Ruby v. Thomas
Filing
36
OPINION AND ORDER. Petitioner's Petition for Writ of Habeas Corpus is DENIED, with prejudice. IT IS SO ORDERED. Signed on 4/21/2011 by Judge Michael W. Mosman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
KIRK RUBY,
CV. 10-191-MO
Petitioner,
v.
OPINION & ORDER
JEFFREY THOMAS,
Respondent.
STEPHEN R. SADY
Office of the Federal Public Defender
101 SW main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
DWIGHT C. HOLTON
United States Attorney
KEVIN DANIELSON
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
1 - OPINION & ORDER
Mosman, District Judge.
Petitioner, Kirk Ruby, an inmate at Federal Correctional
Institution ("FCI"), Sheridan, at the time he filed his habeas
petition, brings this habeas corpus action pursuant to 28 U.S.C.
§ 2241.
statement
He contends the Bureau of Prisons' ("BOP") program
rule
that
specifies
Residential
Drug
Abuse
Program
("RDAP") eligibility interviews will be conducted, ordinarily, 24
months from an inmate's proximity to release date is invalid under
the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(2)(A),
"because the BOP failed to articulate sufficient rational and
provide any record basis for adopting a rule that significantly
diminishes prisoners' opportunity for consideration for the full
one-year sentence reduction" under 18 U.S.C. § 3621(e).1
Amended Pet. at 6.)
(#31,
Upon review of the record, the Court finds the
"24-month rule" valid under § 706(2)(A) of the APA.
Accordingly,
habeas relief is not warranted.
BACKGROUND
I.
Statutory and Regulatory Framework
In 18 U.S.C. § 4042(a) Congress vested the BOP with broad
authority for the "management and regulation of all Federal penal
and correctional institutions."
In 18 U.S.C. § 3621(b), Congress
established a statutory mandate that the BOP "make available
1
For clarity, the Court will refer to the rule at issue,
found in Program Statement 5330.11 § 2.5.9, as the "24-month
rule."
2 - OPINION & ORDER
appropriate substance abuse treatment for each prisoner the Bureau
determines has a treatable condition of substance addiction or
abuse."2
In § 3621(e) Congress specified:
the [BOP] shall, subject to the availability of
appropriations, provide residential substance abuse
treatment (and make arrangements for appropriate
aftercare) for all eligible prisoners ... with priority
for such treatment accorded based on an eligible
prisoner's proximity to release date.
The statute defines residential substance abuse treatment as "a
course of individual 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, where appropriate, that may extend beyond the 6month period); and defines aftercare as "placement, case management
and monitoring of the participant in a community-based substance
abuse treatment program when the participant leaves the custody of
the [BOP]."
§ 3621(e)(5).
The BOP regulations implementing the RDAP mandate in § 3621(e)
are codified at 28 C.F.R. §§ 550.53-550.55.3
BOP Program Statement
P5330.11 details the agency's internal guidelines and implementing
2
Congress also vested the BOP with the discretion to reduce
an inmate's term of imprisonment, by not more than one year, upon
the successful completion of RDAP. 18 U.S.C. § 3621(e)(2).
3
Current regulations were promulgated January 14, 2009,
following notice and comment, and made effective March 16, 2009.
The related Program Statement, P5330.11, was made effective the
same day.
3 - OPINION & ORDER
instructions for RDAP in Chapter Two (2), Section 2.5.
The stated
purpose and scope of the program statement is:
To establish policy, procedures, and guidelines for the
delivery of Psychology Treatment Programs within the
Bureau of Prisons (Bureau). The Psychology Treatment
Programs Manual is a plain-language, comprehensive set of
operational guidelines for the programs operated by
psychologists and treatment specialists in the Bureau.
The policy is designed to serve as a training device for
psychologists and treatment specialists new to the
Bureau. It is also a ready reference for more experienced
Bureau psychologists and treatment specialists.
P5330.11 at 1.
RDAP regulations that are relevant to this action define
program admission and placement criteria, specifying that an inmate
must be able to complete all three components of the program.
§ 550.53(b)(3) and § 550.53(e). The accompanying program statement
instructions specify inmates ordinarily must have 24 months or more
remaining on their sentence for admission and placement.4
Program
4
28 C.F.R. § 550.53, and P5330.11, Chpt. 2 (underlined text)
specify:
2.5. § 550.53 Residential Drug Abuse Treatment Program
(RDAP).
2.5.1. Target Population. * * *
(a)
RDAP. To successfully complete the RDAP, inmates
must complete each of the following components:
(1) Unit-based component. * * *
(2) Follow-up services. * * *
(3) Transitional drug abuse treatment (TDAT)
component. * * *
(b)
Admission Criteria. Inmates must meet all the
following criteria to be admitted into RDAP.
* * *
c.
(3)When beginning the program, the
4 - OPINION & ORDER
Statement 5330.11 § 2.5.1 and § 2.5.8.
The program statement
instructions also specify BOP staff will monitor wait lists, and
RDAP eligibility interviews will be conducted "ordinarily no less
than 24 months from release."5
II.
Id. § 2.5.5 and § 2.5.9.
Statement of the Case
Pursuant to an amended judgment, Petitioner is serving a 128-
month sentence following his conviction for violating 21 U.S.C.
§ 846, conspiracy to distribute a controlled substance.
(#31,
inmate must be able to complete all
three components described in paragraph
(a) of this section.
d. Ordinarily, have 24 months or more
remaining on their sentence.
* * *
2.5.5 Referral and Redesignation [§ 550.53(d) Referral
to RDAP. Inmates will be identified for referral and
evaluation for RDAP by unit or drug treatment staff.]
An inmate's initial designation will be made by the
Designation and Sentence Classification Center (DSCC)
in Grand Prairie, Texas.
Institution DAP Coordinators and Regional Program
Coordinators will monitor waiting lists to ensure
inmates are transferred for RDAP with sufficient time
to complete the entire RDAP program before their
release from Bureau custody, ordinarily at 24 months.
* * *
5
2.5.9 The Clinical Interview. § 550.53(e) Placement in
RDAP. The Drug Abuse Program Coordinator decides whether to
place inmates in RDAP based on the criteria set forth in
paragraph (b) of this section.
If verifying documentation is found or produced, and
only then, inmates who volunteer for the RDAP will be
personally interviewed by the DAPC. Interviews will be
conducted based on the inmate's proximity to release,
ordinarily no less than 24 months from release. * * *
5 - OPINION & ORDER
Amended Pet., Ex. A at 2.)
2013.
(Id.)
His projected release date is June 12,
On September 24, 2009, Petitioner requested that he
be interviewed for RDAP.
(Id., Ex. B at 1) BOP staff acknowledged
Petitioner's application to RDAP and informed Petitioner it would
be some time before he was interviewed because "many applicants
have
shorter
projected
release
dates
than
yours."
Petitioner filed an administrative appeal.
(Id.)
The BOP response
informed Petitioner RDAP eligibility interviews are conducted when
an inmate is within 24-36 months of their projected release, and
that he was forty-one months and 18 days from his projected release
date and therefore he had to wait approximately 17 months before
being interviewed.
(Id., Ex. B at 4.)
Petitioner challenges the "24-month rule" in Program Statement
5330.11 § 2.5.9, arguing that because the BOP failed to articulate
sufficient rational and provide any record basis for adopting a
rule that
significantly
diminishes
prisoners'
opportunity
for
consideration for the full one-year sentence reduction under 18
U.S.C. § 3621(e), the rule is arbitrary, capricious, an abuse of
discretion or otherwise contrary to law, and therefore invalid.
(#31,
Amended
Pet.
at
6.)
Respondent
argues
that
because
interpretive rules are not subject to the procedural requirements
of the APA, interpretive BOP program statements should not be
subject to the articulated rationale requirement of § 706(2)(A).
(#33, at 8-9.)
/ / /
6 - OPINION & ORDER
DISCUSSION
I.
Review of Agency Action
Agency action must be consistent with the authorizing statute.
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-43 (1984).
The standards a court applies in reviewing
agency action will depend on whether the action was subject to
rulemaking notice and comment procedures under § 553 of the APA, or
not. Agency action subject to notice and comment must be upheld if
it is consistent with the governing statute.
Id.
Notice and comment requirements do not apply to “interpretive
rules,
general
statements
of
policy,
or
rules
of
agency
organization, procedure or practice,” unless required under the
governing statute. § 553(b)(A). An interpretive rule "clarif[ies]
or explain[s] existing law or regulations so as to advise the
public of the agency's construction of the rules it administers."
Gunderson v. Hood, 268 F.3d 1149, 1154 (9th Cir. 2001).
Rules that
amend or are inconsistent with existing legislative rules are not
interpretive rules because they change existing law or policy.
Mora-Meraz v. Thomas, 601 F.3d 933, 940 (9th Cir. 2010).
When not subject to notice and comment, agency action will be
afforded
a
measure
of
deference
reflecting
“the
thoroughness
evident in its consideration, the validity of its reasoning, its
consistency with earlier pronouncements, and all those factors
which give it the power to persuade, if lacking the power to
7 - OPINION & ORDER
control.”
U.S. v. Mead, 533 U.S. 218, 228 (2001)(quoting Skidmore
v. Swift & Co., 323 U.S. 134, 140 (1944); Tablada v. Thomas, 533
F.3d
800,
806
(9th
Cir.
2008.)
In
the
absence
of
valid
regulations, Courts have applied this standard of review to BOP
program statements interpreting the authorizing statute.
See Reno
v. Koray, 515 U.S. 50, 55 n.2 and 61 (1995)(affording deference
under Skidmore, 323 U.S. 134 to BOP program statement interpreting
Congress's term "official detention" in § 3585(b)); Sacora v.
Thomas, 628 F.3d 1059, 1066 (9th Cir. 2010) (applying Skidmore
deference in reviewing whether BOP memorandum and program statement
were consistent with § 3621(b)); Tablada, 533 F.3d at 806 (applying
Skidmore deference to BOP program statement interpretation of
statute where BOP conceded its regulation was invalid because the
agency failed to articulate a rationale when promulgating the
regulation.)
In this action, Petitioner challenges an internal agency
guideline/rule, not subject to notice and comment requirements,
that interprets and explains an agency regulation (interpreting the
governing
procedures.
statute)
that
Petitioner
was
subject
argues
that
to
for
notice
the
and
guideline
comment
to
be
procedurally valid the BOP must articulate its rationale in the
administrative record.
disagrees.
/ / /
8 - OPINION & ORDER
For the reasons discussed below, the Court
II.
Review under § 706
Under § 706 of the APA, "the reviewing court shall decide all
relevant questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the terms
of an agency action." "The reviewing court shall 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." § 706(2)(A).
"The scope of review under the
'arbitrary and capricious' standard is narrow and a court is not to
substitute its judgment for that of the agency." Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983); Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008);
Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir.
2006). Agency action is presumed to be valid if a reasonable basis
exists for the agency decision.
Sacora v. Thomas, 628 F.3d at 1068
(citing Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009));
Mora-Meraz, 601 F.3d at 941.
In
reviewing
agency
action
promulgated
after
notice
and
comment, the Ninth Circuit has specified, "[a] reasonable basis
[for agency action] exists where the agency considered the relevant
factors and articulated a rational connection between the facts
found and the choices made." Arrington, 516 F.3d at 1112 (citation
and internal quotation marks omitted).
A determination of whether
an agency has satisfied the articulated rationale requirement is
9 - OPINION & ORDER
based solely on the administrative record. Id. However, the Ninth
Circuit has not ruled on whether interpretive rules exempt from
notice
and
comment
requirement.
are
subject
to
the
articulated
rationale
Mora-Meraz, 601 F.3d at 941.
In Mora-Meraz, the petitioner challenged a BOP rule requiring
inmates to provide documented proof of substance use within twelve
months of imprisonment in order to be eligible for RDAP.
He
alleged the rule was invalid under two theories: 1) the BOP failed
to follow notice and comment requirements under § 553(b) of the
APA, and 2) the BOP failed to provide an adequate articulated
rationale.
The court rejected the petitioner's first theory,
holding the 12-month rule was interpretive and not subject to
notice and comment.
Id. at 940.
Addressing petitioner's second
theory, the court rejected the argument that Ninth Circuit case law
requires that all agency rules satisfy the articulated-rationale
requirement, stating that discussions of program statements in the
context
of
Skidmore
deference
"have
no
bearing
on
whether
interpretive rules are subject to § 706's articulated rationale
requirement."
Id. at 941.
And because the court found the BOP had
"set forth an adequate explanation for the twelve-month [rule]" the
court did not need to determine whether the articulated rationale
requirement always applies.
/ / /
/ / /
10 - OPINION & ORDER
III. Analysis
1.
Articulated Rationale Requirement
The APA and case law distinguish between substantive agency
rules that create new rights or duties, and interpretive agency
rules. Substantive rules are subject to the rigors of publication,
notice, and comment requirements under § 553 of the APA.
The
process results in creation of an administrative record that courts
can review under § 706(2)(A), and to which courts have applied the
articulated rationale requirement in reviewing the validity of
agency rules. See Tablada, 533 F.3d 800; Arrington, 516 F.3d 1106.
In contrast, interpretive rules are specifically exempt from the
rigors of notice and comment under § 553(b)(3)(A), and implicitly
exempt from having to be supported by an administrative record
comparable to that resulting from the notice and comment process.
Extending
the
articulated
rationale
requirement
to
interpretive rules would necessitate creation of an administrative
record for
interpretive
substantive rules.
rules
on
par with
nullify
requirements
the
for
required
for
See Arrington, 516 F.3d at 1112 (determination
based solely on administrative record.)
would
that
APA's
specific
interpretive
And such a requirement
exception
rules.
Canons
to
rule-making
of
statutory
construction and common sense lead the Court to conclude that
agency
action
for
the
purpose
of
clarifying
or
explaining
regulations promulgated under the rigors of notice and comment does
not require creation of an administrative record comparable to that
11 - OPINION & ORDER
resulting from the notice and comment procedures, and need not
satisfy the articulated rationale requirement to be valid.
See
e.g., Mackey v. Lanier Collection Agency & Services, Inc., 486 U.S.
825, 837, and n.11 (1988).
Therefore, it is only if the "24-month
rule" is inconsistent with the governing statute and regulations
that it is invalid under § 706(2)(A).
2.
24-month Rule
The statute governing RDAP specifies "priority [for treatment
will be] accorded based on an eligible prisoner's proximity to
release."
18 U.S.C. § 3621(e)(1)(C).
While the statute does not
define "proximity to release," the implementing regulations for
RDAP admissions specify, "[t]he Drug Abuse Program Coordinator
decides whether to place inmates in RDAP based on the criteria set
forth in paragraph (b) of this section."
28 C.F.R. § 550.53(e).
Paragraph (b) specifies, "[w]hen beginning the program, the inmate
must be able to complete all three components [of RDAP] described
in paragraph (a) of this section."
28 C.F.R. § 550.53(b)(3).
The
BOP's implementing instruction specifies "[eligibility] interviews
will be conducted based on the inmate's proximity to release,
ordinarily no less than 24 months from release." Program Statement
5330.11, Chapt. 2, at 13.
The Court reviewed the BOP’s drug
treatment regulations from the time they were formally introduced.6
6
BOP Drug treatment programs were initially referred to as
chemical abuse programs. 50 F.R. 48338 (Nov. 22, 1985) (proposed
new rule codified at 28 C.F.R. § 550.50 (1985)).
12 - OPINION & ORDER
In 1994, the BOP published both final and interim rules.
The
interim rules, to be codified at 28 C.F.R. § 550.55(a)(4), outlined
eligibility
criteria
for
the
residential
treatment
programs,
specifying in relevant part: “[o]rdinarily, an inmate must be
within 36 months of release.”
59 Fed.Reg. 55342 (Oct. 21, 1994).
The eligibility criteria was “intended to allow the Bureau to
allocate its resources in an efficient manner.” Id. at 55343.
BOP received no comments on the interim rule.7
01 (May 25, 1995).
The
60 Fed.Reg. 27692-
The accompanying Program Statement, 5330.10,
specified:
"inmates are selected for admission to residential
programs based upon the time remaining on their sentence.
Most inmates will complete residential drug abuse
treatment, participate in institution transitional
services (if time allows), and then transfer to a
[community corrections center].
When a residential
treatment program is not appropriate due to time
constraints, staff may refer the inmate for the
institution's non-residential drug treatment."
P 5330.10., Chpt. 5 at 4.8
The BOP expanded and revised its drug treatment program
regulations
over
the
years,
but
the
eligibility
requirement
remained as stated above until 2004, when the BOP published a
proposed rule intending to “streamline and clarify [drug treatment
program] regulations, eliminating unnecessary text and obsolete
7
Section 550.55 was redesignated as § 550.56 and adopted as
final in 1995. 60 Fed.Reg. 27692-01 (May 25, 1995).
8
Program Statement 5330.10-Drug Abuse Program Manual Inmate, was issued May 25, 1995 and effective June 26, 1995.
13 - OPINION & ORDER
language, and removing internal agency procedures that need not be
in rules text.”
part, the
69 Fed.Reg. 39887-02 (July 1, 2004).
proposed
rule
outlined
in detail
the
In relevant
RDAP
program
components, duration of the residential component, and requirements
for admission, but did not specify that inmates should be 36-month
from
release.
The
accompanying
program
statement,
however,
continued to specify inmates should be 36-month from release.
Program Statement 5330.10 (10/9/1997), Chpt. 5 at 4.9
The BOP published its current final rule on January 14, 2009,
finalizing in one action the interim rules published in 2000, 2004,
and 2006, effective March 16, 2009.
74 Fed.Reg. 1892-01.
The
purpose of the final rule was, again, to “streamline and clarify
[drug treatment program] regulations, eliminating unnecessary text
and obsolete language, and removing internal agency procedures that
need not be in rules text.”
Id.
Revised admissions criteria
specified, “[w]hen beginning the program, the inmate must be able
to complete all three components described in paragraph (a) of this
section.”
28 C.F.R. § 550.53(b)(3)(2009).10
The BOP received no
comments addressing RDAP admissions criteria during the notice and
comment period, and the rule was adopted as published.11
9
Relevant sections of the 1997 Program Statement were not
materially different from the prior 1996 version.
10
Section 550.56 was redesignated as § 550.53 in 2004.
11
The substantive and procedural validity of 28 C.F.R.
§ 550.53(b)(3) is not at issue in this proceeding.
14 - OPINION & ORDER
With
expanded
Programs,
the new
Program
regulations,
Statement,
effective
March
the
BOP
P5330.11
16,
2009.
issued a
In
revised
Psychology
relevant
and
Treatment
part,
the
admissions criteria for RDAP specify inmates must “[o]rdinarily,
have 24 months or more remaining on their sentence.”
Chpt. 2 at 9.
P5330.11,
The RDAP referral and redesignation procedures
specify staff “will monitor waiting lists to ensure inmates are
transferred for RDAP with sufficient time to complete the entire
RDAP program before their release from Bureau custody, ordinarily
24 months.”
Id. at 10.
The clinical interview procedures for
placement in RDAP specify “[i]nterviews will be conducted based on
the inmate’s proximity to release, ordinarily no less than 24
months from release.” Id. at 13.
The
governing
statute
directs
the
BOP
to
prioritize
residential drug treatment based on the inmates' proximity to
release.
The BOP has done so since the inception of RDAP,
specifying in the admissions criteria that the inmates must be
within a specified number of months from their release date.
The
BOP's "24-month rule" explains and clarifies the time-frame in
which the BOP expects to conduct RDAP eligibility interviews.
It
is a tool for the BOP to use in managing the interviews of inmates
seeking admission to RDAP, such that they are interviewed based on
their proximity to release and the time known to be required for
completing the program. The rule does not contradict or change the
BOP's obligation under 18 U.S.C. § 3621(e)(1)(C), that inmates be
15 - OPINION & ORDER
prioritized for residential drug treatment based on their proximity
to release; or the BOP's requirement under 28 C.F.R. § 553(b)(3),
that inmates be able to complete all three components of the
program.
Nor does it alter the BOP's discretionary early release
benefit under 18 U.S.C.
§ 3621(e)(2).
Reviewing the "24-month rule" in the context of the BOP's
charge to manage a residential drug treatment program, the Court
finds it is reasonable for the BOP to establish a time-frame for
conducting program interviews that takes into account the time
needed for inmates to complete the program and the requirement that
treatment be prioritized based on proximity to release. Therefore,
Petitioner's argument that the rule is arbitrary, capricious, an
abuse of discretion or otherwise contrary to law cannot stand.
CONCLUSION
Based on the foregoing, Petitioner's Petition for Writ of
Habeas Corpus is DENIED, with prejudice.
IT IS SO ORDERED.
DATED this
21st
day of April, 2011.
/s/ Michael W. Mosman
Michael W. Mosman
United States District Judge
16 - OPINION & ORDER
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