Opposition Brief — Chronicle Publishing Co. v. Rison

mpreme Court, U.S.

FIL iy i)

FEB 2 > 1

No. 92-1061 2 1993

or

Jn the Supreme Court of the Cinited States

OcTOBER TERM, 1992

| \]

i

‘HE CHRONICLE PUBLISHING COMPANY

PETITIONERS

R.H. RISON, WARDEN, ET AL

ON PETITION FOR A WRIT OF CERTIORARI

10 THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM ©. BRYSON

Acting Solicitor Genera

JOHN C. KEENEY

Acting Assistant ,

BROWN

\florney Cre

WILLIAM ©

Altorne Yy

; :

tf

Departme nt of Ju

Was/ mngto ‘ DC PDS LBO

(202) 514 9917

QUESTIONS PRESENTED

1. Whether federal courts may adjudicate the merits

of moot cases.

2. Whether petitioner Martin’s release on parole

moots the claims presented in this case for injunctive

and declaratory relief against the enforcement of prison

regulations.

3. Whether this case is not moot because damages

were sought in the complaint or because petitioner The

Chronicle Publishing Company, which had published

articles by petitioner Martin while he was imprisoned,

alleges a continuing interest in the possible future

publication of work by other federal prisoners.

(1)

=e aa

TABLE OF CONTENTS

Page

Tt al DEAR EE EO ee l

a slab eawendubepebanssvedensseussceevae l

cee cidapabhacadbanasébecsnenedsnbusésenssoves 2

st elisienscadevssninhdshaateudabacsctadecsscssesesevesnsenns 6

ol sasaseendaenuonsenvansucnnnencsonsace 17

TABLE OF AUTHORITIES

Cases:

Aetna Life Insurance Co. v. Haworth, 300 U.S. 227

ee a nen neebeniongenesninnena 7

Chapman v. Pickett, 586 F.2d 22 (7th Cir. 1978) ............. 12, 13

Church of Scientology v. United States, 113 S. Ct. 447

aA Andina naive Lcdbehubanmusdansasconnbatesoenen 7

| Cox v. McCarthy, 829 F.2d 800 (9th Cir. 1987) ................ 11

| Darring v. Kincheloe, 783 F.2d 874 (9th Cir. 1986) .......... 11, 16

Deakins v. Monaghan, 484 U.S. 193 (1988) .......... eee 6

Diamontiney v. Borg, 918 F.2d 793 (9th Cir. 1990) .......... 12

Dorman v. Thornburgh, 955 F.2d 57 (D.C. Cir. 1992) ...... 10

Golden v. Zwickler, 394 U.S. 103 (1969) ............cseeeeseeeeees 16, 17

Harlow vy. Fitzgerald, 457 U.S. 800 (1982) ones 15

Johnson v. Moore, 948 F.2d 517 (9th Cir. 1991) ............... 10, 11

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ..... 6, 16

Los Angeles v. Lyons, 461 U.S. 95 (1983) ...........ccceeeeeeee 6-7, 9, 16

McKinney v. Maynard, 952 F.2d 350 (10th Cir. 1991) ...... 13

Morales v. Schmidt, 489 F.2d 1335 (1973), aff'd on reh’g

en banc, 494 F.2d 85 (7th Cir. 1974) .............ccccccssseeseeees 11, 12

| O’Shea v. Littleton, 414 U.S. 488 (1974) .............ccceseeseeeees 11, 16

Preiser v. Newkirk, 422 U.S. 395 (1975) ...............ccscceseees 6, 10

Ross v. Reed, 719 F.2d 689 (4th Cir. 1983) ..........ceeeeeees 9, 11

Sosna v. Towa, 419 U.S. 393 (1975) ..........cccccccsccscseseesceeee 11

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498

a ais senncecakeddovecensinwivacssvnaneusens 6

Warth v. Seldin, 422 U.S. 490 (1975) .............ccccccccercccsceee 16

(IIT)

IV

Cases—Continued:

Weinstein v. Bradford, 423 U.S. 147 (1975) .........ccccceeeeeee

Wiggins v. Rushen, 760 F.2d 1009 (9th Cir. 1985) ............

Wolff v. McDonnell, 418 U.S. 539 (1974) oo... ececeeeeeeeee

Workman v. Mitchell, 502 F.2d 1201 (9th Cir. 1974) ........

Young v. Lane, 922 F.2d 373 (7th Cir. 1991) .............0...00

Regulations:

28 C.F.R.:

NE RI a REN ATR Poe

I ID aciésicctscanecéacodasuniunadcmnstacunbscecadonasvidiaolans

NE MINIT si shivenncdnciseenschaanduassbundsemesaemubelcrdusecueics

I IIIT 532s inn. sinnicascocartdncdennclaagdoamssaraanaamenddiianden

Miscellaneous:

Lee, Deconstitutionalizing Justiciability: The Example of

Mootness, 105 Harv. L. Rev. 605 (1992) ..............ceeeeeee

In the Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1061

THE CHRONICLE PUBLISHING COMPANY, ET AL..

PETITIONERS

v.

R.H. RISON, WARDEN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1) is

reported at 962 F.2d 959. The opinion of the district

court (Pet. App. 2-40) is reported at 741 F. Supp. 1406.

JURISDICTION

The judgment of the court of appeals was entered on

April 28, 1992. A petition for rehearing was denied on

September 21, 1992. Pet. App. 41-42. The petition for

a writ of certiorari was filed on December 18, 1992.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

STATEMENT

1. In August 1986 petitioner The Chronicle Pub-

lishing Company, publisher of the San Francisco

Chronicle, published a bylined article submitted by

petitioner Martin, at the time a federal prisoner

serving consecutive 15 and 18-year sentences for

actual and attempted armed bank robbery. The

Chronicle mailed Martin a check in payment for the

article. Officials at the United States Penitentiary

in Lompoc, California, returned the check to the

Chronicle, along with a notice of United States

Bureau of Prisons (BOP) regulations barring such

payments to inmates. Tr. 3-279 to 3-280.’ Martin

decided to violate the regulations by continuing to

accept compensation for future articles (and by

continuing to permit the Chronicle to publish the

articles under his byline). To avoid confrontation

with prison officials, payments for the articles were

secretly funneled through Martin’s attorney. Tr. 3-

280, 7-1238. After the first article in 1986 (Tr. 5-280),

the Chronicle began publishing articles and reports

by Martin about every four to six weeks.

1 The regulation involved, 28 C.F.R. 540.20(b), provides

that an inmate “may not receive compensation or anything of

value for correspondence with the news media. The inmate

may not act as a reporter or publish under a byline.” Prison

regulations do not restrict inmates from submitting articles or

information to the Chronicle or other news media for

publication. To the contrary, “special mail” procedures autho-

rized by regulation allow inmates (including, at the time,

Martin) to send materials to the news media in sealed

envelopes, with no inspection by prison officials. See 28 C.F.R.

540.18(c). Moreover, the regulations do not prohibit the use of

a pseudonymous byline.

3

On Sunday, June 19, 1988, the Chronicle published

an article by Martin that criticized the prison’s

administration, “implied that [the warden’s] actions

had increased tension among prisoners and caused

violence,” and “contained express statements about

murders, assaults, and possible violence or rioting.”

Pet. 3; Pet. App. 16. The warden, concerned about the

security situation at the prison (particularly in the

context of major riots that had recently occurred at

two other federal prisons), followed the reecommen-

dation of his Chief of Security and placed Martin in

administrative detention for two days while investi-

gating whether Martin’s safety was in jeopardy and

whether Martin was attempting to encourage a group

demonstration. Several days later, Martin was trans-

ferred to another federal prison because of BOP

concerns that he would be a catalyst for a disturbance

at Lompoc. Pet. App. 31-35.

During the warden’s security investigation, prison

officials found evidence of the continuing compensa-

tion Martin was receiving for his writing. A dis-

ciplinary incident report was filed against Martin for

“conducting a business * * * while incarcerated.”” No

further action was taken with respect to the report

after Martin’s transfer. See Gov’t C.A. Br. 8.

2. On July 6, 1988, shortly after Martin’s transfer,

petitioners filed this action in the district court,

alleging that the BOP’s regulations barring inmates

from publishing under a byline, receiving compen-

sation from the news media, or conducting a business

“ No inmate is permitted to conduct or engage actively in a

business or profession while incarcerated. See 28 C.F.R

540.14(d), 541.13 (Table 3), 540.45.

4

(as applied to newspaper writing) were unconstitu-

tional on their face and as applied. Martin also sought

damages from the respondent prison officials for their

allegedly retaliatory actions in placing him in

administrative detention and transferring him to

another prison in June 1988. Pet. App. 7. At peti-

tioners’ request, the district court entered a

temporary restraining order and later a preliminary

injunction barring application of the challenged

regulations to Martin—and thus permitting the

continued publication of articles under his byline—

while the litigation was pending. Pet. 5.

Trial commenced in December 1989, and 13 days of

testimony were presented. On June 26, 1990, the

district court dissolved the preliminary injunction

and entered judgment for the respondents. Pet. App.

40. The court observed that the challenged reg-

ulations “do not control the content of what is said”

and that “no attempt is made to edit, restrain or

prevent written material from going out of the prison

or from being published.” Jd. at 14. Thus, the reg-

ulations restricting bylines, compensation, and the

conduct of business “are limited exceptions to the

broad grants to prisoners of means for exercising

their rights of expression.”* Jd. at 20. The court also

% 28 C.F.R. 540.20(b) also bars an inmate from “acting as a

reporter.” This provision, which bars an inmate from working

on a regular basis to provide information to the news media for

compensation, was never applied to Martin and is irrelevant

here. See Tr. 11-74. Even petitioners’ expert at trial agreed

that such conduct would constitute a real security threat

within the prison. Tr. 4-473. Petitioners have not claimed that

Martin was a reporter, or that the Chronicle has any interest in

hiring an inmate reporter.

5

recognized the potential dangers to physical security

within the prison that were alleviated by the

challenged regulations. Jd. at 15-19. After extensive

analysis, the court concluded that the regulations

were “rationally related to the legitimate penological

objective of prison security,” that they gave fair

notice to affected parties of the conduct they

prohibited, and that they were applied rationally and

in good faith on the facts of this case. /d. at 22, 24, 38-

39. The court therefore found no constitutional in-

firmity in the regulations on their face or as applied

to Martin’s conduct. Jd. at 38-39.

The district court also rejected Martin’s con-

tention that his placement in administrative deten-

tion and subsequent transfer was intended as

retaliatory punishment. It found from the evidence

that respondents “acted because of a genuine concern

for prison security and for no other reason,” Pet. App.

30, and thus denied Martin’s claim for damages. See

id. at 30-35, 38-39.

3. Petitioners appealed. In their briefs and at oral

argument petitioners challenged the district court’s

rulings as to the constitutionality of the regulations,

but did not contest the district court’s findings

rejecting Martin’s theory of retaliation and his claim

for damages.

In February 1992, Martin was released on parole.

He therefore ceased to be subject to the BOP

regulations at issue, which restrict the activities of

federal inmates only while they are actually

incarcerated. At the government’s suggestion, and

after full briefing by the parties, the court of appeals

found that Martin’s release had rendered the case

6

moot. Pet. App. 1. The court therefore vacated the

district court’s judgment and remanded the case to

that court with instructions to dismiss it as moot.

Ibid.

ARGUMENT

1. Petitioners first contend, Pet. 10-18, that fed-

eral courts have the power to decide the merits of

moot cases in certain circumstances, and that the

court of appeals should have done so in this case.

They base their position largely on the fact that con-

siderable resources have already been expended in the

course of the litigation, and argue that “the likely

precedential effect of a decision on appeal would

justify the [further] expenditure of judicial resources

necessary to adjudicate the merits.” Pet. 13 (quoting

Lee, Deconstitutionalizing Justiciability: The Ex-

ample of Mootness, 105 Harv. L. Rev. 605, 656 (1992)).

This Court has made quite clear that “{u]nder

Article III of the Constitution, federal courts may

adjudicate only actual, ongoing cases or controver-

sies.” Lewis v. Continental Bank Corp., 494 U.S.

472, 477 (1990) (citing Deakins v. Monaghan, 484 U.S.

193, 199 (1988), and Preiser v. Newkirk, 422 U.S. 395,

401 (1975)). This rule requires that the parties have a

“personal stake in the outcome” of the lawsuit. Los

Angeles v. Lyons, 461 U.S. 95, 101 (1983). Absent a

class action or a dispute that is “capable of repetition,

yet evading review,” Southern Pacific Terminal Co.

v. ICC, 219 U.S. 498, 515 (1911), the requirement of a

live controversy between personally interested

parties subsists through all stages of federal judicial

proceedings, trial and appellate. E.g., Lewis v. Con-

tinental Bank Corp., 494 U.S. at 477-478; Los Angeles

7

v. Lyons, 461 U.S. at 101-102, 109. Petitioners put for-

ward the classic arguments for why one might devise

a court system prepared, at least in complex or

interesting cases, to offer advisory opinions. How-

ever intriguing, those arguments are irrelevant in

the face of the contrary system adopted by the

Constitution and repeatedly reaffirmed by this Court.

See, e.g., Aetna Life Insurance Co. v. Haworth, 300

U.S. 227, 241 (1937); Church of Scientology v. United

States, 113 S. Ct. 447, 449 (1993).

Even if dismissal were not constitutionally com-

pelled, however, there are no particular circum-

stances in this case that might counsel a federal

court to strain to reach the merits of the case. As the

district court found, Pet. App. 14-15, 20, the specific

regulations challenged here impose very limited

restrictions on the broad privileges of federal inmates

to communicate information and written materials to

the news media. Inmates are allowed to submit

articles and letters for publication without censor-

ship by prison authorities and without restriction as

to content. They are not prevented from providing

factual material to the news media. In fact, inmates

may communicate to the news media through “special

mail” that is sealed by the inmate and not subject to

inspection by prison authorities. 28 C.F.R. 540.18(c)._

The challenged regulations bar only those ac-

tivities that the BOP views as having the greatest

potential for creating security problems within

federal prisons, while leaving open as many forms of

inmate communication as possible. Indeed, Martin

continued to publish articles in the Chronicle even

after the adverse judgment of the district court in

8

this case, subject only to the requirements that he

cease using a byline and cease receiving compen-

sation.‘ See Pet. App. 67-68.

Petitioners claim that dismissal is a “pointless

waste of judicial resources,” because the trial took

several weeks and the case had already been briefed

and argued in the court of appeals when it became

moot. Pet. 16. That argument of course discounts the

potential waste of resources of the court of appeals

and of this Court in resolving a case which sub-

sequent events have rendered moot. Moreover, while

petitioners did challenge the facial constitutionality

of several regulations, much of the trial evidence and

many of the issues raised on appeal involved specific

factual issues of no continuing importance, such as

the details of the prison authorities’ dealings with

Martin and the constitutionality of the regulations as

specifically applied to him.

2. Petitioners also contend that Martin’s parole

does not moot this case, relying on the fact that the

terms of his parole might permit future reincarcera-

tion on a variety of grounds. Moreover, they assert a

* The observation that the regulations are so limited in

scope may account for the fact that the issue of their validity

does not arise with any frequency. Indeed, petitioners asserted

below that the regulations in issue had never been applied to

any inmate other than Martin. Martin C.A. Br. 7, 10. While

respondents disputed this specific contention, it is clear that

occasion for application of the these regulations arises only

rarely. Gov't C.A. Br. 44 & n.35. As the district court stated,

“[t]he evidence disclosed perhaps two instances of prisoners

who wrote under a byline for a newspaper, although it is

questionable whether they had acted as a reporter or received

compensation.” Pet. App. 27.

9

conflict among the courts of appeals on this issue.

Pet. 18-19. These arguments are without merit.

a. This case is not one whose particular facts

disclose a serious issue that is “capable of repetition,

yet evades review.” Los Angeles v. Lyons, 461 U.S. at

109; Weinstein v. Bradford, 423 U.S. 147 (1975). In

the absence of a class action, that doctrine is limited

to cases meeting each of two conditions: (i) the chal-

lenged action must be in its duration too short to be

fully litigated prior to its cessation or expiration, and

(ii) there must be a reasonable expectation that the

same complaining party will again be subjected to the

same challenged action. E.g., Weinstein v. Bradford,

423 US. at 149.

The first condition is clearly absent here. Terms of

incarceration in federal prisons are not necessarily

short, and if other prisoners in the future wish to

assert the same claim presented here, there is no

reason to believe that they will not have ample time to

litigate it. See Wiggins v. Rushen, 760 F.2d 1009,

1011 (9th Cir. 1985) (Kennedy, J.); Young v. Lane, 922

F.2d 370, 373 n.7 (7th Cir. 1991); Ross v. Reed, 719 F.2d

689, 694 (4th Cir. 1983). Martin himself was incar-

cerated from 1981 until early 1992, which would

ordinarily be ample time to resolve a claim such as

the one presented in this case.®

® It should be noted that Martin substantially delayed

commencement of this litigation even after the challenged

restrictions became an issue. Petitioners were specifically

advised of the regulations at least as early as 1986, when Martin

first wrote an article for the Chronicle. Rather than chal-

lenging the regulations at that time, however, Martin simply

continued to violate them, secretly funneling payments for his

articles through his attorney. Tr. 3-279 to 3-280, 3-398, 7-1238.

10

The same reasoning answers the Chronicle’s

argument, Pet. 9, 17, that it retains an independent

interest in the case because the fact pattern is

“capable of repetition” with respect to other

(unidentified) inmate authors. In this regard, the

Chronicle inexplicably relies on a letter from the

BOP, sent after the judgment in the district court,

expressing concern that the continuing publication of

Martin’s articles (without a byline but with details

sufficient in context to identify the author) could

cause a security problem in the prison to which

Martin had been transferred. See Pet. App. 67-68.

The letter refers only to the specific security

problems arising with respect to Martin, and it gives

no indication of any continuing dispute with the

Chronicle that would extend beyond Martin’s release

on parole.

Nor is the possibility that Martin may violate the

terms of his parole and be reincarcerated, so that he

would again be subjected to the restrictions of the

federal prison regulations, sufficient to prevent the

ease from being moot. The mere possibility of

reincarceration or retransfer cannot preserve a claim

for injunctive and declaratory relief regarding prison

conditions as a live controversy after a prisoner is

transferred or released on parole. See, e.g., Wein-

stein v. Bradford, 423 U.S. at 149; Preiser v. New-

kirk, supra; Dorman v. Thornburgh, 955 F.2d 57, 58

(D.C. Cir. 1992); Johnson v. Moore, 948 F.2d 517, 519

(9th Cir. 1991). With respect to equitable relief, such

It was not until two years later, after prison officials

discovered financial records showing the continuing payments,

that petitioners chose to challenge the regulations in court.

RR nee CLR > omnes 2

11

a live controversy requires a continuing, present

injury, or a real and immediate threat of repeated

injury. E.g., O’Shea v. Littleton, 414 U.S. 488, 494

(1974). The possibility of return to prison for a new

violation is “too speculative * * *, and as such cannot

be the basis for a finding that the case continues to

present a justiciable question.” Wiggins v. Rushen,

760 F.2d at 1011. See O’Shea, 414 U.S. at 496-497; Cox

v. McCarthy, 829 F.2d 800, 804 & n.3 (9th Cir. 1987);

Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.

1986); Ross v. Reed, supra. Given the lack of any

evidence indicating an unusual likelihood of rein-

carceration, the court of appeals properly found the

case to be moot.

b. Contrary to petitioners’ assertion, Pet. 18-19,

the decision below does not conflict with those of

other courts of appeals.®

§ Although any intra-circuit conflict would of course not

require the intervention of this Court, petitioners’ suggestion,

Pet. 19 n.20, that the decision below departs from Ninth Circuit

precedent is also without merit. See Johnson v. Moore, 948

F.2d at 519 (where transferred prisoner “demonstrated no

reasonable expectation of returning,” claims for injunctive

relief were moot); Wiggins v. Rushen, supra (inmate’s com-

plaint for an injunction became moot upon transfer and parole,

even where new charges had already been filed against him).

In Workman v. Mitchell, 502 F.2d 1201 (9th Cir. 1974), the suit

was not mooted by the release of the named inmate plaintiffs

because, unlike this case, Workman was a class action. See

Sosna v. lowa, 419 U.S. 393 (1975). The Workman court’s

passing reference (502 F.2d at 1207 n.7) to the Seventh

Circuit’s decision in Morales v. Schmidt, 489 F.2d 1335 (1973),

affd on rehearing en banc, 494 F.2d 85 (1974), is simply

erroneous dictum that does not establish even an intracircuit

conflict. While the similarly brief reference to the issue in

12

The Seventh Circuit follows the general rule set

forth above. See, e.g., Young v. Lane, 922 F.2d 370,

373 & n.7 (1991) (transfer of prisoners mooted claims

for injunctive relief). Petitioners cite that court’s

decision in Morales v. Schmidt, 489 F.2d 1335 (1973),

aff'd on rehearing en banc, 494 F.2d 85 (7th Cir. 1974).

Morales, however, involved mailing restrictions that

had a continuing effect on the former prisoner even

while he was on parole. The court made clear that

prison officials would “have legal custody of the

plaintiff, although a parolee, for six more years and

[have] authority to impose restrictions upon him,”

and that the official in question had in fact “stated

that he has refrained from preventing Morales from

communicating with his sister-in-law solely because

of the duty to comply with the district court’s

injunction.” 489 F.2d at 1336. Morales thus stands

only for the unremarkable proposition that parole of a

prisoner will not moot a challenge to governmental

regulations that continue to restrict his activities.’

Petitioners also cite Chapman v. Pickett, 586 F.2d.

22 (7th Cir. 1978). Chapman held that a portion of a

paroled prisoner’s declaratory claim was not moot

because of the possibility that records of disciplinary

Diamontiney v. Borg, 918 F.2d 793, 795 n.1 (9th Cir. 1990), is

somewhat unclear, that case was held not to be moot apparently

because, as discussed in the text with respect to Morales, the

challenged mail policies could “still have an impact on [the

former prisoner’s] correspondence with the courts.”

7 The Morales court did note the possibility that the parolee

might be returned to prison after a future infraction. It did

not, however, indicate that that possibility by itself would

suffice to prevent the case from being moot.

13

action taken against him would be used against him in

the future. Jd. at 26-27. Because Martin was never

disciplined for his violation of the byline and

compensation regulations, there can be no such claim

of a continuing adverse effect in this case. Thus,

regardless of its merits, Chapman’s holding is not

applicable here.

The Tenth Circuit’s decision in McKinney v. May-

nard, 952 F.2d 350 (1991), is also consistent with the

decision below. Unlike petitioner Martin, McKinney

had not been released on parole at the time of the

court of appeals’ decision; rather, he had been

transferred to another facility and placed on “pre-

parole” status for a number of months. It appears

from the court’s brief discussion of the point, which is

based largely on a citation to Morales, that in that

status McKinney, like Morales but unlike Martin,

remained subject to the terms of the challenged

regulations. Jd. at 351 n.1. .

3. Petitioners also contend, Pet. 20-22, that there is

a continuing controversy regarding damages in this

case. An inmate’s claim for damages for past illegal

conduct is not, of course, mooted by his release or

transfer. See, e.g., Wolff v. McDonnell, 418 U.S. 539

(1974). In this case, however, Martin’s claim for

damages was resolved adversely to him in the district

court and the court’s findings on the damages issue

were not challenged on appeal.

In the district court, Martin’s damages claim was

founded upon the allegation that his placement in

administrative detention and his transfer to another

prison denied him due process, and that the actions

were intended as punishment to retaliate against him

14

for the content of his writing. The district court

specifically rejected those contentions, finding that -

the “defendants acted because of a genuine concern

for prison security and for no other reason.” Pet.

App. 30. See Pet. App. 30-35, 38-39. Petitioners’

appeal to the Ninth Circuit did not challenge these

findings, but raised only issues related to the claims

for injunctive and declaratory relief. Because the

trial court’s factual findings dictate rejection of the

damages claim and were not challenged on appeal,

there is no continuing controversy as to the award of

damages.

Now that mootness has become an issue in the case,

petitioners have suggested that the damages claim

was not limited to the alleged retaliation. Pet. 20.

While there is arguably broader language included in

the complaint, petitioners’ pretrial statement clearly

identifies the alleged retaliation as the basis of the

damages action:

The damages phase concerns whether Defendants

retaliated against Plaintiffs’ First Amendment

activities and, if so, what damages should be

awarded.

* * * * *

[In the damages phase] [i]t probably would be left

for the jury to determine whether Defendants had

retaliated against Plaintiffs’ expression of their

First Amendment rights * * *.

Pretrial Statement 9-10.

Moreover, under the facts of this case, no viable

damages claim could have been advanced except under

Sen

15

the retaliation theory. This case is not the typical

one in which damages are sought based on the past

application of regulations to a prisoner. Through

June 1988, the Chronicle and Martin chose to ignore

and evade the regulations. Shortly thereafter, peti-

tioners filed this suit and promptly obtained a tempo-

rary restraining order and subsequent preliminary

injunction barring application of the regulations to

Martin while the case was pending. Accordingly,

prior to final judgment in the district court, Martin

continued to receive compensation and have articles

published under his byline unimpeded by the chal-

lenged regulations. Because the regulations were not

in fact applied to him, he could not have suffered any

injury from their application.

Petitioners’ claim is further foreclosed by the

qualified immunity of the respondent BOP employees.

See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

For the reasons expressed in the district court’s

factual findings and opinion upholding the constitu-

tionality of the challenged regulations, and given the

lack of any contrary authority, it is evident that the

respondent BOP employees’ conduct in applying the

BOP regulations in a non-retaliatory manner did not

violate any clearly established constitutional rights

of which a reasonable person would have been aware.

Accordingly, any damages claim predicated on such

good-faith enforcement of the regulations is not

viable. Petitioners fault the court below for not

addressing, or remanding for further proceedings on,

the qualified immunity issue. Pet. 20-21. As dis-

cussed above, however, petitioners’ damages claim had

been resolved in the district court on other sufficient

16

grounds and, in any event, there is no serious

argument on the qualified immunity question that

would have warranted discussion or remand by the

court below.

4. Finally, petitioners contend, Pet. 17, 22 n.22, that

regardless of Martin’s continuing interest in the

case, the Chronicle’s independent interest prevents

the case from becoming moot upon Martin’s release.

Given Martin’s release, however, the Chronicle has

demonstrated no present or continuing injury, nor

any “real” or “immediate” threat of repeated injury

from application of the allegedly unconstitutional

regulations. See Los Angeles v. Lyons, 461 U.S. at

101-102; O’Shea v. Littleton, supra. Absent its on-

going business relationship with Martin or another

actual inmate writer, the Chronicle cannot continue

to prosecute the suit. See Warth v. Seldin, 422 U.S.

490, 498-499 (1975); Darring v. Kincheloe, 783 F.2d

at 877.

The Chronicle’s vague assertions that it “main-

tains an interest in reporting about prisons,” Pet. 17,

or is “very much interested in publishing pieces by

convicts,” Pet. App. 63, do not identify the sort of

“specific live grievance” required to preserve federal

jurisdiction, Lewis v. Continental Bank Corp., 494

U.S. at 479 (quoting Golden v. Zwickler, 394 U.S. 103,

110 (1969)), but rather enter “the area of speculation

and conjecture.” O’Shea v. Littleton, 414 U.S. at 497.

The Chronicle has not named any particular federal

inmate who has submitted an article it would publish

but for the regulations; it has not stated that there is

any actual federal inmate author it wishes to

compensate but cannot; and it has not averred that

pe ARR stent

17

there is any federal inmate author making sub-

missions for whom a byline under a pseudonym would

be insufficient. On the record of this case, there is no

substantial controversy of “sufficient immediacy and

reality to warrant the issuance of a declaratory

judgment.” Golden v. Zwickler, 394 U.S. at 108.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

WILLIAM C. BROWN

Attorney

FEBRUARY 1993