IN THE UNITED STATES COURT OF APPEALS
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FOR THE TENTH CIRCUIT REVEREND MATT HALE, Plaintiff-Appellant, vs. FEDERAL BUREAU OF PRISONS, et al., Defendants-Appellees. |
Case No. 18-1141 |
APPELLEES’ MOTION TO EXCEED WORD COUNT AND FILE CONSOLIDATED BRIEF OF 19,500 WORDS OR LESS
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Appellees move the Court for permission to file a single answer brief of 19,500 words or less. Appellees recognize that "extraordinary and compelling circumstances" are required for a brief to exceed 13,000 words. 10TH CIR. R. 28.3(A).1 Appellees respectfully state that they believe this requirement is met under the unique circumstances present here.
Mr. Hale is a federal inmate who is incarcerated at the United States Penitentiary—Administrative Maximum, and therefore was not consulted concerning his position on this motion.
Mr. Hale brought a total of eleven claims against the Federal Bureau of Prisons ("BOP") and twelve BOP employees in their individual capacities. Mr. Hale has appealed the district court’s decisions against him on all claims but one, requiring that Appellees’ answer brief address ten claims for both injunctive relief and money damages.
Mr. Hale raised claims against all defendants under the Religious Freedom Restoration Act ("RFRA"), and the First and Fifth Amendments to the Constitution. Given the number of issues, Appellees considered asking this Court for permission to file two answer briefs, one addressing the injunctive-relief claims brought against the BOP and the other covering the claims for money damages against the individual defendants. However, after evaluating that approach, Appellees believes that a single, if somewhat longer, brief will be more clear and easier to read.
The total word count of Mr. Hale’s brief, based on a typed version of that document prepared by United States Attorney’s Office personnel, is approximately 14,578. Mr. Hale did not request the Court’s permission to exceed the word limit of 13,000.
Mr. Hale’s numerous claims are evaluated pursuant to different multi-part tests. The answer brief must discuss this Court’s five-factor analysis for evaluating whether beliefs are religious in nature. United States v. Meyers, 75 F.3d 1475, 1482 (10th Cir. 1996). The brief must evaluate arguments pursuant to the four-factor test for determining the reasonableness of prison restrictions in Turner v. Safley, 478 U.S. 78, 89-90 (1986). Mr. Hale has also raised procedural due process and equal protection claims, which are analyzed pursuant to separate legal standards. See Elliott v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012); Brown v. Montoya, 662 F.3d 1152, 1172-73 (10th Cir. 2011).
Moreover, every individual defendant has raised the defense of qualified immunity, which must be discussed for each defendant in connection with each claim. And recently, the Supreme Court has emphasized that Bivens is a "disfavored" remedy, indicating that a Bivens remedy is not available in the context here. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). Appellees’ answer brief must also address this significant issue.
Finally, the additional words requested here will also allow Appellees to provide a detailed summary of their arguments, as well as appropriate headings and subheadings, that will serve as a roadmap of the numerous issues Mr. Hale has raised on appeal.
Appellees respectfully state that it was not possible for them to file this motion earlier. 10TH CIR. R. 28.3(A). Before making the decision to request additional words, it was necessary for Appellees to thoroughly evaluate the numerous issues raised by Mr. Hale and to decide how most efficiently and effectively to present their response to the Court. In the process of drafting the brief, undersigned counsel attempted to reduce the word count by as much as possible. In addition, the brief was required to be reviewed by Department of Justice personnel in Washington, D.C., which limited counsel’s control over the word count. It was not until a complete draft of a single brief was prepared that Appellees were able to decide how many additional words would be necessary to address all issues Mr. Hale raised in his brief.
For the reasons set forth in this motion, Appellees respectfully request that the Court permit them to file a single answer brief, not to exceed 19,500 words in length.
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DATED this 13th day of August, 2018. Respectfully submitted, ROBERT C. TROYER United States Attorney |
| /s/ Susan Prose |
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SUSAN PROSE Assistant United States Attorney 1801 California Street Suite 1600 Denver, Colorado 80202 (303) 454-0100 susan.prose@usdoj.gov Attorneys for Defendants-Appellees |
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