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Royer v. Federal Bureau of Prisons

United States District Court, District of Columbia

March 28, 2013


Page 171


For FEDERAL BUREAU OF PRISONS, Defendant: R. Joseph Sher, LEAD ATTORNEY, DEPARTMENT OF JUSTICE, Civil Division, Alexandria, VA; Rhonda Lisa Campbell, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

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Royce C. Lamberth, Chief United States District Judge.

This case concerns the Federal Bureau of Prison's (" BOP" ) classification of federal prisoner Randall Todd Royer (aka Ismail Royer) as a " terrorist inmate." Specifically, Royer alleges that BOP has violated the federal Privacy Act by maintaining and refusing to correct records that allegedly inaccurately link him with Al Qaeda and that BOP's classification of him as a " terrorist inmate" and imposition of attendant harsh conditions of confinement has violated his Procedural Due Process and First Amendment rights.

Defendant Federal Bureau of Prisons (" BOP" ) has moved for summary judgment as to the Privacy Act claims and has moved to dismiss Royer's Constitutional claims for lack of jurisdiction, or alternatively, failure to state a claim. ECF No. 91.

Upon consideration of BOP's Motion, the plaintiff's Opposition [98] thereto, and the entire record in this case,[1] the Court will: (1) DENY WITHOUT PREJUDICE BOP's Motion for Summary Judgment regarding Royer's Privacy Act claims; (2) DENY BOP's motion to dismiss for lack of jurisdiction; (3) GRANT BOP's motion to dismiss Royer's First Amendment claims for failure to state a claim; and (4) DENY BOP's motion to dismiss Royer's Due Process claims. The Court also DISMISSES Royer's Freedom of Information Act (FOIA) claims because he states that he will no longer press them. See Pl.'s Mem. Supp. of Opp'n to Def.'s Mot. Dismiss or for Summ. J. 23-24, ECF No. 98-1 [hereinafter Pl.'s Opp'n].

The Court does not decide the legality of BOP's practice of classifying prisoners as " terrorist inmates" or whether Royer should or should not be deemed a " terrorist inmate." A related case in this Court considers whether BOP violated the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701 et seq., by failing to engage in notice-and-comment rulemaking before implementing its " terrorist inmate" classification program. See Am. Compl., Royer v. Fed. Bureau of Prisons, 808 F.Supp.2d 274 (D.D.C. 2011).


A. Offense Conduct and Conviction

Royer is a United States citizen born in Missouri. In 2004, he and ten other men were charged in the U.S. District Court for the Eastern District of Virginia with numerous offenses including conspiracy to levy war against the United States in violation of 18 U.S.C. § 2384, conspiracy to provide military support to Al Qaeda, in violation of 18 U.S.C. § 2339B, and conspiracy to contribute services to the Taliban

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in violation of 50 U.S.C. § 1705. Ultimately, Royer pleaded guilty to two counts: Aiding and Abetting the Use and Discharge of a Firearm During and in Relation to a Crime of Violence (Felony) in violation of 18 U.S.C. § § 2 and 924(c)(2), and Aiding and Abetting the Carrying of an Explosive During the Commission of a Felony in violation of 18 U.S.C. § § 2 and 811(h)(2). According to Royer, the relevant felony was violation of the Neutrality Act, which makes it a crime to " knowingly begin[] . . . or provide[] or prepare[] a means for . . . any military or naval expedition . . . against the territory or dominion of any foreign prince or state . . . with whom the United States is at peace." 18 U.S.C. § 960. The specific acts supporting Royer's convictions included his efforts in the summer of 2000 and fall of 2001 to assist several co-conspirators in gaining access to training camps in Pakistan run by Lashkar-e-Taiba[2] (" LET" ), a group designated as a foreign terrorist organization (" FTO" ) in December 2001. While at those camps, his co-conspirators fired semi-automatic pistols and carried a rocket-propelled grenade. Royer was sentenced on April 9, 2004 to two consecutive ten-year terms with credit for time served.

Of relevance to this case, Royer converted to Islam in 1992 and shortly thereafter traveled to Bosnia for six months to fight on behalf of the Bosnians in the 1992-1995 war in Bosnia and Herzegovina. Compl. ¶ 15. While there, Royer trained and fought as part of the " Abu Zubair" unit against the Serbian army. Id. Although Abu Zubair was never designated a terrorist organization by the United States, BOP now suggests that it is or has been affiliated with a terrorist organization. Def.'s Stmt. Mat. Facts ¶ 6, ECF No. 91 [hereinafter Def.'s SMF].

B. Present Controversy

As of today, Royer has served approximately nine and a half years of his 20-year sentence. For the first three and a half years of his incarceration, Royer was housed in the general prison population. Compl. ¶ 77. However, since December 2006, when Royer was classified as a " terrorist inmate," he has been housed in various locations isolated from the general population, including the Special Housing Units (" SHUs" ) at FCI Allenwood and USP Lewisburg, the Communications Management Unit (" CMU" ) at FCI Terre Haute; the SHU at FCI Greenville; the supermax facility at Florence, Colorado ADX; and currently the CMU at USP Marion. Compl. ¶ ¶ 77, 88-91, 100; Def.'s SMF ¶ ¶ 1-2; ECF No. 14; ECF No. 104.

While in the general population, Royer asserts that he had " run of the prison and access to its facilities." Compl. ¶ 79. He could run outdoors on a track, enroll in vocational training and earn a carpentry license, take classes for college credit, and work in the prison factory for pay. Id. He enjoyed up to forty hours of full contact visits per month with his family, Compl. ¶ 80, and appears to have had 300 minutes of telephone time per week, Compl. ¶ 96.

In December 2006, he asserts that BOP determined that certain restrictions would apply to his confinement for the remainder of his prison term (or about 16.5 years as of that date). According to Royer, the conditions imposed as a result of his " terrorist inmate" classification require that he be housed " in the harshest conditions of confinement in the federal prison system."

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Compl. ¶ 106. Specifically, from December 2006 to October 2009, Royer was housed in the CMU at FCI Terre Haute. Compl. ¶ 91. There, although he was allowed out of his cell, he was not permitted to leave the " tight quarters" of the housing unit and was not permitted to have any contact with the general inmate population. Compl. ¶ 93-94. Royer could only exercise in " steel cages" and was denied access to college credit courses, jobs, or vocational training. Compl. ¶ 95. Additionally, Royer had no access to the prison chapel, was permitted group religious services only on Fridays, and was not permitted to study religious topics one-on-one with other inmates in the CMU. Compl. ¶ 94. He was permitted only one 15-minute phone call per week, and only on business days between 8:30am and 2:30pm. Compl. ¶ 96. Finally, he was allowed only two visits per month and these were limited to two-hours each and were required to be noncontact, meaning that he must speak with visitors through a telephone, separated by a concrete and glass wall. Compl. ¶ 97. When Royer was transferred to the SHU at FCI Greenville after an altercation, the prison imposed the same conditions, even when those were harsher than those for other SHU inmates. Compl. ¶ 101. After the filing of this complaint, Royer was transferred to the supermax facility at ADX Florence in or around March 2012, ECF No. 14, and then to the CMU at USP Marion in or around November 2012, ECF No. 104.

Based on his conditions of confinement and his allegation that BOP has relied on inaccurate information to determine his " terrorist inmate" status, Royer now lodges both statutory and Constitutional claims against BOP under the federal Privacy Act, the Fifth Amendment Due Process clause and the First Amendment.[3]

Royer seeks money damages and equitable relief for the alleged violations of the Privacy Act. With respect to the alleged constitutional violations, he seeks a declaration that BOP is violating his rights to due process, freedom of speech, and freedom of association, and an order that BOP lift the conditions and allow contact visits with his family. Finally, he seeks costs and expenses.[4] Compl. 36.

This is the third dispositive motion filed by BOP in this litigation. Royer initially filed his claim in the Eastern District of Virginia and, in lieu of an Answer, BOP filed a Motion to Dismiss or for Summary Judgment. ECF No. 23. Specifically, BOP sought summary judgment on the Privacy Act claims and moved to dismiss the constitutional claims for lack of subject matter jurisdiction and failure to state a claim. That motion was fully briefed; however, after requesting additional briefing from the parties, the court sua sponte held that venue was improper in the Eastern District of Virginia and transferred the case to this Court. ECF No. 60. BOP filed an Answer here, ECF No. 65, and subsequently filed a second Motion to Dismiss or, in the Alternative for Transfer to

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the U.S. District Court for the District of Colorado. ECF No. 68. Rather than raising the defenses of lack of subject matter jurisdiction or failure to state a claim--and despite the fact that BOP had previously acknowledged that venue was proper here, Def.'s Resp. to Court's Order of Sept. 28, 2010, ECF No. 57--BOP argued that Royer's claims should be treated as a disguised habeas claim and that venue was proper in Colorado where he was then incarcerated. The Court disagreed and denied without prejudice the Motion to Dismiss or in the Alternative for Transfer. Mem. & Order, Mar. 29, 2012, ECF No. 83.

BOP now again seeks summary judgment on Royer's Privacy Act claims (Counts 1, 2, 4, and 6-8) and renews its arguments (omitted from the last dispositive motion) that Royer's Constitutional claims (Counts 9-10) should be dismissed for lack of subject matter jurisdiction or failure to state a claim.[5]


A. Motion for Summary Judgment Regarding Privacy Act Claims

1. Legal Standard

Summary judgment should be granted when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) (emphasis added); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it could affect the outcome of the case. Id. A dispute is genuine if the " evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The " evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. The non-movant, however, must establish more than " the existence of a scintilla of evidence" in support of his position, id. at 252, and may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675, 334 U.S. App. D.C. 92 (D.C. Cir. 1999).

2. Privacy Act Generally

The Privacy Act requires federal agencies maintaining " systems of records" to allow individuals to review and request copies of and amendments to records pertaining to them. 5 U.S.C. § 552a(d). The Act also imposes requirements regarding the accuracy and source of information agencies maintain.

" Systems of records" under the Privacy Act are those under the control of the agency from which " information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." Id. § 552a(a)(5). In response to requests for amendment, agencies must either allow an individual to make corrections or inform the individual of the reason for the agency's refusal to amend and procedures for seeking review of the refusal. Id. § 552a(d)(2). Agencies must also, " to the greatest extent practicable," collect information " directly from the subject individual

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when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs." Id. § 552a(e)(2). Finally, agencies must " maintain all records which are used by the agency in making any determination about any individual with such accuracy . . . as is reasonably necessary to assure fairness to the individual in the determination." Id. § 552a(e)(5).

Judicial review is available when an agency refuses to provide access, copies, or amendments, or fails to maintain accurate records or otherwise comply with the law " in such a way as to have an adverse effect on an individual." Id. § 552a(g)(1). Courts may enjoin the agency from withholding records and order production and amendment of records. Id. § § 552a(g)(2)(A)-(B), 552a(g)(3)(A)-(B). They may assess reasonable attorney fees and costs against the United States. Id. Actual damages are available in suits for failure to maintain accurate records or failure to comply with other provisions of the law if the agency acted intentionally or willfully. Id. § 552a(g)(4)(A)-(B).

Causes of action under the Privacy Act may be brought in the District Court for the District of Columbia within two years from the date on which the cause of action arises. Id. § 552a(g)(5).

The head of an agency with the principal function of enforcing criminal laws, including correctional agencies, may exempt systems of records from Privacy Act provisions, including those provisions related to access, copying, amendment, and maintenance of accuracy of records. Id. § 552a(j). Federal regulations currently exempt BOP's Inmate Central Record System (ICRS) from certain Privacy Act provisions, specifically those related to access to and amendment of records, id. § 552a(d), collection of information directly from individuals, id. § 552a(e)(2), civil remedies, id. § 552(g), and accuracy, id. § 552a(e)(5). See 28 CFR § 16.97. Inmates may instead contest the accuracy and content of records administratively. 28 CFR § § 16.9, 16.45; Letter from Wanda M. Hunt, Chief, FOIA/PA Section, Federal Bureau of Prisons, to Randall Royer, Aug. 19, 2009, ECF No. 91-1 at 31.

3. Summary Judgment Is Premature

Royer alleges that BOP knowingly maintained inaccurate records about him, Compl. ¶ ¶ 132-33 (describing Counts 1-2); that BOP has intentionally and willfully failed to elicit information directly from him, Compl. ¶ 135 (describing Count 4); that it refuses to amend the inaccurate records, Compl. ¶ ¶ 137-40 (describing Counts 6-7); and that it refuses to provide him with access to these records, Compl. ¶ ¶ 141-47 (describing Counts 8-9). Royer seeks money damages and an order that BOP give him access to the relevant records and amend inaccurate records. Compl. 35-36.

Royer's Privacy Act claims relate primarily to his assertion that BOP continues to erroneously characterize Abu Zubair, the Bosnian group with whom he fought in 1994, as a terrorist organization with ties to Al Qaeda. Royer's complaint initially alleged that BOP obtained this erroneous information from a draft version of his PSR. That draft stated that Royer had trained and fought with " Abu Zubar," PSR ¶ 42, and that " Abu Zubair (known more formally as Abu Zubair al Madani) was a member of Al Qaeda sent to Bosnia by Bin Laden to establish camps for Al Qaeda." Compl. ¶ 33; Draft PSR ¶ 42. At his sentencing hearing, Royer objected to the latter statement and argued that it confused the Bosnian Abu Zubair military group with an individual Al Qaeda member with a similar name who had died several years before Royer's affiliation with the group. Compl. ¶ ¶ 15-22; Mem. Op. 3, ECF No. 59.

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The government acknowledged the error and the court ordered that the line be stricken from the final PSR. Id.

Royer does not contest the accuracy of his final PSR, which is contained in his " Central File" in BOP's Inmate Central Records System. Compl. ¶ 25. However, Royer asserts that BOP somehow obtained access to the erroneous information that had been deleted from the draft PSR.[6] Whatever the source of the information, Royer argues that it remains inaccurate, that BOP used it to classify him as a terrorist inmate, Compl. ¶ ¶ 32-41, that BOP has maintained similar inaccurate records they obtained from " open source reporting," id. ¶ 39, and that BOP has failed to provide him access to the records, to collect information directly from him, or to respond to his requests that the records by amended. Compl. ¶ ¶ 42-44, 54-76.

BOP argues that it is " not in possession of the draft PSR as alleged by Plaintiff, nor has the Bureau ever had possession of the draft PSR . . . [or] used information from a draft PSR in the classification of Plaintiff." Def.'s SMF ¶ 4 (citing Schiavone Decl. ¶ 6). BOP does not explain why, in a letter to Royer, it used language that mirrored the deleted draft PSR language verbatim. See Pl.'s Opp'n, Ex. 11, ECF No. 98-2 at 23 (including a statement that mirrors the draft PSR verbatim that " Abu Zubair (known more ...

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