should seek modification of the special administrative measures. [00:11:40] Speaker 01: And he acknowledged that by filing a request in 2021. [00:11:46] Speaker 02: Miss Lee, if there was a final decision on the merits here, would that be an exception to the exhaustion requirement in the P. L. R. A. [00:11:55] Speaker 01: Um, if there had been a final decision on the merits of his, I think I take that to be one of the arguments that there was a final decision. [00:12:02] Speaker 02: And so would that be an exception to the exhaustion requirement? [00:12:05] Speaker 01: Um, your honor, if there had been a final decision on the merits, um, and in certain circumstances that could satisfy exhaustion, but there wasn't one here as [00:12:14] Speaker 01: Judge Katz has pointed out there is a single email that it's unclear and that illustrates precisely why it was vital for Mr Savage to go through the Bureau's prescribed process. [00:12:26] Speaker 01: It was clear on the face of the regulation what he was required to do. [00:12:30] Speaker 01: It remains available to him here and that's the way he can receive a final decision on the merits of his requests. [00:12:38] Speaker 04: Seems very clear on the face of the regs, but [00:12:44] Speaker 04: There are two odd features in the documents. [00:12:47] Speaker 04: One is that 2015 email, which I mentioned, where he wants some relief. [00:12:57] Speaker 04: He goes through EDPA to end run BOP and the response he gets back is not, you have to start with BOP, it's that [00:13:10] Speaker 04: Edpa takes it up to main justice and main, you know, the decision on the yearly reauthorization counts as a merits denial of his request. [00:13:23] Speaker 04: Now, you know, I don't know, maybe the USA doesn't have authority to override the whole SAM process, but that tends to support his view of how this can work. [00:13:35] Speaker 01: Well, your honor, the Supreme Court has said in Ross that where there's any ambiguity about the availability of a process or or how it works, that the prisoner of the inmate is required to pursue all available remedies. [00:13:49] Speaker 01: And that's what the district court concluded in this case, that where it's unclear what you should do, of course, we argue that it's not the regulation is clear on its face. [00:14:00] Speaker 01: And we know that because he used the same process multiple times, including in the context of [00:14:04] Speaker 01: of seeking additional social contacts. [00:14:09] Speaker 01: But where there's any lack of clarity, the onus is on the inmate and that Congress was clear that the inmate should exhaust all available remedies. [00:14:17] Speaker 01: There's no basis for concluding that the normal process was unavailable to him. [00:14:24] Speaker 01: He knew that and even subsequent to the email he points to, availed himself of the process multiple times in this context. [00:14:36] Speaker 01: Thank you, your honor. [00:14:40] Speaker 04: Thank you. [00:14:41] Speaker 04: Thank you. [00:14:49] Speaker 04: If you have anything. [00:14:51] Speaker 03: Just a couple of points. [00:14:56] Speaker 03: First, in terms of the input that the BOP may have in any process, [00:15:03] Speaker 03: The regulations on the sands are clear that what the DOJ would be looking at to determine whether to add additional members to his sands is whether the people who is requesting would be a danger, either a danger of death or serious bodily harm. [00:15:18] Speaker 03: There's no way for the BOP to be able to make that assessment. [00:15:21] Speaker 03: If you were to ask, go through the BOP process. [00:15:23] Speaker 04: You don't think it would one relevant consideration would be the behavior of the prisoner and the facts on the ground at the prison? [00:15:33] Speaker 03: Well, Your Honor, the DOJ already knows the behavior of the prisoner. [00:15:37] Speaker 03: It is incumbent in them in reissuing the SAMs to make a determination whether he continues to be a serious risk to death or serious bodily injury. [00:15:46] Speaker 03: It makes that assessment. [00:15:47] Speaker 03: It knows about him. [00:15:47] Speaker 04: And the same issues that would come up on the yearly renewal would come up on a request for modification. [00:15:58] Speaker 03: Well, Your Honor, that's true, but Mr. Savage went through the process of the yearly renewal by directly contacting Mr. Troyer and then threw him main justice. [00:16:10] Speaker 03: And that process was successful. [00:16:14] Speaker 03: And at no point did they ever tell him that it could not be successful. [00:16:17] Speaker 03: As a matter of fact, they told him the opposite. [00:16:20] Speaker 05: Let's assume that that gave him a reasonable ground for thinking. [00:16:24] Speaker 05: that he could bypass POP again and go directly to justice. [00:16:34] Speaker 05: It surely can't be permissible to rely on an informal resolution on a prior matter and to see that the government is somehow bound by that. [00:16:49] Speaker 05: The government moves through official proceedings. [00:16:52] Speaker 05: And there are any number of cases in which in this court and elsewhere in which people have relied to their detriment on an informal assurance from some government agency. [00:17:03] Speaker 03: Well, Your Honor, I would say that in this case that [00:17:07] Speaker 03: The formal proceeding in this case is looking at the renewal of the SAMs itself. [00:17:12] Speaker 03: So every year the DOJ goes through the process of renewing the SAMs. [00:17:16] Speaker 03: It's supposedly the basis of the substance of this lawsuit is whether the DOJ actually does the work of looking to Mr. Savage's behavior and deciding whether he is still a danger. [00:17:27] Speaker 03: And we couldn't even get to that point because it was dismissed for lack of exhaustion. [00:17:30] Speaker 03: But the point is, is that every year they go through that process, every year Mr. Savage has filed a formal letter asking them to please reconsider and to add additional family members, his grandchildren, the mothers of his children, to the SAHMS. [00:17:44] Speaker 03: And it has been repeatedly denied by the reassurance of the SAHMS without modification. [00:17:48] Speaker 03: We believe there has been a formal process and that is a final decision on the merits. [00:17:53] Speaker 05: I'm not sure why the denial, repeated denials at the level of the Department of Justice, [00:18:00] Speaker 05: is a reason for being able to not proceed through BOP. [00:18:11] Speaker 05: And it sounds like it's a reason to not bother going to justice again. [00:18:15] Speaker 03: Well, Your Honor, I don't believe that's the case. [00:18:17] Speaker 03: Again, I think that the facts here are particular in that the only ones, if you look at the regulation, the only ones who can add members to Mr. Savage's stands are the DOJ. [00:18:27] Speaker 03: And I think that if Mr. Savage was asking for additional phone calls or other petitions of a confinement where the BOP would have input, important input into whether the decision is made, I think that would be appropriate. [00:18:37] Speaker 03: But under these facts, it would not be. [00:18:39] Speaker 05: Did you have an answer to the Booth question before? [00:18:42] Speaker 05: I'm sorry. [00:18:43] Speaker 05: Did you have an answer before? [00:18:44] Speaker 05: I don't recall to the, what do you do with the Booth case? [00:18:56] Speaker 05: Prisoner was seeking monetary relief. [00:18:59] Speaker 03: Oh yes. [00:19:01] Speaker 03: Well, your honor in Booth, there was a, there was other, [00:19:08] Speaker 03: The grievance was not just the monetary remedies. [00:19:12] Speaker 03: There were also other things that the BOP could do in that case. [00:19:14] Speaker 03: And the argument here is that there's no power that the BOP has in which to modify these SAMs in the way that Mr. Savage has actually requested. [00:19:23] Speaker 03: In Booth, the BOP had the power to look at other measures that might be able to fulfill the prisoner's grievance other than monetary remedies. [00:19:31] Speaker 03: I don't believe that's the case here. [00:19:35] Speaker 05: Okay. [00:19:35] Speaker 05: We'll take a look at that again. [00:19:37] Speaker 03: Um, one last point, your honors. [00:19:40] Speaker 03: Um, so look at the, um, the, how the judge, the, excuse me, the council stated that the judge construed the facts here as to be, um, against my client because there was some ambiguity in the letter from Mr. Troyer and that Mr. Savage had a requirement to exhaust all avenues of administrative remedies. [00:20:05] Speaker 03: We would say that that, [00:20:06] Speaker 03: actually votes for reversing here rather than upholding in that this is a motion for summary judgment. [00:20:13] Speaker 03: All facts should have been construed in the light most favorable to Mr. Savage. [00:20:18] Speaker 03: The judge did not do that. [00:20:20] Speaker 03: The judge looked at the ambiguity and construed it in favor of the government, which violates the standard for summary judgment. [00:20:27] Speaker 03: And we believe that is also a reason to reverse. [00:20:30] Speaker 03: Thank you. [00:20:30] Speaker 03: Thank you.