Abbott v Thomas: Bureau of Prisons (BOP) unlawfully executed his sentence

7/28/2019 Abbott v Thomas: Bureau of Prisons (BOP) unlawfully executed his sentence

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No. 12-35801

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHANE AARON ABBOTT,

Petitioner-Appellant,

v.

J. E. THOMAS,

Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the District of Oregon

Portland Division

OPENING BRIEF OF APPELLANT

Stephen R. SadyChief Deputy Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

(503) 326-2123

Attorney for Petitioner-Appellant


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TABLE OF CONTENTS

Page

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

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

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

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

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

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

Statement Of Reviewability And Standard Of Review. . . . . . . . . . . . . . . . . 4

Custody Status.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Statutory History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Regulatory Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. Facts Regarding Mr. Abbott. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

I. Because 18 U.S.C. 3621(e)(1)(C) Unambiguously Requires That All

Eligible Prisoners, As Described In The Definitional Section Of The Statute,Shall Be Provided The Opportunity To Participate In Residential SubstanceAbuse Treatment, The Court Should Invalidate The BOP Rule Excluding From

Residential Treatment Eligible Prisoners With Outstanding Warrants AndOther Impediments To Community Corrections. . . . . . . . . . . . . . . . . . . . . 23

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II. In The Alternative, The Court Should Invalidate the BOPs Rule ExcludingFrom Residential Treatment Eligible Prisoners With Outstanding WarrantsAnd Other Impediments To Participation In Community Corrections Because

The Rule Violates 706 Of The Administrative Procedure Act. . . . . . . . . 28

III. Assuming Eligibility To Participate In Residential Treatment, The Court

Should Invalidate The BOP Rule That Disqualifies Eligible Prisoners WithOutstanding Warrants And Other Impediments To Pre-Release CommunityCorrections From Eligibility For A Sentence Reduction Under 18 U.S.C. 3621(e)(2) Of Up To One Year Because The Rule Violates 706 Of TheAdministrative Procedure Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

IV. The District Courts Statutory And Administrative Law Analyses Failed To

Apply Basic Rules Of Statutory Construction And Conflated TheAdministrative Law Questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

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TABLE OF AUTHORITIES

Page

FEDERAL CASES

Alabama v. Bozeman,533 U.S. 146 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

America Lung Association v. EPA,

134 F.3d 388 (D.C. Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

America Trading Transport Co., Inc. v. United States,791 F.2d 942 (D.C. Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Arrington v. Daniels,516 F.3d 1106 (9th Cir. 2008).. . . . . . . . . . . . . . 4, 22, 23, 29, 30, 36, 37, 38

Bowen v. Hood,202 F.3d 1211 (9th Cir. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 37

Burgess v. United States,553 U.S. 124 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Camp v. Pitts,411 U.S. 138 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Chevron, U.S.A., Inc. v. National Resources Defense Council,467 U.S. 837 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 24, 27

City of Mesa v. FERC,993 F.2d 888 (D.C. Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Crickon v. Thomas,579 F.3d 978 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Cross-Sound Ferry Services, Inc. v. ICC,

873 F.2d 395 (D.C. Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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Earth Island Institute v. Hogarth,494 F.3d 757 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Honeywell International, Inc. v. EPA,

372 F.3d 441 (D.C. Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Jonah R. v. Carmona,

446 F.3d 1000 (9th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Judulang v. Holder,132 S. Ct. 476 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 39, 43

Lopez v. Davis,531 U.S. 230 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

McLean v. Crabtree,173 F.3d 1176 (9th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Midwater Trawlers Cooperative v. Department of Commerce,282 F.3d 710 (9th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Mora-Meraz v. Thomas,601 F.3d 933 (9th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Motor Vehicle Manufacturers Association v. State Farm Mutual

Automobile Insurance Co.,463 U.S. 29 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Natural Resources Defense Council, Inc. v. EPA,966 F.2d 1292 (9th Cir. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Nw. Environmental Defense Ctr. v. Bonneville Power Admin.,

477 F.3d 668 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35, 38

Pac. Coast Federation of Fishermen's Association v. U.S. Bureau of Reclamation,426 F.3d 1082 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

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Peck v. Thomas,697 F.3d 767 (9th Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Prof'l Pilots Federation v. F.A.A.,

118 F.3d 758 (D.C. Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

SEC v. Chenery Corp.,

332 U.S. 194 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Sacora v. Thomas,628 F.3d 1059 (9th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Smith v. Rodriguez,541 F.3d 1180 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 25, 28

Sw. Ctr. for Biological Diversity v. U.S. Forest Serv.,100 F.3d 1443 (9th Cir. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Tablada v. Thomas,533 F.3d 800 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Haggar Apparel Co.,526 U.S. 380 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Wilderness Society v. U.S. Fish & Wildlife Serv.,353 F.3d 1051 (9th Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Williams v. United States,289 U.S. 553 (1933). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

DOCKETED CASES

Montana v. Abbott,

Case No. 09-331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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United States v. Abbott,Case No. CR 09-31-DWM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Washington v. Abbott,

Case No. 13272208. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Washington v. Abbott,

Case No. 13272209. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

FEDERAL STATUTES AND RULES

5 U.S.C. 706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. 3621. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. 3624. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 9

28 U.S.C. 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. 2241. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3

28 U.S.C. 2253. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Conf. Rep. to Consolidated Appropriations Act of 2010,155 Cong. Rec. H13631-03 (daily ed. Dec. 8, 2009), 2009 WL 4667416.7, 8

28 C.F.R. 550.53.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

28 C.F.R. 550.54.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

28 C.F.R. 550.59(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

61 Fed. Reg. 25121-01 (May 17, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Drug Treatment and Intensive Confinement Center Programs: Early Release

Consideration, 65 Fed. Reg. 80745-01 (Dec. 22, 2000).. . . . . 10, 11, 12, 33

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Drug Treatment Program: Subpart Revision and Clarification,69 Fed. Reg. 39887-02 (July 1, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Drug Abuse Treatment Program, 74 Fed. Reg. 1892-01 (Jan. 14, 2009). . . . 13, 31

76 Fed. Reg. 58197 (Sept. 20, 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

MISCELLANEOUS

Federal Bureau of Prisons, Annual Report on Substance Abuse Treatment Programs

Fiscal Year 2011: Report to the House Judiciary Committee (2011). . . . . 15

Government Accountability Office,Bureau of Prisons:Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates' Time

in Prison (Feb. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

United States Department of Justice,An Analysis of Non-Violent Drug Offenders withMinimal Criminal Histories (February 4, 1994). . . . . . . . . . . . . . . . . . 38, 39

Richard J. Pierce, Jr., ADMINISTRATIVE LAW TREATISE,(5th ed. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32, 37

Nora V. Demleitner, Terms Of Imprisonment: Treating The Non-Citizen Offender

Equally, 21 Fed. Sentg Rep. 174 (February 2009). . . . . . . . . . . . . . . . . . . . . . . . 38

S. David Mitchell, Impeding Reentry: Agency And Judicial Obstacles To LongerHalfwayHouse Placements, 16 Mich. J. Race & L. 235 (2011). . . . . . . . . . . . . . 15

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STATEMENT OF JURISDICTION

The district courts habeas corpus jurisdiction is based on 28 U.S.C. 2241.

Jurisdiction is conferred on this Court to review the final orders denying habeas

corpus relief by 28 U.S.C. 1291 and 2253. Mr. Abbott filed timely notice of

appeal under Rule 4(a) of the Federal Rules of Appellate Procedure: Mr. Abbotts

petition was denied on September 28, 2012, and he filed his notice of appeal on

October 2, 2012.

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STATEMENT OF ISSUES

I. Where 18 U.S.C. 3621(e)(1)(C) requires that the Bureau of Prisons provideall eligible prisoners the opportunity to participate in in-prison residential

substance abuse treatment, did the BOPs rule in 2009 revoking participationin residential treatment for eligible prisoners with outstanding warrants andother impediments to participation in community corrections conflict with thestatutory mandate, thereby rendering the 2009 rule invalid?

II. In the alternative, did the Bureau of Prisons 2009 rule disqualifying a class ofstatutorily eligible prisoners those with outstanding warrants and otherimpediments to participation in community corrections from in-prisonresidential substance abuse treatment violate 706 of the AdministrativeProcedure Act where the agency failed to provide reasoning and empirical

support for the revocation of eligibility to participate in residential treatment,thereby rendering the 2009 rule invalid?

III. Assuming eligibility to participate in in-person residential substance abusetreatment, did the Bureau of Prisons rule disqualifying prisoners withoutstanding warrants and other impediments to participation in communitycorrections from eligibility for a sentence reduction of up to one year under 18U.S.C. 3621(e)(2) violate 706 of the Administrative Procedure Act because

the rule lacked reasoned support and relied on an uncorrected misinterpretation

of a comment from the American Psychiatric Association?

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STATEMENT OF THE CASE

Nature of the Case

This is the direct appeal from the denial of habeas corpus relief under 28 U.S.C.

2241 entered by the Honorable Michael W. Mosman, United States District Judge

for the District of Oregon, on September 28, 2012. On appeal, the petitioner seeks

to enforce the requirement under 18 U.S.C. 3621(e)(1)(C) that the Bureau of

Prisons (BOP) provide statutorily eligible prisoners the opportunity to participate in

in-prison residential substance abuse treatment, as well as to invalidate the BOP rule

that bars such prisoners from eligibility for a sentence reduction pursuant to 18 U.S.C.

3621(e)(2) for successful completion of treatment.

Course of Proceedings

On August 26, 2011, Mr. Abbott filed a pro se motion to enjoin the BOP from

giving effect to warrants that prevented his participation in in-prison residential

substance abuse treatment and pre-release community corrections. ER 286. After

counsel was appointed, Mr. Abbott filed an amended petition for a writ of habeas

corpus on December 2, 2011, seeking to participate in residential treatment and to

qualify for a discretionary sentence reduction. ER 27. He also submitted a

supporting memorandum with exhibits attached. ER 158. The BOP filed its response

on February 7, 2012, along with declarations from BOP employees. ER 50, 119, 130.

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The petitioner replied on April 12, 2012, and provided a supplement on May 9, 2012.

ER 26, 35.

On September 28, 2012, Judge Mosman filed his Opinion and Order denying

habeas corpus relief. ER 3. The same day, the judgment was entered dismissing the

case with prejudice. ER 2. The petitioner filed his timely notice of appeal on

October 2, 2012. ER 1.

Statement Of Reviewability And Standard Of Review

On this direct review of the district courts denial of a petition for writ of

habeas corpus, this Court reviews de novo the petitioners claim that the Bureau of

Prisons (BOP) unlawfully executed his sentence. Arrington v. Daniels, 516 F.3d

1106, 1112 (9th Cir. 2008); Jonah R. v. Carmona, 446 F.3d 1000, 1003 (9th Cir.

2006);Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir. 2000). The Court also reviews

the construction of the relevant statutes de novo. Smith v. Rodriguez, 541 F.3d 1180,

1183 (9th Cir. 2008). Under 706 the Administrative Procedure Act (APA), courts

hold unlawful and set aside agency action, findings, and conclusions found to [be]

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

5 U.S.C. 706(2)(A). The Court must review the agency action based solely on the

administrative record and determine whether the agency has articulated a rational

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basis for its decision. Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009)

(quoting Tablada v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008)).

Custody Status

Mr. Abbott is in BOP custody at FCI Sheridan with a projected release date of

August 3, 2014.

STATEMENT OF FACTS

Prior to March 16, 2009, eligible prisoners, as defined in 18 U.S.C.

3621(e)(5), with outstanding warrants had the opportunity to address substance

abuse issues in residential treatment while serving a sentence in BOP custody. The

BOPs 2009 rule changed that rehabilitation requirement: prisoners with outstanding

warrants and other impediments to participation in pre-release community custody

were categorically barred from the program.1 These prisoners, if permitted to

participate, should be eligible for a sentence reduction under 18 U.S.C. 3621(e)(2),

as well as the rehabilitative benefits of the residential program. The statutory and

regulatory history provides the relevant background for consideration of this habeas

corpus petition, which seeks to invalidate rules that categorically disqualify Mr.

1 Pre-release community custody means BOP designation to a halfway houseor home detention before the expiration of the term of imprisonment, prior to thecommencement of the term of supervised release. 18 U.S.C. 3624(c) & (e).

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Abbott from needed treatment and, consequently, render him ineligible for a sentence

reduction of up to one year.

A. Statutory History

In 1990, Congress mandated that the BOP make available appropriate

substance abuse treatment for each prisoner the Bureau determines has a treatable

condition of substance addiction or abuse, including in-prison residential substance

abuse treatment. 18 U.S.C. 3621(b). In 1994, Congress enacted 18 U.S.C.

3621(e), which required the BOP beginning in 1997 to provide residential

treatment to all eligible prisoners:

[T]he Bureau of Prisons shall, subject to the availability ofappropriations, provide residential substance abuse treatment (andmake arrangements for appropriate aftercare) . . .

(C)for all eligible prisoners by the end of fiscal year 1997 and

thereafter, with priority for such treatment accorded based on an eligibleprisoners proximity to release date.

18 U.S.C. 3621(e)(1) (emphasis added). Congress defined eligible prisoner as a

person with a substance abuse problem who is willing to participate in treatment:

(B) the term eligible prisoner means a prisoner who is

(i) determined by the Bureau of Prisons to have a substanceabuse problem; and

(ii) willing to participate in a residential substance abusetreatment program; . . .

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18 U.S.C. 3621(e)(5). The statute defined residential substance abuse treatment

as in-prison treatment lasting at least six months:

The term residential substance abuse treatment means a course ofindividual and group activities and treatment, lasting at least 6 months,in residential treatment facilities set apart from the general prison

population (which may include the use of pharmocotherapies, whereappropriate, that may extend beyond the 6-month period).

18 U.S.C. 3621(e)(5)(A).

Separate from the availability of residential treatment, the second subsection

of 3621(e) provided for a reduction of the period a prisoner remains in custody

of up to one year upon successful completion of the program:

(B) Period of custody. The period a prisonerconvicted of a nonviolentoffense remains in custody after successfully completing a treatment

program may be reduced by the Bureau of Prisons, but such reductionmay not be more than one year from the term the prisoner mustotherwise serve.

18 U.S.C. 3621(e)(2) (emphasis added). In subsequent appropriations for this BOP

program, Congress reiterated its intention to maximize the amount of the sentence

reduction for nonviolent offenders: To the greatest extent possible, BOP shall

prioritize the participation of nonviolent offenders in the Residential Drug Abuse

Treatment Program (RDAP) in a way that maximizes the benefit of sentence

reduction opportunities for reducing the inmate population. Conf. Rep. to

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Consolidated Appropriations Act of 2010, 155 CONG. REC. H13631-03, H13887

(daily ed. Dec. 8, 2009), 2009 WL 4667416.

Apart from substance abuse treatment, Congress also provided for pre-release

community placement to ease the transition into the community. 18 U.S.C. 3624(c).

Prior to 2009, the statute limited pre-release community custody to a maximum of six

months. 18 U.S.C. 3624(c) (repealed 2008). In 2009, Congress enacted the Second

Chance Act (SCA), which doubled the period of community corrections to twelve

months of community confinement (halfway house placement and home detention),

with home confinement limited to the last six months, or ten percent, of the sentence:

(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 into

the 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) (Supp. III 2009). The SCA directed the BOP to issue regulations

within 90 days to ensure that placement in a community correctional facility

is . . . (A) conducted in a manner consistent with section 3621(b) of this title; (B)

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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).

B. Regulatory Background

As initially promulgated in 1995, the BOPs rules specifically provided for

early release eligibility for all persons who successfully completed the residential

program and then succeeded in either community corrections or transitional

programming within the institution. Program Statement 5330.10, Ch. 6 at 2 (May 25,

1995) (completion of all applicable transitional services programs required for

sentence reduction) (ER at 186). This meant that prisoners with immigration and

other detainers or outstanding warrants could receive in-prison residential treatment

and a sentence reduction upon successful completion of the in-prison transitional

program.

The BOP changed its rules in 1996 to require completion of community-based

treatment in order to be eligible for the 3621(e) sentence reduction. 61 Fed. Reg.

25121-01 (May 17, 1996); Program Statement 5330.10, Ch. 6 at 7.3 (May 17, 1996)

(Inmates with detainers who were participating in, or who successfully completed

a residential drug program after August 17, 1995, cannot be released directly from the

institution to their detainer by way of a 3621(e) release.). The change was

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precipitated by a comment from the American Psychiatric Association suggesting that

the in-prison transitional treatment sessions should be more frequent than once a

month:

One commenter, the American Psychiatric Association, agreed that the

program was a good idea, but expressed concern about the adequacy oftransitional drug treatment programming provided at Bureau institutions.The Bureaus regulations in 28 CFR 550.59(a) required minimum

participation of one hour per month for such transitional services. TheAssociation stated that this minimum was probably not of sufficientintensity to facilitate a good outcome and recommended enhanced

psychiatric consultation and the availability of a broad array of services.

The comment by the American Psychiatric Association on the adequacyof transitional services became the basis for the second interim rule.

65 Fed. Reg. 80745-01, 80746 (Dec. 22, 2000).2 The Association did not suggest

anything about community-based treatment as a requirement for successful program

completion. Nevertheless, with no indication that the consequences for prisoners

with detainers was considered, the BOP relied on the Associations comment to

promulgate a rule requiring community corrections:

We recognize the importance of transitional services in drug treatmentprogramming and agree with the American Psychiatric Association thatan enhanced transitional program, such as is available in acommunity-based program, increases the opportunity for a good

2 The Associations comment, which became the basis for the second interim

rule, consisted of a single-page, two-paragraph letter. Letter from Melvin Shabsin,M.D., Medical Director, American Psychiatric Association, to Kathleen Hawk,Director, Bureau of Prisons (July 18, 1995), available at

http://or.fd.org/Alternatives%20to%20Incarceration/Page%2010.pdf.

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outcome. Transitional services offered within the institution are aminimum of one hour per month. Even so, we believe that successfulcompletion of the program must include both the institutional and thecommunity-based component.

While we may be able to increase the availability of certain transitionalservices at an institution, we cannot duplicate within the institution the

environment of community-based transitional services (i.e., theevaluation of the inmate in conditions where the inmate is reintegratinginto the community).

We therefore further amended the interim regulations to require thatearly release be contingent upon the inmates completion of transitionalservices in a community-based program (i.e., in a Community

Corrections Center or on home confinement).

65 Fed. Reg. at 80746.

On June 21, 2000, the Association corrected the BOPs reading of its comment,

validating the concern that the comments of the APA were not accurately interpreted

by the BOP. ER 213. The Association provided a new comment to the BOP

objecting to the misuse of the prior comment and providing strong reasons why

eligibility for prisoners with detainers should continue:

We are in agreement with the Bureaus analysis that it cannot duplicatewithin a prison institution the environment of community-basedtransitional services. However, we think that transitional services can

be established within a prison setting that can improve the outcome

related to successful completion of a residential drug treatment program.It was for that reason that we advocated for more comprehensive

transitional treatment being offered in the prison setting in contrast tothe one hour per month minimum requirement.

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It is our recommendation that inmates, who are ineligible for community

placement, not be excluded from participating in a residential treatment

program and subsequent transitional program within the prison for

early release considerations because we think that such participation

will result in better outcomes than no participation in such treatment.We also know clearly that eligibility for early release consideration will

significantly increase the number of inmates participating in such

treatment for obvious reasons.

Letter from Steven M. Mirin, M.D., Medical Director, American Psychiatric

Association, to Kathleen M. Hawk Sawyer, Director, Bureau of Prisons, at 2 (June 21,

2000) (ER 214) (emphasis added). The BOP made no change in response to the

Associations clarification, providing no data, analysis, or reasoning for its

conclusion regarding transitional services. Drug Treatment and Intensive

Confinement Center Programs: Early Release Consideration, 65 Fed. Reg. 80745-01,

80747 (Dec. 22, 2000) (As for the clarification by the American Psychiatric

Association, we do not believe that it is practicable to enhance transitional services

within the institution sufficiently to ensure the intended results.). The BOP gave a

similarly conclusory response to other comments:

[W]e believe that a residential treatment program requires participationin a community-based setting. Therefore, inmates who are not eligibleto be placed in a community-based program (for example, inmates with

INS detainers) are not eligible for early release.

Id. at 80748; accord Drug Treatment Program: Subpart Revision and Clarification,

69 Fed. Reg. 39887-02, 39888 (July 1, 2004). Although prisoners with detainers and

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outstanding charges continued to be able to participate in RDAP, they were unable

to receive a sentence reduction under 3621(e)(2) because, under the BOPs 1996

rule, they could not complete the community corrections part of the program.

On January 14, 2009, the BOP provided notice of a final rule effective on

March 16, 2009. Drug Abuse Treatment Program, 74 Fed. Reg. 1892-01 (Jan. 14,

2009). The notice provided no mention in the summary of the changes regarding

participation in residential treatment. Id. In response to a comment regarding alien

prisoners, the BOP provided clarifying language that purported to address issues of

non-U.S. citizen inmates:

One commenter was concerned that we routinely deny access to theDrug Abuse Treatment Program (DATP) to non-U.S. citizens. The

Bureau does not deny drug abuse treatment to inmates based on theircitizenship. Instead, we offer several program options, such as a drugabuse education course or non-residential drug abuse treatment to

inmates who have drug problems but who do not otherwise meet theadmission criteria for the RDAP. These options are currently availablefor non-U.S. citizen inmates.

However, in light of the commenters misunderstanding of our proposedrule, we do make a revision to clarify our intent. Section 550.53(b)stated that, [u]pon the expiration of their sentence, inmates are eligibleto be transported only to the place of conviction or legal residencewithin the United States or its territories. We do not intend this section

to be understood to exclude non-U.S. citizens. We intended only thatparticipants must be capable of completing each of the three components

of the RDAP program (the unit-based component, follow-up services,and the transitional drug abuse treatment component) when they beginthe program. We have therefore clarified this language in the regulation.

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Id. at 1893. The BOP provided no rationale for excluding persons who could not

participate in pre-release community corrections from participating in in-prison

residential treatment.

On March 16, 2009, the BOP issued final rules that altered the admission

criteria for residential treatment to completely exclude all prisoners with detainers

and outstanding charges, regardless of their status as eligible prisoners within the

meaning of 3621(e)(5):

(b)Admission Criteria. Inmates must meet all of the following criteriato be admitted into RDAP.

(1) Inmates must have a verifiable substance abuse disorder.

(2) Inmates must sign an agreement acknowledging program

responsibility.

(3) When beginning the program, the inmate must be able to

complete all three components described in paragraph (a) of thissection. This includes the critical RRC or home confinement

transfer to participate in the TDAT.

Program Statement 5330.11 2.5.1(b) (Mar. 16, 2009) (emphasis added) (ER 224-

25); 28 C.F.R. 550.53 at 2.5.1 (b) (Mar. 16, 2009). Subsection (a) of the Program

Statement provides that prisoners must complete three components: a unit-based

phase conducted in the institution; follow-up services [i]f time allows between

completion of the unit-based component of the RDAP and transfer to a community-

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based program; and community-based drug abuse treatment in a community-based

program. Id. at 2.5.1.(a) (ER 224). The regulation also provided incentives for

participation in residential treatment other than potential early release. 28 C.F.R.

550.54; Program Statement 5330.11 at 2.5.15 (Mar. 16, 2009).3

Because the RDAP eligibility rules are tied to the rules pertaining to

community confinement placements, the SCA rules are also relevant to this case.

Shortly after the SCA became law, the BOP issued a memorandum explaining that

all prisoners were now eligible for community placement for up to one year. Sacora

v. Thomas, 628 F.3d 1059, 1062-65 (9th Cir. 2010) (describing statutory and

regulatory history of SCA). However, the BOP maintained its restrictive policies

from a 1998 program statement, limiting placements to no more than six months

except in extraordinary circumstances, and disqualifying prisoners with unresolved

charges or detainers. See S. David Mitchell,Impeding Reentry: Agency And Judicial

Obstacles To Longer Halfway House Placements, 16 MICH.J.RACE &L. 235, 261-63

3 Aside from incentives, the residential substance abuse program has provento be effective in assisting prisoners to avoid relapse and recidivism. Federal Bureauof Prisons, Annual Report on Substance Abuse Treatment Programs Fiscal Year

2011: Report to the House Judiciary Committee 8 (2011) (prisoners who complete

the residential program are 16 percent less likely to recidivate and 15 percent lesslikely to relapse to drug use within three years after release); accordFederal Bureauof Prisons, Federal Prison Residential Drug Treatment Reduces Substance Use and

Arrests After Release (2007).

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(2011). The BOP, well after the ninety days required by Congress, promulgated a

SCA regulation that did little more than repeat SCA language, which was invalidated

for violation of the notice-and-comment provisions of the APA. Sacora, 628 F.3d at

1065 n.6. A new regulation has been proposed with no change in language, 76 Fed.

Reg. 58197 (Sept. 20, 2011), to which the federal defenders have objected on

statutory and policy grounds in a comment dated November 16, 2011. ER 279-85.

On June 24, 2010, the BOP issued a new memorandum setting forth guidance

for community placements (June 24 Memorandum). ER 241. The June 24

Memorandum reminds staff that all prisoners are eligible for transfer and that transfer

decisions must be made upon individualized consideration of the five enumerated

factors set forth in 18 U.S.C. 3621(b). However, the memorandum does not

mention eligibility criteria for prisoners with outstanding warrants, leaving staff to

rely on the 1998 program statement in determining which prisoners in Mr. Abbotts

situation are qualified for community placement. In particular, the 1998 program

statement provides that prisoners with unresolved pending charges, or detainers,

which will likely lead to arrest shall not ordinarily participate in community

programs. Program Statement 7310.04 (Dec. 16, 1998) (ER 249).

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C. Facts Regarding Mr. Abbott

Mr. Abbott was convicted of conspiracy to distribute marijuana and sentenced

on April 1, 2010, to a term of sixty months imprisonment by the Honorable Donald

W. Molloy, in the United States District of Montana, District of Montana (Missoula).

United States v. Abbott, CR 09-31-DWM (ER 254-55). At the sentencing hearing,

the court explicitly recommended that Mr. Abbott participate in the BOPs residential

substance abuse treatment program. ER 255. Because the marijuana offense was

nonviolent, Mr. Abbott was statutorily eligible for a sentence reduction of up to one

year if he successfully completed residential treatment. 18 U.S.C. 3621(e)(2).

Following the imposition of the federal sentence, Mr. Abbott was remanded to the

custody of the United States Marshal on April 1, 2010, and committed to the custody

of the BOP on June 16, 2010. ER 260.

At the time he was sentenced federally, Mr. Abbott was on supervision in three

cases. Two of the cases included bench warrants issued by Kitsap County,

Washington, in 2006, for violations of the terms of probation. Washington v. Abbott,

Case No. 13272208; Washington v. Abbott, Case No. 13272209. In the first Kitsap

County case, Mr. Abbott was sentenced to one year in jail, suspended with credit for

time served, and two years of unsupervised probation upon his conviction for assault

in the fourth degree. ER 263. Included in the judgment was the condition that Mr.

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Abbott enter an anger management class within ninety days of sentencing. Id.

Although Mr. Abbott failed to comply with the anger management condition and

failed to appear for several compliance hearings, the court did not grant the

prosecutions motion to revoke probation. Instead, the court issued a bench warrant

on January 7, 2005. ER 267. The bench warrant expires on April 7, 2013. Id.

On March 8, 2004, Mr. Abbott was also sentenced to a two-year term of

supervised probation, and 365 days jail, suspended with credit for time served, upon

his plea to assault in the fourth degree. Washington v. Abbott, Case No. 13272209

(ER 269). Mr. Abbott was also ordered to obtain a chemical dependency evaluation

and comply with any recommended treatment within ninety days of sentencing. Id.

Mr. Abbott provided proof to the Kitsap County Court on January 18, 2006, that he

underwent a drug dependence evaluation, but did not show that he completed any

ordered treatment. ER 272. Shortly thereafter, the court terminated Mr. Abbotts

probation. Id. The Kitsap District Court issued a bench warrant on February 27,

2006, which expires on May 27, 2014. ER 273.

The third matter involves a probationary sentence that Mr. Abbott is serving

concurrently with the federal sentence. Mr. Abbott was prosecuted by the State of

Montana for assault on a family member for which he received a sixty month

suspended sentence on October 1, 2009. Montana v. Abbott, Case No. 09-331 (ER

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274). The Montana Department of Corrections has notified the BOP through the

Interstate Agreement on Detainers that Mr. Abbotts state sanction his probationary

term will expire on June 22, 2014. ER 262. Montana explicitly advised the BOP

that it did not wish to have a detainer placed. ER 275.

On September 23, 2011, Mr. Abbott was interviewed for the residential

substance abuse treatment program. ER 276. Consistent with Judge Malloys

recommendation, Mr. Abbott established that he has a substance abuse problem and

that he is willing to participate in the in-prison residential treatment program.

Nevertheless, the BOP advised Mr. Abbott he did not qualify for RDAP:

He was interviewed today and due to pending issues was foundunqualified for the program. Per his Unit management team, he has a

pending issue that would prevent him from attending halfway house.

ER 276 (emphasis added). Mr. Abbott unsuccessfully sought BOP assistance in

resolving the outstanding warrants from Washington and Montana. ER 277-78.

Thus, Mr. Abbott, in need of both drug treatment and reentry services, agreed to

participate in appropriate programming, but is being denied the opportunity for

treatment based on outstanding state cases that, on their face, will have expired before

he is released from BOP custody.

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SUMMARY OF ARGUMENT

In 18 U.S.C. 3621(e)(1)(C), Congress explicitly and unambiguously required

that the BOP shall provide in-prison residential substance abuse treatment for all

eligible prisoners by the end of fiscal year 1997 and thereafter. In 18 U.S.C.

3621(e)(5)(B), Congress defined eligible prisoner as any inmate with a substance

abuse problem who was willing to participate in residential treatment. If the intent

of Congress is clear, that is the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of Congress. Chevron,

U.S.A., Inc. v. Natl Res. Def. Council, 467 U.S. 837, 842-43 (1984). This Court has

recognized that a prisoner is entitled to participate in residential substance abuse

treatment and aftercare if he or she is eligible under 3621(e)(5)(B). McLean v.

Crabtree, 173 F.3d 1176, 1183 n.8 (9th Cir. 1999). The unequivocal statutory

command that all eligible prisoners must be allowed the opportunity to participate

in residential substance abuse treatment foreclosed agency action that is inconsistent

with the statutory language or is an unreasonable implementation of it. United

States v. Haggar Apparel Co., 526 U.S. 380, 392 (1999).

The 2009 regulation excluded all prisoners who cannot participate in pre-

release community corrections including prisoners like Mr. Abbott who have

outstanding warrants from participating in the in-prison residential treatment

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program. Congresss use of all eligible prisoners, and its statutory definition of

eligible prisoner, demonstrate that the agency lacked discretion to eliminate those

who cannot participate in pre-release community corrections from the definition of

eligible prisoners. The denial of participation in in-prison residential substance

abuse treatment contradicts the unambiguously expressed intent of Congress, so the

rule is invalid.

In the alternative, under 5 U.S.C. 706, the BOPs promulgation of the

regulation disqualifying prisoners with outstanding warrants and other impediments

to community corrections was arbitrary, capricious, and abuse of discretion, or not in

accordance with law underMotor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 41 (1983). The administrative record failed to articulate a rationale

for the rule and to support the action with empirical evidence. State Farm, 463 U.S.

at 43. When an agency adopts a rule, the agency is required under 706 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. Id. (quoting

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The agency

must cogently explain why it has exercised its discretion in a given matter, and the

agencys explanation must be sufficient to enable a review in court to conclude that

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the [agencys action] was the product of reasoned decisionmaking. State Farm, 463

U.S. at 48.

In contrast to the requirement of a rationale and empirical support, the BOP

provided no explanation for revoking the ability of all eligible prisoners to

participate in residential treatment. Since the program began, hundreds, if not

thousands, of prisoners who did not participate in pre-release community corrections

received needed and efficacious residential treatment. The BOPs administrative

record demonstrates no substantial reason such prisoners should not continue to

receive the benefits of a proven, effective treatment program. Under this Courts

controlling precedent, the failure to provide reasoning and empirical bases for the

new rule, especially in the context of a rule that appears to contradict the

congressional directives in 3621(e)(1)(C), requires that the regulation be

invalidated. Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009); Arrington v.

Daniels, 516 F.3d 1106, 1114 (9th Cir. 2008).

Assuming that the rules barring Mr. Abbott from participating in residential

treatment are invalid, the rule foreclosing a sentence reduction under 18 U.S.C.

3621(e)(2) is also invalid under 706. As in Crickon andArrington, this Court

upheld the statutory authority of the BOP to categorically limit eligibility for the

sentence reduction in McLean. As in Arrington and Crickon, the question of

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compliance with the Administrative Procedure Act remained undetermined after

McLean. The administrative record regarding the disqualification for a sentence

reduction for those who cannot participate in pre-release community corrections fails

to meet the State Farm test. The BOP relied upon a comment by the American

Psychiatric Association, even though the Association subsequently afterMcLean

confirmed that the BOP had misinterpreted its comment. The BOPs cursory

response to the Associations repudiation of the BOPs interpretation never addressed

empirical data or fiscal and fairness issues in the administrative record, failing to even

mention the drastic consequences of the rule for prisoners with detainers and

outstanding warrants. Because the only expert support for the rule was debunked,

and no other rationale or data supported the rule, the disqualification for the potential

sentence reduction of up to one year is invalid underArrington and Crickon.

ARGUMENT

I. Because 18 U.S.C. 3621(e)(1)(C) Unambiguously Requires That All

Eligible Prisoners, As Described In The Definitional Section Of The

Statute, Shall Be Provided The Opportunity To Participate In

Residential Substance Abuse Treatment, The Court Should Invalidate The

BOP Rule Excluding From Residential Treatment Eligible Prisoners

With Outstanding Warrants And Other Impediments To Community

Corrections.

In its March 2009 rules excluding a large class of eligible prisoners from

participating in residential substance abuse treatment, the BOP took a position

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inconsistent with, and an unreasonable application of, an unambiguous statute:

Congress directed phase-in of residential substance abuse treatment culminating in

the requirement that all eligible prisoners have the opportunity to participate in

such treatment in 1997 and thereafter. 18 U.S.C. 3621(e)(1)(C). The word all

means what it says. WEBSTERS THIRDNEW INTERNATIONAL DICTIONARY 54 (2002)

(every member or individual component of: each one of used distributively with

a plural noun or pronoun to mean that a statement is true of every individual

considered).4 Eligible prisoner is defined in the statute itself to include Mr.

Abbott, a person with substance abuse issues who is willing to participate in

residential treatment. See Burgess v. United States, 553 U.S. 124 (2008)

([s]tatutory definitions control the meaning of statutory words . . . in the usual

case.) (quotingLawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201 (1949)).

Because Congress has spoken directly to the issue, the BOP has no authority

but to follow the plain language of the statutes: If the intent of Congress is clear,

that is the end of the matter; for the court, as well as the agency, must give effect to

the unambiguously expressed intent of Congress. Chevron, U.S.A. Inc. v. Natural

4See BLACKS LAW DICTIONARY 74 (6th ed. 1990) (defining all as the

whole of or every) (subsequent editions of this dictionary did not include adefinition of all);see also Williams v. United States, 289 U.S. 553, 572 (1933) (Theuse of all in some cases, and its omission in others, cannot be regarded asaccidental.).

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Res. Def. Council, 467 U.S. 837, 842-43 (1984); accord Rodriguez v. Smith, 541 F.3d

1180, 1183-84 (9th Cir. 2008); Natural Res. Def. Council, Inc. v. EPA, 966 F.2d

1292, 1297 (9th Cir. 1992) (On questions of statutory construction, courts must carry

out the unambiguously expressed intent of Congress.). Congress required that every

eligible prisoner be provided access to RDAP: [In order that] every prisoner with

a substance abuse problem have the opportunity to participate in appropriate

substance abuse treatment, the Bureau of Prisons shall, subject to the availability of

appropriations, provide residential substance abuse treatment (and make

arrangements for appropriate aftercare) . . .for all eligible prisoners by the end of

fiscal year 1997 and thereafter. 18 U.S.C. 3621(e)(1) (emphasis added).

Mr. Abbott is an eligible prisoner because the statute defines eligible

prisoner as a person with a substance abuse problem who is willing to participate in

treatment. 18 U.S.C. 3621(e)(5)(B). Mr. Abbott unambiguously meets these

statutory requirements the federal sentencing court recognized his substance abuse

problem and recommended his participation in residential substance abuse treatment.

Mr. Abbott has demonstrated his willingness to participate in in-prison residential

treatment by obtaining a judicial recommendation for residential treatment and by

applying for the treatment program. Mr. Abbott is statutorily entitled to be provided

access to the available residential substance abuse treatment.

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Mr. Abbotts ability to participate in pre-release community corrections is

irrelevant to his opportunity to participate in in-prison residential treatment. There

is nothing in the statute requiring community corrections placement in order to

complete RDAP:

Any prisoner who, in the judgment of the Director of the Bureau ofPrisons, has successfully completed a program of residential substanceabuse treatment provided under paragraph (1) of this subsection, shallremain in the custody of the Bureau under such conditions as the Bureaudeems appropriate. If the conditions of confinement are different fromthose the prisoner would have experienced absent the successful

completion of the treatment, the Bureau shall periodically test theprisoner for substance abuse and discontinue such conditions ondetermining that substance abuse has recurred.

18 U.S.C. 3621(e)(2)(A). Nothing in the statute ties successful completion of

residential treatment to participation in pre-release community corrections.

By only admitting prisoners who can participate in community-based treatment

programs, rather than giving them the alternative of institutional follow-up treatment,

the BOP violated the statute. This Court recognized the mandatory nature of

3621(e)(1)(C) inMcLean. In that case, the Court, faced with a statutory challenge,

upheld the categorical ineligibility of prisoners with detainers for the 3621(e)(2)

sentence reduction. In doing so, the Court explicitly noted that prisoners were

statutorily entitled to participate in residential treatment even if they were ineligible

for the sentence reduction:

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We also reject Appellants contention that they are eligible for sentencereduction because they meet the definition of eligible prisoner

provided in 18 U.S.C. 3621(e)(5)(B). A prisoner is merely entitled toparticipate in residential substance abuse treatment and aftercare if he

or she is eligible under 3621(e)(5)(B). Whether a prisoner isstatutorily eligible for sentence reduction, however, depends on whetherhe or she meets the requirements of 3621(e)(2)(B).

McLean v. Crabtree, 173 F.3d 1176, 1183 n.8 (1999) (emphasis added).

Despite the mandatory shall of the statute, the BOP does not provide

Mr. Abbott residential treatment to which he is entitled as an eligible prisoner, in

violation of the plain meaning of the statute. See Alabama v. Bozeman, 533 U.S. 146,

153 (2001) (When Congress specifies an obligation and uses the word shall, this

denomination usually connotes a mandatory command.) (citingAnderson v. Yungkau,

329 U.S. 482, 485 (1947)). Congressional intent may be determined by traditional

tools of statutory construction, and if a court using these tools ascertains that

Congress had a clear intent on the question at issue, that intent must be given effect

as law. Wilderness Socy v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th

Cir. 2003) (en banc) (citations omitted), amended by 360 F.3d 1374 (9th Cir. 2004).

When the statute is neither silent nor ambiguous, the agencys construction is given

no deference. Chevron, 467 U.S. at 843. Additionally, no deference is due if the

agency ignores factors Congress explicitly required the agency to take into account.

Earth Island Inst. v. Hogarth, 494 F.3d 757, 765 (9th Cir. 2007) (citing Sw. Ctr. for

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Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1448 (9th Cir. 1996)). The

regulation excluding eligible prisoners from RDAP conflicts with 3621(e)(1)(C)s

required provision of the opportunity for residential treatment for all eligible

prisoners, and is therefore invalid. Rodriguez, 541 F.3d at 1187.

II. In The Alternative, The Court Should Invalidate the BOPs Rule

Excluding From Residential Treatment Eligible Prisoners With

Outstanding Warrants And Other Impediments To Participation In

Community Corrections Because The Rule Violates 706 Of The

Administrative Procedure Act.

Even if the statutes allowed for the categorical disqualification of an eligible

prisoner from participation in residential treatment, the BOP rules are invalid

because the BOP failed to provide reasoning, analysis, and data in support of

revoking eligibility to participate in residential treatment for those unable to

participate in pre-release community corrections. Under 706 of the APA, courts

hold unlawful and set aside agency action, findings, and conclusions found to be

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

5 U.S.C. 706(2)(A).

In State Farm, the Court listed factors that would invalidate rules under 706:

Normally, an agency rule would be arbitrary and capricious if the agencyhas relied on factors which Congress has not intended it to consider,entirely failed to consider an important aspect of the problem, offered anexplanation for its decision that runs counter to the evidence before the

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agency, or is so implausible that it could not be ascribed to a differencein view or the product of agency expertise.

463 U.S. at 43. In declaring the BOPs rule on eligibility for a 3621(e) sentence

reduction invalid, this Court listed the types of support expected for a disqualifying

rule:

The BOP gave no indication of the basis for its decision. It did notreference pertinent research studies, or case reviews. It did not describethe process employed to craft the exclusion. It did not articulate any

precursor findings upon which it relied. It did not reveal the analysisused to reach the conclusion that the categorical exclusion was

appropriate. Indeed, the administrative record is devoid of anysubstantive discussion of the rationale underlying the BOPs exercise ofits discretion.

Crickon v. Thomas, 579 F.3d 978, 984 (9th Cir. 2009). Section 706 of the APA

requires that the agency articulate a rationale when exercising discretion. Id. at 982

(citingArrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008));seeJudulang v.

Holder, 132 S. Ct. 476, 479 (2011) (When an administrative agency sets policy, it

must provide a reasoned explanation for its action. That is not a high bar, but it is an

unwavering one.).

The BOP articulated no rationale or support for the rule change in this case.

The BOP presented no empirical studies regarding the efficacy of residential

treatment for those who cannot participate in pre-release community corrections. The

BOP did not address why Congresss direction to allow participation by all eligible

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prisoners should be superseded. The BOP presented no policy positions based on

empirical findings or any substantive discussion of the rationale for the rule. The rule

did not even address the sole statutory basis for denying the treatment opportunity

subject to the availability of appropriations. 18 U.S.C. 3621(e)(1)(C). As in

Crickon, [t]he administrative record is devoid of any substantive discussion of the

rationale underlying the BOPs exercise of discretion. 579 F.3d at 985.

Where an administrative agency acts in the absence of an articulated rationale,

the final rule is invalid under 706 of the APA. Arrington, 516 F.3d at 1114;see

SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (It will not do for a court to be

compelled to guess at the theory underlying the agencys action . . . .);Pac. Coast

Fedn of Fishermens Assn v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1091 (9th

Cir. 2005) ([T]he RPA cannot be sustained . . . by reliance on the agencys unstated

assumptions in the final rule or arguments presented in litigation.); Midwater

Trawlers Coop. v. Dept of Commerce, 282 F.3d 710, 720 (9th Cir. 2002) (The

difficulty with the published justification for the rule is, of course, that it is devoid of

any stated scientific rationale.); City of Mesa v. FERC, 993 F.2d 888, 898 n.7 (D.C.

Cir. 1993) (finding that lay ruminations cannot substitute for agency reasoning);

Cross-Sound Ferry Servs., Inc. v. ICC, 873 F.2d 395, 400 (D.C. Cir. 1989)

(explaining that a court will not guess at the theory underlying the agencys action);

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Am. Trading Transp. Co., Inc. v. United States, 791 F.2d 942, 948-49 (D.C. Cir.

1986) (holding agency action invalid where there was no evidence that the agency

considered a statutory goal).

It is a basic principle of administrative law that the agency must

articulate the reason or reasons for its decision. Although a decisionof less than ideal clarity may be upheld if the agencys path mayreasonably be discerned, we cannot infer an agencys reasoning frommere silence . . . . Rather, an agencys action must be upheld, if at all,on the basis articulated by the agency itself. The agency is obligatedto articulate[ ] a rational connection between the facts found and thechoices made.

Pac. Coast, 426 F.3d at 1090-92 (citations omitted and alterations in original). An

agency must explain its action with sufficient clarity to permit effective judicial

review, and the failure to provide the necessary clarity for judicial review requires

that agency action be vacated. Camp v. Pitts, 411 U.S. 138, 142-43 (1973);Am. Lung

Assn. v. EPA, 134 F.3d 388, 392-93 (D.C. Cir. 1998).

The absence of reasoning or a rationale followed from the failure of the

notices summary, or any other part of the notice, to advise that the 2009 rule changed

the participation of eligible prisoners. 74 Fed. Reg. 1892-01. The notice did not

provide sufficient factual detail and rationale to permit meaningful comment.

Honeywell Intl, Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 2004); see 2 Richard J.

Pierce, Jr., ADMINISTRATIVE LAW TREATISE, 11.4 at 1023 (5th ed. 2010) (An

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agency may not, for example, depart from a prior policysub silentio . . . [a]nd of

course the agency must show that there are good reasons for the new policy.).

The violation of 706 is graver in this case than in Crickon, where this Court

considered a rule categorically disqualifying non-violent offenders with certain prior

convictions from the 3621(e)(2) sentence reduction. 579 F.3d at 988-89. In

Crickon, the Court noted that the BOP rules had the effect of discouraging prisoners

from participating in residential treatment, even though the intent of the statute was

to encourage prisoners to enroll and to complete the rigorous program. Id. at 986-87.

Because the BOP rule limiting eligibility was inconsistent with congressional intent

to encourage participation, the rule was arbitrary and capricious and invalid under the

APA. Id. at 987. The BOPs pre-release community corrections requirement for

participation in residential treatment is even worse than the rule invalidated in

Crickon. The rule not only discourages participation in residential treatment by

foreclosing early release, it prohibits the participation of statutorily eligible

prisoners with no adequate rationale for failing to implement the statute as written.

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III. Assuming Eligibility To Participate In Residential Treatment, The Court

Should Invalidate The BOP Rule That Disqualifies Eligible Prisoners

With Outstanding Warrants And Other Impediments To Pre-Release

Community Corrections From Eligibility For A Sentence Reduction Under

18 U.S.C. 3621(e)(2) Of Up To One Year Because The Rule Violates 706 Of The Administrative Procedure Act.

The 2009 rule disqualifying prisoners with detainers or outstanding warrants

from participation in residential substance abuse treatment was preceded by a separate

rule disqualifying those prisoners from the early release incentive. SeeCrickon, 579

F.3d at 985 (regulation limiting eligibility for 3621(a) sentence reduction had no

effect on participation because the drug abuse treatment program is open to all

inmates with a documented need and interest in the program) (citing 65 Fed. Reg.

at 80745, 80748 (Dec. 22, 2000)). The BOP based the early release disqualification

on a comment from the American Psychiatric Association that only suggested the

BOP offer more extensive transitional services. 65 Fed. Reg. at 80746. Although the

Association did not suggest that the BOP require a community-based component, the

BOP initially relied on the Associations suggestion to deny early release to prisoners

with detainers. 65 Fed. Reg. at 80748.

The misinterpretation of the Associations comments to exclude statutorily

eligible prisoners invalidates the rule under 706(2)(A). See Nw. Envtl. Def. Ctr. v.

Bonneville Power Admin., 477 F.3d 668, 684 (9th Cir. 2007) (hereinafterNEDC)

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(because agency action was based on a misinterpretation of legislative history, the

rule was arbitrary, capricious, and contrary to law under 706). In NEDC, the

Bonneville Power Administration (BPA) transferred functions from the BPA-funded

Fish Passage Center (FPC) to two private contractors based on a statement in a

congressional committee report. Id. at 672. The legislative historys indication that

the BPA should no longer fund the FPC was not incorporated into any actual

legislation. Id. at 681-82. The Court found that the BPA erred in believing it was

bound by the legislative history and, thus, its actions violated 706 of the APA. Id.

at 691. In reaching this conclusion, the Court rejected the agencys post hoc

rationalizations that it had engaged in considered rulemaking and, instead, found that

the administrative record did not show that BPA, as required by State Farm,

considered the relevant facts and used a rational process to decide to transfer the

functions of the FPC to other entities. Id. at 688.

Just as the BPA actions based on an erroneous interpretation of its authority

were invalid under 706(2)(a), the BOP rule is invalid because it is based on an

erroneous interpretation of the American Psychiatric Association comment. Further,

the BOPs one-sentence response to the American Psychiatric Associations

repudiation of the BOPs interpretation of its comment failed to meet 706 standards.

As in Crickon, the BOPs response to comments, this time the Associations protest

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of the misuse of its first comment, was inadequate under 706: the reasoning

articulated by the BOP is cursory and non-responsive to the comments. 579 F.3d at

985. [T]he BOP never identified, explained, or analyzed the factors it considered

in crafting the categorical exclusion. Id.

In NEDC, this Court invalidated the BPAs decision to transfer one of its

functions, not because the decision itself was unreasonable, but because the decision

was not the product of rational decisionmaking as required by State Farm. NEDC,

477 F.3d at 689-90. Applying State Farm, this Court held that the BPA possibly

may have the ability to rationally conclude that the continued operation of the FPC

in its present state was no longer in the public interest, but only after giving due

weight to the Acts requirement that its action be consistent with what the Council

said in the Program and Plan, and the purposes of the Northwest Power Act. NEDC,

477 F.3d at 690. Until and unless the agency undertook such an analysis, and

provided an explanation for the decision reached, the rule was invalid. 477 F.3d at

690. Additionally,post hoc rationales proffered by the agency during the litigation,

however compelling they might be, could not save the rule. Id. at 690 n.18 (citing

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

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As this Court observed inArrington, it is not the ultimate decision that is of

concern in an APA analysis, but the process of the rulemaking itself in choosing

whether to include or exclude prisoners from early release eligibility:

Although either choice in all likelihood would have withstood judicial

scrutiny, the Bureau offered no explanation for why it exercised itsdiscretion to select one rather than the other. The agencys lack ofexplanation for its choice renders its decision arbitrary and capricious.Although agencies enjoy wide discretion in fashioning regulationsgoverning statutes that they are charged with administering, section 706requires that they articulate a rationale when they exercise thatdiscretion. This is not an empty requirement . . . . This failure renders

the Bureaus final rule invalid under the APA.

Arrington, 516 F.3d at 1114 (citations omitted). Where the BOP misinterpreted a

comment upon which it based its rule change, the cursory response to the

commenters correction fell far short of the minimum required for reasoned

rulemaking:

If a comment criticizes in detail some characteristic of the agencysproposed rule, or a factual predicate for the agencys proposed rule, andthe agency retains that characteristic in the final rule without including

in its statement of basis and purpose a relatively detailed response to thatcriticism, a reviewing court is likely to hold the rule unlawful on thegrounds that the statement of basis and purpose is inadequate and therule is arbitrary and capricious. Similarly, if a comment couples detailedcriticism of a proposed rule with a suggested alternative to the proposal

that seems to eliminate the source of the criticism of the proposed ruleas its final rule without discussing the alternative suggested in the

comment, a court is likely to conclude that the statement of basis andpurpose is inadequate and the rule is arbitrary and capricious.

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Ronald J. Pierce, Jr., 1 ADMINISTRATIVE LAW TREATISE, 7.4 at 594 (5th ed. 2010);

see also Profl Pilots Fedn v. FAA, 118 F.3d 758, 763 (D.C. Cir. 1997) (agency must

provide rationale response to comments that are relevant and significant). The

American Psychiatric Associations second comment provided both a detailed

criticism and a suggested alternative, neither of which was addressed in the BOPs

cursory response.

The APA question under 706 is distinct from the statutory question

considered inMcLean. This Court has held that, as a matter of statutory construction,

the BOP has the authority to create a categorical early release disqualification based

on detainers. McLean, 173 F.3d at 1184. The statutory ruling is irrelevant to the

question of APA compliance. Lopez v. Davis, 531 U.S. 230, 244 n.6 (2000) (finding

the rule substantively reasonable and reserving the Administrative Procedure Act

question); Crickon, 579 F.3d at 987 n.9 (9th Cir. 2009) ([T]he BOPs choice to

exclude inmates with the specified prior conviction is a proper exercise of its

discretion under the statute. However, under the APA, the BOP had a duty to provide

some rationale for its choice, beyond merely stating that it was exercising its

discretion.);Arrington, 516 F.3d at 1115 (A rule may ultimately be reasonable in

substance (as the Bowen court concluded that the 1997 interim rule was) but

nevertheless fail APA review if the agency does not comply with its procedural

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responsibility to articulate in the administrative record the rational basis upon which

it relied in promulgating the rule.). This is especially true because the American

Psychiatric Associations repudiation of the BOPs interpretation of the Associations

comment post-datedMcLean.

An agency rule is also arbitrary and capricious if the agency entirely failed to

consider an important aspect of the problem. State Farm, 463 U.S. at 43; accord

Arrington, 516 F.3d at 1112-13; NEDC, 477 F.3d at 687-88. The administrative

record reflects no indication that any thought was given to prisoners with detainers,

who are ineligible for community placement, and who under the new rule could not

successfully complete the program and receive a sentence reduction. See Nora V.

Demleitner, Terms Of Imprisonment: Treating The Non-Citizen Offender Equally, 21

Fed. Sentg Rep. 174, 176-77 (February 2009) (referencing the advantages in prison

management, cost savings, and decreased recidivism that were lost due to the

exclusion of non-citizens from residential treatment). Thus, the BOP provided no

consideration of the loss of sentence reduction eligibility, and consequent fiscal

consequences, from the new rule.

At the time 3621(e) was enacted, the Department of Justice recognized that

non-violent offenders were being over-incarcerated. United States Department of

Justice,An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories,

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at 2-3 (February 4, 1994) (finding that low-level drug offenders with minimal

criminal histories, especially non-citizens, receive longer sentences than needed for

deterrence and protection of society). Congress recently explicitly reiterated the

importance of 3621(e) sentence reductions in addressing over-crowding in federal

prisons operating at 138% of capacity. Supra at 7-8. Cost is an important factor for

agencies to consider in many contexts,Judulang, 132 S. Ct. at 490, including the

present case. The BOP has estimated that, if non-citizens with immigration detainers

were eligible for the 3621(e) sentence reduction, there would be a cost savings of

about $25 million every year. Government Accountability Office,Bureau of Prisons:

Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates Time in

Prison, at 32 n.63 (Feb. 2012).5 Even though 3621(e)(1) explicitly references

subject to the availability of appropriations, the BOP never even mentioned the

huge fiscal effect of the new rule, never mind considering the lost opportunity to

reduce over-incarceration for low-level nonviolent offenders.

The rule is also unfaithful to statutory text. As found in Crickon, Congress

intended an incentive to increase participation in residential treatment. 579 F.3d at

980. In contrast to the litigation regarding nonviolent offenses, the community

corrections rule has no basis in the statute. Cf.Peck v. Thomas, 697 F.3d 767, 776

5Available atwww.gao.gov/assets/590/588284.pdf

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(9th Cir. 2012) (upholding reissued regulations regarding BOP discretion to

categorically exclude prisoners based on public safety).

The statute does not provide a basis for exclusion of all prisoners with

outstanding warrants and detainers. Other than explaining that prisoners with

detainers are eligible for the 40-hour non-residential drug treatment program and that

it does not intend to discriminate against non-citizens, the BOP offered no

explanation why an institutionally-based transition program consisting of more than

one hour per month, as suggested by the American Psychiatric Association, was not

a feasible alternative. Most critically, the BOP did not meaningfully respond to the

Associations comment that prisoners ineligible for community placement should

participate in the residential program. The BOP violated 706 by excluding all

prisoners with outstanding charges, including eligible prisoners, from residential

treatment and by barring them from eligibility for the sentence reduction incentive.

IV. The District Courts Statutory And Administrative Law Analyses

Failed To Apply Basic Rules Of Statutory Construction And

Conflated The Administrative Law Questions.

The district courts decision rested on several errors of analysis related to

statutory construction, the scope of the decision in McLean, and the 706

requirement of an articulated and reasoned basis for agency action.

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First, the court failed to apply the basic rules of statutory construction. With

no supporting precedent, the court ignored the mandatory language of the relevant

statutes. Instead, the court relied on inferences from an annual report requirement and

an aftercareprovision that applies after the term of imprisonment expires.

The opinion below relied on the subject matter of annual reports required by

18 U.S.C. 3621(e)(3)(B). The court referenced the statutes mandate that the BOP

provide an annual report including a detailed description of each substance abuse

program, residential or not as demonstrating ambiguity regarding Congresss intent.

ER 17. The court also found reporting requirements regarding how eligibility is

determined to be significant. ER 18. But the BOPs broad discretion to determine

who has a documented substance abuse problem,Mora-Meraz v. Thomas, 601 F.3d

933 (9th Cir. 2010), is entirely separate from the mandatory language requiring that

all eligible prisoners be provided the opportunity to participate in residential

substance abuse treatment. No rule of statutory construction supports invocation of

reporting requirements to contradict mandatory statutory directives.

The court also erred in its reliance on aftercare provisions because that word

is the subject of a definitional section that contradicts the courts analysis. ER 17, 21.

Rather than creating ambiguity regarding in-prison treatment, the word aftercare

refers to community-based treatment when the participant leaves the custody of the

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Bureau of Prisons. 18 U.S.C. 3621(e)(5)(C). Neither the annual reports nor the

BOPs designation authority change Congresss unambiguous directive that, for

prisoners with substance abuse problems as defined by the BOP, the appropriate

treatment for willing prisoners includes in-prison residential programming. The

district court failed to apply and to follow basic rules of statutory construction that

establish that use of the words shall and all eligible prisoners, as well as the

context from the phase-in of 3621(e)(1)(C), demonstrate that Congress did not leave

the participation of eligible prisoners up to further categorical restriction.

Second, the court misplaced reliance onMcLean by conflating the statutory and

APA challenges and by extending the holding from sentence reduction to

participation in residential treatment. The district court ignored Mr. Abbotts

challenge to the procedural flaws in the BOPs rule-making. Instead, the district

court confused this Courts ruling that the BOP had statutory authority under

3621(e)(2) to limit access to the sentence reduction with a ruling that the BOP rules

were promulgated with adequate reasoning and empirical support in the

administrative record under 706 of the APA. ER 20-21. This error was

compounded by the failure to note that the American Psychiatric Associations

rejection of the BOPs interpretation of the Associations initial comment occurred

afterthis Courts decision inMcLean. The district court conflated consideration of

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the reasonableness of a statutory construction with the unresolved Administrative

Procedure Act questions based on the underlying administrative record.

Third, the district court found that the BOPs designation and sentence

reduction authority rendered the rule procedurally valid. ER at 23-24. Without

addressing the failure to articulate a reason or rationale or supporting data, the court

simply accepted the BOPs conclusory claims: APA rulemaking does not require the

BOP explain or justify the self-explanatory admission criteria that requires prisoners

be eligible for all required components to be admitted into the program. ER 24. Not

only does such circular reasoning eviscerate the APAs protections, the reliance on

self-explanatory cannot be reconciled with a generation of precedent based on State

Farm requiring the transparency of articulated reasoning and supporting analysis.

The policies underlying State Farm are at their peak under the facts of this case: the

BOP stated that the initial comment by the American Psychological Association

became the basis for the challenged rule, then ignored the Associations correction

of the BOPs misinterpretation and advocacy against the rule. Rather than giving the

agency the blank check of self-explanatory rules, this Court should hold the BOP

to the 706 standard that the Supreme Court described as not a high bar, but it is an

unwavering one. Judulang, 132 S. Ct. at 479.

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Conclusion

Mr. Abbott is being denied the opportunity to participate in rehabilitative

programming that Congress required be provided to him as a statutorily eligible

prisoner and that his sentencing judge recommended as part of his sentence. The

Court should declare that the BOPs bar on participation in residential treatment is

invalid, that Mr. Abbott was categorically eligible for the 3621(e) sentence

reduction, that the BOP should treat Mr. Abbott as qualified for residential treatment,

and that he should receive such other equitable relief as law and justice require.

Respectfully submitted: February 25, 2013.

/s/ Stephen R. SadyStephen R. SadyAttorney for Petitioner-Appellant

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IN THE UNITED STATES COURT OF APPEALS


SHANE AARON ABBOTT, ))

Petitioner-Appellant, ) CA No. 12-35801)

v. ))

J. E. THOMAS, )Warden, )

)

Respondent-Appellee.)

STATEMENT OF RELATED CASES

I, Stephen R. Sady, undersigned counsel of record for petitioner-appellant,

Shane Abbott, state pursuant to the Ninth Circuit Court of Appeals Rule 28-2.6, that

I know of no other cases that should be deemed related.

Dated: February 25, 2013.

/s/ Stephen R. SadyStephen R. Sady

Attorney for Petitioner-Appellant

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IN THE UNITED STATES COURT OF APPEALS


SHANE AARON ABBOTT, )

)Petitioner-Appellant, ) CA No. 12-35801

)v. )

)J. E. THOMAS, )

Warden, )

)Respondent-Appellee.)

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(B), I certify that:

1. This brief complies with the type-volume limitation because it contains

9,957 words, excluding the parts of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared in a proportionally spaced typeface using Word Perfect X4, 14-point

Times New Roman font.

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Dated: February 25, 2013.

/s/ Stephen R. Sady

Stephen R. SadyAttorney for Petitioner-Appellant

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CERTIFICATE OF SERVICE

I hereby certify

Abbott v Thomas: Bureau of Prisons (BOP) unlawfully executed his sentence

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