[00:00:00] Speaker 00:
With that, the first case on our calendar is Jordan versus Federal Bureau of Prisons.

[00:00:08] Speaker 00:
Ms. Holliday, you may proceed.

[00:00:16] Speaker 03:
Good morning, Your Honors. Kristen Holliday for Appellant Mark Jordan. I'll aim to reserve two minutes for rebuttal, and we'll watch the clock. The interpretive question at the heart of this appeal has a straightforward answer. The APA provides for judicial review of claims like Mr. Jordan's because no other statute precludes review, and whether BOP complied with its own regulations is not a question that is committed to agency discretion by law.

[00:00:43] Speaker 03:
Without a persuasive response on either point, BOP seeks to prevent this court from reaching the issue at all. First, the agency argues that Mr. Jordan does not plausibly allege Article III standing. That is wrong. Mr. Jordan's theory of injury is that BOP remains free to consider the challenged sanction in decisions that continue to affect Mr. Jordan today.

[00:01:04] Speaker 00:
Well, can I stop you there for a second?

[00:01:08] Speaker 00:
BOP says, no, we're not. We can't. We won't.

[00:01:13] Speaker 00:
That issue was, of course, not litigated in front of the district court, but it goes to Article III standing, so we have to consider it. Why isn't the appropriate course of action here to send this case back to the district court to determine whether or not they're right or you're right on the collateral effect of this discipline. And if the district court finds it moot, you can come back up here and dispute that. If it doesn't find it moot, we'll hear you on demerits. Why isn't that the right way to handle this?

[00:01:44] Speaker 03:
So respectfully, Your Honor, I disagree with the first premise that BOP has disclaimed all consideration of this.

[00:01:50] Speaker 00:
Well, I'll ask your friend about that when she stands up.

[00:01:52] Speaker 03:
Of course. My understanding, I'll just say, of their brief is that they've disclaimed one particular way of considering the sanction, and that they've said, you know, this would not lead to enhanced sanctions in any future disciplinary proceedings. But that's quite different from saying that there's no way BOP considers this at all. And if you look at the pattern score, which we think is a subject of proper judicial notice, it accounts for disciplinary sanctions within the past 120 months, which this one was. So we think, especially at the pleading stage, you know, The Supreme Court has made clear that even though it's a plaintiff's burden to show standing, they just need to demonstrate it with the appropriate degree of proof for each stage of litigation.

[00:02:28] Speaker 03:
We're here at the motion to dismiss stage, so what that means is that Mr. Jordan needs to have plausibly alleged standing.

[00:02:33] Speaker 00:
Well, but let me ask a question about that, and maybe I've got the sequence wrong.

[00:02:39] Speaker 00:
I think BOP's argument is that this particular disciplinary sanction is now so old that that it is aged out of the category where they might use it. That was not an issue that I think could have been tried before the district court, could it?

[00:02:54] Speaker 03:
I disagree respectfully, Your Honor, again. So my understanding of BOP's theory is that the one particular way of considering this sanction that they focus on is whether it could lead to enhanced sanctions for similar offenses if Mr. Jordan were to come forward.

[00:03:08] Speaker 00:
No, no, I understand their substantive argument. I'm asking a different question. You may well have had standing arguments in front of the district court because at that point, wasn't it possible to use a sanction In some of the ways that the BOP now disclaims?

[00:03:24] Speaker 03:
I don't think that's their theory either, Your Honor. They say that after December 6th, I believe, 2020, there would no longer be standing. And this case was filed in March of 2021. So that's why I think their argument is a standing argument and not a mootness argument. I take it to say, I take BOP to say that by the time this case originated, there was no longer an ongoing injury. And if BOP wants to raise a factual dispute about this and say that in actual fact, despite the pattern score, we disclaim looking at this either formally or informally, because I think it's possible that prison officials might consider this in a more informal basis too when making other decisions about Mr. Jordan.

[00:04:02] Speaker 03:
If BOP wants to raise a factual issue about that, I think the appropriate place to do it would be later in this litigation on remand. But I do want to also get to your Honor's question about whether if you think that Mr. Jordan hasn't plausibly alleged standing, which we think is the correct question at this stage of the litigation, if a remand would be appropriate. And I would say that judicial efficiency counsels in favor of reaching the APA question and that the court's able to do so here.

[00:04:26] Speaker 00:
Well, of course we're able to do so.

[00:04:30] Speaker 01:
No, I gather what you're saying is we're able to do so because the APA issue is a jurisdictional issue as well.

[00:04:36] Speaker 03:
That's right, Your Honor. So my understanding is that the particular APA issues that the parties are arguing about here, for example, whether this is committed to agency discretion by law, my understanding is that that goes to the very question of whether the United States has waived sovereign immunity, in which case it impacts the court's jurisdiction.

[00:04:53] Speaker 00:
But isn't the first issue, the mootness issue, if you will, an Article III issue?

[00:04:59] Speaker 00:
And the second issue, in one way or another, is a statutory issue, correct?

[00:05:04] Speaker 03:
Well, this court has said that it does go to the court's subject matter jurisdiction.

[00:05:09] Speaker 00:
Yeah, but not to our Article III jurisdiction.

[00:05:11] Speaker 03:
I'm not sure that it's an Article III issue. My friend on the other side might have views of the government about whether sovereign immunity goes to Article III or just a different part of the court's jurisdiction. But I think it doesn't matter in terms of the sequencing order. So cases like Sinochem and Atchison Hotels. In Atchison Hotels, I think it was two Article III issues. But in Sinochem, it wasn't. And what the court said is when you have threshold issues, both of which would deny audience to the merits of a case, a court has flexibility in the sequencing.

[00:05:40] Speaker 00:
So let me ask the question a different way. I find the merits issue, whether the APA, at least I personally do, whether the APA provides review of the decision in this case, a difficult one in light of our prior jurisprudence. You may well be right that our prior case doesn't really cover this situation. That strikes me as a pretty difficult question and requires us to perhaps disagree with a prior decision of this court, or at least a language in a prior decision, while the mootness decision strikes me as pretty straightforward.

[00:06:15] Speaker 00:
I don't know what the facts are, but it strikes me as pretty straightforward. So why doesn't the sort of constitutional avoidance or difficult issue avoidance doctrine tell us to take up mootness first?

[00:06:29] Speaker 03:
So I think here, the standing issue, again, we think because of the posture of this case at the motion to dismiss stage, all that Mr. Jordan should have to do, and he's a pro se litigant below, so his complaint should be construed liberally, is to plausibly allege that BOP still considers this. And I would argue that he shouldn't have to face a higher hurdle of necessarily proving that he has standing at this stage in the litigation. I understand BOP can raise a factual dispute as to standing, but it didn't do so in the district court. And now we're here on appeal. These other issues have been fully litigated.

[00:07:00] Speaker 03:
The appeal has been pending since I believe 2023. The case has been pending since 2021. And if the court remands and the district court finds that standing is plausibly alleged or in fact actually demonstrated, then it would be inefficient to have to come back to this court to answer this other question of whether APA review is available. Because if the court, of course, agrees with me.

[00:07:18] Speaker 01:
Okay, I understand.

[00:07:24] Speaker 01:
First of all, do you have any specific circumstances in which you think the disciplinary proceeding would continue to have an impact? I think you said something about housing issues.

[00:07:39] Speaker 03:
So I think it's enough, especially at this stage of the litigation, to just look, take judicial notice of the pattern score and say that it looks back 120 months and assigns points.

[00:07:50] Speaker 03:
up to a certain number of points for disciplinary sanctions within that time period. So I think that's all that Mr. Jordan should have to show, especially at the pleading stage. I'm happy to answer further questions on standing, but I'm almost at my two minutes, and I'd love to talk about... Unless my colleagues have other questions at this time, save the rest of your time for rebuttal.

[00:08:07] Speaker 00:
No, I would... Judge Berzon still has a question.

[00:08:11] Speaker 01:
Ms. Holiday says that she would like to address the merits, and I would like her to do that.

[00:08:16] Speaker 03:
Sure, so I think I do want to get to clarity, but I think it's actually helpful in deciding how to consider clarity to just consider this for a moment from a blank slate putting clarity to the side. So the Supreme Court and this court have been abundantly clear that there are only two paths around judicial review. that are potentially relevant in this case. And those are the 701 exceptions. One, BOP is not arguing here. That's when another statute precludes review. The other is whether an action is committed to agency discretion by law. BOP does make an argument here. But as we explain in our reply brief, They completely ignore the precedent in our opening brief indicating that even if a statute gives the agency unfettered discretion, regulations allow the court to review agency action for claims that the agency failed to comply with their regulations.

[00:09:02] Speaker 03:
So the court does this frequently. We think that ASSE International and Trout Unlimited are both closely on point for situations where even if the governing statute wouldn't enable review, implementing regulations would. And the regulations that here...

[00:09:16] Speaker 01:
The premise of clarity, I understand that clarity was focused on 556 and so on, a different set of sections, which were purporting to directly govern the proceedings themselves. And this is about judicial review. But my question is whether those two are sufficiently distinct in these circumstances to think that or to hold that clarity, despite its general language, doesn't apply here given its concerns.

[00:09:52] Speaker 01:
I mean, it's not an opinion that would be written today in the sense that it's based very heavily on policy concerns and not the language of the statute and so on. But the concerns, which are essentially that Congress couldn't have thought that you were going to have meddling in the inner of prison disciplinary proceedings do apply here, don't they?

[00:10:25] Speaker 01:
In other words, that applies here in the sense that what you're asking is that the court determine that the BLP in conducting disciplinary proceedings made a mistake and should have done it a different way.

[00:10:42] Speaker 03:
So I see my time has expired, but if I may respond to Your Honor's question before I sit down. I don't deny that some of the sort of policy concerns animating clarity might apply equally to the question of judicial review, but I would say two things, one of which Your Honor already alluded to. You know, the Supreme Court in cases like Corner Post and this court in cases like ASSE International have confirmed that administrative convenience and policy considerations do not impact the statutory analysis under the APA, including in ASSE International, the issue specifically of whether judicial review was available.

[00:11:16] Speaker 03:
I'm sorry, I think I misspoke. It's Trout Unlimited, not ASSE International. But the other thing I would say is that just in response to BOP's sort of floodgates argument even if it were an appropriate consideration here. I think the real-world evidence just belies that concern. BOP doesn't point to a precedential decision of any other court of appeals that withholds judicial review over cases like this.

[00:11:38] Speaker 00:
I know you've gone over time, and I think you've answered Judge Berzon's question, but your last point, and you can address this later if you want, is there a precedential decision of any court of appeals that finds a BOP decision like this reviewable under the APA?

[00:11:53] Speaker 03:
Not that I'm aware of, Your Honor.

[00:11:54] Speaker 00:
That's my entire question.

[00:11:58] Speaker 03:
Is there any that holds otherwise? No? Not a precedential decision that I'm aware of, Your Honor.

[00:12:03] Speaker 00:
Okay. Thank you. I'll give you a little bit of time for rebuttal because we've taken you over.

[00:12:08] Speaker 03:
I appreciate it.

[00:12:09] Speaker 00:
Let's hear from the Bureau of Prisons.

[00:12:18] Speaker 02:
May it please the Court, Melissa Patterson for the Federal Bureau of Prisons. I'd like to start with a question about the pattern scores and the potential ongoing impact.

[00:12:27] Speaker 00:
Well, let me just ask a very broad question, because I think Mr. Jordan is entitled to know whether or not this disciplinary sanction will ever affect him in any way in the future. So will you represent to the court that it will not?

[00:12:44] Speaker 02:
Under the regulations and statute?

[00:12:45] Speaker 00:
No, you're representing the Bureau of Prisons. Tell me. I know what the regulations say. Because if you do, we will put it in an opinion that you have represented that he will not be subject to any sanction in the future. And then you will be precluded from subjecting him to any sanction in the future. So don't tell me what the regs provide. Don't tell me the way you read the law. Are you willing to represent today that the Bureau of Prisons will not use this sanction in any way negative to Mr. Jordan in the future?

[00:13:20] Speaker 02:
That is my understanding from my client, but I want to know.

[00:13:23] Speaker 00:
You are representing your client. I'm asking you to give me your client's position.

[00:13:28] Speaker 02:
That is what my client has told me. I do want to be careful for the reasons your Honor said, is that this is going to be the basis of a decision.

[00:13:36] Speaker 00:
Well, because if you can't represent that, then it seems to me it will be difficult for us to conclude, difficult for me to conclude that there's an issue on mootness that we need to send back To the district court, you've known all the time getting ready to argue this appeal that your position was this sanction has no future effect on him. So either represent that it will have no future effect on him on behalf of your client or say you can't represent that.

[00:14:06] Speaker 02:
I think I can do the former. I think I can represent that because there are regulations that guide the way that these, or that determine the way that these types of sanctions are used.

[00:14:15] Speaker 00:
Let me just be precise. You say you think you can represent that. I'm asking you to represent it right now if you can. If you can't, tell me you can't.

[00:14:24] Speaker 02:
I can, but I want to give this caveat because I want to be so careful.

[00:14:29] Speaker 02:
This will remain in Mr. Jordan's records. I cannot say that no Bureau of Prison Officials will ever look at this and have a subjective reaction to it.

[00:14:38] Speaker 00:
But I can tell you... I'm worried about objective effect on Mr. Jordan.

[00:14:41] Speaker 02:
No, there will be no objective effect because there is a regulation that governs repeated offense, and we are well outside of the 12-month period. That could kick in. And I do want to address the pattern score because I think that Mr. Jordan misunderstands and conflates the difference between a raw score... which has been affected by this past sanction to the tune of one point out of Mr. Jordan's current score is 21. But it is not the raw score under the statute that affects your classification.

[00:15:14] Speaker 02:
If you look at 18 USC 3632A1, this comes before the subsection C housing provision that Mr. Jordan points to. It says that the way you use the system is to arrive at a classification. And the statute sets out four classifications, minimal, low, medium, or high.

[00:15:38] Speaker 02:
The range for low, which is what Mr. Jordan is, is between points of 8 and 24. Mr. Jordan's score is 21 with this past sanction. It would be 20 without this past sanction. But either way, he's going to remain in the same classification bandwidth. He's going to remain low risk either way. And so all of the sort of follow-on effects from the pattern recidivism classification stem from that statutory classification, not from a raw score.

[00:16:14] Speaker 00:
If Mr. Jordan is subjected to some other sanction in the future, would this one point be part of the basis to which the points from that sanction are added?

[00:16:25] Speaker 02:
That's possible, Your Honor, but I think at the point at which we are speculating that in the future Mr. Jordan might commit a future offense that might incur points that might push him into a new classification level, we're firmly within the territory the Supreme Court has said is far too speculative in cases like Clapper to support a current... He seems to be a frequent offender.

[00:16:45] Speaker 00:
Is it less speculative in this context?

[00:16:48] Speaker 02:
Well, I think that was a version of his argument in the DC Circuit recently when he was trying to challenge something else about a disciplinary regulation of the Bureau of Prisons. And the DC Circuit said, well, you have been issued the sanction. It was a monetary fine there. I think it was something like three times in the past four years. But we can't go around presuming that you're going to first violate prison rules again, and second, that they're going to choose to discipline you, and third, that they're going to impose this fine again, even though that's the means they've used before.

[00:17:20] Speaker 02:
There's just too much speculation, and so they dismissed his case for lack of standing, just as we're asking this court to do here, because it is petitioner's burden to identify some concrete, certain way that this past expired sanction is will have an ongoing or future injury. It's not the government's obligation to defeat any possible hypothetical future way that someone could look at this and think about it. But to your opening question, Your Honor, there are regulations that govern the way BOP will take into account and increase your sanctions in the future As the result of a past sanction and we we cannot find any way that those would apply here That's right.

[00:18:05] Speaker 00:
That's an increase in sanctions. Yeah, I think your friend is saying Housing decisions are not a sanction there.

[00:18:11] Speaker 02:
They may be affected by it I don't think they could be affected by even if this court were to Somehow jump all over all of the other issues that we can talk about and and a court said you have to strike this from his records and that would not affect his classification within the pattern system. It might affect his wrong score by one point, but it would not affect his classification. He would remain as he is now in the low classification band.

[00:18:36] Speaker 00:
Can you address the clarity issues?

[00:18:42] Speaker 00:
Because I want to give your friend an opportunity in rebuttal to address them. We cut her off a little short.

[00:18:48] Speaker 02:
Certainly. I want to start with whether clarity is binding on this issue. You know, if you just read clarity, of course, it says without caveat, we hold that the APA does not apply to prison disciplinary matters. It's pretty straightforward.

[00:19:02] Speaker 00:
Is that a holding or is that dictum?

[00:19:05] Speaker 02:
It says hold. The court uses the term hold.

[00:19:07] Speaker 00:
I know the court said hold, but sometimes the court uses… Sometimes the court's not precise in its language.

[00:19:13] Speaker 02:
I believe the court was precise here, and I think we know that the court meant the judicial review provisions as well as the 554 to 557 provisions because of footnote two in the opinion.

[00:19:27] Speaker 02:
Mr. Clardy said, I don't have to exhaust my remedies. I can get into this court. I have a sufficiently final decision for appellate jurisdiction because I get to invoke section 704.

[00:19:40] Speaker 02:
which says if the agency is not willing to stay the effect of a decision pending my administrative process, I can go ahead and challenge it. It's final. And this court said he has invoked this. We need to decide whether or not he's right about having to exhaust his administrative remedies. So we must address whether the APA applies to prison disciplinary proceedings. Moreover, this was not a surprise to any of the parties.

[00:20:11] Speaker 02:
If you look at the briefs that Mr. Jordan has asked the court to take judicial notice of, the parties themselves are citing 704.

[00:20:20] Speaker 02:
Mr. Clardy cites it on page 5 and page 6 of his brief, and again on page 6 of his reply. Mr. Tucker, the co-appellant there, invoked sections 703 and 706 as reasons that should guide the court's consideration of their case there. So I think this attempt to say this court did not really mean it when it said without condition, without equivocation, that the APA does not apply to prison disciplinary proceedings cannot be squared with the plain language of this court's decision.

[00:20:56] Speaker 00:
Does it do its procedural protections extend to prison disciplinary proceedings?

[00:21:03] Speaker 02:
I'm not sure what you mean by procedural protections.

[00:21:05] Speaker 00:
I think there's been a distinction in some of the cases between the APA's procedural protections and judicial review of the final decision of the agency. And there seem to be a number of cases at least that say that the APA does extend to make sure that its procedural protections were offered.

[00:21:26] Speaker 02:
Yes, I think that's right. In terms of if the BOP puts out a rule, has a policy, can you bring a notice and comment challenge to it? Is it an agency for those purposes? Yes.

[00:21:36] Speaker 00:
So why is it an agency? Thank you. Why was it an agency for those purposes but not an agency for judicial review purposes?

[00:21:43] Speaker 02:
I think it's become increasing.

[00:21:44] Speaker 00:
Putting aside clarity.

[00:21:45] Speaker 02:
I think it's because of 701. Now the other side says, well, clarity didn't point to 701. I think it's reasoning.

[00:21:53] Speaker 02:
about the inconsistency of the APA with prison discipline maps on pretty well to either 701A1 or A2. Of course, the Second Circuit is the other court that around the same time clearly held in its Wolfish v. Levi decision. This is also cited in the Senate report we cite in our brief. They clearly found that it was a 702A1 problem because How you control, how you discipline, how you enforce internal prison rules within the four walls of a BOP facility or a state facility is the type of discretionary matters that the Supreme Court has long said federal courts should not be injecting themselves into.

[00:22:34] Speaker 02:
Whether or not you kept your cell untidy and therefore are losing your TV privileges should not be the basis for a federal lawsuit. I see I am out of time, Your Honor, unless the court has further questions.

[00:22:46] Speaker 00:
Let me make sure my colleagues don't have questions. Judge Gould has one. I have no questions. Oh, I'm sorry. Judge Berzon doesn't.

[00:22:55] Speaker 01:
My understanding is that there is at least one circuit that has disagreed with clarity. Isn't that right? The Seventh Circuit.

[00:23:00] Speaker 02:
Not in terms of whether or not the APA applies to prison disciplinary matters. Both the Seventh and the Tenth Circuits have taken issue with the part of the reasoning and clarity that suggested maybe the APA, Bureau of Prisons was not an agency for APA purposes. Of course, in clarity, this court did not actually hold that. The holding was limited to prison disciplinary proceedings.

[00:23:23] Speaker 02:
But no court, no circuit has ever said, I don't think Mr. Jordan points to any court anywhere that has allowed a prisoner to use a prison discipline decision that does not have any constitutional import Those, of course, you can challenge, but it's just a matter of not something that triggers a liberty interest of any sort, can get into federal court, and that would subject the 100,000, more than 100,000 disciplinary decisions that BOP has to make at the rate of hundreds a day to lawsuits at the behest of every prisoner who has suffered the sanction of loss of TV time.

[00:24:07] Speaker 02:
That's an extraordinary proposition.

[00:24:09] Speaker 00:
I think you've answered Judge Berzon's question about whether the Seventh Circuit has so held, and so thank you.

[00:24:16] Speaker 02:
Thank you, Your Honor. We ask the court to affirm.

[00:24:18] Speaker 00:
We'll now hear from counsel for Mr. Jordan, and let's put two minutes on the clock for her.

[00:24:26] Speaker 03:
Thank you so much, Your Honor. So I'll just start on the standing point. I mean, I think it's remarkable. I hear my friend on the other side say, yes, this is captured in Mr. Jordan's raw score, which, of course, Mr. Jordan's own score is not in the record here. This was not litigated below. But that the court should just overlook that. And my friend also said. she can't rule out that individual BOP officials might have a subjective reaction to that. Well, what does that mean? Does that mean that it will affect the kinds of prison jobs that are available to Mr. Jordan? Does that mean that it will affect how those prison officials treat him?

[00:24:56] Speaker 03:
I can't represent that it will, but I don't think my friend can represent that it won't. So I think, again, we're here at the pleading stage. What Mr. Jordan needs to show is that he's plausibly alleged standing, especially with a pro se litigant. It needs to be absolutely clear before dismissing.

[00:25:11] Speaker 00:
But he won't be a pro se litigant. If we send it back to the district court, he will be very ably represented.

[00:25:17] Speaker 03:
Well, thank you, your honor. I believe my appointment is officially only for this. But so I would just say, you know, especially given the pleading stage here, I do not think BOP even today has disclaimed and said there is no way either formally or informally that this could impact Mr. Jordan, especially because they can see that it affects his raw score under the pattern. But I do also want to get to the Clardy issue. I think there are many reasons to read Clardy narrowly here, one of which Judge Berzon already pointed to, which is this is not a decision that would be written today in terms of its reasoning.

[00:25:49] Speaker 03:
And even if Clardy considered Section 704 and found that it didn't apply, that's a far cry from considering Section 701A and 702, which are really the heart of judicial review here. It makes sense to read Clardy narrowly because the answer under 701 respectfully is not the answer that BOP is asking you to read Clardy to hold. This is not something that's committed to agency discretion by law, and it's not compatible with subsequent Supreme Court decision like Weyerhaeuser where they say the only paths around judicial review are under Section 701 .

[00:26:21] Speaker 03:
Now, as to what other courts have done, if my friend is right that the Second Circuit reached this exact question, then I think it would still make those courts an outlier.

[00:26:29] Speaker 00:
The Second Circuit assumed it for purposes of its decision in Woolfish, and then that decision got vacated.

[00:26:37] Speaker 03:
And I would also just say there is a decision out of Texas, a district court decision, Triplett v. Federal Bureau of Prisons, which was cited in the district court's decision below, where the court rejected clarity, and it was a case where a prisoner was challenging a disciplinary decision.

[00:26:54] Speaker 00:
I think we gave you an unlimited budget. You were very generous. You've exceeded it. You were very generous. Let me make sure my colleagues don't have any more questions.

[00:27:05] Speaker 00:
They don't, and this case will be submitted with thanks to both counsel, and particularly the pro bono counsel, for their excellent briefing and arguments in this case. Thank you, Your Honors.