Case 1:07-cv-02697-MSK-BNB Document 419 Filed 01/10/15 USDC Colorado Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
KHALFAN KHAMIS MOHAMMED
Plaintiff,
v.
ERIC HOLDER, et. al.
Defendants.

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Civ. No. 07-cv-02697-MSK-BNB

Plaintiff's Motion to Reopen Discovery for the Limited Purpose

of Obtaining the Administrative Record for his Most Recent SAMs
Comes now the Plaintiff, Khalfan Khamis Mohammed, by and through
undersigned counsel, to move the Court for an order reopening discovery pursuant to
Rule 26. The Defendant opposes the motion.
Factual Summary
Between May 5, 2014 and May 8, 2014, a bench trial was held to determine
whether aspects of the Special Administrative Measures (hereinafter "SAMs") imposed
on Plaintiff's communications violated his First Amendment right to freedom of speech.
Three of the Plaintiff's claims were brought to trial, regarding the Plaintiff's ability to
communicate with his brother Nassor Khamis Mohammed, to communicate with nonimmediate family members, and to receive his translated written correspondence within
the time limits specified in his SAMs. On June 17, 2014, the District Court issued a
Memorandum Opinion, finding that the Defendant's denial of the Plaintiff's requests to
communicate with Nassor and with non-immediate family members were arbitrary and
capricious and unsupported by substantial evidence in the administrative record, in

Case 1:07-cv-02697-MSK-BNB Document 419 Filed 01/10/15 USDC Colorado Page 2 of 10

violation of Section 5 U.S.C. 702.1 Memo. Op., R. 396 at 44. The Court entered
judgment in favor of the Plaintiff and awarded him costs, and remanded the two claims
for further consideration within the annual SAMs renewal cycle.

R. 397. The Court

further held that it would retain jurisdiction over the matter during the pendency of the
remand, and may require the Defendant to provide periodic status updates. R. 396 at 43
(" In addition, the Court will retain jurisdiction over this matter ...") The Defendant filed
a Notice of Appeal in the District Court on August 15, 2014. R. 399. The appeal was
docketed as Case Number 14-1325.
On August 26, 2014, the Plaintiff submitted a list of 41 individuals with whom he
wished to correspond to the FBI, in advance of his annual SAMs renewal, which occurs
every November.

This is included as a table in Exhibit 1, attached hereto.2

On

September 1 and 8, 2014, Plaintiff's counsel wrote to the Defendant to inquire about the
status of the SAMs renewals. Not receiving any reply, Plaintiff filed a Motion for Status
Update with the Court, R. 405, which was denied in a Minute Order on October 7, 2014.
R. 409. In the Minute Order, the Court noted that it didn't have jurisdiction to decide the
motion.3

For the Plaintiff's third claim, the Court essentially held that the time it takes the FBI to process mail was
within the administrative discretion of the FBI, and not enforceable.
2
Plaintiff's counsel made this list based on information received from Mr. Mohammed. It is an attachment
to his proposed discovery requests.
3
The text of the Order reads: "ORDER denying [405] Motion for Order Directing the Defendants to
Provide Status Report. This Motion is denied for numerous reasons. First, the Court did not retain
jurisdiction or require the Defendants to file any status reports. Second, the directive to the FBI was reevaluate the SAMS applied to him in the current cycle of SAMs review, which has not been concluded.
Third, the Court's judgment has been appealed to the Tenth Circuit Court of Appeals, and it is not clear that
this Court has jurisdiction to revise its orders pending appeal. Finally, according to the representations of
the Plaintiff's trial counsel is not clear that he is authorized to act on behalf of the Plaintiff. by Chief Judge
Marcia S. Krieger on 10/7/2014. Text Only Entry(msk, )" The issue of whether Mr. Mohammed wants
undersigned counsel to represent him was resolved when Mr. Mohammed wrote letters to both the District
Court and Court of Appeals, afirming the relationship.

Case 1:07-cv-02697-MSK-BNB Document 419 Filed 01/10/15 USDC Colorado Page 3 of 10

On October 9, 2014, the 10th Circuit ordered the parties to file memorandum
briefs addressing the issue of whether the order being appealed is final and appealable
where the district court remanded the case for further consideration. See Exhibit 4,
attached hereto. Mr. Mohammed filed a brief, but the Defendant did not file any brief by
October 30th, the date the jurisdictional briefs were due.

Instead, it made a motion to

withdraw the appeal, which was granted on November 19, 2014. See Exhibit 5, attached
hereto.
On December 2 and 3, 2014, Brendan Quigley of the Department of Justice sent
undersigned counsel the Plaintiff's SAMs extension memorandum, which is attached
hereto as Exhibit 2. The SAMs memorandum refers to a separate appendix which lists
Plaintiff's approved contacts for telephone, in-person visits, and correspondence, and is
included as part of Exhibit 2. Seven individuals are approved for telephone and visits,
and twenty-one are approved for written correspondence (including the seven who can
call and visit). Id. Notably, the Plaintiff's brother Nassor is not on the list. The absence
of Nassor's name is particularly puzzling in light of a letter the Plaintiff received from J.
Oliver, the ADX Warden on October 3, 2014, advising Plaintiff that Nassor had been
approved for telephone communications.

See Exhibit 3, attached hereto.

Mr.

Mohammed was even permitted to try to call Nassor once, although Nassor wasn't home
at the time.
The Plaintiff had requested 41 contacts, of which 21 were approved, at least for
written correspondence. He now seeks discovery of the "adminstrative record" for the
processing of these 41 requests, and the reasons relied on for the 41 administrative
decisions. See Exhibit 1, Plaintiff's Proposed Request for Production of Documents after

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Remand, and Plaintiff's Proposed Interrogatories After Remand. Specifically, Plaintiff

wants to know why fourteen of Plaintiff's approved contacts are only allowed to
communicate with him in writing, and why twenty of his requested contacts are not
approved to communicate at all. For each, he seeks discovery of a reason which is
neither arbitrary nor capricious, and is supported by substantial evidence on the record.
Argument
I.

The Court has retained jurisdiction over the case.

The Court retained jurisdiction over the matter, at least insofar as the 32 contacts

mentioned in the Order. R. 396 at 44. The Court retained jurisdiction because (1) it held
that "the Court will retain jurisdiction over this matter ..." after the remand, R. 396 at 43,
which is the law of the case; (2) because the Defendant waived its jurisdictional
arguments by failing to brief them, as it was ordered to do by the Court of Appeals; (3)
because the Court has already entered judgment in favor of the Plaintiff, without reaching
the merits of his claims; and (4) because as a general matter, remand orders are
interlocutory orders rather than final judgments.
A.

The Court's holding that it "will retain jurisdiction over this matter"
is the law of the case.

The Court's holding that it would "retain jurisdiction" while the Defendant
considered the remand is the law of the case. R. 297 at 44. If this is what the Defendant
intended to appeal, it has abandoned and waived the issue in the Court of Appeals. The
Supreme Court defines the law of the case as a principle that "posits that when a court
decides upon a rule of law, that decision should continue to govern the same issues in
subsequent stages of the litigation in the same case."

Christianson v. Colt Indus.

Operating Corp., 486 U.S. 800, 816 (1988) This promotes the finality and efficiency of

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the judicial process by "protecting against the agitation of settled issues." Id. The
concept is akin to those of issue and claim preclusion, which apply to issues and claims
litigated to final judgment. Essentially, the general rule is that courts will not reopen
issues that have already been decided, although they may have the power to do so.
In deciding whether to depart from a previous ruling, a court must avoid prejudice
to a party that seeks the benefit of the law of the case doctrine. Prisco v. A & D Carting
Corp., 168 F.3d 593, 607 (2nd Cir. 1999) Here, the Court should stand by its prior ruling
that it would retain jurisdiction over the matter, and Mr. Mohammed should not be
required to start all over with a new complaint. This would not only work prejudice
against him, and render the Court's declaratory judgment in Plaintiff's favor meaningless.
It would also be a waste of time for many individuals involved in the case.
B.

The Defendant waived its jurisdictional arguments by failing to brief

them, as it was ordered to do by the Court of Appeals.

The Defendant is estopped from challenging the Court's jurisdiction because it

waived the issue in the Court of Appeals. Although the Plaintiff doesn't know what
issues the Defendant had intended to appeal, the 10th Circuit ordered the parties to brief
the issue of whether the Court of Appeals had jurisdiction. See Exhibit 4, attached
hereto. Rather than filing a brief, the Defendant moved for voluntary dismissal of the
appeal, which was dismissed on this basis. See Exhibit 5, attached hereto. No stronger
case could be made for waiver, unless this had occurred in the Supreme Court.
C.

The Court entered judgment in favor of the Plaintiff, creating an

enforceable right.

Although the Court did not award any relief to the Plaintiff, such as ordering the
Defendant to permit calls to Nassor, it did enter a declaratory judgment in his favor, after

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finding the Defendant to have acted in violation of 5 U.S.C. 702. R. 397. This creates
an enforceable right to a remedy. The Defendant has been given another opportunity to
evaluate the restrictions on Mr. Mohammed's communications, and advised of the
standard of review. The Court held that the reasons and evidence previously used to
justify the restrictions on Mr. Mohammed's communications were arbitrary and
capricious and unsupported by substantial evidence in the record. R. 396 at 44. This is
precisely what the Plaintiff seeks in discovery. See Exhibit 1. The Plaintiff requests the
production of "the administrative record" with respect to the 41 requested contacts. He
also asks the interrogatory: what were the reasons used to justify the approval or denial of
these contacts? Id. This should not be overly burdensome, particularly for contacts who
were not considered at all.
After the Defendant has responded and produced the material, the parties should
brief summary judgment motions, and the Court may evaluate Mr. Mohammed's
remaining claims based on the administrative record and the Defendant's reasons. Most
of Mr. Mohammed's claims should be resolved without the need for further evidence, and
the Court may issue a final judgment, or if necessary, remand the matter again. The
burden is on the Defendant to support its decisions with substantial evidence in the
record.
D.

As a general matter, remand orders are interlocutory orders rather

than final judgments.

The Court's remand order for further proceedings was not an appealable final
judgment within the meaning of 1291 because was not a final decision. Glover, Inc. ex
rel. First Bank of Billings, Montana, v. Albuquerque National Bank, 697 F.2d 907, 910
(10th Cir. 1983), citing Pauls v. Secretary of the Air Force, 457 F.2d 294 (1st Cir.1972).

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The Court held that the Defendant's actions were arbitrary and capricious and
unsupported by substantial evidence in the record, but did not issue a "final judgment"
addressing the merits of Plaintiff''s claims. R. 396 at 44. That is, whether or not the
restrictions on his communications were constitutional. This aspect of the Court's order
alone shows that it was not a final judgment.
The very nature of a remand order for further consideration indicates that the
district court has not entered a final order, but has temporarily returned the dispute back
to the agency. This can be seen in various branches of administrative law, as well as in
suits between private parties that involve arbitration or other ancillary proceedings. See,
e.g. Spradley v. Owens-Illinois Hourly Employees Welfare Ben. Plan, 686 F.3d 1135
(10th Cir. 2012) (ERISA remand orders will not be considered final for appeal purposes
where there are still issues to be resolved on remand and parties' legal arguments can be
considered in future appeal after these issues are resolved); Miller v. Monumental Life
Ins. Co., 376 Fed.Appx. 871 (10th Cir. 2010) (in action by claimant following insurer's
denial of his application for disability benefits, district court order remanding matter to
plan administrator for further proceedings was not a final decision for purposes of
appellate jurisdiction; remand order's practical effect did not make any important legal
question effectively unreviewable, and neither cost nor delay associated with additional
review was sufficient to treat the remand order as a final order); Crystal Clear
Communications, Inc. v. Southwestern Bell Tel. Co., 415 F.3d 117 (10th Cir. 2005)
(order staying action pending resolution of certain issues by Federal Communications
Commission and other agencies was not appealable as final order, since stay order
contemplated an eventual return to federal court and did not transfer the entirety of the

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action to the agencies) What these cases make clear is that a remand order which leaves
disputed legal issues unresolved, contemplates a return to District Court, and doesn't
leave any issues effectively unreviewable, is not an appealable final judgment. Since the
Court has yet to issue a final judgment in this case, or address any of Plaintiff's claims on
the merits, it has retained jurisdiction.
II.

There is good cause to reopen discovery.

According to Federal Rule of Civil Procedure 16(b)(4), a scheduling order, which

contains a deadline for the completion of discovery, may only be modified for good
cause and with the judges consent. Here, good cause exists to reopen discovery. Mr.
Mohammed did request the "administrative record" leading to the denials of his requests
to communicate with non-immediate family members in discovery.

See Exhibit 6

attached hereto, which are Plaintiffs discovery requests made in 2013. His first Request
for Production and first Interrogatory were for the administrative record, and for the
Defendant's reasons for denying the requested contacts. Plaintiff is making the same
requests again, with respect to the individuals considered in his most recent SAMs
determination.4
The Court acknowledged in its Memorandum Opinion that Mr. Mohammed had
claims for 32 requested contacts which were being remanded for administrative
reconsideration by the Defendant. R. 396 at 44. Now, the Defendant has reviewed Mr.
Mohammed's SAMs, as it does every year, and made new determinations as to the 41

The requests are the same with one small difference. Plaintiff had previously asked the Defendant for the
reasons certain contacts were denied. In this request, he asks for reasons why contacts were either
approved or denied, for all 41 of his requested contacts.

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individuals he requested.5 The Court ordered that the reconsideration be performed

during the normal cycle of SAMs renewals. R. 396 at 43. This occurred in November of
2014. Exhibit 2.
The Plaintiff could not have requested this particular discovery before, since it did
not exist while discovery was open. Now, he has a substantial need for the records, since
he cannot obtain the administrative record from anyone other than the Defendant, and the
Court cannot evaluate the administrative proceedings without a copy of the record. There
should also be reasons why each of the 41 contacts was either accepted or rejected, and
these should be based on objective criteria. There should also be a reason to distinguish
the contacts who may only write letters, and those who may call and visit. These reasons
should all be suppored by substantial evidence in the written record.
Conclusion
For the foregoing reasons, the Court should grant Plaintiff's Motion to reopen
discovery, for the limited purpose of obtaining the administrative record pertaining to his
41 requested contacts, and reasons why they were either approved or denied. In the
alternative, should the Court find that some of Mr. Mohammed's requests for new
contacts are not properly before the Court, it should grant his Motion with respect to the
32 contacts mentioned in the Court's order.

Although Mr. Mohammed has expanded his list from 32 to 41, most of the requested contacts are covered
by the Court's remand order. This is mentioned on page 44 of the Memorandum Opinion. R. 396. If Mr.
Mohammed's new claims are not properly before the Court, since he has not filed a separate complaint for
them, the Court may at least allow discovery for the 32 remanded contacts.
Many of the 21 approved contacts are young children. These may have been easier for the FBI to
approve, but tend to give an inflated picture of the FBI's reasonableness. However, whether 21 contacts is
constitutionally sufficient isn't the point. The point is that the FBI has been arbitrary and capricious in
making SAMs determinations. If the Defendant must reveal to the Court in camera national security or
classified material about Nassor and Mr. Mohammed's other proposed contacts, the Plaintiff would consent.

Case 1:07-cv-02697-MSK-BNB Document 419 Filed 01/10/15 USDC Colorado Page 10 of 10

Respectfully submitted,
/s/ Paul Wolf
__________________________
Paul Wolf CO Bar #42107
Attorney for Khalfan Khamis Mohammed
PO Box 46213
Denver, CO 80201
(202) 431-6986
paulwolf@yahoo.com
Fax: N/A
January 10, 2014

Cettificate of Conferral
I hereby certify that, on January 9th and 10th, 2015, I conferred with counsel for
the Defendant by email, and the Defendant did not consent to the reopening of discovery
for this limited purpose. Plaintiff's understanding of Defendant's position is that the
Plaintiff must initiate a new civil action.
/s/ Paul Wolf
____________________
Paul Wolf Bar #42107

Certificate of Service
I hereby certify that on January 10, 2015, I electronically filed the foregoing
Motion and Proposed Order with the Clerk of Court using the ECF system, which will
send notification of such filing to all persons entitled to receive such notices.

/s/ Paul Wolf

____________________
Paul Wolf Bar #42107

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