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Case number 21-5217, Mark Jordan, appellant, versus Federal Bureau of Prisons, and Collette Peters, director, U.S.

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Bureau of Prisons.

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Ms.

[00:00:10] Speaker 00:
Foley, amicus curiae for the appellant, Ms.

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Patterson for the appellees.

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Ms.

[00:00:15] Speaker 01:
Foley, good morning.

[00:00:17] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:20] Speaker 01:
I'm Court Appointment Amicus for Appellant Mr. Mark Jordan, and I'd like to reserve four minutes for a bottle, please.

[00:00:26] Speaker 01:
Sanctions C through M are contrary to law and Mr. Jordan has standing to challenge them.

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Due to the minuteness of BOP's rules and its close oversight of Mr. Jordan, he is at substantial risk of incurring the sanctions of which he complains during the 23 remaining years of his incarceration, as his lengthy disciplinary history shows.

[00:00:44] Speaker 01:
He also suffers.

[00:00:45] Speaker 05:
Let me ask you about his remaining sentence because according to the record anyway, there've been three and a half years almost that there've been no sanctions.

[00:00:56] Speaker 01:
I disagree with that, Your Honor.

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The record below only goes up to the time of his complaint in 2020.

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And in the five years prior to the filing of this complaint, he was found to have committed at least nine prohibited acts, and he incurred at least 18 separate sanctions for those acts.

[00:01:11] Speaker 05:
How about 2024?

[00:01:13] Speaker 01:
Excuse me?

[00:01:14] Speaker 05:
How about 2024?

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That's what I'm talking about.

[00:01:18] Speaker 01:
The administrative record below is not lucid on that point.

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There's nothing in the record about that.

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And so I think this court has to base its standing holding on what is in the record.

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Alternatively, I suppose the court could remand for further factual development with respect to Mr. Jordan's standing.

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But on the record before the court, I think it's very clear that Mr. Jordan is at imminent risk of incurring additional sanctions in light of his lengthy disciplinary history.

[00:01:46] Speaker 05:
And in light of the- Okay, let me just say this.

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I'm not saying

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You were required to do this.

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Did you think about updating the sanctions record?

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So I was not Mr. I was not amicus or representing Mr. Jordan's below.

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I came in on appeal.

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And so I can't speak to whether or not that was considered.

[00:02:11] Speaker 05:
Well, you could have.

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Are you saying you couldn't have done it since you've been appointed?

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I suppose I might have.

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I don't think it was.

[00:02:21] Speaker 05:
Sorry.

[00:02:25] Speaker 01:
Go ahead.

[00:02:26] Speaker 01:
So I think it's clear that on the basis of the record that is below before the court and the record that that was accrued up to the filing of Mr Jordan's complaint.

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I think it's clear that he does have standing on the basis of imminent injury.

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And this is due not just to Mr. Jordan's lengthy disciplinary history, but due to BOP's close oversight of inmates like Mr. Jordan and the minuteness of its rules of conduct, which prohibit quotidian conduct like insolence, swearing, OSHA violations, and untidiness.

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And on those bases, I think it's very clear that the court should find standing.

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The court could also find standing on the basis of ongoing injury.

[00:03:06] Speaker 03:
Can we go back to the future injury counsel?

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What, in your view, is the right way to think about the time horizon for that?

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If we're asking, is it sufficiently likely he'll be subject to one of these sanctions again, are we talking a few years?

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I think at one point in your brief you say we should look at the whole 24 years remaining in his sentence.

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And it seems like that can't be right.

[00:03:30] Speaker 01:
Well, I think in NB X-Rail Peacock, this court spoke of the likelihood of injury within a fixed period of time.

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I think that period of time can be relatively long.

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In NB X-Rail Peacock, I believe it was a year to 18 months.

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And in Lee versus Wiseman, the Supreme Court found perspective relief standing on the basis of likelihood of injury in the likelihood that a prayer would be said at a high school graduation four years in the future.

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So I think the important thing is that the time period be fixed.

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If the court were uncomfortable with looking at the 23 remaining years of Mr. Jordan's sentence, it could shorten that period to a shorter period, such as the four years at issuantly versus Weisman, or even 18 months.

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I think it's still virtually certain that Mr. Jordan will incur additional sanctions within that fixed period of time.

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OK.

[00:04:28] Speaker 03:
I think Judge Rogers, I think you're muted.

[00:04:37] Speaker 03:
Well, I'll just ask.

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I was going to ask.

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It seems to me your argument.

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for standing is pretty straightforward in one respect.

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You're saying in the five years before the complaint, he was subject to this kind of discipline nine times, depending on how you count.

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And so it's likely he'll be subject to it again.

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But the government, as I don't know if you've acknowledged yet, we have all of these cases saying we generally expect litigants to follow the rules.

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And I'm just wondering what your response to that line of cases is.

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Sure.

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Well, I think the assumption underlying the presumption of lawful conduct inheres, at least in part, in the permissibility of quotidian conduct and also in the fact that ordinary citizens going through their lives are not under constant supervision by law enforcement officers.

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And neither of those assumptions is true here.

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As I mentioned, BOP's rules of conduct do prohibit quotidian conduct.

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And inmates like Mr. Jordan are under constant surveillance.

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And I just want to note that Mr. Jordan, rather than nine separate sanctions, he incurred 18 separate sanctions in the five years prior to the filing of his complaint.

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And of those 15 were of the type challenges here.

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Let me ask you about remoteness.

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He doesn't challenge the rules.

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And unlike Rameen or whatever it is from the seventies,

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It's not an informational injury.

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Is it even more remote if he's not challenging the rules that he's gonna be sanctioned for rules that he does not challenge?

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I don't think so.

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First of all, I think that in Raymer versus Saxby, the court didn't simply rely on the informational injury, but rather on the inmate's subjection to the rules in general.

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I think that's clear from the fact that the court found that the inmates had standing not just to pursue their claim for the BOP's failure to publish the rules, but in addition for the notice and comment claim.

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And I think that perhaps with the typical inmate whose disciplinary history weren't so lengthy and who didn't demonstrate such a proclivity to violate BOP's rules, that there might not be ongoing injury.

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But Mr. Jordan's disciplinary history shows that he is extremely likely to violate these rules.

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And so I don't think it's remote at all to think that BOP is gonna impose these sanctions on him as it has done repeatedly in the past.

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All right, so you're basing that on the longevity, at least that's what I hear you saying.

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So how do we prevent every long serving prisoner from following this precedent if we rule in your favor?

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I think that in order to have standing and in order to stand in the same shoes as Mr. Jordan would have to have a similarly lengthy disciplinary history.

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And I don't think that the court should be concerned at all about inmates offending in order to put themselves in the position of having standing because the sanctions they would be risking are pretty serious.

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I don't think that an inmate would risk months in solitary confinement or even loss of the few privileges that federal inmates do have in order to manufacture standing.

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I'd like to move on to the merits if the court has no further questions about standing.

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I think that American bus controls the outcome here.

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In American bus, this court said that Congress could not have spoken more clearly than it did in section 558B of the APA, and that express statutory authorization is required for sanctions.

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Now, BOP attempts to cabin American bus to statutes that expressly state that the particular sanctions are the only ones that an agency may made out.

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That reasoning is completely absent from the portion of the opinion addressed to section 550 AB applying American bus here BOP is limited to the particular sanctions that Congress has provided for by statute.

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Those are the revocation of good conduct time FSA time FSA incentives and for eligible inmates statutory good time and parole.

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I think Congress could certainly have granted BOP broad sanctioning authority.

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It did so, for example, to the attorney general in 18 USC section 36, section 3600A, where it gave the attorney general the power to promulgate regulations, quote, including appropriate disciplinary sanctions.

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But it didn't do so here.

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And BOP is therefore limited to the sanctions that Congress did provide.

[00:09:28] Speaker 03:
I also think that- It seems to me that the sort of simple point on the other side of statutory issue is that your position would mean that when the statute says BOP may provide for discipline, that means it gets to set out all sorts of rules for conduct, but can't establish any way of enforcing those rules.

[00:09:49] Speaker 03:
Is that mistaken implication of what your argument is?

[00:09:56] Speaker 01:
Well, I don't think here that BOP has its hands tied as to enforcing those rules.

[00:10:01] Speaker 01:
It simply means that Congress needs to use the sanctions that Congress has specifically provided for.

[00:10:08] Speaker 03:
Right.

[00:10:09] Speaker 03:
So it does mean that this statute alone gives them no authority to enforce the rules that they're allowed to set out.

[00:10:17] Speaker 01:
I think that's the necessary implication of my position, yes.

[00:10:21] Speaker 01:
OK.

[00:10:22] Speaker 01:
And BOP argues that the word discipline carries an offer a lot of weight and that discipline gives it the authority to mete out sanctions.

[00:10:31] Speaker 01:
But I think the best way to think about the word discipline is that it refers to good order.

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Congress empowered BOP to

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as your honor mentioned, provide for inmate discipline by issuing rules of conduct governing inmates.

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But under American bus, BOP still needed express statutory authorization for sanctions.

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Now Congress provided that authorization with respect to specific sanctions, but it didn't speak generally in the way it has elsewhere.

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I think if the general command, a general command that doesn't mention the power to sanction at all, like discipline or enforce

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is all that's necessary, then it's difficult to see what works Section 558B as authorized by law clause is doing.

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And I think it's also difficult to draw a line between disciplining and enforcing or ensuring and protecting such that it's hard to think of an agency that couldn't possibly lay claim to the ability to craft and impose sanctions.

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Agencies are always instructed by Congress to do something and under Section 558B, they can't just decide to use sanctions to do it.

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Congress has to have provided them with sanctioning power.

[00:11:33] Speaker 01:
I'd also point out that in common parlance, a word like enforce carries at least as much implication of sanctioning authority as does discipline.

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If I tell my child that I'm going to enforce the curfew, then he understands that I'm going to punish him if he violates it.

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And Black's law dictionary indeed defines enforce to include to compel obedience to.

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And to me, that carries the implication of sanctioning power at least as much as discipline does.

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But the court said in American Bus Association that Congress couldn't have spoken more clearly in requiring more.

[00:12:10] Speaker 01:
I see that I'm eating into my rebuttal time.

[00:12:11] Speaker 01:
I'm happy to answer more of the court's questions.

[00:12:14] Speaker 01:
Or to you, to my friend.

[00:12:16] Speaker 05:
Judge Rogers, do you have any questions?

[00:12:21] Speaker 05:
I can't hear you.

[00:12:23] Speaker 05:
Is your sound on?

[00:12:28] Speaker 05:
Do you hear me?

[00:12:30] Speaker 03:
No, but I think she's she's all set with no further questions.

[00:12:33] Speaker 03:
Oh, she's.

[00:12:38] Speaker 05:
And are you able to unmute her?

[00:12:44] Speaker 05:
Judge Rogers.

[00:12:47] Speaker 05:
You needed you need to check your sound, Judge Rogers.

[00:12:51] Speaker 04:
Sorry, but the system is not working, Judge.

[00:12:54] Speaker 05:
OK, we got you now.

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No questions in.

[00:13:01] Speaker 05:
OK.

[00:13:03] Speaker 05:
We'll give you two point.

[00:13:07] Speaker 05:
Oh, wait.

[00:13:08] Speaker 05:
When did she stop arguing?

[00:13:11] Speaker 05:
Three minutes.

[00:13:11] Speaker 05:
OK.

[00:13:12] Speaker 05:
You've got three minutes.

[00:13:13] Speaker 05:
Thank you.

[00:13:15] Speaker 02:
Ms.

[00:13:18] Speaker 05:
Patterson, good morning.

[00:13:19] Speaker 02:
May it please the court, Melissa Patterson for the Federal Bureau of Prisons.

[00:13:23] Speaker 02:
The appellant and the amicus both asked this court to adopt a really sweeping theory

[00:13:30] Speaker 02:
on which, when Congress gave the BOP the authority to provide for discipline within federal prisons, it meant to only create rules but not to enforce them.

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We urge the court to decline to adopt that really extraordinary reading of BOP's authorities on one of either two grounds.

[00:13:49] Speaker 02:
First, that Mr. Jordan has not carried his burden of establishing standing.

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We recognize that Mr. Jordan is a pro se litigant entitled to a liberal construction of his pleadings.

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We also recognize that past injury can bear on the question of the ability to suffer a future injury.

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But even with those two principles in mind, we don't think Mr. Jordan has said enough here to establish the type of injury that would justify the purely prospective relief that he has sought throughout this litigation.

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Second, assuming Mr. Jordan has standing, we think this court should simply reject his position on the merits.

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We think, you know, they hang their hat on this very narrow understanding of the word discipline that has no basis in the ordinary meaning of that word either in 1930 when Congress first gave the OP this authority today.

[00:14:44] Speaker 02:
has no bearing, no relationship to the way that the statute has always been implemented openly by BOP in ensuring discipline and order within its facilities, which is, of course, the Supreme Court has said, the central object of prison administration.

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And it would have the really extraordinary consequence that it would mean that Congress has never given, either in 1930 or today, BOP any authority to sanction

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The thousands of prisoners in facilities who are serving life sentences and therefore are not eligible for either the parole recommendation or the good time credits that appellant argues are the sole sanction that is available for BOP to punish prisoners who break prison rules.

[00:15:28] Speaker 03:
On the merits, not saying I do agree with that argument, but it seems as though your argument is essentially the statute is unambiguously clear in providing this authority.

[00:15:40] Speaker 03:
And if we do agree with that, is it your position that we wouldn't even need to address the constitutional avoidance non-delegation argument because the statute is unambiguous?

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Is that an argument that you're making?

[00:15:55] Speaker 02:
I think that's, yes, Your Honor, I think that discipline was unambiguously understood to mean the authority not only to create rules, but also to penalize those who break them within prison facilities.

[00:16:07] Speaker 02:
I think that that was clear in 1930.

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That's been clear throughout the 95-year history of the VOP.

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And I think it certainly has far more than an intelligible principle obviating the need for this court to get into any of the delegation arguments.

[00:16:23] Speaker 02:
I want to note that the major questions, the implication of major questions here is particularly extraordinary since it's amicus and appellant who are seeking, we're not seeking to expand any authority based on a newly discovered power.

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They're seeking to retract a long held and very common sense implementation of prison administration authority.

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contrary to the entire history of the statute.

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So I think that the short answer to your question is yes, that this is clear and we are operating within the authority Congress has provided us.

[00:16:55] Speaker 04:
Do you know whether the head of the Bureau of Prisons or through the Attorney General submits the code that corrections uses in the Bureau of Prisons?

[00:17:13] Speaker 04:
It's not a formal submission, but it is a filing, as it were, with the Appropriations Committee.

[00:17:20] Speaker 04:
Do you know if that happens?

[00:17:22] Speaker 02:
I don't know exactly what happens in the appropriations process, Your Honor, but I do want to note that the code, the rules, and the sanctions imposed for specific types of rules are very clearly set out in a notice and comment regulation.

[00:17:38] Speaker 02:
BOP, of course, had long provided for discipline for rules and penalties within its facilities.

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But in 1977, it undertook a rulemaking.

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It put out an NPRM.

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In 1982, it issued a final rule that sets out the various offenses, possession of a hazardous tool, everything from failing to follow orders to these more serious offenses, like one of the ones Mr. Jordan created, such as murdering a prisoner in a BOP facility.

[00:18:08] Speaker 02:
So I think there's no question that BOP has been very transparent with the public, with Congress, with prisoners about the rules the inmates are expected to follow and the consequences that can follow if they break those rules.

[00:18:27] Speaker 03:
I had a few questions about standing.

[00:18:28] Speaker 03:
So you said that more should have been expected of him.

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And I just want to understand what exactly else you think he should have done.

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And I think just to tee that up, it seems to me that in an ordinary case, his complaint essentially says,

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We've got nine instances of the challenged harm in the past five years, maybe more, depending on how you count, but a lot in the past five years.

[00:18:52] Speaker 03:
And he's going to be subject to this same regime going forward.

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And so it's sufficiently likely that he'll be subject to it, at least once more in, say, the ensuing few years.

[00:19:02] Speaker 03:
Why isn't that sort of the straightforward argument for standing here?

[00:19:08] Speaker 02:
I think because there are sort of two levels of uncertainty between the past injury and the future harm that Mr. Jordan is foreseeing here.

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And the first level is particularly problematic for him.

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And that is the assumption that he will engage in a type of conduct that could trigger the disciplinary sanctions in the first place.

[00:19:28] Speaker 02:
And I think that the basic

[00:19:30] Speaker 02:
that Amicus and Mr. Jordan have presented here is that that preception simply shouldn't apply in prisons because of the control that the OP has over inmates.

[00:19:41] Speaker 02:
I want to note that the third and the seventh spits have rejected that sort of approach.

[00:19:46] Speaker 02:
I want to note that the Supreme Court and Louis V. Casey, I think, you know, it hypothesized a prisoner who might think that the medical facilities of an inmate are constitutionally inadequate.

[00:19:58] Speaker 02:
And it made very clear

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You don't have standing to challenge the contours of the infirmary if you're healthy.

[00:20:04] Speaker 02:
You have to show that the constitutional infirmity in this institution is actually going to injure you.

[00:20:10] Speaker 03:
But isn't this like somebody who's been sick nine times in the past five years?

[00:20:14] Speaker 03:
And there's no reason to think he's going to get any healthier?

[00:20:16] Speaker 02:
Well, I think that last part is what's missing here.

[00:20:19] Speaker 02:
I think if an inmate said, I have been sick nine times in the past year, and I have a chronic condition, that makes it very likely and non-speculative that I'm going to be in the infirmary in the future.

[00:20:31] Speaker 02:
Notably absent any of Mr. Jordan's either filings in district court or even in his filings to this court, and he has filed three briefs here, is any sort of statement of, you know, he doesn't identify any rule that he intends to break.

[00:20:48] Speaker 02:
He doesn't even, and this goes to the ongoing injury, he doesn't even say, my day-to-day conduct has changed as a result of this sanction.

[00:20:57] Speaker 03:
If we focus on the likelihood of future injury,

[00:21:01] Speaker 03:
It seems like you're saying if his complaint said something like, you know, I've gotten all of these sanctions in the past, and despite my best efforts, it's going to be reasonably likely that I'll be subject to at least one of them in the next few years.

[00:21:18] Speaker 03:
I mean, is that what you expect him to have said in the complaint?

[00:21:21] Speaker 02:
I think we would be closer.

[00:21:23] Speaker 02:
Now, of course, this court has said

[00:21:28] Speaker 02:
You can't just toss in a sort of undifferentiated, and I will be harmed in the future.

[00:21:32] Speaker 02:
So I think the court would rightly expect a few more specifics.

[00:21:37] Speaker 02:
I think our point here is that we don't have anything in any of the filings here to suggest that Mr. Jordan is claiming an injury that's any different than any other prisoner in BOP facilities, all 150,000, at least anyone who has previously incurred a sanction.

[00:21:55] Speaker 02:
And I do want to note the second level of uncertainty here is Mr. Jordan doesn't say all sanctions are unlawful.

[00:22:01] Speaker 02:
So the second level of uncertainty.

[00:22:04] Speaker 03:
Just 90% of them?

[00:22:04] Speaker 02:
Just 90% of them is that he would be not only in the future engaged in misconduct that would trigger the application of these sanctions, that the disciplinary hearing officer would choose one of the sanctions that he contends is unlawful.

[00:22:18] Speaker 03:
Maybe it seems like, and this might be right, that this argument really hinges on this assumption that has been applied in the context of validly enacted criminal laws that people won't, you know, again violate a criminal law.

[00:22:34] Speaker 03:
Because without that,

[00:22:36] Speaker 03:
It seems as though this looks a lot like a case like Peacock, right?

[00:22:41] Speaker 03:
You're going to have an ongoing engagement with this regime, and your past experience shows that sometimes the challenge arm exists.

[00:22:52] Speaker 03:
And so it's readable to infer it's going to happen again.

[00:22:55] Speaker 03:
And really, the key here is that

[00:22:57] Speaker 03:
Unlike with Medicaid applications, you're saying we just shouldn't count an intention that he's going to violate these rules unless he specifically says so.

[00:23:07] Speaker 02:
I think that's right.

[00:23:08] Speaker 02:
But I also, I'm not suggesting that's the only way an inmate could challenge a BOP policy.

[00:23:12] Speaker 02:
If an inmate can articulate a way that on a day-to-day basis, a BOP rule or regulation is altering his conduct, that might well suffice for an ongoing injury.

[00:23:23] Speaker 02:
If Mr. Jordan had declined to pay his fine and simply

[00:23:26] Speaker 02:
suffered an ongoing encumbrance of his account, I think that would count as an ongoing injury, unlike a scenario like the peacock, where I think we were talking about prescription refills.

[00:23:39] Speaker 02:
And there were specific allegations of, I'm experiencing ongoing denials of my prescription refills.

[00:23:47] Speaker 02:
I think that plaintiff introduced statistics showing the likelihood that any individual refill prescription would be denied.

[00:23:57] Speaker 02:
we had a lot more of the type of details on which the court could base its prediction that an injury would indeed be substantially promenal, imminent, certainly impending.

[00:24:08] Speaker 02:
There's a substantial risk of it, whichever rubric the court picks that had more on which to base that prediction.

[00:24:15] Speaker 05:
Well, Peacock went way beyond the plaintiff.

[00:24:19] Speaker 05:
I mean, you talked about a lot of the medications in DC.

[00:24:24] Speaker 05:
Isn't that right?

[00:24:25] Speaker 02:
I'm not sure, Your Honor.

[00:24:26] Speaker 02:
It certainly started at standing analysis by looking at the specific pleadings.

[00:24:30] Speaker 02:
And again, there were statistics about the likelihood of any one individual application getting the type of denial they alleged was unlawful.

[00:24:40] Speaker 02:
I don't want to overplay our standing hand here.

[00:24:42] Speaker 02:
Again, we do acknowledge that Mr. Jordan is entitled to some liberal construction.

[00:24:47] Speaker 02:
It has to be a construction of pleadings he's actually made.

[00:24:50] Speaker 02:
And we don't have any of the pleadings of either ongoing injury

[00:24:55] Speaker 02:
that these were unlike the case in Ray Murphy sex be where the alleged unlawful action there the failure to publish polls.

[00:25:04] Speaker 02:
The court said it affected a day-to-day injury because inmates were unable, day-to-day, to conform their conduct to the rules that they didn't know the contents of.

[00:25:13] Speaker 02:
If Mr. Jordan were challenging any of the substantive rules that say you have to, I don't know if it actually says you have to make your bed, but any of the rules against untidiness or insolence or violence, if he were saying any of those were beyond the BOP statutory authority, I think it'd be pretty easy to find standing on the basis of what he's said so far.

[00:25:33] Speaker 02:
But he's not.

[00:25:33] Speaker 02:
He's only challenging the follow-on.

[00:25:35] Speaker 02:
If I break one of those unchallenged rules, will I be disciplined with the type of sanction that I say is unlawful and not one of the sanctions I think is lawful?

[00:25:45] Speaker 05:
Let me ask you about, according to the record, what is the last time he was sanctioned?

[00:25:52] Speaker 02:
I believe it's 2019.

[00:25:52] Speaker 02:
Right.

[00:25:54] Speaker 05:
And he's filed three briefs.

[00:25:57] Speaker 05:
Has he made any allusion whatsoever to having been sanctioned since 2019?

[00:26:03] Speaker 02:
I do not believe so.

[00:26:04] Speaker 02:
I think he cites some of his litigation and other circuits from 2023 that refers to sort of a long disciplinary history, but nothing in either his filing.

[00:26:15] Speaker 02:
And I don't know if that separate court case refers to any misconduct.

[00:26:20] Speaker 02:
As far as I know, based on the record before us, the last imposition of discipline was in 2019.

[00:26:25] Speaker 03:
Counsel, don't we assess standing on a motion to dismiss based on the time the suit was initiated and based on what's in the complaint?

[00:26:33] Speaker 02:
I believe so, Your Honor.

[00:26:35] Speaker 02:
I think there's been a suggestion that the court should remand to sort of permit Mr. Jordan a chance to amplify his filings.

[00:26:45] Speaker 02:
We're not disputing that that's within the court's power, but we think given the long history of this litigation, the fact that Mr. Jordan has filing briefs, and as far as we can tell, there are none of, he doesn't say,

[00:26:58] Speaker 02:
If only I had known I would have alleged ex ongoing injury or I would have done more to shore up my risk of future harm than anything he said so far.

[00:27:07] Speaker 02:
We think the more appropriate disposition would simply be to dismiss for lack of standing.

[00:27:12] Speaker 02:
Mr. Jordan has since formed those intent or has suffered more recent disciplinary violations that he thinks gives him a basis to seek this type of relief.

[00:27:21] Speaker 02:
We think the more appropriate route would allow him to initiate a new suit on that basis.

[00:27:28] Speaker 05:
Thank you.

[00:27:28] Speaker 05:
Judge Rogers.

[00:27:28] Speaker 05:
Do you have any questions?

[00:27:30] Speaker 04:
No.

[00:27:30] Speaker 04:
Thank you.

[00:27:32] Speaker 02:
Thank you.

[00:27:32] Speaker 02:
We asked this part to, uh, reverse with remand with instructions to dismiss for lack of jurisdiction or in the alternative.

[00:27:39] Speaker 02:
If it concludes Mr Jordan has standing to simply

[00:27:50] Speaker 01:
Thank you.

[00:27:51] Speaker 01:
So I'd like to address standing and the non-delegation doctrine, which my friend mentioned, which I didn't really cover in my opening.

[00:28:00] Speaker 01:
So on standing, this is a pro se complaint.

[00:28:03] Speaker 01:
And the sheer number of past violations certainly does distinguish Mr. Jordan from every other inmate.

[00:28:11] Speaker 01:
Presumably, he was trying not to incur sanctions back then, because the sanctions he could have incurred, as I mentioned before,

[00:28:19] Speaker 01:
deprive him of the few privileges that federal inmates have or even land him in solitary confinement.

[00:28:27] Speaker 01:
I think Judge Garcia made an excellent point that standing is assessed on the basis of the time of filing.

[00:28:34] Speaker 01:
And I think it's important to note too that this court in NB X-Rail Peacock noted that none of the plaintiffs there expressly alleged standing.

[00:28:42] Speaker 01:
Those plaintiffs were counseled, but the court read their allegations in their favor and drew reasonable inferences there from.

[00:28:51] Speaker 01:
And in terms of statistics, I think Mr. Jordan has presented a compelling case for standing on the basis of an imminent injury on the basis of his past offenses.

[00:29:04] Speaker 01:
With respect to the merits, I think that reading the statute in the way that BOP asks would violate the non-delegation doctrine.

[00:29:12] Speaker 01:
And I would point this court to Gundy.

[00:29:15] Speaker 01:
In Gundy, a majority of the Supreme Court, that is the four-justice plurality and the three-justice dissent, agreed that if the statute there at issue gave the attorney general, who undisputedly has kind of oversight over the criminal law, if it gave him the power to write his own criminal code,

[00:29:33] Speaker 01:
specifying whether sex offender registration requirements would apply to a class of offenders, then the non-delegation doctrine will be implicated.

[00:29:41] Speaker 01:
The plurality therefore read the statute narrowly to grant the attorney general the power only to specify when those registration requirements would apply.

[00:29:51] Speaker 01:
Here, BOP claims the power not just to write its own quasi criminal code, but also to craft the vast majority of the punishments for violation of that code.

[00:30:00] Speaker 01:
That's a breathtaking assertion of authority and BOP purports to locate it entirely in the word discipline or perhaps in the word discipline paired with its authority to to manage and regulate the federal prisons.

[00:30:12] Speaker 01:
that's simply not enough congressional guidance for the exercise of such awesome power.

[00:30:16] Speaker 01:
And this court and the Supreme Court have both noted that the more congressional power is granted, the more precise must be the directions for its use.

[00:30:25] Speaker 01:
If the court has no more questions in my few remaining seconds, I'd just like to note that a plaintiff's burden to establish standing at the stage is not onerous and Mr. Jordan's pleading is more than adequate.

[00:30:38] Speaker 01:
The court should therefore hold that he does have standing.

[00:30:41] Speaker 01:
If the court were to find that Mr. Jordan lacks standing, then certainly this case should be remanded so that Mr. Jordan can replede.

[00:30:47] Speaker 01:
On the merits, the court should follow American bus and reverse and remand for further proceedings.

[00:30:54] Speaker 05:
All right, Ms.

[00:30:55] Speaker 05:
Foley, you were appointed by the court and we thank you for your very able assistance.