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Prison Legal News v. Federal Bureau of Prisons

United States Court of Appeals, Tenth Circuit

December 13, 2019

PRISON LEGAL NEWS, Plaintiff - Appellant,

          Appeal from the United States District Court for the District of Colorado No. 1:15-CV-02184-RM-STV.

          Matthew S. Shapanka of Covington & Burling LLP, Washington, D.C. (Peter A. Swanson, Terra W. Fulham, Alyson R. Sandler of Covington & Burling LLP, Washington D.C.; Steven D. Zansberg of Ballard Spahr LLP, Denver, Colorado, with him on the briefs) for Plaintiff - Appellant.

          J. Bishop Grewell, Assistant United States Attorney (Jason R. Dunn, United States Attorney with him on the brief), Denver, Colorado, for Defendant - Appellee.

          Nicholas J. Siciliano, Dylan Glenn of Latham & Watkins LLP, Chicago, Illinois, filed an amicus curiae brief in support of Plaintiff - Appellant for Danielle C. Jefferis, Nicole B. Godfrey, and Uptown People's Law Center.

          Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.


         Prison Legal News ("PLN") publishes a monthly magazine to help inmates navigate the criminal justice system. Between January 2010 and April 2014 (the "Rejection Period"), the Federal Bureau of Prisons ("BOP") rejected the distribution of 11 publications PLN sent to inmate subscribers at the BOP's United States Penitentiary, Administrative Maximum Facility in Florence, Colorado ("ADX").[1]

         PLN sued the BOP, claiming the rejections violated PLN's First Amendment rights, its Fifth Amendment procedural due process rights, and the Administrative Procedure Act ("APA"). ADX responded by distributing the 11 publications, revising its institutional policies, and issuing a declaration from its current Warden. Based on these actions, the BOP moved for summary judgment, arguing that PLN's claims were moot or not ripe. PLN filed a cross-motion for partial summary judgment on its First and Fifth Amendment claims. The district court granted the BOP's motion and dismissed the case as moot.

         Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Developments during litigation mooted PLN's claims, and the voluntary cessation exception to mootness does not apply.

         I. BACKGROUND

         We present in chronological order the BOP actions and district court proceedings leading to this appeal. These events overlapped because the BOP continued to take actions relevant to, but outside of, the court proceedings.

         A. ADX's Review of Incoming Publications

         We describe (1) the BOP regulations set forth in 28 C.F.R. §§ 540.70 to 540.72 and (2) the ADX institutional supplement, a document establishing policies specific to a BOP prison facility. Both govern ADX's review of incoming publications.

         During the Rejection Period, the BOP regulations permitted inmates to receive publications without prior approval unless the publications were (a) statutorily prohibited or (b) rejected by the Warden as "detrimental to the [facility's] security, good order, or discipline" under 28 C.F.R § 540.71(b). See 28 C.F.R. §§ 540.70-.72. For any rejection, the regulations required the Warden to promptly notify the inmate in writing, provide reasons, and identify the objectionable content. Id. § 540.71(d). The Warden also had to provide the publisher with a copy of the rejection notice. Id. § 540.71(e). These regulations have not changed since the Rejection Period.

         The ADX institutional supplement in effect during the Rejection Period listed a sequence of ADX personnel responsible for screening incoming publications before the Warden's review. Only the Warden may revise the supplement.[2]

         B. January 2010 to April 2014 - The Rejection Period

         During the Rejection Period, ADX officials flagged for potential rejection any publication that referred to an ADX inmate or staff member ("name-alone content"). After further review, the BOP rejected 11 PLN publications in their entirety. For each rejection, the ADX Warden signed a notice. Each notice said the publication was rejected under 28 C.F.R. § 540.71(b), identified the objectionable pages, and explained why the content was problematic, including that the objectionable pages contained name-alone content.[3]

         PLN contends, and several former ADX Wardens have stated, that a publication's "name-alone content" was not a sufficient reason for rejection. Aplt. Br. at 26; App. at 1577-78, 1606.[4] Former ADX Wardens provided examples of specific reasons for the rejections other than name-alone content, [5] and the record shows that two notices listed a reason other than name-alone content.[6]

         C. October 2015 - PLN's Complaint

         On October 1, 2015, PLN sued the BOP in the United States District Court for the District of Colorado. It alleged the BOP violated (1) its First Amendment rights, (2) its Fifth Amendment due process rights, and (3) the APA.

         First, PLN alleged the BOP censored First Amendment-protected speech (the "content censorship claim"). PLN averred this "censorship . . . [was] not rationally related to any legitimate and neutral government purpose" because "the allegedly objectionable information [did] not pose any risk to the security, discipline, or good order of ADX." Id. at 23. PLN also claimed the BOP's rejection of publications in their entirety constituted improper censorship because redaction was "an obvious and easy alternative" (the "non-redaction censorship claim"). Id.[7]

         Second, PLN alleged the BOP's rejections "failed to provide PLN with timely and adequate notice" and an opportunity to contest (the "procedural due process claim"). Id. at 24.[8] PLN claimed the rejection notices' "uninformative, perfunctory language" provided insufficient detail to place PLN on notice. Id.

         Third, PLN alleged the BOP violated the APA by taking actions "constitut[ing] arbitrary and capricious decision making." Id. at 25.

         PLN requested the following relief:

(1) A declaration that the BOP's censorship of Prison Legal News violated the First and Fifth Amendments and the APA;
(2) injunctive relief compelling the BOP to deliver (a) the rejected publications and (b) all future Prison Legal News publications, unless the BOP had a valid penological reason to reject them;
(3) injunctive relief compelling the BOP to provide PLN with, for any future rejections, (a) timely and individualized notice with a justifying explanation and (b) timely opportunity to contest;
(4) "further relief as the [c]ourt deem[ed] just and equitable."

Id. at 27-28.

         PLN did not request monetary damages.

         D. February 2016 - Updated ADX Supplement

         On February 2, 2016, ADX issued an updated institutional supplement (the "February 2016 Supplement"). It required additional ADX personnel, including the legal department, to review incoming publications. Section IV.Q also required the legal department to "conduct quarterly training" with ADX personnel regarding procedures for reviewing incoming publications. Id. at 234. The February 2016 Supplement did not explicitly address name-alone content.

         E. July 2016 - BOP's Motion to Dismiss

         On July 27, 2016, the BOP filed a motion to dismiss. It argued various grounds for dismissal of PLN's claims, including that PLN's claims were mooted by the February 2016 supplement, PLN lacked standing, and PLN had failed to state a claim.

         F. March 2017 - ADX Delivered the Rejected Publications

         In early 2017, then-Warden Jack Fox examined the rejected publications in consultation with the BOP's legal department.[9] He concluded the BOP's initial reasons for rejection were improper.[10] Based on Warden Fox's review, ADX delivered the 11 rejected publications to inmate subscribers in March 2017.

         G. August 2017 - Denial of BOP's Motion to Dismiss

         On August 14, 2017, the district court said the case was not moot and denied the BOP's motion to dismiss. It reasoned that the BOP's February 2016 Supplement "change[d] very little" regarding ADX's review of incoming publications. Id. at 582. The court also would have found the voluntary cessation exception applied because the BOP's updated supplement was a "ploy" to avoid its jurisdiction. Id. at 588.

         H. December 2017 - Updated ADX Supplement

         On December 21, 2017, ADX issued an updated institutional supplement that remains effective (the "December 2017 Supplement"). Section III.C of the supplement states that a publication "may not be rejected solely because it discusses an ADX or [BOP] inmate, or BOP staff member," and instead requires incoming publications to undergo "an individualized assessment." Id. at 1787. For any rejection, the Warden must give prompt written notice to the inmate and the publisher of the decision and the ability to obtain independent review. ADX also will "[ordinarily] . . . mail[] [the rejection notice] to the publisher within ten business days from the Warden's signature date." Id. Any rejection notice must identify the reasons for rejection, "refer[] to the specific article(s) or material(s) considered objectionable," and include page references and quotes. Id.[11]

         I. May 2018 - Cross-Motions ...

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