Kimberlin v. U.S. Department of Justice

Opinion for the court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Separate opinion concurring in part and dissenting in part filed by Circuit Judge TATEL.

PER CURIAM:

The appellants, Brett C. Kimberlin and Darrell Rice are, respectively, a former inmate and a current inmate of the Federal Correctional Institution in Cumberland, Maryland (Cumberland).¹ Kimberlin and Rice appeal an order of the district court dismissing in part their challenge to Bureau of Prisons (BOP) regulations that prohibit federal inmates from possessing electric or electronic musical instruments (other than for religious purposes). See Kimberlin v. Dep’t of Justice, 150 F.Supp.2d 36 (D.D.C.2001). The appellants contend the regulations both exceed the BOP’s statutory authority, in violation of the Administrative Procedure Act (APA), and infringe their rights under the First Amendment to the United States Constitution to freedom of (musical) expression. We conclude the district court correctly rejected each contention.

I.

On July 26, 1995 a then congressman from New Jersey introduced a budget rider (Zimmer Amendment) to prohibit the use of appropriated funds to provide for several enumerated “amenities or personal comforts in the federal prison system,” including “the use or possession of any electric or electronic musical instrument.” 147 Cong. Rec. H7751, H7768 (July 1995) (statement of Rep. Zimmer)

On November 15, 1995 the BOP issued a memorandum “providing guidance to wardens on how provisions of the Zimmer Amendment will be implemented in all [BOP] institutions.” JA 50. The memorandum expressly noted that, while “[provisions of the Zimmer Amendment relate only to the use of appropriated funds,” given the BOP’s “understanding of the intent,” “the guidance provided [in the memorandum] ... may vary slightly from a literal reading of the amendment.” Id. With regard to electric and electronic musical instruments, the memorandum provides:

Use or Possession of any Electric or Electronic Musical Instrument:

This section prohibits the use of funds for inmates’ use or possession of electric or electronic musical instruments.

1. Institutions which currently have electric or electronic instruments may retain these instruments. No appropriated funds will be used to purchase new or to repair existing equipment.

2. New institutions will not purchase electric or electronic instruments.

3. Trust Fund profits or inmate organization funds will not be used to purchase or repair electric or electronic equipment. Donations of these types of instruments will not be accepted.

4.The only authorized exception is electric or electronic equipment which is used in conjunction with religious activities, stored in the chapel area and is under the supervision of the Religious Services Department. Appropriated funds may be used to purchase or maintain such equipment in all BOP facilities.

JA 54-55.

On December 28, 1995 the BOP issued an “Institution Supplement” for Cumberland (No. CUM 5370.08),² which directed that “[t]he only musical instrument an inmate may possess is a harmonica,” with the proviso that “[i]nmates with authorized possession of a guitar or keyboard at the time this supplement is issued may retain possession of the instrument while at this institution.” The document also recited that “the institution will provide a limited number of musical instruments for the music program.” No. CUM 5370.08 at 3-4.

On April 26, 1996 the Congress enacted the Zimmer Amendment as section 611 of the Omnibus Budget Act of Fiscal Year 1997, Pub.L. No. 104-208, 110 Stat. 3009, § 611. The enacted language, identical to that initially proposed by Representative Zimmer, was as follows:

None of the funds made available in this Act shall be used to provide the following amenities or personal comforts in the Federal prison system—

(1) in-cell television viewing except for prisoners who are segregated from the general prison population for their own safety;

(2) the viewing of R, X, and NC-17 rated movies, through whatever medium presented;

(3) any instruction (live or through broadcasts) or training equipment for boxing, wrestling, judo, karate, or other martial art, or any bodybuilding or weightlifting equipment of any sort;

(4) possession of in-cell coffee pots, hot plates, or heating elements; or

(5) the use or possession of any electric or electronic musical instrument.

The Zimmer Amendment has since been regularly incorporated into appropriations acts in identical form. See Pub.L. No. 107-77, 115 Stat. 748 (fiscal year 2002); Pub.L. No. 106-113, 113 Stat. 1501, § 611 (fiscal year 2000); Pub.L. No. 105-277, 112 Stat. 2681, § 611 (fiscal year 1999); Pub.L. No. 104-134, 110 Stat. 1321, § 611 (fiscal year 1998).

On December 28, 1996 the BOP issued another “Institution Supplement” (No. CUM 5370.08A) setting out the same restrictions on musical instruments as No. CUM 5370.08 except that the grandfather proviso was revised to prohibit retention of previously authorized guitars or keyboards as of November 1, 1997. No. CUM 5370.808A at 3-4.

Appellant Kimberlin filed an initial complaint in this action on November 7, 1997. The amended complaint, filed on behalf of both appellants on May 17, 2001, alleged that the BOP musical instrument regulations violate the APA and infringe the appellants’ First Amendment rights to express themselves musically (specifically by playing electric guitars) and, insofar as they make an exception for use of electric/electronic musical instruments in conjunction with religious activity, their Fifth Amendment rights to equal protection.

In a memorandum opinion and order dated May 22, 2001 the district court granted the BOP’s motion to dismiss the complaint’s APA and First Amendment claims and granted summary judgment in favor of Kimberlin and Rice on the Equal Protection claim. Kimberlin and Rice appeal the dismissal.³

II.

“ ‘On appeal, we review the dismissal of the plaintiffs’.... complaint de novo, Moore v. Valder, 65 F.3d 189, 196 (D.C.Cir.1995), and “accept all of the factual allegations in [the] complaint as true,” ’ United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 540, 108 S.Ct. 1954, 1960-61, 100 L.Ed.2d 531 (1988)).” Sloan v. HUD, 236 F.3d 756, 759 (D.C.Cir.2001) (alteration original). Applying this standard, we conclude the district court’s dismissal should be affirmed.

The appellants first contend the challenged regulations exceed the BOP’s statutory authority, and therefore violate the APA, because the Zimmer Amendment prohibits only expenditure of public funds on electric and electronic instruments, not their mere possession by inmates. In reviewing the BOP’s interpretation of the Zimmer Amendment, we use the familiar Chevron analysis:

If ... “ ‘Congress has directly spoken to the precise question at issue,’ ” we “must give effect to Congress’s ‘unambiguously expressed intent.’ ” Secretary of Labor v. [Fed. Mine Safety & Health Review Comm’n], 111 F.3d 913, 917 (D.C.Cir.1997) (quoting Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)). “If ‘the statute is silent or ambiguous with respect to the specific issue,’ we ask whether the agency’s position rests on a ‘permissible construction of the statute.’ ” Id. (quoting Chevron, 467 U.S. at 843, 104 S.Ct. at 2782, 81 L.Ed.2d 694).

National Multi Housing Council v. EPA, 292 F.3d 232, 234 (D.C.Cir.2002) (quoting Cyprus Emerald Resources Corp. v. Fed. Mine Safety & Health Review Comm’n, 195 F.3d 42, 45 (D.C.Cir.1999)). We conclude the BOP’s absolute ban on electric and electronic musical instruments reflects, at a minimum, a reasonable interpretation of the Zimmer Amendment under Chevron.

As the BOP points out, Appellees’ Br. at 15-16, the express language of the Zimmer Amendment supports its interpretation because the ban on using appropriated funds for “the use or possession” of electric and electronic instruments may reasonably be construed to prohibit paying for costs incidental to such use or possession, notably, those incurred for storage, supervision and electricity. Cf. Envtl. Def. Ctr. v. Babbitt, 73 F.3d 867, 871-72 (9th Cir.1995) (holding “use of any government resources — whether salaries, employees, paper, or buildings — -to accomplish a final listing [of a species as endangered] would entail government expenditure” and therefore would run afoul of statutory moratorium on spending for such purpose). Further, the blanket ban on electric and electronic instruments is consistent with the rationale underlying the amendment, as announced by its sponsor, that “[pjrisons should be places of detention and punishment” and that “prison perks undermine the concept of jails as deterrence.” 147 Cong. Rec. at H7768; see Nat’l Sec. Archive v. United States Dep’t of Def., 880 F.2d 1381, 1384-85 (D.C.Cir.1989) (absent other legislative history, “we must look to the statements of the sponsors of the bill as ‘the only authoritative indications of congressional intent’ ”) (quoting North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 527, 102 S.Ct. 1912, 1921, 72 L.Ed.2d 299 (1982)). Nor is the ban on electric and electronic instruments arbitrary or capricious, as the appellants contend, merely because it deviates from past policy. The BOP implemented the new policy as a consequence of the Zim-mer Amendment’s enactment based on the Congress’s rational determination that electric and electronic instruments are “perks” that make prison life less rigorous and therefore undermine its deterrence.⁴

We also reject the appellants’ First Amendment challenge, but do so on grounds different from the district court’s. See Jenkins v. Wash. Convention Ctr., 236 F.3d 6, 8 n. 3 (D.C.Cir.2001) (“The court may affirm the district court on grounds different from those relied upon by the district court.”) (citations omitted). First, we conclude that the BOP’s decision to prohibit all use and possession of electric and electronic instruments does not implicate the appellants’ First Amendment rights and that we therefore need not invoke the four factor analysis the United States Supreme Court established in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987). As we noted above, the aim of the Zimmer Amendment, as shown by both its text and the legislative history, is to prevent expenditure of public funds to provide inmates with “perks,” including “the use or possession of any electric or electronic musical instrument,” and the BOP has articulated this rationale to support its ban on all electric and electronic musical instruments. See supra p. 232. As the appellants acknowledge, “Congress is not required to fund the exercise of First Amendment rights.” Appellants’ Br. at 11. The Supreme Court has squarely “rejected] the ‘notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.’ ” Regan v. Taxation With Representation of Wash., 461 U.S. 540, 546, 103 S.Ct. 1997, 2001, 76 L.Ed.2d 129 (1983) (quoting Cammarano v. United States, 358 U.S. 498, 515, 79 S.Ct. 524, 534, 3 L.Ed.2d 462 (1959) (Douglas, J. concurring)). This is not a case where the government has undertaken “to discriminate invidiously in its subsidies in such a way as to ‘ “aim[ ] at the suppression of dangerous ideas.” ’ ” Id. (quoting Cammarano, 358 U.S. at 513, 79 S.Ct. at 533 (quoting Speiser v. Randall, 357 U.S. 513, 519, 78 S.Ct. 1332, 1338, 2 L.Ed.2d 1460 (1958))). Rather, the BOP has simply chosen not to subsidize inmates’ use or possession of a class of instruments requiring the expenditure of funds for electricity and care.

Even applying Safley, we conclude that the regulations banning electric/electronic instruments do not impermissibly infringe the appellants’ First Amendment rights.

Safley directs courts to uphold a regulation, even one circumscribing constitutionally protected interests, so long as it “is reasonably related to legitimate pe-nological interests.” We are to assess the overall reasonableness of such restrictions with attention to four factors: first, whether the restriction bears a “valid, rational connection” to the “legitimate governmental interest put forward to justify it,” such that the “asserted goal is [not] so remote as to render the policy arbitrary or irrational,” second, whether inmates retain alternative means of exercising the circumscribed right, third, the costs that accommodating the right imposes on other inmates, guards, and prison resources generally, and fourth, whether there are alternatives to the regulation that “fully accommodate[] the prisoner’s rights at de minimis cost to valid penological interests.”

Amatel v. Reno, 156 F.3d 192, 196 (D.C.Cir.1998) (citing Safley, 482 U.S. at 89, 107 S.Ct. at 2261-62) (alterations original). Balancing the four Safley factors, we conclude that the challenged BOP regulations should be upheld.

The first and most important factor favors the regulations because the ban on electric musical instruments plainly bears a reasonable relationship to the legitimate interest of conserving correctional department funds. Further, the ban is reasonably related to the asserted goal — conserving correctional funds. Common sense tells us, and the appellants do not dispute, that a prisoner’s possession and use of an electric guitar costs correctional institutions money for electricity, upkeep, storage and supervision. See Amatel, 156 F.3d at 198 (noting that “scientific studies can have a corrective effect by establishing an apparently implausible connection or refuting an apparently obvious one, but, subject to such corrections, conformity to commonsensical intuitive judgments is a standard element of both reasonableness and rationality”). Thus, “[t]he logical connection between the regulation and the asserted goal is [not] so remote as to render the policy arbitrary or irrational.” Safley, 482 U.S. at 89-90, 107 S.Ct. at 2262.

The remaining Safley factors are largely encompassed by the first, see Amatel, 156 F.3d at 196, and can be handily disposed of here. The second factor asks whether the prisoner has an alternative means of exercising the right at stake. In answering this question the court does not view the right “in terms of the materials excluded by the ban,” as for example, here, the right to possess and use electric or electronic instruments. Amatel, 156 F.3d at 200. Rather, “the relevant right ‘must be viewed sensibly and expansively.’ ” Id. at 201 (quoting Thornburgh v. Abbott, 490 U.S. 401, 417, 109 S.Ct. 1874, 1883-84, 104 L.Ed.2d 459 (1989)). In Thornburgh, where the challenged prison regulation banned all “sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity,” Thornburgh, 490 U.S. at 405 n. 5, 109 S.Ct. at 1877 n. 5, the Supreme Court found the second factor “clearly satisfied” because “the regulations at issue [there] permitted] a broad range of publications to be sent, received, and read,” id. at 418, 109 S.Ct. at 1884. The right asserted here must similarly be broadly limned to include, at a minimum, all forms of musical expression (rather than simply the appellants’ preferred medium of the electric guitar) and under the BOP regulations prisoners remain free to exercise such a right through alternative outlets such as voice and acoustic instruments. The third factor — whether accommodating the right has an “adverse impact ‘on guards and other inmates, and on the allocation of prison resources,”’ Amatel, 156 F.3d at 200 (quoting Safley, 482 U.S. at 90, 107 S.Ct. at 2262) — “seems in part a restatement of the deferential balancing called for under the first factor,” id, and here can be readily answered. If, as we have concluded, the possession and use of electric/electronic instruments costs prisons money, then it necessarily has an “adverse impact ... on the allocation of prison resources.” See id. (concluding that “if Congress may reasonably conclude that pornography increases the risk of prison rape, then the adverse impact [of accommodating the alleged right to pornography] is substantial” because it “poses a threat to the safety of guards and other inmates”). The fourth Safley factor — “whether there are alternatives that can accommodate that right ‘at de minimis costs to valid penological interests,’ ” Amatel, 156 F.3d at 200 (quoting Safley, 482 U.S. at 91, 107 S.Ct. at 2262-63) — raises the only question here. While we know that the regulations save the BOP money, we do not know how much because we do not know the number of inmates who would otherwise use the banned instruments or the exact electrical and other costs that might be incurred. Nevertheless, given that the other factors all plainly favor upholding the regulation and this last remains an unknown, we believe the balance tips in favor of the appel-lees.

For the foregoing reasons, we conclude that the challenged BOP regulations prohibiting prisoner possession or use of electric and electronic musical instruments do not violate the APA or the Constitution. Accordingly, the judgment of the district court is

Affirmed.

1 . Kimberlin was released from Cumberland in 2001. See Appellees’ Br. at 10 n.4.

2 . "Institution Supplement” is "a label that apparently is attached to regulations issued by a particular prison pursuant to nationwide Bureau of Prisons regulations.” American Fed., of Gov’t Employees, Local 2441 v. Fed. Labor Relations Auth., 864 F.2d 178, 183 n. 4 (D.C.Cir.1988).

3 . The BOP's cross appeal of the summary judgment was voluntarily dismissed by an order filed July 2, 2002.

4 . We do not consider the appellants' argument, raised belatedly in their reply brief, that the regulations are arbitrary and capricious insofar as they distinguish between electric or electronic instruments and acoustic instruments. See Steel Joist Inst. v. OSHA, 287 F.3d 1165, 1166 (D.C.Cir.2002) (argument raised for first time in reply brief is waived).