Opposition Brief — Skinner v. Department of Justice

PETITION FOR AWRIT OF CERTIORAKI

ITHHE UNITBIVSTALTES COURT OF APPEAI

ORTHE DISTRICT OF COLUMBIA CIRCUT

Bk POR THEE UNTPED STATES IN OPPOSITION

y Solicitor (ener

Oui el of liecord

NY A. BREUER

| istant Attorney Genere

JAY ODHANKE!

|

idfonriey

Department of Ju

Washington D¢

SUpTre ret thru

ee j

If I 4

QUESTION PRESENTED

Whether petitioner was required to suecessfully chal

lenge a Bureau of Prisons disciplinary hearing through

an action in habeas corpus before filing a civil damage

Claim under the Privacy Act, 5 U.S.C. 552a, where recov

ery for petitioner's alleged disciplinary harms unrelated

to the duration of hi sentence depended on overturning

the adverse determination that also led to the loss of hi

erood-time credit

PABLE OF CONTENT

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UW pinion te

Jurisdiction

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TABLE OF AUTHORITIES

Balisok, 520 U.S. 641 (1997)

iva bride 4 I: cl LOGZ { (th ( ar

denied, 519 US. 1131 (1997) .

Wood, 122 F.3d 389 (9th Cir. 1997)

199965)

ow, 870 F.2d 616 (1th Cir. 1989)

Hlumphre uy. Siz UD. 177 (1994)

Viontgomery \ A

] nderson, 262 F.5d 641 (7th Cu

2001 )

VW (HUTTE SN

Vv. Close, 540 U.S. 749 (2004)

i)

a ralta \

Vasque 467 I .3d 98 (2006), cert. denied

HI US. 1145 (2007)

"OST \ Crilniore 11] esd 556 (7th ¢ ly 1997)

Rodriguez, 4114

| ede ral feureau Of Prisons, Lo) Is sd sii

(air. ZOUOUO)

Sheldon v. Hundley, 83 F.3d 2351 (8th Cir. 1996)

S. 475 (1973)

‘bol Reno, 141 F.8d 1000 GA1th Cir. 1998)

Vv. Daniels, S71 F.2d 1828 (7th Cir, 198

Lhe l/nited States Probation Office

1124 (D.C. Cir. 1998)

ontinued

Pol dif

Mi 1) PILide }/

Lule repulations and rul

ft reedom of Information Act

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Hn the Supreme Court of the Cited States

No OY 1 1s

Lf PLP RONEH

ON PKTITION FOR A WRIT OF CERTIORARI!

LOTHE UNITED STATES COURT OF APPEKLAIT

FOR THE DISTRICT OF COLUMBIA CIRCUTT

BRIEF FOR THE UNTPED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-1&a)

is reported at 584 F.3d 1098. The opinion of the district

court (Pet App 19a-24a) Is not reported

JURISDICTION

The judgment of the court of appeals was entered on

October 27, 2009. A petition for rehearing was denied on

December 30. 2009 (Pet. App AQa-41a). The petition for

a writ of certiorari was filed on March 30, Z0O10

jurisdiction of this Court is invoked under 2&8

1254(1)

STATEMENT

Petitioner 1s a federal prisoner housed at a Bureau of

Prisons (Bureau) facility in Atlanta, Georpia. Staff at

that facility found a white powder in petitioner’s cell

(1)

that tested positive for cocaine. After a disciplinary

hearing, the Bureau imposed various sanctions, includ

ing the loss of 40 days of good time credit. Petitioner

ubsequently filed a complaint in the United States Di:

trict Court for the District of Columbia seeking damage:

under the Privacy Act, 5 U.S.C. 552a. The district court

dismissed petitioner’s action, Pet. App. 19a-24a, and

subsequently denied petitioner’s motion for relief from

the judgment, id. at 25a-29a, 30a-389a. The court of ap

peals affirmed. /d. at la-l&Sa

1. On November 27, 2001, Bureau staff searched pe

tilioner’s prison cell and found a white powder that

tested positive for cocaine. On January 28, 2002, the

Bureau conducted an internal disciplinary hearing. At

the hearing, petitioner testified that the substance found

in his cell was “|'T'jide washing powder,” which the hear

ing officer noted in his report. Pet. App. 2a-3a (bracket:

In original). The officer found, however, that petitioner

had possessed cocaine, and the officer imposed sanction:

that included the loss of 40 days of pood time credit,

60 days of disciplinary segregation, the denial of com

missary privileges for 180 days, and the denial of visita

tion rights for a year. /d. at 3a. The Bureau also re

ferred the matter to the Federal Bureau of Investigation

(I BI), which declined to prosecute because the case

would not result in greater penal consequences than the

sanetions already imposed by the Bureau. /bid

On July &, 2002, petitioner filed a request with the

ist for information under the I'reedom of Information

S.C. 552. The FBI informed petitioner that its

records contained 18 pages that were responsive to his

request. Because the documents had originated with the

Bureau, the I BI forwarded petitioner’s request to the

Bureau, which released the documents to petitioner.

Qne of the documents was the referral form that the

Bureau had sent to the FBI The form contaimed a

typed paragraph stating that chemical tests conducted

hy the Bureau indicated that the white powder In petl

lioner’s locker was cocaine. Below that paragraph wa

ahandwritten notation: “Actually laundry detergent

The notation was unsigned, undated, and unimitialed

No evidence revealed who made the notation or what it

meant, Petitioner acknowledged that the powder had

not been sent to the I BI for testing, but neverthele:

alleged that the notation reflected the results of an

“independ|e }nt analysi ” of the powder performed Ly

the kB. Pet App sa-4da (brackets in original)

Z. On Aupust 13, 2004, petitioner filed a Complaint in

the United States District Court for the District of Co

lumibia. He alleged that the powder found in his locker

was laundry detergent rather than cocaine, that the IB!

referral form indicated as much, and that the Bureau’:

records were therefore inaccurate He reque, Led two

remedies under the Privacy Act: amendment of his in

mate records and money damayes for the sanctions Im

pos ed I the Bure all Pet. App Aa

The bureau moved to dismiss petiioner’s complaint

for failure to state a ¢laim; in the alternative, it moved

for summary Judgment. Furst, the Bureau argued that

it had exempted inmate records from the relevant provi

sions of the Privacy Act. Second, it maintained that pe

Litioner had failed to exhaust administrative remedie:

seeking amendment of his inmate records. ‘Third, the

Bureau offered a “third and independent ground for di

missal” ina footnote: namely, that because success on

petitioner’s claims would result in the restoration of

good time credit, his claims could only be brought in a

habeas corpus action. Pet. App. 8a n.1, 4a-5a

On June 20, 2005, the district court dismissed peli

tLioner's Complaint on the first of those grounds, 7.e., that

pelilioner's re cords were ¢ xemptl from the relevant pro

visions of the Privacy Act. Pet App 19u-24a. Petitioner

appealed but he also filed a motion for relief from the

judpment under Federal Rule of Civil Procedure 60(b)

in the district court. The court of appeals Lherelore held

petitioner's appeal in abeyance pending disposition of

the Rule 6006) motion. On March 81, 2008, the district

court denied the motion for relief from the judgement

Pet. App. 80a-89a

4. ‘The court of appeals affirmed. Pet App. la-1&a

a. With re: pect lo petitioner: Claim for amendment

of his records, the court of appeal agreed with the di

trict court's analysi: Pet. App. Ga-7a. section

bdo2ale)(h) of the Privacy Act requires agencies to main

lain records used “in making any determination about

4 t

any individual with such accuracy r * 967

reasonably necessary to assure fairness to the individual!

in the determination.” In addition, Section 552a(d) of

the Act requires apvencie: Lo entertaln request lor

amendment of records that are inaccurate. 5 USO

po2a(d)(2). As the court of appeals recognized, however,

the Bureau ha exempted Inmate records trom the re

quirements of Section 5bb2al(d). Pet App da. see White

(/nited States Probation Office, 148 I.8d 1124, 1425

(D.C. Cir. 199%). Petitioner does not challenpe that

holding before this Court

Db. With re: pect to petitioner Claim from money

damapes, the court of appeals affirmed on a yround that

the district court had not considered. Pet App sa-Va

Section 5bb2a(e)(4) of the Privacy Act permits hability

against the United States for “actual damages sustained

by the individual as a result of” an apeney’s “intentional

curate record » | (

CO. bb Zale )(1)CO) (creating port

‘LiON) Qn August 9, 2002. the Bureau

( XCM pt ‘a! Inmate rec ra Irom tne re cord maintenance

requirements of Section Zale )(o)—which was bhelore

petitioner filed suit but after his disciplinary hearing

Pet. App. 9a. The court of appeals found 1t unnecessary)

to resolve wh

Lhe) the bureau exemption from pection

)would apply in this case, because it allirmed

trict court Gecision alternative ground

eiically, the court of appr held that peti

“CIV Gamay Claim is barred unt and until

iccessfully chaltlenpes the disciphnary hearing: on

which it is based through an action in habeas corpu

Pet. App. Ya. After discussing in detail this Court's and

ils own precedents on when a prisoner may maintain a

damapes Claim before having overturned the prison ac

Lion in habea Lhe court of appeal, observed that “hin

SUCCE! Ma ‘damaye action would Ly pose ILly question

the vahadity of conviction or duration of sentence, the

htigant must first achieve favorable termination of hi

available state, on federal habea: ,Opportunities to chal

lenge the underlying conviction or sentence.” /d. at lla

(quoting Muhammad v. Close, 540 U.S. 749, 751 (2004))

The court reasoned that if petitioner “were to succeed in

demonstrating that [the bureau) intentionally or will

fully maintained and acted upon a false record of drup

possession, “plainly the recision of good time would have

lo be overturned, thus accelerating {petitioner’s| re

lease.” /d. at Ida (quoting feazzoli v. Federal bureau

of Prisons, 230 I.38d 371, 874 (D.C. Cir. 2000)). Because

petitioner's recovery of damapes would necessarily re

quire reinstatement of his rood time credit, the court

proceed if)

ARGUMENT

(| appeal hie ie th) il ay Callint wce es (oT)

peuulioner’s damapes claim would necessarily require the

restoration of lost yood time credit, petitioner must pro

eed in habea Petitioner claims (Pet. 10-28) that the

ourt of appeals’ decision is “in [tjension” with decision

of this Court, Pet. 1%, and in confhiet with decisions of

obner Courts Ob appr “al hose Claims lack merit, and

further review is not warranted

a. AS the court Oo] appeal CXplamed this Court

prec dents establish that petitions ris required lo pro

ceed in habea Pet App Qa-IZa. In /’reiser v. Rhodri

111 U.S. 475 (1978), state prisoners sought injun

tive rehel under 42 U.S.C. 19835 to restore pood-tim

credits that had been lost in prison disciplinary proceed

Ing 111 U.S. at 476. This Court held that a state pri

oner seeking such relhet may not proceed under Section

1984, but may seek relief in federal court only by a peti

Lion for habeas corpu under 28% U.S.C, 2254. Preiser

111 US. at 490, 500. Prezser thus established that Se

Lion L935 Mia be Ut ed LO challenye { ondition Ol contine

ment, bul not to challenge the fact or duration of cor

bnement

In fleck v. Humphrey, 512 U.S. 477 1994), the Court

avain considered the intersection between Section 1983

and habea corpu In that case, a state prisoner ought

damages, but not equitable relief, under Section 1983 for

an allepyedly unconstitutional criminal conviction. 7d. at

179. The Court reasoned that when “establishing: the

basis for the damages claim necessarily demonstrate

the invahdity of the conviction|,| * * * the claimant

, allacKIney

confinement Hd. at 481-4

LIS. ab 490). The Co

COrpus | the appropriate ehicle whet!

favor of the plaintiff would necessarily imply

ity of his conviction or sentence ld. at 48%

In Adward lsalisol PA) |

(Court held that the /fec/ rule apple not nly Lo Cconvic

tions but also to prison disciplinary proceedings alfect

Ing the duration of continement

prisone. brought suit under Section 19838 to challeny

disciplinary hearing that had resulted in multiple

Lion including the lo Of good time credit. /d

The Prisoner Challe nyved on Y Ure procedure 7 (iil

disciplinary hearing and sought only damagres and pro

pe tive injunctive reliel but not restoration of the lost

credit. /d. at 645-645. This Court neverthele neld that

because “|t}he principal procedural defect complained of

by [the prisoner] would, if established, necessarily imply

the invalidity of the deprivation Of his pood-lime cred

iI the inmate's claim for money damayes was not

nizable under Section 1983. /d. al 646; sec

The court of appeal recoynized that on

Pre) (/ Hlecl ali Oh Lrilog’y Ol case a Stale perl One

Civil action ° barred (absent prio. invalidation) !

matter the relief sought (damages or equitable relief)

no matter the target of the pri oner uIL (Stale Conduct

leading to conviction or internal prison procee (i)

Succe In Chat action would necessarily demonstr:

Invalidity of confinement or its duration.” Wilkinson

Dot on, D44 US. 74, $1-82 (2005) eC Muhammad

Clo ¢e, b40 LU) S. 749. 751 (2004) (“| Wihere wece in

prisoner's § 1983 damages action would implicitly que

Lion the validity QO COnV it hon ()! Cd ration of nLence

credit

chalte rye

lemonstrating that the bureau intentionally or wi

untamed and a Lé (| Upon a laise rec rd ol qqruy po

if would nee aril Imply th Invahadity of the

Including petilione!

tT) fol that adrug pO (

pood time credit

t

{)

If BOP knowingly pre

perl rie

1{)

lawfulness of the plaintiulf’s continuing confinement

Balisok, 020 Us. at 646 (quoting /feck, 512 US. ot

142-483); whid. (Nor is there any indication in the

| Wolff | opinion, or any reason to believe, that using the

wrong procedures necessarily vitiated the denial of

rood-time credits.”) (quoting /feck, 512 U.S. at 482-4&3

and adding emphasis)

Petitioner argues that this case is akin to Wolff, be

cause he challenges the procedures by which “prison

Lalf intentionally excluded the referral form from the

records presented to the hearing officer.” Pet. 22. As a

threshold matter, the factbound question of whether the

eourt of appeals “misread| |” the allegations in peti

lioner: complaint does not merit this Court’s attention

Pet. 21. In any event, the court of appeals correctly re

jected this argument: if petitioner were to show that

prison officials had deliberately withheld the referral

form, that would neces: arily Imply the Invalidity of the

anclions imposed al the disciplinary hearing, including

the deprivation of petitione rood time credit Pet

App. Ida, loa-Iba

Petitioner also contends (Pet. 12-13) that he need not

proceed in habeas because, although his disciplinary

hearing resulted in the loss of pood time credits, it also

resulted in other sanctions that do not affect the dura

tion of his confinement. But as the court of appeals ex

plained, that fact—which was equally true in Lalisok

and Razzoli —is irrelevant. Because petitioner's non

durational sanctions resulted “from the same finding of

pyuilt at the same hearing on the basis of” “the same ‘In

correct Information’ in his file,” Pet. App. 14a, succes:

in challenging any of those sanctions “would ‘necessarily

Imply Lhe Invalidity ol tne deprivation of hi rood time

1 |

credit as well id. at loa-lba (qQuotviny Kalisok, 520

US. at 646-647)

3. Petitioner argues (Pet. 10-18) that the decision

helow is in conflict with decisions of other courts of ap

peals, but he overstates the extent of the confhet. Peti

tioner claims (Pet. 15-17) that the Seventh and Icleventh

Circuit in Viens v. Daniels, 871 It.2d 13828 (1989),

and Gwin v. Snow, 870 F.2d 616 (1989), respectively

authorized civil challenges to non-durational sanction:

resulting from di ciplinary proceeding: that also led to

the revocation of good-time credits. Both Viens and

were decided well before fZeck and bali

sok. In lipht of this Court’s intervening case law, the

CriOln, however

]

peventh and Igleventh Circuits have re copnized that a

prisoner may not pursue a damages action that, if suc

ce ful would nece: arily Imply the invalidity of any

portion of his sentence

med Montgoniery V {nde (sii 262 | 3d 64] 644 C/th ¢ I! 200]

(“Montpyom« ry cun uchieve review ol the [pri on ai ciplinary board

decision by concentrating on [the punishment of reduction inj hi

credit carning ¢la 0 Mdwards blocks use of § 1983 unless Montpom

ery prevails in the § 2254 proceedings.”); vans v. McBride, 94 F.3d

1062, 1065 (7th Cir. 1996) (recopnizing that its analysis in Viens had

“changed” in light of /feck), cert. denied, 519 Us. 1131 (1997); see also

U/boh vy. Reno, 141 I’ .38d 1000, 1006 C1 Ith Cir. 199%) CA] civil proceeding

Challe priny? the pround on which the pro eCCULION apalnst Uboh had

been commenced indirectly would implicate the question of Uboh

puilt this type ol puralle] inquiry DY Way of a civil suit prior to tne

resolution of a criminal action based on the same set of events 1

preemsely the quandary that Heck prohibit )

Vetitioner argues (Vet. 16n.1) thatthe Seventh Circuit could not have

intended to depart from Viens in Montgomery because it did not follow

circuit rules applicable when a proposed panel opinion would overrule

a prior decision of the court. Butin hght of the Seventh Circuit's earlier

recopnition that ffeck had “changed” the approach used in Viens, see

hroans, 94 bd at 1063, that court likely did not see the need to expres:

retitioner also relies (Pet. 18-15) on the Second Cn

uills decision in f’eralta v. Vasque 467 I .38d 98 (2006)

cert. denied, 551 U.S. 1145 (2007). In Peralta, the court

held that “a prisoner who was subject to a single disci

plinary proceeding that pave rise to sanctions that affect

}

'

oth (a) the duration of his imprisonment and (b) the

conditions of his confinement” may maintain a civil ac

tion “aimed § olely at the latter sanctions” without first

proceeding in habeas, if the prisoner “is willing to forgo

once and for all any challenge to any sanctions that af

fect the duration of his confinement.” /d. at 104 (empha

omitted); see at 105 (coneluding that judicial

estoppel would apply LO a prisoner “who was subject to

mixed sanctions and who, having agreed to abandon for

ever mi duration Claim, Wa allowed LO proceed Cpa

rately with his conditions of confinement claim under

1983")

Although the Second Circuit's approach in Peratta

differs from the District of Columbia Circuit's approach

In this case, the Court’s review is nonetheless not war

ranted at this time. The conflict is hmited and of recent

vintage. The Second Circuit's holding has not been ex

amined by the other courts of appeals, and this Court

review could benefit from additional consideration of the

question by lower court Indeed, the (court denied re

view in /’eralta, even though that decision was already

al odds with the holdings of several circuits. See, e.g

Montgomery, 262 I.3d at 644; Gotcher v. Wood, 122 I°.3d

39 (9th Cir. 1997): Sheldon v. Hlundley, &3 F.8d 231, 233

234 (Kth Cir. 1996); see also 06-1307 Pet. &-10, Jones \

Peralta. There is no reason for a different result here

ly overrule Viens in Montgorme ry fn any il pual that, since

Y27erns, tne eventh Cireuit has adopted the ex “hy vity rule of Heck and

I, diwoard het Po i \ Gilmore 11) | 3 DOO oe

1.5

CONCLUSION

| hie petuition hora writ of certiorari : hould be dey ed

fully Submitted

IAKR KATYAI

Acting Solicitor General

INY A. BREUER

A\ r tant Attorney Cri 440 7TU!

VIJAY SHANKEI

Attorney