By Michael Dorf
[N.B. In keeping with my recent tradition, I'm posting the exam I administered to my Federal Courts students this past semester. It was an 8-hour open-book take-home, set in the fictional jurisdiction of Hughes and the 13th Circuit. Submit answers in comments but I won't grade them.]
John “Johnny Eyeballs” Jones was convicted and sentenced to life imprisonment without eligibility for parole by the Hughes Superior Court in October 2013 in connection with his role as the lookout in the gangland murder of three rival drug dealers. He appealed as of right to the Hughes Supreme Court, which affirmed his conviction in January 2014.
Eyeballs, who is white, was sent to the Hughes State Penitentiary, where he was assigned to share a cell with an African American prisoner. Although Eyeballs initially accepted this assignment, in April 2014 he complained to Warden Wilma Warren that the cellmate assignment violated his “religious freedom and right of association.” Eyeballs claimed that he had recently joined the Aryan Brotherhood, a white supremacist prison gang, stating that “so far as I’m concerned, being in the Brotherhood is what God intended for me.” Warden Warren rejected his complaint in writing on the ground that “the Aryan Brotherhood is not a religion and prisoners have a limited right of freedom of association under both Hughes law and federal law.”
Eyeballs then filed a written grievance with the Prisoner Grievance Review Board (PGRB), as permitted by Hughes law. His grievance read, in its entirety: “Giving me the wrong color cellmate is against my rights as a citizen of Hughes and of America.” Two days later, the PGRB (appointed to a two-year term by the Governor and consisting of a retired Hughes Superior Court judge, a prison social worker, and a deputy attorney general) summarily rejected the grievance in a one-word written order: “Denied.”
Hughes law provides that “any prisoner may appeal an adverse PGRB ruling by filing an original action in Hughes Superior Court within 60 days of the PGRB ruling. Such court may only reverse a PGRB determination on the ground that it rests on one or more clearly erroneous factual findings or an unreasonable determination of one or more questions of law.”
On the same day that the PGRB rejected his grievance, Eyeballs met with his lawyer, Saul Goodman, who informed him that the time for filing a petition for a writ of certiorari in the U.S. Supreme Court to review his conviction and sentence would expire soon, and asking whether Eyeballs wanted Goodman to file such a petition. Eyeballs said no, and also said no to Goodman’s offer of assistance with an appeal of the PGRB ruling to Hughes Superior Court, after Goodman informed Eyeballs that his case would go before the same judge who presided at his trial and sentencing. Eyeballs told Goodman, “there’s no way I’m going to go begging to that [expletive] for anything.”
However, Eyeballs added that he did want Goodman’s help in filing a federal court lawsuit to get him a white cellmate and “to make that warden pay for violating” his rights. Goodman told Eyeballs that he would need to do some research to see whether that was a viable option.
While Goodman was driving back from the prison to his office, Congress enacted the First Amendment Exceptions Act (FAEA). It provides, in pertinent part:
Any person seeking an exception from a general law or policy on the ground that such law or policy infringes his or her First Amendment rights, or his or her federal statutory rights to free exercise of religion, shall be entitled to a determination of eligibility by an administrative law judge in the U.S. Department of Health and Human Services, applying the provisions governing agency adjudications in the Administrative Procedure Act, except that all administrative determinations of law and fact shall be final, notwithstanding any other provision of law. No court of the United States shall have jurisdiction, by appeal or as an original action, to hear any claim eligible for determination under this provision. To the extent that any part or application of this provision is unconstitutional, the remaining parts or applications shall be severable. This law shall take effect immediately.
You are an associate working for Goodman. He tells you that he is considering asserting claims for damages and injunctive relief against Warden Warren under the Hughes Bill of Rights (which has a provision that parallels the language of the federal First Amendment), the federal First Amendment, and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc-1 et seq. Goodman tasks another associate with researching the strength of these claims on the merits. He asks you for a memo addressing the procedural obstacles to a federal court granting relief for any claims presented on behalf of Eyeballs, whether brought in a habeas petition, a §1983 action, an Ex Parte Young action, or otherwise. Do not address merits questions except insofar as they bear on the procedural questions.