Mohammed v. Gonzales et al

Filing 423

ORDER DENYING MOTION FOR DISCOVERY AND CONCLUDING CASE: The Court DENIES Mr. Mohammed's Motion 419 . by Chief Judge Marcia S. Krieger on 2/3/15.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger

Civil Action No. 07-cv-02697-MSK-BNB
KHALFAN KHAMIS MOHAMMED,
Plaintiff,
v.
ERIC HOLDER, The U.S. Attorney,
HARLEY LAPPIN, Director of B.O.P.,
RON WILEY, ADX Warden, and
HARRELL WATTS, Administrator of National Inmate Appeals, and
FEDERAL BUREAU OF INVESTIGATION,
Defendants.
______________________________________________________________________________
ORDER DENYING MOTION FOR DISCOVERY AND CONCLUDING CASE
______________________________________________________________________________

THIS MATTER comes before the Court pursuant to Mr. Mohammed’s Motion for
Discovery (# 419). Although the Defendants have yet to file a response, the Court is confident
that it has a full understanding of the issue and finds it appropriate to rule at this time pursuant to
D.C. Colo. L. Civ. R. 7.1(C).
The Court assumes the reader’s familiarity with the proceedings to date. Mr. Mohammed
currently seeks discovery of the “administrative record” compiled by the Defendants incident to
his November 2014 SAMs renewal, as well as reasons why certain of his requested contacts were
not approved. Mr. Mohammed notes that “[t]he Court retained jurisdiction over the matter” in
its June 17, 2014 Findings of Fact, Conclusions of Law, and Order (# 396), “at least insofar as
the 32 contacts mentioned in the Order.”

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It was never this Court’s intention to retain jurisdiction over any continuing disputes
between the parties. The Court’s June 2014 decision made certain findings about the SAMs that
Mr. Mohammed was then subject-to (including observations that certain of Mr. Mohammed’s
requests to add 32 contacts to his list of permitted correspondents may have still been extant
before the FBI). The Court remanded the matter to the FBI “for further consideration and
resolution within the current cycle of SAMs review.” Docket # 396 at 44 (emphasis added).
The Court “reserved jurisdiction over this matter” to address, if necessary “the status of issues on
remand.” Id. at 43. Based on the trial evidence showing that much of the FBI’s rationale for its
decisions was based on information that had long been known to the agency (or which had
ostensibly been previously investigated by it), it was expected and intended by the Court that
many of the issues addressed by the Court and remanded to the FBI could be resolved
expeditiously and with a minimum of additional investigation or factual development. Thus, the
Court believed that the remand could have been completed, in whole or in substantial part,
“within the current cycle of SAMs review” – that is, during the 2013-2014 SAMs cycle that was
then underway and prior to the next SAMs review cycle that would begin in November 2014 –
and its reservation of jurisdiction over the matter was intended to be similarly limited.
It is not clear whether the FBI made any particular determination within that time frame,
but it does appear that, in November 2014, a new SAMs cycle began. Mr. Mohammed’s motion
argues that the SAMs imposed in this new cycle continue to be constitutionally-deficient,
particularly as to two matters that the Court previously addressed – specifically, the inability of
Mr. Mohammed to have telephone/in-person contact with his brother Nassor, and the denial of
his request to add some 32 additional mail correspondents. However, Mr. Mohammed’s own
motion reveals that, putting aside the timing, the FBI has indeed complied with the strict terms of

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the Court’s remand: it has apparently reconsidered its rationale as to whether Mr. Mohammed
may have telephone and personal contact with Nassor1; and it has adjudicated, at least in
significant part, Mr. Mohammed’s request to add some 32 individuals2 to his list of permitted
mail contacts, insofar as the FBI appears to have granted approximately 20 of those requests (and
perhaps denied, implicitly or explicitly, the remainder). Thus, it appears that the remand ordered
by this Court has been completed and, along with it, the grounds for this Court’s reservation of
jurisdiction. When retaining jurisdiction over this matter, it was not this Court’s intention to
invite further argument and litigation over the decisions that the FBI ultimately made on the
matters subject to remand – decisions that, by definition, were not before this Court at the time of

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Mr. Mohammed states that even he is not entirely sure what that decision is. Nassor does
not appear on the list of permitted telephone contacts in the formal recitation of Mr.
Mohammed’s November 2014 SAMs, but Mr. Mohammed states that he has been notified by the
BOP that he may telephone Nassor and that he was actually permitted to attempt to do so on one
recent occasion.
It may be that Mr. Mohammed simply misunderstands the USDOJ’s November 2014
SAMs notice. That notice does contain an addendum reading “Chart A- Contacts Approved for
Telephone Contact,” and that chart does not specifically include Nassor. Notably, however, that
chart also does not list any of Mr. Mohammed’s immediate family members whom he has been
routinely permitted to call, such as his mother, his sisters, his brother Rubeya, etc. Indeed, all of
the persons listed on Chart A fall outside the FBI and BOP’s definition of “immediate family
members,” indicating that Chart A is a supplement to Mr. Mohammed’s ability to have contact
with all of his immediate family members, presumably including Nassor. This would be
consistent with Mr. Mohammed’s understanding of an October 2014 BOP document attached to
his motion, which sates that he may contact “immediate family members” and does not
specifically exclude Nassor, apparently leading Mr. Mohammed to the belief that the October
2014 BOP document permits telephone contact with Nassor. This is also consistent with the fact
that Mr. Mohammed was recently permitted to attempt to call Nassor.
Ultimately, however, the Court need not wade into this question. To the extent there is
some uncertainty as to whether Mr. Mohammed can call Nassor, it is a simple matter for counsel
for both sides in this action to confer in order to clarify whether such contact is permitted or
prohibited.
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Mr. Mohammed’s motion notes that, for the 2014-2015 SAMs cycle, he “expanded” his
request for additional contacts to encompass 41 names, rather than the 32 (or 36) that were
previously before the Court. This Court has never intended to retain jurisdiction over disputes
concerning new requests by Mr. Mohammed for modification of his SAMs.
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trial. It was merely to ensure that a decision was promptly made on remand by the FBI. To the
extent Mr. Mohammed believes that the SAMs imposed upon him as part of the 2014-2015 cycle
continue to violate his constitutional rights, he is free to commence a new action that specifically
addresses those new SAMs and his new concerns about them.
Accordingly, the Court DENIES Mr. Mohammed’s Motion (# 419). Further, to the
extent that an express statement from this Court is necessary for appellate purposes,3 this Court
affirmatively indicates that it deems the FBI to have completed the tasks required by the Court’s
remand order (that is, to reconsider the matters discussed above and to make a new determination
on the requests by Mr. Mohammed pending as of 2013-2014). The FBI having completed that
task (the merits of which this Court does not opine upon), the Court’s continuing reservation of
jurisdiction over this matter has thus terminated. This brings this litigation to a final, conclusive
end.
Dated this 3d day of February, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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This Court offers no opinion as to whether any Order it has issued (including this one)
remains appealable at this time, nor what effect (if any) the parties’ prior appellate proceedings
would have on any new appeal. Such matters are properly the province of the Court of Appeals.
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