Ayyad v. Gonzales et al
Filing
374
ORDER: By Friday, June 27, 2014, Ayyad shall file a response to whether reconsideration of my ruling denying the motion to dismiss as to the due process claim is appropriate. Defendants may file a reply to that response by Wednesday, July 15, 2014. B y Tuesday, July 1, 2014, Defendants shall file a reply brief to the portion of their Motion for Summary Judgment that seeks judgment as to Ayyad's claims. Ayyad may file a surreply by Friday, July 18, 2014. The hearing on July 1, 2014, at 10:00 a.m. is VACATED and RESET to Thursday, September 4, 2014, at 1:30 p.m. By Judge Wiley Y. Daniel on 6/10/2014. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 05-cv-02342-WYD-MJW
(consolidated with Civil Action No. 05-cv-02653-WYD-MJW)
NIDAL A. AYYAD and
MAHMUD ABOUHALIMA,
Plaintiffs,
v.
ERIC H. HOLDER, JR., Attorney General of the United States,
CHARLES E. SAMUELS, JR., Director of the Federal Bureau of Prisons,
PAUL M. LAIRD, Regional Director, North Central Region,
DAVID BERKBILE, Warden, United States Penitentiary - Administrative Maximum, and
JOHN DOES 1 THROUGH 5, sued in their official capacities,
Defendants.
ORDER
THIS MATTER is before the Court on a review of the file. I note that a hearing is
currently set on July 1, 2014 at 10:00 a.m. on Defendants’ Motion to Dismiss Ayyad’s
Claims as Moot and Defendants’ Motion for Summary Judgment. This Order addresses
matters raised by Plaintiff Nidal Ayyad [“Ayyad”] in his Second Supplemental Response
to Defendants’ Motion to Dismiss filed August 26, 2013. It also addresses further
briefing that I find necessary in connection with the pending motions, and which requires
a continuance of the hearing so that all issues raised in the motions can be resolved.
By way of background, Defendants’ Motion for Summary Judgment seeks to
dismiss the claims of both Plaintiffs but is only fully briefed as to Plaintiff Mahmud
Abouhalima. Pursuant to a Minute Order of June 15, 2012, I stayed the filing of
Defendants’ reply to the portion of the motion that sought summary judgment against
Ayyad pending resolution of the jurisdictional issues raised in Defendants’ Motion to
Dismiss Ayyad’s Claims as Moot. That motion to dismiss was previously granted in
part, denied in part, and deferred in part by Order of October 10, 2012. Relevant to this
Order, the motion was denied as to Ayyad’s due process claim challenging his transfer
to ADX without notice and an opportunity to be heard. The motion was deferred as to
Ayyad’s First Amendment claims so that Ayyad could take discovery on the disputed
jurisdictional facts at issue regarding those claims.
The parties completed jurisdictional discovery and filed supplemental pleadings
regarding the motion to dismiss on August 12, 2013. I directed Ayyad to file a second
supplemental response by Minute Order of August 14, 2013, which was filed on August
26, 2013. The second supplemental response asserts that Defendants’ reliance on
disputed material facts from the jurisdictional discovery requires that the motion to
dismiss be converted into a motion for summary judgment. It also asserts that the Court
should deny Defendants’ motion to dismiss and merge the substantive question of
whether Ayyad’s due process claim for his original transfer to the ADX is moot with its
ultimate decision on the pending summary judgment motion. Defendants responded to
the issues raised in Ayyad’s second supplemental response on October 15, 2013. I find
that the above-referenced issues raised in the second supplemental response
must be resolved to facilitate the hearing and resolution of the dispositive motions.
Turning more specifically to Ayyad’s arguments, he asserts that Defendants’
reliance on disputed material facts from jurisdictional discovery requires that the motion
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to dismiss be converted into a motion for summary judgment. Ayyad argues in that
regard that because Defendants call upon the Court to consider facts outside of the
pleadings with respect to his due process claim arising from his original transfer to the
ADX, the appropriate standard to be applied is that of a motion for summary judgment
under Rule 56. Under Rule 56's standard, Ayyad argues that the dismissal of his due
process claim based on the assertions of one witness for Defendants, reciting material
facts that Plaintiff disputes rather than the entirety of the factual record before the Court
on the pending summary judgment motion, would be inappropriate. Accordingly, Ayyad
asserts that the Court should deny the motion to dismiss and merge the substantive
question of whether his due process claim for his original transfer to the ADX is moot
with its ultimate decision on the pending motion for summary judgment.
Defendants argue in response that conversion of a Rule 12(b)(1) motion to a
Rule 56 motion is not necessary or proper where jurisdiction can be determined
independently of the merits of the substantive claims. That is the case here, according
to Defendants, where the jurisdictional and merits questions are not intertwined.
Moreover, they contend that it is Rule 12(b)(1), not Rule 56, that allows the Court to
resolve any disputed jurisdictional facts. Defendants also argue that the Court should
not merge the substantive question of whether Ayyad’s due process claim for his
original transfer to ADX is moot with its ultimate decision on the pending summary
judgment motion. They assert it would be improper to convert the motion from a format
that allows the Court to resolve any potential jurisdictional fact dispute (Rule 12(b)(1)) to
one that does not (Rule 56). Further, they contend that even if the Court were to treat
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the Rule 12(b)(1) motion as a Rule 56 motion, it can decide that motion separately
without “merging” it with the pending summary judgment briefing because the motions
raise distinct issues. Defendants assert that the Court should resolve the threshold
jurisdictional issue first, in the context of the pending Rule 12(b)(1) motion.
Turning to my analysis, when a party moves to dismiss for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), the attack can be either a facial attack
to the allegations of the complaint or a factual attack. See Castro v. Kondaur Capital
Corp., 541 F. App’x 833, 836 (10th Cir. 2013). In a factual attack, as in this case, “a
party may go beyond allegations contained in the complaint and challenge the facts
upon which subject matter jurisdiction is based.” Holt v. United States, 46 F.3d 1000,
1002 (10th Cir. 1995). The court has wide discretion to allow affidavits and other
documents outside the pleadings, and may hold a limited evidentiary hearing to resolve
the disputed jurisdictional issues under Rule 12(b)(1). Id. “In such instances, a court’s
reference to evidence outside the pleadings does not convert the motion to a Rule 56
motion.” Id. Once the evidence is submitted, “the district court must decide the
jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial
on the issue.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990).
There is, however, an exception to the above rule. Thus, “a court is required to
convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) or a Rule 56 summary
judgment motion when resolution of the jurisdictional issue is intertwined with the merits
of the case.” Holt, 46 F.3d at 1003. “The jurisdictional question is intertwined with the
merits of the case if subject matter jurisdiction is dependent on the same statute which
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provides the substantive claim in the case.” Id. (conversion not required where the
jurisdictional issue did not depend on the FTCA which provided the substantive claim in
the case); cf. Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987) (finding that the
determination of whether the plaintiff qualified as an employee under the federal
discrimination statutes is both a jurisdictional question and an aspect of her substantive
claim in her discrimination action).
In the case at hand, Ayyad’s due process claim asserts that his transfers into
ADX and the H-Unit and his “indefinite confinement” therein as well as the additional
restrictions on his confinement by the imposition of the SAMS deprived him of a
constitutionally protected liberty interest. I thus must determine on the merits, as raised
in the summary judgment motion, whether such a protected liberty interest exists.
Ayyad also asserts that he received insufficient process in connection with those
deprivations, which I also must determine on the merits in connection with the summary
judgment motion. I find that the jurisdictional issue in dispute in the motion to dismiss—
whether Ayyad’s transfer from the ADX to CMU Terre Haute (along with the termination
of the SAMs imposed on him) renders this claim moot—is a separate issue and is not
intertwined with the merits. Accordingly, I reject Ayyad’s arguments that I should
convert the motion to dismiss raising jurisdiction under Rule 12(b)(1) into a summary
judgment motion and/or merge the issue of whether the due process claim is moot into
the summary judgment briefing.
A different question not addressed by the parties is whether Defendants’
argument that the due process claim should be dismissed based on the jurisdictional
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discovery should have been raised in a new motion to dismiss or in a motion for
reconsideration of my October 2012 Order, rather than in supplemental pleadings after
the motion to dismiss was already denied as to this claim. I believe that this argument
should have been raised in a separate motion, but note that Plaintiffs did not raise this
issue or object on this basis. Because of this, and because the dispositive motions
have been pending for some time and need to be resolved expeditiously, I will treat the
portion of Defendants’ supplemental pleading of August 12, 2013 (and its response filed
October 15, 2013) that argue the due process claim is moot as a motion for
reconsideration of my October 10, 2012 Order denying the motion to dismiss as to that
claim.
I note that a motion for reconsideration of an interlocutory order “‘invok[es] the
district court’s general discretionary authority to review and revise interlocutory rulings
prior to entry of final judgment.’” Fye v. Okla. Corp. Com’n, 516 F.3d 1217, 1224 n. 2
(10th Cir. 2008) (quotation omitted); see also Nat. Bus. Brokers, Ltd. v. Jim Williamson
Productions, Inc., 115 F. Supp. 2d 1250, 1255 (D. Colo. 2000) (“Prior to entry of final
judgment, district courts have the inherent power to alter or amend interlocutory
orders.”). “This inherent power is not governed by rule or statute and is rooted in the
court’s equitable power to process litigation to a just and equitable conclusion.’” Nat.
Bus. Brokers, 115 F. Supp. 2d at 1256 (quotation and internal quotation marks omitted).
“Thus, a court can alter its interlocutory order even where the more stringent
requirements applicable to a motion to alter or amend a final judgment under Rule 59(e)
or a motion for relief from judgment brought pursuant to Rule 60(b) are not satisfied.”
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Id. While the court has broad discretion to alter its interlocutory orders, “as a practical
matter, ‘[t]o succeed in a motion to reconsider, a party must set forth facts or law of a
strongly convincing nature to induce the court to reverse its prior decision.’” Id.
(quotation omitted).
Since I am treating Defendants’ supplemental pleadings as a motion for
reconsideration, I believe in the interest of fairness that Ayyad should be allowed to file
a response that addresses whether reconsideration of my ruling denying the motion to
dismiss as to the due process claim is appropriate. That response shall be filed by
Friday, June 27, 2014. Defendants may, if they wish, file a reply to that document by
Wednesday, July 15, 2014. No other filings will be allowed as to the reconsideration
issue.
Given the above deadlines for further briefing, the hearing currently set for July 1,
2014, must be continued. I also find that the hearing should be continued so that
briefing can be completed on Defendants’ Motion for Summary Judgment as to Ayyad.
While I initially stayed Defendants’ reply brief to the summary judgment motion pending
resolution of the jurisdictional issues, as discussed earlier, I see no need for the
continuance of such a stay at this time. Instead, I find that the hearing should address
the substance of both of the dispositive motions. Accordingly, Defendants shall file a
reply brief to the summary judgment motion by Tuesday, July 1, 2014. Also, in light of
the substantial development of this case since the initial briefing on the summary
judgment motion, which developments Defendants may refer to in the reply brief, I grant
Plaintiff Ayyad leave to file a surreply. The surreply shall be filed by Friday, July 18,
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2014. The hearing on pending motions is reset to Thursday, September 4, 2014, at
1:30 p.m.
In conclusion, it is
ORDERED that the following arguments raised in Ayyad’s Second Supplemental
Response to Defendants’ Motion to Dismiss are REJECTED: (1) that Defendants’
Motion to Dismiss Ayyad’s Claims as Moot should be converted into a motion for
summary judgment and (2) that Defendants’ Motion to Dismiss Ayyad’s Claims as Moot
should be denied and the Court should merge the question of whether Ayyad’s due
process claim for his original transfer to the ADX is moot with its decision on the
pending summary judgment motion. It is
FURTHER ORDERED that the portions of Defendants’ Supplemental Pleading in
Support of Motion to Dismiss filed August 12, 2013, and their Response of October 15,
2013 that argue the due process claim is moot will be treated as a motion for
reconsideration of my October 10, 2012 Order denying the motion to dismiss as to that
claim. It is
FURTHER ORDERED that by Friday, June 27, 2014, Ayyad shall file a
response to whether reconsideration of my ruling denying the motion to dismiss as to
the due process claim is appropriate. Defendants may, if they wish, file a
reply to that response by Wednesday, July 15, 2014. No other filings will be allowed
on this issue. It is
FURTHER ORDERED that by Tuesday, July 1, 2014, Defendants shall file a
reply brief to the portion of their Motion for Summary Judgment that seeks judgment as
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to Ayyad’s claims. Ayyad may, if he wishes, file a surreply by Friday, July 18, 2014.
Finally, it is
ORDERED that the hearing on July 1, 2014, at 10:00 a.m. is VACATED and
RESET to Thursday, September 4, 2014, at 1:30 p.m.
Dated: June 10, 2014
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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