Opinion
Civil No. 04-462-HA.
June 24, 2004
Stephen R. Sady, Chief Deputy Federal Defender, Portland, OR., Attorney for Petitioner.
Karin J. Immergut, United States Attorney, Craig J. Casey, Herbert C. Sundby, Office of the United States Attorney, Portland, OR., Attorneys for Respondent.
OPINION AND ORDER
Petitioner brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, 1331, and 1343(4). For the following reasons, the petition (Doc. #1) is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is a federal inmate being housed by the Bureau of Prisons (BOP) at the Federal Prison Camp located at Sheridan, Oregon, a part of the Federal Correctional Institution (FCI) Sheridan. Petitioner is in custody pursuant to a 1990 conviction in the District of Oregon for conspiracy to manufacture and distribute methamphetamine along with a two-point weapons enhancement in violation of 21 U.S.C. § 841(a)(1) and 846. In February 1991, petitioner was sentenced to 240 months of imprisonment followed by five years of supervised release.
Petitioner was initially deemed eligible for the BOP's residential substance abuse treatment program (DAP) in June 1999, but was later denied eligibility for the early release in August 1999 based on a two-point sentencing enhancement because he possessed a firearm during the commission of his offense. He was placed on the waiting list, and in June 2000, he declined to participate in the program. In October 2003, petitioner was again placed on the DAP waiting list, and filed a request with the warden for administrative remedy regarding his release status. This request was denied. In November 2003, petitioner appealed the warden's denial to the regional director, which was also denied. In December 2003, petitioner appealed the regional director's denial to the BOP central office, which also resulted in a denial. In April 2004, petitioner filed this habeas action. Petitioner remains on the DAP waiting list.
Petitioner asserts that his rights are being violated by the BOP personnel at FCI Sheridan. Specifically, petitioner contends that the BOP personnel are unlawfully finding him ineligible for a one-year reduction of his sentence under 18 U.S.C. § 3621(e). See Bohner v. Daniels, 243 F. Supp.2d 1171 (D. Or. 2003).
ANALYSIS 18 U.S.C. § 3621(e) states that, "[E]very prisoner with a substance abuse problem [shall] have the opportunity to participate in appropriate substance abuse treatment. . . ." To motivate prisoners to seek treatment, Congress made one-year sentence reductions available to those convicted of nonviolent offenses who successfully completed the substance abuse treatment programs. 18 U.S.C. § 3621(e)(2)(B).
Before 1997, a conviction accompanied by the possession of a firearm or other dangerous weapon could not be classified as "nonviolent" under the BOP's regulation and program statements. The Ninth Circuit rejected the BOP's interpretation, holding that the BOP cannot define "nonviolent offense" to exclude firearm possession when Congress defines "nonviolent offense" in precisely the opposite way. Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir. 1997); see also Downey v. Crabtree, 100 F.3d 662, 667 (9th Cir. 1996).
Following the Ninth Circuit's rejection of the BOP's interpretation, the BOP amended its regulation and program statements governing prisoners' eligibility for early release. See 28 C.F.R. § 550.58; P.S. 5162.04 (Oct. 9, 1997); P.S. 5330.10 (Oct. 9, 1997) (the "1997 rule and program statements"). However, the BOP's 1997 rule and program statements excluded the same prisoners from early release eligibility who were excluded under the prior rules. Rather than interpret the term "nonviolent offense," the BOP used its discretion to arrive at the same result. See id.
The courts upheld this act of the BOP's discretion, but did not consider whether the October 1997 rule and program statements were invalid because they were not implemented in accordance with the notice and comment provisions of the Administrative Procedures Act (APA). See, e.g., Lopez v. Davis, 531 U.S. 230, 244 (2001); Grassi v. Hood, 251 F.3d 1218, 1221 (9th Cir. 2001); Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000), rev'g Gavis v. Crabtree, 28 F. Supp.2d 1264 (D. Or. 1998) (holding that the BOP's new interpretation conflicted with the unambiguously expressed intent of Congress, meriting no deference).
This court held the 1997 rules were promulgated in violation of the APA, and therefore were invalid. Bohner, 243 F. Supp.2d at 1179. This holding resulted in prisoners who were accepted into the program prior to the promulgation of the final rules in December 2000 being granted early release. Id. This court's decision has been appealed to the Ninth Circuit. At the date of this Opinion and Order, the Ninth Circuit has yet to render an opinion.
1. The 1997 Rule Violates the APA
The APA requires agencies, such as the BOP, to publish substantive rules thirty days or more before they are effective. 5 U.S.C. § 553(d). In situations where the rule is not published thirty days prior to its effective date, the Supreme Court has held that the rule is invalid as to those disqualified prior to the promulgation of the final rule. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 225 (1988) (Scalia, J., concurring); see also Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir. 1982).
In Bohner, this court found that:
Based on the undisputed facts as to the procedural history of the rule promulgation, it is apparent that the procedures utilized to adopt the regulation did not comply with the APA. The Bureau violated the APA's thirty-day advance notice requirement by making the 1997 regulation effective as of October 9, 1997, rather than as of November 14, 1997, thirty days after the October 15, 1997 publication in the Federal Register. Thus, based on the undisputed facts, the requirements of the APA were not observed.Bohner, 243 F. Supp.2d at 1174-75.
Furthermore, this court found that the BOP violated Section 553(b)'s general notice requirement:
The purpose [of Section 553(b)] is both (1) to allow the agency to benefit from the expertise and input of the parties who file comments with regard to the proposed rule, and (2) to see to it that the agency maintains a flexible and open-minded attitude towards its own rules, which might be lost if the agency had already put its credibility on the line in the form of "final" rules.Id. at 1175; see Nat'l Tour Brokers' Ass'n v. United States, 591 F.2d 896, 902 (D.C. Cir. 1978); see also Buschmann, 676 F.2d at 357 (observing that the notice and comment procedures protect "The right of the people to present their views to the government agencies which increasingly permeate their lives" and that "The interchange of ideas between the government and its citizenry provides a broader base for intelligent decisionmaking and promotes greater responsiveness to the needs of the people. . . .").
In Bohner, this court found that "the BOP's violation of Section 553(b) is just as apparent as its violation of Section 553(d). The BOP referred to the 1997 rule as an "interim rule" and invited the public to submit comments." Bohner, 243 F. Supp.2d at 1175. As is common with the majority of interim rules, the 1997 rule became effective immediately. The BOP published nothing in the Federal Register until October 15, 1997, although the effective date of the regulation was October 9, 1997. Id. In addition, the court found that no statutory exceptions to Section 553(b)'s notice and comment requirements applied. Id. at 1175-76.
In Gunderson v. Hood, 123 F. Supp.2d 1219, 1220 n. 1 (D. Or. 2000), this court vacated judgment and stayed the case pending the Ninth Circuit's mandate in Bowen. Petitioner Gunderson moved to lift the stay on grounds that the new program statements were in conflict with the BOP's new regulation, denying him a benefit that the regulation standing alone would not. Id. at 1220-21. Affirming this court's denial of relief to Gunderson, the Ninth Circuit held that "[b]ecause, in this instance, Program Statement 5162.04 did no more than `clarify or explain existing law,' it was interpretive and thus not subject to the rigors of the APA." Gunderson v. Hood, 268 F.3d 1149, 1155 (9th Cir. 2001). Grassi's holding is in direct conflict with Gunderson's holding that the program statements only interpret the regulation, and therefore the program statements cannot stand on their own. In Bohner, this court found the precedents of the two cases could not be reconciled, and that the court was without power to decide which should govern. Bohner, 243 F. Supp.2d at 1178-79; Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1478 (9th Cir. 1987) (appropriate mechanism for resolving an irreconcilable panel conflict is an en banc decision).
This court originally granted Gunderson's writ for habeas corpus under the controlling law in this circuit at that time. However, as a result of Bowen, the law regarding the BOP's ability to deny inmates a one-year sentence reduction changed substantially, and the court's original grounds for granting the petition were no longer valid. Accordingly, the court vacated the judgment and stayed the case pending the Ninth Circuit's mandate in Bowen.
In Bohner, this court reasoned that it was "unnecessary to harmonize" Grassi and Gunderson, because under either precedent, the program statements could not be used to deny a petitioner early release. Bohner, 243 F. Supp.2d at 1179.
[I]f Grassi is correct, the 1997 program statements would deny petitioner a sentence reduction independent of the 1997 rule. If so, the program statements should have been classified as legislative rules, and promulgated in compliance with the APA's notice and comment procedures. Because they were not, they may not be relied upon to deny petitioner early release. Alternatively, if Gunderson is correct, the 1997 program statements merely interpret the 1997 rule. It has already been determined above that the 1997 rule was invalid, so there is no rule left for the 1997 program statements to interpret. Again, the 1997 program statements may not be relied upon to deny petitioner early release. Id.2. Application of Bohner to Petitioner
Petitioner was convicted of a nonviolent offense and claims he is eligible for reduction of his period of custody under 18 U.S.C. § 3621(e). Petitioner was accepted into the DAP program in June 1999, and was initially considered eligible for early release. In August 1999 and again in February 2003, the BOP deemed petitioner ineligible under the invalid 1997 interim rules. Petitioner is currently on a waiting list to enroll in the program.
Petitioner argues that he is entitled to be treated as eligible under the statute and former regulation because promulgation of a rule without following the APA "renders it ineffective so far as extinguishing rights of those otherwise within the class of beneficiaries. . . ." Morton v. Ruiz, 415 U.S. 199, 236 (1974). Petitioner also argues that an improperly promulgated interim rule cannot be cured by a properly promulgated final regulation, and that relief is available to those adversely affected by the interim rule. See Bohner, 243 F. Supp.2d at 1176.
Respondent argues that the BOP had discretion to grant or deny early release consideration to inmates who qualified for DAP. Respondent claims that Lopez v. Davis, 531 U.S. 230, 242 (2001) is controlling, and provides that the BOP has the authority and discretion to exclude petitioners from eligibility for early release. However, the Court in Lopez did not address the issue of the BOP violating the APA, so it cannot be used as precedent on the issue that petitioner argues.
Respondent also contends that this case is not ripe for judicial review because petitioner is currently on the waiting list to participate in DAP, and has yet to complete the initial 500 hours. However, the majority of cases have held that a petition is ripe when the BOP determines eligibility, not after a petitioner completes a portion of the program. Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000), Cort v. Crabtree, 113 F.3d 1081 (9th Cir. 1997), Johnson v. Crabtree, 996 F. Supp. 999 (D. Or. 1997).
In Cort, the Ninth Circuit reversed the trial court's holding that the determination of a prisoner's eligibility for sentence reduction was to be made at the time of completion of the program. The court reasoned:
While some prisoners may be willing to enroll, and even to complete treatment, simply on the basis of a reasonable expectation that they will be found eligible, or even simply because they desire to cure themselves of drug addiction, prisoners who know prior to enrollment that they are eligible to receive a shorter sentence are likelier to enroll, and those who are found during the course of the program to be eligible for early release are likelier to complete the program. Cort, 113 F.3d at 1085.
Accordingly, pursuant to Cort, petitioner's writ is ripe for review.
In addition, respondent argues that petitioner's reliance on the APA is misplaced because the APA does not apply to program statements. This argument was rejected in Bohner and is likewise rejected here. The BOP's program statements would have been subject to the APA notice-and-comment requirements as legislative rules and, under Gunderson, the 1997 regulations were procedurally invalid. Gunderson, 268 F.3d at 1178-79. Respondent contends that even if the BOP is assumed to have violated the APA, petitioner was not actually harmed by that violation. This court also rejected the harmless error argument in Bohner, and likewise rejects it here. CONCLUSION
For these reasons, petitioner's petition for writ of habeas corpus (Doc. #1) is GRANTED and it is ORDERED that the BOP grant a reduction of one year from petitioner's sentence if he successfully completes all three phases of the treatment program.
IT IS SO ORDERED.