Sacora Bureau of Prisons Violations Federal Defender Oregon

7/28/2019 Sacora Bureau of Prisons Violations Federal Defender Oregon

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No. 10-35553

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIM RAY SACORA,

Petitioner-Appellant,

LARRY L. BEAMAN,

Petitioner-Intervenor,

TODD SONOBE,

Petitioner-Intervenor,

v.

JEFF E. THOMAS, Warden,

Federal Prison Camp, Sheridan, Oregon,

Respondent-Appellee.

Appeal from the United States District Court

for the District of Oregon

OPENING BRIEF OF APPELLANT

AND INTERVENOR CLASS REPRESENTATIVES

Stephen R. SadyChief Deputy Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

(503) 326-2123

Attorney for Petitioners



TABLE OF CONTENTS

Page

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of Jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Nature of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Standard of Review... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Statutory Framework And The Second Chance Act. . . . . . . . . . . . . . 8

B. Litigation Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. The BOP’s Categorical Presumption Of No More Than A Six-Month Community Placement At The End Of The Term Of Imprisonment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

D. The Record Regarding Implementation Of §§ 3621(b) And3624(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

E. Second Chance Act Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

F. The District Court Opinion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

i



I. The Prisoners’ Class Is Entitled To Relief Based On The District Court’sFinding That The Bureau Of Prisons, By Failing To Provide Notice-And-Comment, Violated § 553(b) Of The Administrative Procedure Act

In Promulgating The Second Chance Act Regulation. . . . . . . . . . . . . . . . . 26

A. Congress Expressly Required That The Relevant Aspects Of TheSecond Chance Act Be Implemented Through Formal Rule-Making. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

B. Even If Formal Rule-Making Were Not Expressly Mandated, TheMemoranda And Program Statement Promulgated WithoutFormal Rule-Making Are Substantive Or Legislative RulesRequiring Notice-And-Comment Under Well-Established

Precedent Of This Court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

II. The Bureau of Prisons Violated § 706 Of The Administrative ProcedureAct By Promulgating Its Six-Month Rule For Community CorrectionsWithout Adequate Empirical Support And Rationale. . . . . . . . . . . . . . . . . 35

A. The Bureau Of Prisons Promulgated The Six-Month Rule In TheAbsence Of Empirical Support, Based On Factual Errors, AndWithout Sufficient Articulation Of A Rationale. . . . . . . . . . . . . . . . 35

B. The District Court Incorrectly Disregarded The AffirmativeEvidence Supplied By The Parties That Documented The § 706Violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

III. By Continuing Its Six-Month Rule Without Substantial Change, TheBureau Of Prisons Violated Its Statutory Obligation Under 18 U.S.C. §3624(c) To Expand Community Corrections To Include Full And FairConsideration Of 12 Months In Community Custody. . . . . . . . . . . . . . . . . 42

A. The Plain Language Of § 3624(c), Which Created An Unfettered12-Month Availability For Pre-Release Placement, Is InconsistentWith The BOP’s Six-Month Rule.. . . . . . . . . . . . . . . . . . . . . . . . . . . 43

ii



B. The District Court Erred In Finding That The Statute WasAmbiguous And According Deference To The BOP.. . . . . . . . . . . . 46

IV. By Continuing Its Formal Six-Month Rule Without Substantial Change,

The Bureau Of Prisons Violated Its Statutory Obligation Under 18U.S.C. § 3621(b) To Provide Full And Fair Consideration Of RequestsFor Transfer To Community Corrections Prior To 12 Months Before

The Projected Release Date As Required By This Court’s Precedent InSmith v. Rodriguez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

A. Rodriguez Held That The Statutes Do Not Permit CategoricalLimitations On The Exercise Of Discretion Based On Time Left

To Serve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

B. The District Court Failed To Distinguish Rodriguez .. . . . . . . . . . . . 56

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Statement of Related Cases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Brief Format Certification.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

iii



TABLE OF AUTHORITIES

Page

FEDERAL CASES

Arrington v. Daniels,516 F.3d 1106 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . 7, 35, 37, 40

Asarco, Inc. v. E.P.A.,616 F.2d 1153 (9th Cir. 1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Ass’n of Pac. Fisheries v. E.P.A.,615 F.2d 794 (9th Cir. 1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Brewster v. Gage,280 U.S. 327 (1930). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Burlington Truck Lines, Inc.,371 U.S. 156 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Buschmann v. Schweiker ,676 F.2d 352 (9th Cir. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Chevron U.S.A., Inc. v. Natural Resources Defense Council ,467 U.S. 837 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 43, 46

Christensen v. Harris County,529 U.S. 576 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Chrysler Corp. v. Brown,441 U.S. 281 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 32

Colwell v. Department of Health and Human Services,558 F.3d 1112 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Cort v. Crabtree,113 F.3d 1081 (9th Cir. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iv



Crickon v. Thomas,579 F.3d 978 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 35, 36, 40

Demis v. Sniezek ,558 F.3d 508 (6th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Elwood v. Jeter ,386 F.3d 842 (8th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Friends of the Clearwater v. Dombeck ,222 F.3d 552 (9th Cir. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41

Fults v. Sanders,

442 F.3d 1088 (8th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Garza v. Davis,596 F.3d 1198 (10th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Goldings v. Winn,383 F.3d 17 (1st Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gonzales v. Oregon,

546 U.S. 243 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Gunderson v. Hood ,268 F.3d 1149 (9th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Hart v. Massanari,266 F.3d 1155 (9th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Hemp Indust. Association v. DEA,

333 F.3d 1082 (9th Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Hiivala v. Wood ,195 F.3d 1098 (9th Cir.1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

v



Jonah R. v. Carmona,446 F.3d 1000 (9th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Krueger v. Martinez ,

665 F. Supp. 2d 477 (M.D. Pa. 2009).. . . . . . . . . . . . . . . . . . . . . . 20, 44, 50

Leocal v. Ashcroft ,543 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Levine v. Apker ,455 F.3d 71 (2d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Love v. Thomas,858 F.2d 1347 (9th Cir. 1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

McGee v. Thomas,2009 WL. 2182385 (D. Or. July 22, 2009).. . . . . . . . . . . . . . . . . . 20, 36, 46

Mada-Luna v. Fitzpatrick ,813 F.2d 1006 (9th Cir. 1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Marathon Oil Co. v. Lujan,937 F.2d 498 (10th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Miller v. Gammie,335 F.3d 889 (9th Cir. 2003) (en banc).. . . . . . . . . . . . . . . . . . . . . . . . 57, 59

Miller v. Whitehead ,527 F.3d 752 (8th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile

Insurance Co.,

463 U.S. 29 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36, 37, 39, 40, 42

Muniz v. Sabol ,517 F.3d 29 (1st Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 57

vi



National Association of Home Builders v. Defenders of Wildlife,551 U.S. 644 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

National Resources Defense Council v. U.S. Forest Serv.,

421 F.3d 797 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Natural Resources Defense Council v. Evans,316 F.3d 904 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Nw. Environmental Defense Ctr. v. BPA,477 F.3d 668 (9th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Pacific Gas and Electric Co. v. Federal Power Commission,506 F.2d 33 (D.C. Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Paulsen v. Daniels,413 F.3d 999 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 28, 29

Pickus v. U.S. Board of Parole,507 F.2d 1107 (D.C. Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Pierce County, Wash. v. Guillen,537 U.S. 129 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Riverbend Farms, Inc. v. Madigan,958 F.2d 1479 (9th Cir. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Rodriguez v. Smith,541 F.3d 1180 (9th Cir.2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Ryder Truck Lines, Inc. v. United States,716 F.2d 1369 (11th Cir. 1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Serrato v. Clark ,486 F.3d 560 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

vii



Shalala v. Guernsey Mem'l Hospital ,514 U.S. 87 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Skidmore v. Swift & Co.,

323 U.S. 134 (1944). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 49, 50, 51

Skilling v. United States,130 S. Ct. 2896 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Smith v. Shettle,946 F.2d 1250 (7th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Stone v. INS ,514 U.S. 386 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Strong v. Schultz ,599 F. Supp. 2d 556 (D. N.J. 2009). . . . . . . . . . . . . . . . . . . . . 19, 20, 43, 44

United States v. Mead Corp.,533 U.S. 218 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 50

United States v. Wilson,503 U.S. 329 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Walker v. Copenhaver ,2010 WL 604674 (N.D. Cal. Feb. 19, 2010).. . . . . . . . . . . . . . . . . . . . . . . . 19

Woodall v. Fed. Bureau of Prisons,432 F.3d 235 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Yesler v. Cisneros,37 F.3d 442 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

FEDERAL STATUTES

5 U.S.C. § 551(4).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

viii



5 U.S.C. § 553(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16, 21, 25, 26, 30, 31

5 U.S.C. § 706(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 24, 35, 36, 37, 42

18 U.S.C. § 3582(c)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46

18 U.S.C. § 3624(c)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

28 U.S.C. § 994(t). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

28 U.S.C. § 2241. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

MISCELLANEOUS

Reduction in Sentence for Medical Reasons, 71 Fed. Reg. 76619-01(Dec. 21, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46

United States Sentencing Comm'n, Symposium on Alternatives to Incarceration

(July 14-15, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 38

ix



STATEMENT OF JURISDICTION

The district court’s habeas corpus jurisdiction is based on 28 U.S.C. §§ 1331,

1343(4), and 2241. Jurisdiction is conferred on this Court to review the final order

denying relief by 28 U.S.C. §§ 1291 and 2253. The district court denied relief on

June 16, 2010. Mr. Sacora filed the notice of appeal on the same day, which is

therefore timely under Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure.

1



STATEMENT OF ISSUES

I. Whether The Prisoners’ Class Is Entitled To Relief Based On The DistrictCourt’s Finding That The Bureau Of Prisons, By Failing To Provide

Notice-And-Comment, Violated § 553(b) Of The Administrative ProcedureAct In Promulgating The Second Chance Act Regulation For Two Reasons:

A) The Memoranda And Program Statement Create Rules RequiringNotice-And-Comment Because Congress Expressly Required That TheRelevant Aspects Of The Second Chance Act Be Implemented ThroughFormal Rule-Making; And

B) Even If Formal Rule-Making Were Not Expressly Mandated, TheMemoranda And Program Statement Promulgated Without Formal Rule-

Making Are Substantive Or Legislative Rules Requiring Notice-And-Comment Under Well-Established Precedent Of This Court.

II. Whether The Bureau of Prisons Violated § 706 Of The AdministrativeProcedure Act By Promulgating Its Six-Month Rule For CommunityCorrections Without Adequate Empirical Support And Rationale.

III. Whether By Continuing Its Six-Month Rule Without Substantial Change, TheBureau Of Prisons Violated Its Statutory Obligation Under 18 U.S.C. § 3624(c)

To Expand Community Corrections To Include Full And Fair ConsiderationOf 12 Months In Community Custody.

IV. Whether By Continuing Its Six-Month Rule Without Substantial Change, TheBureau Of Prisons Violated Its Statutory Obligation Under 18 U.S.C. §3621(b) To Provide Full And Fair Consideration Of Requests For Transfer ToCommunity Corrections Prior To 12 Months Before The Projected ReleaseDate As Required By This Court’s Precedent InSmith v. Rodriguez .

2



STATEMENT OF THE CASE

Nature of the Case

This direct appeal involves a class of prisoners at the Federal Correctional

Institution at Sheridan, Oregon, who are challenging the Bureau of Prisons (BOP)’s

failure to implement changes in access to community custody required by the Second

Chance Act (SCA) and this Court’s precedent. On June 16, 2010, the Honorable

Malcolm F. Marsh, Senior United States District Judge for the District of Oregon,

entered an order granting relief only in the form of declaring the BOP’s regulation

invalid, but changing nothing by allowing continued enforcement of rules that the

petitioners contend violate the Administrative Procedure Act (APA) as well as the

underlying statutes.

Course of Proceedings

On May 12, 2008, Tim Ray Sacora filed a writ of habeas corpus pursuant to 28

U.S.C. § 2241 challenging the BOP’s administration of 18 U.S.C. § 3621(b)

regarding his transfer to a halfway house on grounds similar to those granted in

Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008). ER 565. After initial litigation,

the district court appointed counsel to represent Mr. Sacora, after which an amended

petition for habeas corpus relief was filed on September 2, 2009, by which time the

issue regarding transfer implicated pre-release custody under 18 U.S.C. § 3624(c) (as

3



amended by the SCA). ER 547. On the same day, Mr. Sacora filed a motion to

certify a class defined as:

All federal prisoners serving sentences in the District of Oregon whohave been or will be considered for community corrections placementunder 18 U.S.C. §§ 3621(b) and 3624(c).

ER 545. After litigation regarding class certification, the district court entered on

December 3, 2009, an Opinion and Order granting the class certification in part,

described as covering pre-release prisoners under § 3624(c):

All federal prisoners serving sentences in the District of Oregon whohave been denied or will be denied community corrections placement inexcess of six months under 18 U.S.C. § 3624(c), pursuant to the Bureauof Prisons’ April 14, 2008, memorandum, Program Statement 7310-04and 28 C.F.R. § 570.20, et seq. . . .

ER 458. On December 24, 2009, petitioners Larry Beaman and Todd Sonobe filed

a motion to intervene as plaintiffs and class representatives for those seeking transfer

to halfway houses prior to pre-release custody under 18 U.S.C. § 3621(b). ER 449.

After further litigation, the district court granted the motion for Mr. Beaman and

Mr. Sonobe to intervene and changed its earlier order to amend the class definition

as follows:

All federal prisoners serving sentences in the District of Oregon whohave been denied or will be denied community corrections placement inexcess of six months under 18 U.S.C. § 3624(c) and 18 U.S.C.§ 3621(b), pursuant to the Bureau of Prisons’ April 14, 2008,memorandum, the Bureau of Prisons’ November 14, 2008,

4



memorandum, Program Statement 7310.04, Program Statement 5100.08and 28 C.F.R. § 570.20, et seq.

ER 437.

On March 1, 2010, the petitioner class representatives filed a memorandum in

support of habeas corpus relief, along with exhibits in support. ER 188. On April 9,

2010, the BOP filed its response with two attachments and an accompanying

declaration. ER 99, 118. The class petitioners filed a reply and additional exhibits

on April 20, 2010. ER 61.

On June 15, 2010, after the district court noted that the intervenors had not

filed a single combined amended petition, the class representatives filed a second

amended petition for writ of habeas corpus. ER 38. The following day, the district

court entered an Opinion and Order granting in part the petition for habeas corpus,

declaring the BOP’s October 2008 regulation invalid for violation of the notice-and-

comment provisions of the APA, but denying relief in all other respects, entering

judgment the same day. ER 1, 3. On the same day, Mr. Sacora filed his Notice of

Appeal. ER 37.

At the outset of the Oregon litigation involving the SCA, the parties originally

proceeded through lead petitioners, with other prisoners’ cases stayed pendingSass

v. Thomas, (D. Or. July 23, 2009), appeal filed CA 09-35830 (9th Cir. Sept. 15,

2009), and Pierce v. Thomas, CV 08-705-MA (D. Or. July 1, 2009),appeal filed CA

5



09-35781 (9th Cir. August 26, 2009). Mr. Sacora’s case was initially stayed pending

the lead petitioners’ litigation. However, those cases resulted in procedural

dismissals based on a ripeness question initiated by the Court for theSass group and

a mootness issue raised by the BOP in the Pierce group. Those cases were separately

appealed on the procedural grounds, with an accompanying request for the Court to

consider, as an alternative to remanding the cases, reaching the merits of the SCA

claims. Those cases were fully briefed by February 2010.

Shortly after the filing of the notice of appeal in Sacora, the class

representatives filed a motion with this Court to consolidate the present case with

Sass and Pierce with expedited briefing and calendaring to address the issues raised

in the district court’s opinion. On July 20, 2010, the Court granted the motion to

consolidate the three cases, set an expedited briefing schedule, and calendared the

case for oral argument in the first week of October 2010.

Standard of Review

A district court’s denial of a petition for writ of habeas corpus is reviewedde

novo. Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009); Jonah R. v. Carmona,

446 F.3d 1000, 1003 (9th Cir. 2006). The Court considers de novo whether an

agency complied with notice-and-comment as required under the APA. Paulsen v.

Daniels, 413 F.3d 999, 1002 (9th Cir. 2005); Natural Res. Def. Council v. Evans, 316

6



F.3d 904, 910 (9th Cir. 2003). In reviewing BOP rules, the Court considers whether

the agency’s action is “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” Crickon, 579 F.3d at 982; Arrington v. Daniels, 516 F.3d

1106, 1112 (9th Cir. 2008) (citing 5 U.S.C. § 706(2)(A)). The Court also reviews

questions of statutory constructionde novo. Rodriguez , 541 F.3d at 1183. Because

an agency’s interpretation is governed byChevron U.S.A., Inc. v. Natural Res. Def.

Council , 467 U.S. 837 (1984), the court first looks to the statute, and determines “if

Congress has directly spoken to the precise question at issue, in such a way that the

intent of Congress is clear.” Rodriguez , 541 F3d at 1184 (citations omitted).

Traditional tools of construction, such as the rules of constitutional avoidance and

lenity, are available to determine the statute’s meaning. Chevron, 467 U.S. at 843

n.9; see Skilling v. United States, 130 S. Ct. 2896, 2929-30, 2932 (2010).

STATEMENT OF FACTS

Most of the relevant facts are set out in detail in the consolidated cases of Sass

and Pierce. For brevity’s sake, this class brief will summarize the factual subsections,

with reference to the relevant pages of the consolidated briefs for the full elaboration.

The discovery in Pierce was incorporated inSacora by attachment of exhibits to the

supporting memorandum. ER 213 n.6.

7



A. Statutory Framework And The Second Chance Act1

The petitioners’ claims rest on two statutes that provide for transfer to

community corrections: 18 U.S.C. §§ 3621(b) and 3624(c). The first authorizes the

BOP to transfer prisoners to a halfway house at any time during the term of

imprisonment based on five factors listed in § 3621(b). ER 253. Because BOP

halfway houses are penal or correctional facilities, the BOP has discretion to transfer

a prisoner to community corrections at any time based on individualized

consideration of the five enumerated factors. ER 293. Congress reaffirmed the2

BOP’s authority under § 3621(b) in the SCA to designate or transfer prisoners to

community corrections at any time during the term of imprisonment. 18 U.S.C.

§ 3624(c)(4).

In contrast to the general authorization for transfer to community corrections,

§ 3624(c) mandates community placement, to the extent practicable, for the last part

of a sentence to facilitate community reentry. ER 254. Prior to the SCA, the statute

limited consideration of pre-release placement to a maximum of the lesser of six

months or 10 percent of the term of imprisonment. 18 U.S.C. § 3624(c) (repealed

2008). In the SCA, Congress required the BOP to utilize community corrections, to

Pierce at 5-9; Sass at 5-9.1

The BOP now refers to halfway houses as Residential Reentry Centers (RRC).2

8



the extent practicable, for up to double the time before release compared to the pre-

SCA rate, while maintaining the six-month/10 percent period for home confinement:

(1) In general. – The Director of the Bureau of Prisons shall, to theextent practicable, ensure that a prisoner serving a term of imprisonmentspends a portion of the final months of that term (not to exceed 12months), under conditions that will afford that prisoner a reasonableopportunity to adjust to and prepare for the reentry of that prisoner intothe community. Such conditions may include a community correctionalfacility.

(2) Home confinement authority. – The authority under thissubsection may be used to place a prisoner in home confinement for theshorter of 10 percent of the term of imprisonment of that prisoner or 6months.

18 U.S.C. § 3624(c) (2008). The SCA requires that pre-release placement decisions3

be individualized, not categorical, using the factors enumerated in § 3621(b) to

designate or transfer prisoners to appropriate penal or correctional facilities – which

include RRCs. 18 U.S.C. § 3624(c)(6)(A).

In the SCA, Congress directed the BOP to issue implementing regulations

within 90 days that would include direction regarding the “sufficient duration” of

community placements:

The Director of the Bureau of Prisons shall issue regulations not later

than 90 days after enactment, which shall ensure that placement in acommunity correctional facility is

A full copy of the Act is set forth at ER 255.3

9



(A) conducted in a manner consistent with § 3621(b) of this title;

(B) determined on an individual basis; and

(C) of sufficient duration to provide the greatest likelihood of successful reintegration into the community.

18 U.S.C. § 3624(c)(6) (2008). In a separate section of the SCA, Congress directed

that the Attorney General and the BOP, subject to available appropriations, establish

a federal prisoner reentry initiative. ER 281. In the chapter entitled “Improving

Federal Offender Reentry,” Congress anticipated that the BOP would create

incentives, including “the maximum allowable period in a community confinement

facility,” and change its former approach by referring to the need “to modify” BOP

“procedures and policies” to enhance implementation of reentry programs and

improve transition to the community. ER 281-82.

B. Litigation Background4

Prior to December 2002, the BOP did not interpret pre-SCA § 3624(c) as

limiting the length of end-of-term halfway house placement. ER 293. Thus, while

interpreting § 3624(c) to limit its authority to place prisoners in home detention to the

last 10 percent of the term of imprisonment, the BOP did not interpret the statute to

limit its authority under § 3621(b) to place prisoners at RRCs at any time during the


10



term of imprisonment. Id . The BOP guidelines for RRC placement provided that

prisoners may be referred for 180-day placements, “with placement beyond 180 days

highly unusual and only possible with extraordinary justification.” Id . In short, the

BOP policy established a six-month community-placement norm, allowing for longer

placement only in extraordinary circumstances under § 3621(b) and § 3624(c).

In December 2002, the BOP abruptly reinterpreted its authority under

§ 3621(b) to limit RRC placement to the last 10 percent of the term, not to exceed six

months. The change was prompted by an opinion letter issued by the Department of

Justice Office of Legal Counsel (OLC) concluding that, contrary to the BOP’s

previous interpretation of the statutes, former § 3624(c) capped the amount of time

the BOP can place a prisoner in a RRC at the lesser of 10 percent of his sentence or

six months. ER 323. As a consequence, the BOP almost immediately began to limit

its designations of prisoners to RRCs to no more than the last 10 percent of their

sentences, precluding all direct commitments as well. The BOP’s revised rules were

immediately and retroactively effective.

The reinterpretation of the statutes resulted in a flurry of challenges to the

BOP’s change in policy, mostly involving direct commitment cases.

Overwhelmingly, district courts granted relief, rejecting the OLC’s erroneous

interpretation of § 3621(b). The courts held that, as a matter of statutory construction,

11



the plain language of § 3621(b) authorized placement and transfer of offenders to

RRCs at any time during their terms of imprisonment. See, e.g., Goldings v. Winn,

383 F.3d 17, 23-24 (1st Cir. 2004); Elwood v. Jeter , 386 F.3d 842, 846-47 (8th Cir.

2004). The courts also held that the OLC’s interpretation of § 3624(c) applied only

to the BOP’s affirmative obligation to provide re-entry programming in the

community, not its discretion under § 3621(b) to transfer to a halfway house at any

time.

The BOP responded to the courts’ rejections of its revised interpretation by

creating two new regulations with respect to placement of inmates in RRCs. In the

notice regarding the new regulations, the BOP explained that it relied on its purported

discretion to reinstitute its disqualification of all prisoners who were not yet within

10 percent of release from RRC placement. Under the new rules, the BOP conceded

that it had the discretion under § 3621(b) to place prisoners in RRC’s for longer than

the last 10 percent of the term of imprisonment, Community Confinement , 69 Fed.

Reg. 51213-01 (Aug. 18, 2004), but categorically eliminated RRC placement for all

inmates based on time from release, regardless of an inmate’s individual

circumstances. 28 C.F.R. § 570.20 (2005). As it had stated under its December 2002

policy, the BOP reiterated that it would designate prisoners to community

12



confinement only “during the last ten percent of the prison sentence being served, not

to exceed six months.” 28 C.F.R. § 570.21 (2005).

The revised rules again resulted in litigation. Five courts of appeal, including

this Court, invalidated the BOP rules that categorically limited RRC placement to the

last 10 percent of the sentence, not to exceed six months. Rodriguez , 541 F.3d at

1184-87. Rodriguez and the other cases invalidating the BOP rules held that

§ 3621(b) gives the agency discretion to place prisoners at any time during the term

of imprisonment, but that discretion is “cabined by further mandatory direction to

consider the five factors enumerated in the statute.” 541 F.3d at 1186 (quoting

Wedelstedt , 477 F.3d at 1165). Accordingly, the rules were invalid because the

categorical exercise of discretion, based only on the length of the sentence remaining,

foreclosed consideration of the enumerated factors. Rodriguez , 541 F.3d at 1187.

C. The BOP’s Categorical Presumption Of No More Than A Six-

Month Community Placement At The End Of The Term Of

Imprisonment5

On April 14, 2009, five days after the SCA was signed into law, the BOP

issued rules that purport to implement the SCA. The April 14th Memorandum

directed staff to disregard the existing regulations and operations memoranda that

restricted RRC placement to the last 10 percent of the term of imprisonment, not to


13



exceed six months. ER 328. The April 14th Memorandum directed staff to make pre-

release decisions pursuant to Program Statement 7310.04, Community Corrections

Center (CCC) Utilization and Transfer Procedure (Dec. 16, 1998), with certain

“adjustments.”

The purported adjustments to Program Statement 7310.04 made by the April

14th Memorandum perpetuated a presumptive limitation to only six months of pre-

release placement, with required approval from both the Warden and the Regional

Director for any deviation:

(D) Regional Director Approval Required for Pre-Release RRC

Placement Beyond Six Months – While the Act makes inmateseligible for a maximum of 12 months pre-release RRCplacements, Bureau experience reflects inmates’ pre-release RRCneeds can usually be accommodated by a placement of six monthsor less. Should staff determine an inmate’s pre-release RRCplacement may require greater than six months, the Warden must

obtain the Regional Director’s written concurrence beforesubmitting the placement to the Community CorrectionsManager.

ER 328. The April 14th Memorandum ordered staff to disregard sections of the

Program Statement that quoted from the repealed § 3624(c), and substituted the

timeline to review RRC placement decisions to be made in advance of the final year

of imprisonment, with a final determination to be made no later than 17-19 months,

instead of 11 to 13 months, prior to release. Id . The April 14th Memorandum also

required consideration of the five-factor criteria set forth in § 3621(b). While

14



implementing the six-month limit, absent extraordinary circumstances and Regional

Director approval, staff were instructed to “approach every individual inmate’s

assessment with the understanding that he/she is now eligible for a maximum of 12

months pre-release RRC placement.” ER 331.

In a public statement 90 days after the SCA’s enactment, the Director of the

BOP claimed that, based on purported research performed by the BOP, halfway house

placement for more than six months caused prisoners to do worse:

[O]ur research that we’ve done for many years reflects that manyoffenders who spend more than six months in a halfway house tend todo worse rather than better. The six months seems to be a limit for mostof the folks, at which time if they go much beyond that, they tend to failmore often than offenders that serve up to six months.

U.S. Sentencing Comm’n, Symposium on Alternatives to Incarceration at 267 (July

14-15, 2008) (statement of Harry Lappin, Director, Federal Bureau of Prisons).

Director Lappin also explained that financial considerations factored into the policy,

but ignored the minimal cost of home detention – $3,621.64 per year. Id .

On November 14, 2009, the BOP issued another memorandum – the November

14th Memorandum – to provide guidance to BOP “staff for considering and

responding to inmate requests for transfer to RRCs, when more than 12-months

remain from their projected release date.” ER 338. Staff were advised to avoid

telling prisoners they were “ineligible” when responding to requests for transfer, but

15



reminded staff that RRC’s were for reentry purposes. Id . The memorandum

reiterated the six-month limitation, absent extraordinary circumstances.

D. The Record Regarding Implementation Of §§ 3621(b) And3624(c)6

Although Congress directed the BOP to issue regulations no later than 90 days

after enactment of the SCA, 18 U.S.C. § 3624(c)(6), or by July 8, 2008, the BOP did

not publish its first regulations in the Federal Register until over 100 days after the

congressional deadline. 73 Fed.Reg. 62440 (Oct. 21, 2008). ER 341. The BOP made

the new regulation immediately effective as an interim rule, claiming that good cause

existed for foregoing notice-and-comment as required under 5 U.S.C. § 553(b). The

BOP explained that it was foregoing the 30-day period required under 5 U.S.C.

§ 553(d) before a regulation can be effective because of the SCA time frame and

potential benefit to inmates. Id . The regulation did not address the six-month

limitation set forth in the April 14th Memorandum or otherwise describe the BOP’s

procedures and criteria for designating inmates to pre-release community confinement

or home detention to ensure placement “of sufficient duration to provide the greatest

likelihood of successful reintegration into the community” under § 3624(c)(6).

See Pierce at 18-24; Sass at 21-26.6

16



The new regulation traced the new statute’s language on time frame and

community placement. The new regulation provided no guidance beyond the

statutory language regarding implementation of the SCA. ER 344. The BOP

explained that the new § 570.22 “informs inmates that they will be considered for pre-

release community confinement in a manner consistent with 18 U.S.C. § 3621(b),

determined on an individualized basis, and of duration sufficient to optimize the

likelihood of successful reintegration into the community,” and “reflects the

requirements of the Second Chance Act regarding the promulgation of these

regulations.” Id . The regulation and Federal Register notice are silent regarding the

BOP’s authority under § 3621(b) to transfer prisoners to community confinement at

any time during the term of imprisonment.

Mr. Sacora incorporated discovery in related litigation as supporting exhibits.

In response to requests for the empirical data supporting the six-month presumption,

the BOP provided an e-mail establishing that the six-month limit was not empirically

based:

I am trying to find out if there is any data to substantiate the length of time in a “halfway house” placement is optimally x number of months.

That is, was the “6-month” period literally one of tradition, or was theresome data-driven or empirical basis for that time frame? At one time,many years ago, I remember that there were studies that indicatedrecidivism would be greatest within the first few weeks – 90 days – andthat it would tend to drop off after the initial period.

17



I worked on one of those studies but could not locate a copy.

– I’ve done a lot of searching of the literature,but so far have not found

anything to confirm that the “6-months” was empirically based .

ER 345 (emphasis added). The BOP provided seven studies, none of which

addressed whether RRC placements greater than six months were counterproductive.

ER 346. To the contrary, the provided studies support greater, rather than lesser,

RRC and community placements, including a study finding that longer RRC

placements resulted in decreased recidivism. ER 408.

The discovery revealed that the BOP has almost uniformly foreclosed greater

than six-month RRC placements throughout the country, with no approvals of over

six months from Sheridan:

At Sheridan, 74 requests were rejected while only three were forwardedto the Region for approval, and none of those were approved. The

Western Region rejected all but one request for greater than six months,and that was in response to a district court order strongly recommendingan eleven-month RRC placement based on medical grounds, which theBOP extended to only eight months.

ER 414, 419-21. The only region that allowed greater than six months was the

Northcentral Region, approving 37 of 41 requests, the majority of which were from

FCI Duluth. ER 413. The BOP provided no discovery demonstrating that six-month

RRC placements followed by six months of home confinement, or any earlier

commencement of RRCs, was even contemplated. The discovery also revealed that

18



requests for placements of greater than six months are rejected based on inconsistent

and often contradictory grounds.

E. Second Chance Act Litigation

As with prior changes to community placement policies, prisoners across the

country filed petitions challenging the BOP’s implementation of the SCA. Many of

these petitions were denied on procedural grounds such as failure to exhaust

administrative remedies (Garza v. Davis, 596 F.3d 1198, 1203-04 (10th Cir. 2010)),

ripeness (Sass v. Thomas, 2009 WL 2230759, *4-6 (D. Or. July 23, 2009); Walker v.

Copenhaver , 2010 WL 604674, *1 (N.D. Cal. Feb. 19, 2010)), and mootness ( Demis

v. Sniezek , 558 F.3d 508, 513 (6th Cir. 2009); Pierce v. Thomas, 2009 WL 2476606

(D. Or. Aug. 10, 2009)).

In Strong v. Schultz , 599 F. Supp. 2d 556 (D. N.J . 2009), the court issued one

of the first decisions regarding the SCA. Upon review of the statutory language, the

court concluded that “[o]bviously, an underlying premise of these amendments is that

the more time an inmate spends in a CCC before he or she is released from BOP

custody, the more likely it is that his or her community reintegration will be

successful.” Id . at 562. Based on this conclusion,Strong held that the SCA created

a 12-month community placement presumption: “Congress intended that each inmate

would be considered for a placement of the longest duration – 12 months – although

19



the ultimate placement may be less than 12 months, if warranted by application of the

§ 3621(b) factors.” Id . The court invalidated the BOP’s SCA rules instructing staff

that pre-release placement needs can usually be accommodated by a placement of six

months or less as inconsistent with the SCA amendments. Id . at 563.

Similarly, in Krueger v. Martinez , 665 F. Supp.2d 477, 483 (M.D. Pa. 2009),

the court found that Congress intended that each inmate be considered for the full 12

months of community corrections, without the six-month limitation that is “contrary

to the purpose of the Second Chance Act.” Given that the six-month limitation was

unsupported by the statutory text, the court found no basis for deference to the

agency. Id . at 484 n.3.

In McGee v. Thomas, 2009 WL 2182385 (D. Or. July 22, 2009), Judge Marsh

reached a different conclusion. The court found the SCA amendments “ambiguous

with respect to whether the § 3621(b) factors are exhaustive.” McGee, supra, at *5.

In deferring to the BOP’s position, the court noted that the language of the statute

required only that the BOP “consider placing inmates in an RRC for up to 12

months,” that under § 3624(c) the BOP may consider RRC as a suitable placement,

but does not require such placements, and that the duty to consider RRC placements

is limited “to the extent practicable.” McGee, supra, at *5-6 (emphasis in original).

20



F. The District Court Opinion

On June 16, 2010, the district court issued an opinion and order granting in part

and denying in part the amended petition. ER 2. The court found that the BOP

violated §§ 553(b) and (d) of the APA in promulgating its regulation and enjoined the

use of the regulation. ER 1. The court denied relief on the remaining issues, finding

that the memoranda were interpretive and did not violation the relevant statutes.

Although this Court provides de novo review, several factual predicates of the

opinion need clarification.

The district court stated that the class sought a “guarantee” of a 12-month

placement. ER 11 (the authorizing statutes “do not guarantee a pre-release placement,

and certainly does not guarantee a 12-month placement.”); see also ER 14 (statute

does not “unambiguously guarantee” 12 months with less depending on § 3621(b)

factors). In contrast, the petitioners sought unprejudged consideration of 12 months,

objecting to the BOP’s six-month limitation on community placement. See, e.g., ER

23 (“The ‘ordinary or natural’ meaning of the statutory expansion of community

corrections from six to twelve months is that prisoners should be considered for the

full time available without prejudgment regarding the available time or duration.”);

ER 25 (“[T]he statute as a whole anticipates the starting point for community

corrections placements be twelve months, with less warranted based on the factors

21



in § 3621(b)”); ER 27 (“Congress doubled the time for mandatory consideration of

prerelease custody.”) (emphasis added). The distinction between a “guarantee” and

fair consideration of the full 12 months is important in this Court’s BOP precedent.

See Serrato v. Clark , 486 F.3d 560, 566 (9th Cir. 2007) (“A prisoner’s right to

consideration for early release is a valuable one that we have not hesitated to

protect.”) (emphasis in original) (quotingCort v. Crabtree, 113 F.3d 1081, 1085 (9th

Cir. 1997)).

The district court incorrectly claimed that the petitioners sought “12 months of

RRC time, in addition to six months in home detention.” ER 13. On the contrary, the

petitioners merely pointed out that the BOP failed to consider starting the halfway

house earlier to allow maximum use of home detention within the 12 months

referenced in § 3624(c). ER 241 (“Even with a six-month limitation . . . there is still

no reason not to commence transfer to community corrections at twelve months in

order to commence home detention at six months.”). The petitioners never asserted

that § 3624(c) required consideration of 18 months of community corrections.

The district court also assumed that the statutory language – placements of

“sufficient duration to provide the greatest likelihood of success” – was self-

explanatory. ER 15. Similarly, the court construed the petitioners’ position on the

November memorandum to permit “daily transfer requests,” ER 18, where the only

22



position was that, when the BOP did make a transfer decision, the standard that was

applied had to be properly promulgated and consistent with statute.

Finding the statutes ambiguous with respect to what factors the BOP may

consider in addition to those enumerated in § 3621(b), the district court reviewed the

April and November Memoranda under Skidmore v. Swift & Co., 323 U.S. 134

(1944). The court concluded that “the April Memorandum as a whole reveals its

reasonableness and persuasiveness,” and that requiring the Regional Director’s

approval for placements greater than six months was rational given the “allocation of

limited available prison resources.” ER 15-16. According to the district court, the

“thoroughness and persuasiveness of the BOP policy is evident in the November

Memorandum” because “responding to what could be daily transfer requests would

quickly overwhelm and unduly burden BOP staff,” ER 17-19, distinguishing this

Court’s Rodriguez decision because these rules did not “contain the same categorical

exclusion struck down in Rodriguez .” ER 19.

After finding review of BOP rulemaking and adherence to statutes was

appropriate, the district court found that the BOP violated the APA by failing to

subject its regulation to notice-and-comment without good cause, rendering the

regulation invalid. ER 20-21. However, the court found that the April and November

Memoranda and Program Statement 7310.04 were internal agency guidelines, akin

23



to interpretive rules, to which the notice-and-comment provisions do not apply. ER

28-29. Additionally, the court found that the memoranda and program statement

satisfied the § 706(2)(A) requirements because “it is inherently logical that an internal

agency guideline that directs staff in exercising its discretion would contain a more

limited analysis of its justification than rules which have undergone notice and

comment.” ER 34. The district court refused to consider the extensive evidence in

support of the petitioners’ claims, asserting the evidence was beyond the scope of the

administrative record. ER 34.

SUMMARY OF ARGUMENT

In enacting the SCA, Congress required that prisoners should be placed in

community corrections for periods that would ensure the greatest likelihood of

successful reintegration. To that end, § 3624(c) was amended to double the amount

of time for community placements from six months to one year, and the BOP was

instructed to revise its rules to facilitate prisoner reentry. Rather than fully comply

with the SCA, the BOP promulgated rules that gave only lip service to the legislation,

perpetuating an effective six-month limitation on community placements. The SCA

rules are procedurally invalid under the APA and substantively violate the relevant

statutes.

24



First, the district court correctly held that the BOP violated § 553(b) and (d) in

promulgating its SCA regulation. This finding should have resulted in relief for the

petitioners, but the district court allowed the six-month rule – which was not in the

regulation – to be applied against the petitioners through memoranda and program

statements. This was error under the APA for two reasons: a) because Congress

explicitly directed that the standards for duration of community corrections to achieve

the greatest likelihood of success be promulgated by notice-and-comment rule

making, the BOP lacked authority to circumvent that instruction through the six-

month memoranda; and b) under the functional analysis this Court uses to determine

whether a rule is interpretive or substantive, the six-month rules are substantive and

therefore invalid for failure to comply with § 553(b).

Second, the BOP’s actions were invalid under § 706 of the APA. The

memoranda and program statements articulate no data or reasoning to support the six-

month rule that essentially negates the SCA’s doubling of available time in

community corrections. In fact, the petitioners established that the six-month rule is

based on a myth: the BOP’s research department had to admit there was no evidence

that the rules were empirically based. The BOP also failed to establish consideration

of the most obvious ways to enhance re-entry: earlier transfer to RRCs to enable

appropriate prisoners to move more quickly to home detention, where the costs of

25



confinement would be a fraction of the costs for greater custody and reintegration into

the community could be accelerated and enhanced.

Third, as two district courts have held even without discovery, the six-month

rule is inconsistent with the 12-month availability of community corrections under

the SCA. The undefined and restrictive requirement of extraordinary circumstances

in order to obtain more than six months’ community confinement is inconsistent with

§ 3624(c), alone as well as in context, especially given the full and fair consideration

required for any transfer under § 3621(b).

Fourth, for those persons who are not within a year of the projected release

date, the six-month rules violate the face of the statute, as construed by this Court in

Rodriguez . The district court’s failure to follow the reasoning of Rodriguez , instead

relying on authority rejected in Rodriguez , violated both § 3621(b) and the doctrine

of stare decisis.

ARGUMENT

I. The Prisoners’ Class Is Entitled To Relief Based On The District Court’s

Finding That The Bureau Of Prisons, By Failing To Provide Notice-And-

Comment, Violated § 553(b) Of The Administrative Procedure Act In

Promulgating The Second Chance Act Regulation.

Congress expressly required that the BOP promulgate substantive rules for the

administration of the SCA. In § 3624(c)(6), the BOP was required to promulgate

regulations, following notice-and-comment, within 90 days that would achieve three

26



goals: placement in community facilities would be consistent with § 3621(b);

determinations would be made on an individual basis; and time in community

corrections would be “of sufficient duration to provide the greatest likelihood of

successful reintegration into the community.” § 3624(c)(6). The district court

correctly found that the BOP regulation was not only tardy by 100 days but violated

the APA’s notice-and-comment requirement. The APA violation applies to the

memoranda and program statement for two reasons. First, Congress clearly required

that the BOP promulgate through notice-and-comment the rules regarding the

“sufficient duration” of the time in community corrections. Second, under this

Court’s functional analysis whether a rule is substantive or interpretive, the

memoranda and program statement are substantive rules.

A. Congress Expressly Required That The Relevant Aspects Of

The Second Chance Act Be Implemented Through FormalRule-Making.

Congress was unequivocal in its directive to the BOP to implement the SCA

through formal rulemaking processes. Section 3624 (c)(6) provides that the BOP,

“not later than 90 days after” enactment, “shall issue regulations” that ensure

community placement “of sufficient duration to provide the greatest likelihood of

successful reintegration into the community.” 18 U.S.C. § 3624(c)(6)(C). By

requiring the BOP to proceed through formal rule-making, Congress decided the rules

27



implementing the SCA – the memoranda and program statement – require notice-and-

comment: “It is fair to assume generally that Congress contemplates administrative

action with the effect of law when it provides for a relatively formal administrative

procedure tending to foster the fairness and deliberation that should underlie a

pronouncement of such force.” United States v. Mead Corp., 533 U.S. 218,

230 (2001); accord Marathon Oil Co. v. Lujan, 937 F.2d 498, 500 (10th Cir. 1991)

(“Administrative agencies do not possess the discretion to avoid discharging the

duties that Congress intended them to perform.”) (citing Public Citizen Health

Research Group v. Comm’r, FDA, 740 F.2d 21, 32 (D.C. Cir.1984)). Congress

expressly required the BOP to solicit input from those directly affected by the rules

to ensure the greatest likelihood of successful integration:

“In enacting the APA, Congress made a judgment that notions of

fairness and informed administrative decisionmaking require that agencydecision be made only after affording interested persons notice and anopportunity to comment.” Chrysler Corp. v. Brown, 441 U.S. 281, 316(1979); see also Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479,1485 (9th Cir. 1992) (“[T]he notice and comment requirements . . . aredesigned to ensure public participation in rulemaking.”). It is antitheticalto the structure and purpose of the APA for an agency to implement arule first, and then seek comment later.

Paulsen, 413 F.3d at 1004-05. The BOP violated these principles in promulgating

the Memoranda implementing the SCA.

28



The district court correctly ruled that the regulation that purports to implement

the SCA is invalid for failure to adhere to the most basic principles of notice-and-

comment. ER 1; see also Chrysler Corp., 441 U.S. at 316; Paulsen, 413 F.3d at

1004-05; Buschmann v. Schweiker , 676 F.2d 352, 358 (9th Cir. 1982). Moreover, the

regulation is merely a watered-down version of the statute, providing no guidance on

how the agency intends to exercise its discretion. As held inGonzales v. Oregon, 546

U.S. 243, 257 (2006), “the near-equivalence of the statute and regulation belies” any

agency argument for deference. The regulation does not fulfill the expressed purpose

§ 3624(c)(6) – to make rules that address how to ensure the greatest likelihood of

successful reintegration into the community.

The district court erred in upholding the memoranda and program statement

independent of the regulation because § 3624(c)(6) expressly required that the

standards that they implemented be subject to formal rule-making. As the petitioners

argued, Congress explicitly decided that such rules were, in effect, substantive. ER

251 (“By requiring the promulgation of regulations through notice-and-comment,

Congress clearly intended that the BOP not rely on policy statements or internal

memoranda in implementing the SCA, but rather on substantive rules, especially

regarding the duration of the time in community corrections.”). Congress required

that the substance of how BOP personnel implemented the SCA – here with a

29



virtually unrebuttable six-month maximum community placement – be subject to

formal rulemaking. The BOP failed to do so.

Nothing in the statute suggests that Congress intended the BOP to administer

the SCA through informal processes. The statute does not merely authorize the BOP

to promulgate regulations; the statute mandates that the BOP “shall” promulgate

regulations, requiring it to solicit comments from those affected by the SCA regarding

the substantive changes wrought by the SCA. The BOP had no option other than to

engage in formal rule-making in developing its rules and policies implementing the

SCA.

Further, by requiring the BOP to proceed through notice-and-comment,

Congress decided that the BOP’s rules implementing the SCA were substantive. The

plain language of the notice-and-comment provisions of the APA distinguishes

between substantive rules subject to notice-and-comment and interpretive rules and

general statements of policy, which are not. 5 U.S.C. § 553(a) and (b). By directing

the BOP to issue regulations, Congress clearly rejected informal rules regarding the

duration of community corrections. The memoranda and program statement

implementing the SCA’s change in the duration of community corrections are

statutorily substantive and, therefore, invalid for failure to comply with § 553(b).

30



B. Even If Formal Rule-Making Were Not Expressly Mandated,

The Memoranda And Program Statement Promulgated

Without Formal Rule-Making Are Substantive Or Legislative

Rules Requiring Notice-And-Comment Under Well-

Established Precedent Of This Court.

Alternatively, even disregarding the statutory command, this Court’s precedent

requires that, under a functional analysis, the rules be considered substantive

regardless of the BOP’s characterization of the SCA rules as interpretative. The SCA

rules limiting community placement to six months in the absence of extraordinary or

compelling circumstances, and the concurrence of the Regional Director, are classic

substantive rules subject to the notice-and-comment provisions of the APA. Their

substantive nature is demonstrated conclusively by the BOP’s own documents

demonstrating that prisoners virtually never receive more than six months’

community confinement, with zero such placements from Sheridan. ER 66-68. As

substantive rules, they are invalid because they were not promulgated pursuant to

notice-and-comment under § 553(b).

Rules, regardless of the label the agency applies, may be substantive depending

on the functional effect on agency action. Christensen v. Harris County, 529 U.S.

576, 588 (2000) (“To defer to the agency’s position would be to permit the agency,

under the guise of interpreting a regulation, to createde facto a new regulation.”);

Colwell v. Dep’t of Health and Human Services, 558 F.3d 1112, 1125 (9th Cir. 2009).

31



Whether a rule is substantive, and therefore requires notice-and-comment, depends

on the effect of the rule, not the agency’s characterization of the rule. Yesler v.

Cisneros, 37 F.3d 442, 449 (9th Cir. 1994) (“An agency cannot avoid the requirement

of notice-and-comment rulemaking simply by characterizing its decision as an

adjudication”). InGunderson v. Hood , 268 F.3d 1149, 1154 n.27 (9th Cir. 2001), this

Court rejected the BOP’s argument that, because program statements are by self-

definition interpretive, they are exempt from notice-and-comment:

This circular argument simply begs the question. Program Statementsare supposed to be interpretive, but that does not mean that they alwaysare. The label an agency attaches to its pronouncements is clearly notdispositive.

Accord Hemp Indust. Assn. v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003).

Substantive rules “have the force and effect of law,” while “interpretive rules”

and “general statements of policy” “do not have the force and effect of law.”

Chrysler Corp., 441 U.S. at 302 n.31 (citation omitted); see also Shalala v. Guernsey

Mem’l Hosp., 514 U.S. 87, 99 (1995). A substantive rule is one that establishes a

“binding norm” on agency officials’ exercise of discretion. In Mada-Luna v.

Fitzpatrick , this Court explained the difference between a policy statement and a

substantive rule, focusing on the difference between mere guidance and a directive,

as in the present case, that “narrowly limits administrative discretion” or establishes

a “ binding norm “ that “so fills out the statutory scheme that upon application one

32



need only determine whether a given case is within the rule’s criterion,” effectively

replacing agency discretion with a new “binding rule of substantive law.” 813 F.2d

1006, 1013-14 (9th Cir. 1987) (quoting Ryder Truck Lines, Inc. v. United States, 716

F.2d 1369, 1377 (11th Cir. 1983)). “In these cases, notice-and-comment rulemaking

proceedings are required, as they would be for any other substantive rule, and they

will represent the only opportunity for parties to challenge the policy determinations

upon which the new rule is based.” Id .; see also Pacific Gas and Electric Co. v.

Federal Power Commission, 506 F.2d 33, 38-39 (D.C. Cir. 1974) (“An agency cannot

escape its responsibility to present evidence and reasoning supporting its substantive

rules by announcing binding precedent in the form of a general statement of policy.”).

The SCA provides binding directives for exercise of BOP discretion: the

exercise of discretion must ensure the greatest likelihood of successful reintegration.

The memoranda and program statement limit and control the BOP’s exercise of

discretion and, thus, are substantive rules subject to the APA notice-and-comment

requirements. Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1113-14 (D.C. Cir. 1974)

(substantive rules control the manner and circumstances in which the agency will

exercise its plenary power). The BOP’s rules meet all the criteria requiring notice-

and-comment because they set forth a list of criteria to govern such placement that

are (1) binding, that is, mandatory upon the officials to whom they are addressed, (2)

33



exhaustive, in the sense that if none of the criteria is satisfied, the prison officials are

forbidden act; and (3) definite, in the sense that none of the criteria is so open-ended

that it leaves the officials with essentially limitless discretion. Smith v. Shettle, 946

F.2d 1250, 1252 (7th Cir. 1991).

This is not the case where the “list is open-ended – the criteria in it merely

illustrative and the officials free to [make decisions] for a reason that does not appear

on the list, or perhaps for no reason at all – or if any of the criteria on the list are

open-ended in the same sense.” Shettle, 946 F.2d at 1252. The six-month rule’s

substantive nature is reflected in the instruction that staff may not approve prisoners

for participation in community corrections for longer than six months unless there are

extraordinary circumstances. The memoranda are replete with references to “staff

shall” or “staff must.” This hardly suggests that BOP staff are at liberty to ignore the

criteria. And the proof is in the practice: no Sheridan prisoners are in fact approved

for more than six months community corrections.

The SCA rules do not explain something the statute already requires – nothing

in § 3621(b) and § 3624(c) even hints that placements are limited to six months

absent extraordinary circumstances. Rather, to track the statutes, the rules would

require a presumption that pre-release placements provided for the maximum amount

of statutorily available time of community placement unless the § 3621(b) factors

34



counseled otherwise, and would not limit transfer decisions under § 3621(b) by the

policies governing pre-release placements. Because no exception to the notice-and-

comment requirements apply, the BOP’s rules implementing the SCA are invalid.

II. The Bureau of Prisons Violated § 706 Of The Administrative Procedure

Act By Promulgating Its Six-Month Rule For Community Corrections

Without Adequate Empirical Support And Rationale.

The SCA rules are invalid under 5 U.S.C. § 706(2)(A) because the BOP failed

to articulate a sufficient rationale and provide any basis on the record for adopting a

presumptive maximum of six months community confinement in the rulemaking

process. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

41 (1983); Crickon, 579 F.3d at 983; Arrington, 516 F.3d at 1114. Not only does the

administrative record fail to provide any rationale, the uncontroverted evidence

proves that no empirical data supports the counterintuitive claim that more

community corrections is counterproductive.7

A. The Bureau Of Prisons Promulgated The Six-Month Rule In

The Absence Of Empirical Support, Based On Factual Errors,

And Without Sufficient Articulation Of A Rationale.

The Supreme Court provided the analytic framework for application of § 706

of the APA in State Farm. 463 U.S. at 41. In upholding the decision of the lower

court that struck down new rules under § 706, the Supreme Court held that, when an


35



agency adopts a rule, the agency is required to “examine the relevant data and

articulate a satisfactory explanation for its action including a ‘rational connection

between the facts found and the choice made.’”State Farm, 463 U.S. at 43 (quoting

Burlington Truck Lines, Inc., 371 U.S. 156, 168 (1962). Section 706 applies to

“agency action,” which includes which includes any “agency statement of general or

particular applicability and future effect designed to implement, interpret, or prescribe

law or policy.” 5 U.S.C. § 551(4); see Crickon, 579 F.3d at 988 n.11 (finding that

BOP program statements and change notices, as well as the formal regulation,

violated § 706).

In the present case, the petitioners through discovery established that no

“relevant data,” required by State Farm, supported the six-month norm. On the

contrary, the BOP’s own research department said, that there is not “anything to

confirm that the ‘6-months’ was empirically based.” ER 345; see Crickon, 579 F.3d

at 985 (the lack of research studies supporting the BOP’s position supported the rule’s

invalidity under § 706). In fact, the Director’s claim that the rule was based on “our

research” ( supra at 17), contrasted with the admission that the rule was not

“empirically based,” establishes a factual error that alone should invalidate the rules

for violation of § 706(2)(A). Crickon, 579 F.3d at 986; Nat’l Res. Def. Council v.

U.S. Forest Serv., 421 F.3d 797, 816 (9th Cir. 2005) (the agency’s “reliance on an

36



important mistake in fact” rendered the agency action “arbitrary and capricious in

violation of the APA.”).

The agency must also “cogently explain why it has exercised its discretion in

a given manner,” and the agency’s explanation must be sufficient to enable a

reviewing court “to conclude that the [agency’s action] was the product of reasoned

decision making.” State Farm, 463 U.S. at 48-49, 52; Arrington, 516 F.3d at 1112.

The BOP in the present case provided no reasoning in support of minimizing the time

in community corrections and failing to allow full and unprejudged consideration of

12 months in community corrections.

An agency rule is also arbitrary and capricious if the agency relied on factors

Congress did not intend it to consider, “entirely failed to consider an important aspect

of the problem,” offered an explanation inconsistent with the evidence before the

agency, or provided a rationale “so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43;

accord Arrington, 516 F.3d at 1112-13; Nw. Envtl. Def. Ctr. v. BPA, 477 F.3d 668,

687-88 (9th Cir. 2004). Even if a six-month limitation on halfway house placements

had some empirical support, the SCA rules would still violate § 706(2)(A) for failure

to consider an essential factor: with a six-month limitation of halfway houses, there

is still no reason not to commence transfer to community corrections at 12 months in

37



order to commence home detention at six months. A top BOP official admitted that

the SCA does not bar such a norm for transfer to community corrections. U.S.

Sentencing Comm’n, Symposium on Alternatives to Incarceration, at 286-87 (July

14-15, 2008) (statement of Joseph Vroegh). Nevertheless, the BOP provided no

indication this obvious approach was considered.

Further, the relevant data – as well as statutory language – militates against the

six-month limit. The SCA interests in promoting successful reentry and in protecting

the public fisc strongly support providing the maximum time in community

corrections consistent with public safety. The SCA’s emphasis on greater utilization

of community resources has a common-sense basis: transition to a halfway house,

then home detention, for the maximum time promotes family reunification,

establishment of employment, and earlier participation in community-based treatment

and supervision that “provides the greatest likelihood of successful reintegration into

the community.”

The BOP also failed to consider potential the massive cost savings to the

taxpayers. Congress expressed concern regarding prison costs and incarceration rates

in enacting the SCA. By failing to consider earlier entry to community programs, the

BOP failed to consider the huge savings of custody costs: home detention costs only

$3,621.64 per year, compared with $22,871.00 for a halfway house bed, and $24,922,

38



for a prison bed. ER 436. Director Lappin’s comment that, because the cost of

halfway house placement exceeds that of minimum security prisons, it is cost

beneficial to limit community corrections placement, ignores the reality that some

prisoners transfer directly from higher security institutions, which are more expensive

than minimum security facilities. Further, the BOP failed to consider that up to six

months in community corrections may be spent on home confinement, which costs

only $3,621.64 per year.

The violation of § 706 in this case had overwhelming consequences for the

class members. As established in the discovery, the BOP staff consistently applied

the six-month limitation to bar any prisoner from receiving more than six months

community corrections. Contrary to the statutory expectation, virtually nothing

changed. Despite the doubling of the available time in community corrections, no

significant increase occurred. Congress spoke clearly – within 90 days the BOP

needed to change its rules and regulations that limited community placement to six

months to ensure greater utilization of community corrections: “The Attorney

General shall take such steps as are necessary to modify the procedures and policies

of the Department of Justice with respect to the transition of offenders from the

custody of the Bureau of Prisons to the community.” ER 282 (emphasis added). The

BOP’s six-month rule violatedState Farm’s norms, as this Court has applied them

39



in Arrington and Crickon, in a manner that is both unfair and inconsistent with

congressional intent to increase the duration of community placements.

B. The District Court Incorrectly Disregarded The AffirmativeEvidence Supplied By The Parties That Documented The

§ 706 Violation.

The district court ruled that “the data submitted by the parties concerning the

number of RRC placements” was “not helpful” and it refused to consider other

evidence as “outside the administrative record.” ER 34. In the absence of such data,

it ruled that the BOP rules were “inherently logical.” Id . The application of State

Farm and this Court’s precedent requires that the information obtained in discovery

be considered because, without it, the analysis provided in those cases cannot be

implemented.

The district court erroneously relied on the uncontroversial proposition that an

agency cannot rely on post hoc rationales to justify its rules. See Friends of the

Clearwater v. Dombeck , 222 F.3d 552, 560 (9th Cir. 2000) (“[T]he agency must

justify its final action by reference to the reasons it considered at the time it acted.”).8

Although the district court citedClearwater , the district court failed to consider its

statement that extra-record evidence “must be considered” when relevant.

In Clearwater , the agency attempted to present extra-record evidence that it8

had taken action after the onset of legal proceedings; thus, that evidence was“relevant to the question of whether relief should be granted.”

40



Clearwater , 222 F.3d at 561. Such information is the reason for the discovery that

is necessary to reveal whether the agency made an error of fact or otherwise failed to

consider an important aspect of the issue. See, e.g., Love v. Thomas, 858 F.2d 1347,

1356 (9th Cir. 1988) (court could review additional material to explain agency action,

factors the agency considered, and the sufficiency of the agency’s consideration);

Asarco, Inc. v. E.P.A., 616 F.2d 1153, 1160 (9th Cir. 1980) (“[I]t is both unrealistic

and unwise to ‘straightjacket’ the reviewing court with the administrative record. It

will often be impossible . . . for the court to determine whether the agency took into

consideration all relevant factors unless it looks outside the record to determine what

matters the agency should have considered but did not.”); Assn. of Pac. Fisheries v.

E.P.A., 615 F.2d 794, 812 (9th Cir. 1980) (“If the studies showed that the Agency

proceeded upon assumptions that were entirely fictional or utterly without scientific

support, then post-decisional data might be utilized by the party challenging the

regulation.”).

The district court’s decision to review only the limited record the BOP

allegedly considered in creating the six-month rule defies common sense. The

extensive discovery established that the six-month rule was determinative of the

availability of community corrections and that the rule lacked empirical support. By

comparing the evidence – or lack of – that the BOP considered, the reviewing court

41



could find the BOP failed to fulfill its obligations underState Farm and § 706(2)(A).

In any event, even on the administrative record alone, the BOP six-month rule failed

theState Farm test.

III. By Continuing Its Six-Month Rule Without Substantial Change, The

Bureau Of Prisons Violated Its Statutory Obligation Under 18 U.S.C.

§ 3624(c) To Expand Community Corrections To Include Full And Fair

Consideration Of 12 Months In Community Custody.

Although Congress made significant changes to § 3624(c), and provided the

BOP with explicit directives as to how those changes would be implemented, the

BOP merely perpetuated its prior practices without material change. Because the

SCA rules – the regulation, memoranda, and program statement – simply recapitulate

the pre-SCA rule of no more than six months community placement absent

extraordinary circumstances, they violate the plain language of the statute: the BOP

violated its statutory obligation under 18 U.S.C. § 3624(c) to expand its community

corrections program to include full and fair consideration of 12 months in halfway

house or home detention forms of custody, and the BOP acted inconsistently with the

plain text of the statute by imposing a six-month limitation in the absence of

extraordinary circumstances.9

Pierce at 46-48.9

42



A. The Plain Language Of § 3624(c), Which Created An

Unfettered 12-Month Availability For Pre-Release Placement,

Is Inconsistent With The BOP’s Six-Month Rule.

The first step in analyzing the validity of agency action is to determine whether

the action is inconsistent with the authorizing statute that has spoken on the subject.

Chevron U.S.A. Inc. v. Natural Res. Def. Council , 467 U.S. 837, 842-43 (1984). The

“ordinary or natural” meaning of the statutory expansion of community corrections

from six to 12 months must be that prisoners be considered for the full time available

without prejudgment regarding the available time or duration. See Leocal v. Ashcroft ,

543 U.S. 1, 9 (2004) (statutory language should be given its “ordinary or natural”

meaning). By imposing a six-month limitation in the absence of extraordinary

circumstances, the BOP acted inconsistently with the plain text of the statute.

As the Strong court observed in holding that the rules directly contradict

Congress’s mandate for longer community placements:

By increasing the placement period to 12 months and requiring the BOPto ensure that placements are long enough to provide “the greatestlikelihood of successful reintegration,” Congress intended that eachinmate would be considered for a placement of the longest duration – 12months – although the ultimate placement may be less than 12 months,if warranted by application of the § 3621(b) factors, i.e., the nature and

circumstances of the offense, the inmate’s history and pertinentcharacteristics, and any statement by the sentencing court.

43



599 F. Supp. 2d at 562. Similarly, in Krueger , the court found, without discovery,

that the six-month rule “functionally placed a lid on the [staff’s] discretion.” 665 F.

Supp. 2d at 483. The six-month rule violated the SCA:

The BOP’s memorandum add additional hurdles that find no support inthe text of the Second Chance Act. While it may be true that any givenprisoner need not be placed in a RRC for longer than six months, it isnot universally true that every prisoner will benefit from the samelimitations. By depriving the initial decision maker of the ability torecommend placement unfettered by a presumptive six month cap, theBOP significantly reduces the possibility of a truly individualizedreview that objectively determines the duration required “to provide the

greatest likelihood of successful reintegration into the community. 18U.S.C. § 3624(c)(6)(C).

Id . The BOP’s rules are invalid because they are not only inconsistent with the SCA

but render it a nullity on the length of pre-release placement.

Strong and Krueger apply the ordinary and natural meaning of the SCA. They

are also consistent with the “fundamental canon of statutory construction that the

words of a statute must be read in their context and with a view to their place in the

overall statutory scheme.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife,

551 U.S. 644, 666 (2007) (citations omitted). The amendment doubling the

maximum pre-release placement must be read in concert with the command that the

BOP’s regulations “shall ensure that placement in a community correctional

facility . . . is . . . of sufficient duration to provide the greatest likelihood of successful

reintegration into the community.” 18 U.S.C. § 3624(c)(6)(C). Accordingly, while

44



this new language may create a ceiling for pre-release placement, the statute as a

whole anticipates that the starting point for community corrections placements be 12

months, with less warranted based on the factors in § 3621(b). The statutory

language and changes do not authorize the BOP to simply continue to limit pre-

release custody to six months.

Moreover, the extraordinary justification standard for exceptions is undefined

in the SCA rules. The only other reference to “extraordinary” justification relates to

18 U.S.C. § 3582(c), where a prisoner with “extraordinary and compelling reasons,”

may have his sentence reduced upon motion of the BOP. 18 U.S.C.

§ 3582(c)(1)(A)(I). The injection of “extraordinary” is especially problematic in10

light of the BOP’s administration of § 3582(c)(1), restricting relief to only those with

lethal medical problems, Reduction in Sentence for Medical Reasons, 71 Fed. Reg.

76619-01 (Dec. 21, 2006), despite the Sentencing Commission’s broader

interpretation in U.S.S.G. §1B1.13. The BOP’s dismal track record for

recommending § 3582(c) reductions presents a clear indication that the “extraordinary

Section 3582(c)(1) provides that, in any case, the court, “upon a motion of 10

the Director of the Bureau of Prisons, may reduce the term of imprisonment (and mayimpose a term of probation or supervised release with or without conditions that doesnot exceed the unserved portion of the original term of imprisonment), afterconsidering the factors set forth in section 3553(a) to the extent that they areapplicable, if it finds that . . . extraordinary and compelling reasons warrant such areduction; . . . .”

45



justification” requirement virtually precludes any consideration beyond a six-month

community placement. In fact, despite Congress’s explicit delegation to the

Commission regarding § 3582(c)(1)(A)(I) in 28 U.S.C. § 994(t), the BOP publicly

and categorically refuses to follow the Commission’s guideline. The use of 11

“extraordinary” for exceptions establishes how the BOP applies the six-month

limitation as a categorical rule.

B. The District Court Erred In Finding That The Statute Was

Ambiguous And According Deference To The BOP.

The district court’s statutory analysis is not only premised on errors as to the

claims raised ( supra at 22-23), the conclusion that the statute is ambiguous with

respect to whether the BOP may consider additional factors to those enumerated in

§ 3621(b) is misplaced.

The district court erred in finding that there was ambiguity in the statute as to

whether the statute required consideration of 12 months’ community corrections

without prejudgment that no more than six months was appropriate. ER 12. The

district court should have exhausted all available means of construction before

determining that the statute was ambiguous on this question. Chevron, 467 U.S. at

843 n.9. Traditional canons of statutory construction simply do not support the

Reduction in Sentence for Medical Reasons, 71 Fed. Reg. 76619-01 (Dec. 21,11

2006).

46



district court’s reading of the statute as ambiguous. For example, the district court

erred in focusing on the first clause of § 3624(c)(6)(C) – that the placement be of

significant duration – and discounted the import of the second clause – to provide the

greatest likelihood of successful reintegration. ER 10.

Although the SCA does not require that community placements be of a certain

duration, it does require that the placements be of sufficient duration to provide the

greatest likelihood of successful integration. Consideration of “costs” and requiring

“extraordinary” circumstances cannot be reconciled with the requirement that, based

on the needs of each individual prisoner, the placement be of sufficient duration to

provide that prisoner with the greatest likelihood of successful reintegration. As a

practical matter the statute indicates that, as the starting point, the optimal duration

of community placement is for a full year.

The district court’s analysis also runs afoul of the rule of the statutory canon

of construction that, when a statute is amended, the amendment is intended to have

meaning in the real world. See United States v. Wilson, 503 U.S. 329, 336 (1992)

(“[W]hen Congress alters the words of a statute, it must intend to change the statute’s

meaning.”). Even if the SCA rules were within the limits of the SCA – which they

are not – the BOP failed to heed Congress’s intent that the change in law have real

and substantial effect, either by creating a new right or withdrawing an existing one.

47



Pierce County, Wash. v. Guillen, 537 U.S. 129, 145 (2003) (citingStone v. INS , 514

U.S. 386, 397(1995)); see also Brewster v. Gage, 280 U.S. 327, 337(1930) (“The

deliberate selection of language so differing from that used in the earlier acts

indicates that a change of law was intended.”); Hiivala v. Wood , 195 F.3d 1098, 1103

(9th Cir.1999) (“When Congress alters the wording of a statute, we presume that

Congress intended a change in the law.”). In Guillen, the Court observed that a

reading of an amended statute to protect what was already protected before the

amendment gave the amendment no “‘real and substantial effect,’ and, accordingly,

cannot be the proper understanding of the statute.” Guillen, 537 U.S. at 145 (quoting

Stone, 514 U.S. at 397).

Congress amended § 3624(c) in three ways that unmistakably call for greater

utilization of community corrections: first, Congress doubled the time for mandatory

consideration of pre-release custody in community corrections from six to 12 months;

second, Congress disapproved of the 10 percent limitation on the time for community

corrections in halfway houses, so prisoners who received less than 60 months are

eligible for the full 12 months; and third, Congress added a separate provision for

home detention maintaining the six months or 10 percent limitation as available in

addition to the time in a halfway house. The SCA rules failed to implement any of

the amendments’ intended changes. Instead, they recapitulate the pre-SCA practice

48



of only theoretical eligibility for more than six months that, while giving lip service

to the statutory command, in practice, denies prisoners community corrections

placement of more than six months.

The SCA rules also directly contradict Congress’s mandate calling for

“improved reentry procedures.” In enacting the SCA, Congress directed the BOP to

“enhance case planning and implementation of reentry programs, policies, and

guidelines, [and] to improve such transition to the community, including placement

of such individuals in community corrections facilities.” ER 282-83 (emphasis

added). Congress also expected that an incentive be added to achieve maximum

allowable time in community confinement. ER 282. Perpetuating the norm of a six-

month maximum community confinement placement neither enhances nor improves

the BOP’s transition programs. The only change wrought by the SCA rules is that a

fraction of the prisoner population – those sentenced to less than five years who

received less than 6 months placement under the 10 percent rule – are now eligible

for a six-month placement – a result already mandated by Rodriguez . 541 F.3d at

1184.

The district court also erred in finding the SCA rules reasonable under

Skidmore based on factors the BOP did not raise or advance. Skidmore deference

must be based on the thoroughness of the BOP’s consideration (although the BOP

49



failed to consider essential factors), the validity of the BOP’s reasoning (although the

BOP acknowledged the rules lacked empirical support), the consistency with earlier

pronouncements (although Congress called for change, the BOP simply continued its

former practice), and those factors which give the BOP the power to persuade

(although directed to engage in formal rule-making, the BOP failed to do so and

provided no reasoning for its effective nullification of the 12-month availability of

mandatory consideration of community corrections). Skidmore, 323 U.S. at 140;

accord United States v. Mead , 533 U.S. 218, 228 (2001). As found in Krueger , the

memoranda provide no basis for Skidmore deference. 665 F. Supp. 2d at 484 n.3.

The district court erred in its conclusory Skidmore references. The guidance

contained in the memoranda and program statement 7310.04 are inconsistent with,

not complementary to, the provisions of the statutes and provide no persuasive

reasoning. Although SCA rules acknowledge the statutes, the virtually irrebuttable

presumption of no more than six months in community corrections are not entitled to

Skidmore respect. Skidmore requires inquiry into not just whether there is discretion

to act, as the district court suggests, but also to the validity and thoroughness of the

agency’s reasoning. The administrative record is bereft of explanation. The

proffered reasons for the six-month limitation – that research showed that prisoners

with longer community placements do worse and that it is less expensive to keep

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people in prison – is contradicted by common sense and the record from discovery

indicating that no such studies exist. Nothing in the administrative record supports

the district court’s reliance onSkidmore.

The district court held that requiring Regional Director approval for extended

RRC placements based on extraordinary circumstances is consistent with § 3621(b)

and “rationally related to one of the mandatory statutory factors governing all

prisoner placements – the allocation of limited available prison resources.” ER 14.

Except in Director Lappin’s comments to Congress stating that RRC placements were

costlier than minimum security prison placement – a statement the district court

expressly stated it did not consider (ER 32) – the record does not indicate that the

allocation of limited available prison resources factored into the BOP’s decision to

perpetuate the prior practice. Under Skidmore, the district court may not supply the

BOP with reasons for the six-month limitation that the agency itself did not proffer.

Moreover, the district court misread § 3621(b)(1) by elevating a single factor

– consideration of “the resources of the facility contemplated” – at the expense of the

statutory imperative that the BOP “shall” ensure that prisoners are placed in RRCs for

a “sufficient duration to provide the greatest likelihood of successful reintegration

into the community.” Section § 3621(b)(1) provides that, in determining an

appropriate and suitable facility that meets the minimum standards of health and

51



habitability for a particular prisoner, the BOP shall consider “the resources of the

facility contemplated” in addition to the other enumerated factors. There is nothing

in the plain language of the statute to conclude that “resources” refers only to bed

space or financial concerns, as the district court suggests. To the contrary,

“resources” should be read to include programming opportunities or medical or

psychological services.

The district court’s analysis also conflicts with this Court, as well as the

majority of circuits to consider the BOP’s obligations under §§ 3621(b) and 3624(c).

This Court has held that the BOP has an affirmative duty to consider prisoners for

pre-release RRC placements and that it must consider each of the factors in § 3621(b)

in making individualized placement decisions. Rodriguez , 541 F.3d at 1184-85. The

SCA should enhance the statutory obligation that each of the § 3621(b) factors be

considered in determining the length of RRC placement, focusing those

considerations on ensuring the greatest likelihood of successful reintegration.

Instead, the district court suggests that allocation of limited resources displaces

consideration of the other factors or frustrates the intent of the SCA that prisoners

spend more, rather than less, time in RRCs.

Although Congress has entrusted the BOP with the management of the prison

population, which includes allocation of resources, the district court was incorrect in

52



concluding that the BOP’s authority is unfettered. ER 14 (“Congress has vested the

BOP with exclusive control over management of its inmate population, specifically

directing consideration of resources.”). To the contrary, even § 3621(b)(1), upon

which the district court relies, cabins the BOP’s discretion over the management of

prisoners because it requires the BOP to individually consider each of the § 3621(b)

factors. Section 3621(b) does not focus on conservation of agency resources –

especially given the added inexpensive home detention – as a factor governing

prisoner placements, and the district court misread the statute when it construed that

as not only a permissible statutory criterion, but a mandatory one that trumps the

enumerated factors.

IV. By Continuing Its Formal Six-Month Rule Without Substantial Change,

The Bureau Of Prisons Violated Its Statutory Obligation Under 18 U.S.C.

§ 3621(b) To Provide Full And Fair Consideration Of Requests For

Transfer To Community Corrections Prior To 12 Months Before TheProjected Release Date As Required By This Court’s Precedent In Smith

v. Rodriguez .

This case presents the same issue resolved in Rodriguez : whether BOP rules

that categorically limit the exercise of discretion to transfer prisoners to community

corrections at any time during the term of imprisonment violated § 3621(b). There,

the BOP denied the prisoner community corrections consideration because he was not

within the last 10 percent of his sentence, despite statutory authorization to transfer

at any time based on five listed factors. Here, class members, represented by

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intervenors Beaman and Sonobe, were denied community corrections consideration

because prisoners are only eligible for RRC consideration for reentry purposes for a

presumptive duration of six months absent extraordinary circumstances – precisely

the same standard applied for pre-release transfers under § 3624(c). In both

Rodriguez and the present case, the BOP categorically limited its discretion under

§ 3621(b) to the time remaining on the sentence by reference to § 3624(c), the pre-

release statute. In both Rodriguez and the present case, this categorical limitation

violated § 3621(b). Under the rules of stare decisis, the district court was not free to

disregard this Court’s governing precedent.12

Under this Court’s controlling precedent, the district court should have held

that the BOP’s policies and practices violated the plain meaning of the relevant

statute. The SCA rules relating to transfers prior to the end of the term of

imprisonment – the November 14th Memorandum and Program Statement 7310.04

– violate § 3621(b) because the six-month limitation and the extraordinary

justification requirement are in effect categorical limitations on the statutory authority

to transfer prisoners at any time based on the enumerated factors.

Sass at 34-41.12

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A. Rodriguez Held That The Statutes Do Not Permit Categorical

Limitations On The Exercise Of Discretion Based On Time

Left To Serve.

In Rodriguez , this Court held that, to meet the statutory requirements, decisions

under § 3621(b) must be made on an individualized basis, not categorically:

We are persuaded that the BOP regulations conflict with the provisionsof § 3621(b). As the Third Circuit decision explained: “While the BOPmay exercise considerable discretion, it must do so using the factors theCongress has specifically enumerated.” Woodall , 432 F.3d at 247. Weagree with the Third Circuit that an “unavoidable conflict” existsbecause the statute requires the BOP to consider five factors in

determining CCC placement, while the regulation provides that theenumerated factors will not be fully considered. Id . at 249. We also

join the Third Circuit in its conclusion that the regulations’ constructionis not “permissible . . . because they fail to take into account Congress’sindications that certain individualized factors . . . should beconsidered . . .” Id. (citation omitted); see also Levine, 455 F.3d at 85(“Categorical rulemaking, like all forms of agency regulation, must beconsistent with unambiguous Congressional instructions . . .”); Fults,442 F.3d at 1091.

Rodriguez , 541 F.3d at 1187. The Court explained that the BOP is “ specfically

required to consider such factors as the resources of the facility considered . . . the

history and characteristics of the prisoner, the statements made by the sentencing

court concerning the purposes of imprisonment in a particular case, any

recommendations as to type of facility made by the court . . . [and only] [a]fter

considering these factors, the Bureau of Prisons may designate the place of

imprisonment.” 541 F.3d at 1187 (quoting S.Rep. No. 98-225, reprinted in 1984

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U.S.C.C.A.N. 3182, 3324-25) (emphasis in original). Because the SCA rules

categorically exclude placements based on a six-month limitation,“they necessarily

fail to apply the mandatory factors listed in § 3621(b) to those inmates” in violation

of Congress’s clear intent for individualized assessment. 541 F.3d at 1187.

B. The District Court Failed To Distinguish Rodriguez .

The district court fundamentally misunderstood the petitioners’ claims in

determining that Rodriguez was distinguishable. The district court found that the

SCA rules “do not contain the same type of categorical exclusion struck down in

Rodriguez,” concluding that “the BOP is providing exactly what Rodriguez requires

– individualized placement decisions under § 3621(b)” because they “permit, through

the demonstration of individual circumstances, extended RRC placements.” ER 17.

The district court misreads Rodriguez . This Court rejected the premise that

residual discretion to make individualized determinations saved the regulation. In

distinguishing Muniz v. Sabol , 517 F.3d 29 (1st Cir. 2008), the Court noted:

The Muniz opinion “emphasize[d] that were the regulation to leave littleor no room for the opportunity of the individualized assessment impliedby Congress, we would regard that as contrary to intent of the statute.”517 F.3d at 39 n. 17. However, that is precisely what the categorical

BOP regulations accomplished – they left “no room for the operation of the individualized assessment” expressly mandated in § 3621(b). Id.We cannot agree with the First Circuit that the categorical failure tocomply with unambiguously expressed Congressional intent can berationalized away.

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governing § 3624(c) end-of-sentence transfers. ER 340 (“An RRC placement beyond

six months should only occur when there are unusual or extraordinary circumstances

justifying such placement, and the Regional Director concurs.”). Additionally, staff

are reminded that “RRCs provide a transitional environment for inmates nearing the

end of their sentences.” ER 340. Thus, while the BOP acknowledges its statutory

obligations, the BOP rules disregard the statutory requirements as identified in

Rodriguez and other Circuits to have considered the matter. Under the BOP’s current

and former rules, the class is effectively precluded from serving any more than the

last six months of their sentences in community corrections.

The district court was not free to disregard the broad bases for this Court’s

precedent in Rodriguez . In an extensive discussion of the principles of binding

authority, this Court held that lower courts may not ignore previous appellate

decisions that are on point:

A district judge may not respectfully (or disrespectfully) disagree withhis learned colleagues on his own court of appeals who have ruled on acontrolling legal issue, or with Supreme Court Justices writing for amajority of the Court. Binding authority within this regime cannot beconsidered and cast aside; it is not merely evidence of what the law is.Rather, caselaw on point is the law. If a court must decide an issue

governed by a prior opinion that constitutes binding authority, the latercourt is bound to reach the same result, even if it considers the ruleunwise or incorrect. Binding authority must be followed unless and untiloverruled by a body competent to do so.

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Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) (emphasis in original). Not

only the holding of this Court but its reasoning and explications of the governing

rules of law must be followed. Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.

2003) (en banc). The district court considered but cast aside this Court’s precedent

in Rodriguez in clear violation of the principles of stare decisis.

CONCLUSION

The SCA rules violate the unambiguous statutory directives that the BOP

change its prior practices that limited community placements to six months absent

extraordinary reasons. The BOP has not done so. Instead, the agency perpetuates the

prior practices without proper justification or process. The SCA rules are invalid and

may not be applied to the members of the class who request transfer to community

placement. For the foregoing reasons, the Court should reverse the district court

decision to the extent it denied the petition and enter an order granting the relief

requested in the second amended petition (ER 60).

Respectfully submitted: August 9, 2010.

/s/ Stephen R. SadyStephen R. Sady

Attorney for Petitioners

On the brief:

Lynn DeffebachResearch & Writing Attorney

59



IN THE UNITED STATES COURT OF APPEALS


TIM RAY SACORA,

Petitioner-Appellant, CA No. 10-35553

LARRY L. BEAMAN, and TODD SONOBE,

Petitioner-Intervenors,

v.

JEFF E. THOMAS, Warden,Federal Prison Camp, Sheridan, Oregon,


STATEMENT OF RELATED CASES

I, Stephen R. Sady, counsel of record for the appellant and intervenor class

representatives, state pursuant to the Ninth Circuit Court of Appeals Rule 28-2.6, that

the consolidated cases of Pierce v. Thomas, No. 09-35781, and Sass v. Thomas,

09-35830, should be deemed related, as should the following cases in which stays

have been requested pending the outcome of the consolidated cases: Clarine v.

60



Thomas, No. 09-35828, Whitfield v. Thomas, No. 09-35825, and Badger v. Thomas,

No. 09-35829.

Dated: August 12, 2010.

/s/ Stephen R. Sady

Stephen R. SadyAttorney for Petitioners

61



IN THE UNITED STATES COURT OF APPEALS


TIM RAY SACORA,

Petitioner-Appellant, CA No. 10-35553

LARRY L. BEAMAN, and TODD SONOBE,

Petitioner-Intervenors,

v.

JEFF E. THOMAS, Warden,Federal Prison Camp, Sheridan, Oregon,


BRIEF FORMAT CERTIFICATION PURSUANT TO FRAP 32(a)(7)(C)AND NINTH CIRCUIT RULE 32-1

Pursuant to FRAP 32(a)(7)(C) and Ninth Circuit Rule 32-1, I certify that the

Opening Brief of Appellant is proportionately spaced, has a typeface of 14 points or

more, and contains 13,653 words, excluding the portions exempted by Fed. R. App.

P. 32(a)(7)(B)(iii), if applicable.

Dated this August 12, 2010.

/s/ Stephen R. Sady

Stephen R. SadyAttorney for Petitioners

62



CERTIFICATE OF SERVICE

I hereby certify that on August 12, 2010, I electronically filed the foregoing

Opening Brief of Appellant with the Clerk of the Court for the United States Court

of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that

service will be accomplished by the appellate CM/ECF system.

/s/ Lisa M. Powell

Lisa M. Powell

Documents

Sacora Bureau of Prisons Violations Federal Defender Oregon