Free Brief in Support of Motion - District Court of Colorado - Colorado

Case 1:03-cv-02320-PSF-MJW

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Filed 04/21/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2320-PSF-MJW MARK JORDAN, Plaintiff, v. ROBERT A. HOOD, Warden, ADX Florence, MARY H. SOSA, Acting ISM, ADX Florence, in their official capacities, and FEDERAL BUREAU OF PRISONS, Defendants. PLAINTIFF'S SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff Mark Jordan ("Jordan"), through his undersigned counsel, respectfully submits the following Supplemental Brief in Support of his Motion for Partial Summary Judgment pursuant to paragraph XIII(4) of the Final Pretrial Order: Pursuant to paragraph XIII(4) of the Final Pretrial Order, dated February 21, 2006, the Defendants filed, and provided to counsel for Jordan, a copy of the administrative record of the rulemaking pertinent to this case on or about April 7, 2006. Jordan notes that one of the exhibits attached to his Opening Brief in Support of Plaintiff's Motion for Partial Summary Judgment ­ designated there by Bates label numbers as BOP 532-540 ­ appears in the filed administrative record at pages 668-676. Jordan requests the Court to note that the "administrative record" in this case involves exclusively rulemaking ­ specifically the genesis of the rule at issue. There is no indication in

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Case 1:03-cv-02320-PSF-MJW

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the Defendants' submission of any form of quasi-judicial agency adjudication with regard to which this Court may now sit in an appellate capacity. This is the first level adjudicatory review of the constitutionality of 28 C.F.R. § 540.71(a)(2). Invoking 5 U.S.C. § 706 of the Administrative Procedure Act, the Defendants have suggested that this Court should limit its review to the submitted record. The Administrative Procedure Act is only relevant to these proceedings, however, by virtue of its broad waiver of sovereign immunity in 5 U.S.C. § 702 ­ which "waiver is not limited to suits under the Administrative Procedure Act." Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233 (10th Cir. 2005). This action has been brought for the vindication of a constitutional right under 28 U.S.C. § 1331. As explained in Simmat: In sum, as a result of congressional action in 1875 (creating general federal question jurisdiction), 1962 (extending mandamus jurisdiction to all federal district courts), and 1976 (waiving sovereign immunity in cases for nonmonetary relief against federal officials and agencies), federal district courts now have jurisdiction over claims by federal prisoners against federal prison officials seeking vindication of their constitutional rights under either 28 U.S.C. § 1331 or 28 U.S.C. § 1361, and may obtain relief in the nature of either injunction or mandamus. Id. at 1236 (the reference to the 1976 enactment being to section 702 of the Administrative Procedure Act). While invoking the waiver of sovereign immunity provided by 5 U.S.C. § 702, Jordan is nevertheless invoking the subject matter jurisdiction of 28 U.S.C. § 1331. And this is precisely what Simmat holds appropriate. Jordan respectfully submits that the Court may, and should, entertain such evidence as it deems admissible and sufficient for an initial adjudication of the constitutional issues posed in this case through application of the criteria established in Turner v. Safley, 482 U.S. 78, 89-91 (1987). Jordan further submits that the facts are sufficiently undisputed as presented in the

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Case 1:03-cv-02320-PSF-MJW

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briefing on the pending Motion for Partial Summary Judgment that the bulk of ­ if not frankly the whole of ­ the case may be determined on that basis. Respectfully submitted this 21st day of April, 2006.

s/ Edward T. Ramey Edward T. Ramey ATTORNEYS FOR PLAINTIFF Isaacson Rosenbaum P.C. 633 17th Street, Suite 2200 Denver, CO 80202 Phone: 303/256-3978 Fax: 303/256-3152 E-mail: [email protected]

CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on this 21st day of April, 2006, I electronically filed a true and correct copy of the foregoing PLAINTIFF'S SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: ([email protected]) William G. Pharo, Esq. United States Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 s/ Jayne M. Wills Jayne M. Wills

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