AL-OWHALI v. ASHCROFT
279 F.Supp.2d 13 (2003)
Mohamed Rashid Daoud AL-OWHALI, Plaintiff,
v.
John ASHCROFT, United States Attorney General, Defendant.
No. CIV.A. 02-883 RBW.
United States District Court, District of Columbia.
August 29, 2003.
Frederick H. Cohn, Esq., New York, NY, A.J. Kramer, Esq., Federal Public Defender for the District of Columbia, Washington, Counsel for Plaintiff.
Anthony J. Coppolino, Senior Trial Counsel, U.S. Department of Justice, Washington, Counsel for Defendant.
MEMORANDUM OPINIONWALTON, District Judge.
This lawsuit involves a challenge by the plaintiff to regulations promulgated by the defendant that plaintiff alleges violate his rights guaranteed by the Fifth and Sixth Amendments of the Constitution. Because the Court concludes that plaintiff does not have standing to challenge the regulations at issue, it does not reach the merits of plaintiff's claims, and defendant's motion to dismiss the complaint is granted.
I. BackgroundThe plaintiff, Mohamed Rashid Daoud Al-`Owhali ("Al-`Owhali") is a citizen of Saudi Arabia. Compl. ¶ 4.1 Al-`Owhali was indicted, along with other members of the al Quaeda terrorist organization, in connection with the bombing of the United States embassy located in Nairobi, Kenya. Compl. ¶ 6; Memorandum in Support of Defendant's Motion to Dismiss ("Def.'s Mem.") at 2. He was found guilty by a jury of the charges that had been lodged against him and thereafter was sentenced to life imprisonment without the possibility of parole2 by the Honorable Leonard B. Sand of the United States District Court for the Southern District of New York on October 19, 2001.3 Compl. ¶ 6. Al-`Owhali is currently serving his sentence in the United States Penitentiary, Administrative Maximum, located in Florence, Colorado, the "[f]ederal [g]overnment's highest security prison ...." Def.'s Mem. at 3. In accordance with regulations that were promulgated on June 20, 1997, at the direction of the Attorney General, the Director of the Bureau of Prisons, or, upon proper delegation, its Acting Director, has the ability to
authorize the Warden of a federal prison to implement [Special Administrative Measures ("SAMs")] that are reasonably necessary to ... prevent actions of violence or terrorism where the Attorney General ... provides written notification that there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons.
1. References to "Compl." are to the complaint filed by plaintiff on May 8, 2002.
2. This life sentence was mandatory as the jury was unable to reach an unanimous decision that Al-`Owhali should receive the death penalty. Plaintiff's Memorandum in Opposition to the Defendant's Motion to Dismiss ("Pl.'s Opp'n") at 2.
3. Defendant asserts that the complaint contains erroneous information regarding the date and length of plaintiff's sentence. According to defendant, plaintiff was sentenced on October 18, 2001, and he was sentenced to life without the possibility of parole plus 40 years. Memorandum in Support of Defendant's Motion to Dismiss ("Def.'s Mem.") at 3.
4. Plaintiff's allegation concerning telephoning his family is in direct contravention to paragraph 3(a)(i)(1) of plaintiff's SAM which provides that "[t]he inmate is limited to nonlegal telephone calls only to/from his immediate family members." Compl. Ex. A ¶ 3(a)(i)(1). However, the SAM does provide that the duration of such calls "shall be set by BOP." Id. ¶ 3(a)(i)(2).
5. Moreover a judicial challenge to the SAM that currently covers plaintiff could not be mounted at this time as plaintiff concedes that he has failed to exhaust his administrative remedies in regards to the existing SAM. See Pl.'s Opp'n at 15 ("[I]f the [plaintiff] were challenging the SAM[], he would have had to at least apply, however futilely, for administrative relief.") (citing Yousef v. Reno,254 F.3d 1214 (10th Cir.2001)). 6. The amended regulations alone do not constitute a SAM. Rather, these regulations permit the BOP to implement a SAM "upon written notification to the Director, Bureau of Prisons, by the Attorney General or, at the Attorney General's direction ... that there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons." 28 C.F.R. § 501.3(a). The regulations list the administrative measures that may be incorporated into a SAM, but the BOP retains discretion as to whether to include such measures in the SAM of a specific prisoner. Id. § 501.3(a). The BOP determines on a case-specific basis which administrative measures will be incorporated into a prisoner's SAM, and the BOP specifies in the SAM the restrictions that will be imposed on the prisoner. Pursuant to the October 31, 2001, amendments that plaintiff is challenging, the BOP now has the discretion to include a provision in a SAM authorizing the monitoring of the prisoner's conversations with his attorney, if such monitoring is believed necessary. Id. at § 501.3(d). Once the SAM is created for a particular prisoner, the prisoner signs and receives a copy of the "written notification of the restrictions imposed and the basis for these restrictions," pursuant to section 501.3(b). A SAM can be implemented for a period of up to one year with the Attorney General's approval, with the BOP retaining the option to extend it annually. Id. at 501.3(c).
7. There are two "types" of standing:
constitutional and `prudential.' The constitutional standing rules seek to ensure that a concrete Article III `case or controversy' exists by focusing on plaintiff's `harm.' They ask whether the plaintiff has `in fact' suffered a redressable injury as a result of defendant's actions.... A plaintiff who has established the constitutional element of standing must go on to convince a court that various `prudential' considerations also warrant hearing the case.... He must show that his `injury' is of a sort against which the law seeks to protect him.... Or he may show that his claim falls `within `the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'' .... Moreover, the plaintiff's challenge to the defendant's conduct ordinarily must rest on the plaintiff's own legal rights and interests, not those of third parties.
Ozonoff v. Berzak,744 F.2d 224, 227-28 (1st Cir.1984) (citations omitted). Defendant here challenges whether plaintiff possesses constitutional standing, i.e., whether the SAM challenged by plaintiff is causing him actual or threatened injury. See id. at 228 (citations omitted).
8. The plaintiffs in Hershey attacked the Hershey Directive on all three parts of the directive, the substance of which the Court said was divisible as follows:
one part defining the authority of local draft boards under the delinquency regulations, another part (Local Board Memorandum No. 85) specifically applying the delinquency procedure to registrants who mutilate or abandon their draft cards, and a third part asserting the draft boards' authority independently of the delinquency regulations to deny [deferments] to otherwise eligible registrants who engage in various illegal anti-war activities.
412 F.2d at 1115-16. The court rejected two of the three challenges. The court held that plaintiffs did not present justiciable issues as to the challenge to the delinquency regulations because "the alleged chilling effect of these regulations [was] insufficient to render them justiciable without a more specific threat of enforcement[] [because] [t]he delinquency regulations [did] not themselves regulate expression." Id. at 1116. And, regarding the Local Board Memorandum No. 85, the court held that the memorandum did "not chill protected conduct" because the memorandum's "threat to enforce the [draft card] mutilation provision by a declaration of delinquency [did] not infringe First Amendment rights[]" due to the fact that "the threatened conduct [was] clearly defined, ... and severe punishment of conduct so defined is constitutional[.]" Id. at 1117. Accordingly, "the asserted predicate for justiciability disappear[ed]." Id.
9. Plaintiff alleges that although he has not yet received notice that his communications with his attorney will be monitored, "the regulations permit and the [p]laintiff herein is in danger of, monitoring without notice on an ex parte application to a judge." Compl. ¶ 13; 28 C.F.R. § 501.3(d)(2) ("Except in the case of prior court authorization, the Director Bureau of Prisons, shall provide written notice to the inmate and to the attorneys involved prior to the initiation of any monitoring ...."). Plaintiff therefore seeks to enjoin the defendant "from monitoring consultations between [p]laintiff and his attorneys without a judicial determination that there is probable cause to believe that activity is occurring that is not protected by the privilege under procedures guaranteed to protect that right." Id. at 11. Thus, to the extent that plaintiff fears that he could be monitored based on an ex parte application to a judge, such monitoring would not be violative of his constitutional rights, as the Court cannot fathom how a judge could authorize ex parte monitoring without making a "determination that there is probable cause" to warrant such monitoring. See, e.g., 18 U.S.C. § 2518(3) (Judge may, upon application, "enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting ... if the judge determines on the basis of the facts submitted by the applicant that(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter[]") (emphasis added).
10. The claims of the Member of Congress were dismissed "under the doctrine of `equitable discretion.'" Reagan, 738 F.2d at 1381 (citation omitted).
11. It is noteworthy that plaintiff is not alleging that he is actually being chilled. Rather, he advances the general proposition that the potential for monitoring, with or without notice, "chills the attorney-client relationship and deprives the Plaintiff herein of the right to discuss any aspect of his case with his attorney and receive honest advice in return." Compl. ¶ 15. Furthermore, plaintiff poses the hypothetical question of whether "an attorney, under these circumstances, [can] freely speak to his client about world events as they have developed ... in order to attempt to find information which might generate a motion for a reduction of sentence pursuant to Rule 35 of the Federal Rules of Civil [sic] Procedure?" Pl.'s Opp'n at 8. However, the plaintiff does not assert that he has at this point been actually deprived of the effective assistance of counsel in preparing his appeal or other post-conviction relief, which, according to his opposition to the motion to dismiss, is the current status of his case. Id. at 1.
12. Also important to the Ozonoff court's determination that the plaintiff had suffered injury in fact were the first amendment implications occasioned by the executive order. The court stated:
This type of likely effect upon political activity and association has led the Supreme Court in the past to find genuinely threatened, or actual `injury.' ... The point of these cases seems to be that, if the plaintiff's interest in getting or keeping a job is real, the likely `chilling effect' of an apparent speech-related job qualification constitutes a real injury—an injury that warrants judicial inquiry into the lawfulness of the qualification. A similarly concrete injury exists here, for Dr. Ozonoff seeks work with WHO and the Order likely constrains the activities of WHO job applicants.
744 F.2d at 228.