Fiscus v. Thomas

Filing 28

OPINION & ORDER. Petitioner's Petition for Writ of Habeas Corpus 1 is DENIED, with prejudice. IT IS SO ORDERED. Signed on 5/31/2011 by Judge Michael W. Mosman. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

DANA FISCUS,

CV. 10-910-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
RONALD SILVER
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
1 - OPINION & ORDER

MOSMAN, District Judge.
Petitioner, Dana Fiscus, an inmate at Federal Prison Camp
("FPC"), Sheridan, at the time he filed his habeas petition, brings
this habeas corpus action pursuant to 28 U.S.C. § 2241.

He

challenges the legality of the Sliding Scale Sentence Reduction
("SSSR")

policy

for

awarding

early

release

incentives

to

Residential Drug Abuse Treatment Program ("RDAP") graduates, as
outlined in Bureau of Prisons ("BOP") Program Statement P5331.02
p.7

(3/16/2009).

Petitioner

asserts

the

SSSR

is

arbitrary,

capricious, an abuse of discretion and otherwise not in accordance
with law, and that SSSR was promulgated in violation of procedural
requirements of the Administrative Procedures Act ("APA").

(#1,

Pet. at 2-3.) Upon review of the record, the Court finds the
"sliding scale sentence reduction" valid under § 706(2)(A) of the
APA.

Accordingly, habeas relief is not warranted.
BACKGROUND
On November 3, 2010, the Court issued an Order to Show Cause

why

relief

should

not

be

granted

on

the

petition

government failed to file an Answer to the petition.

when

the

(#21.)

In

its Response, the government argued the petition should be denied
as moot because the BOP has removed application of the SSSR to
Petitioner, Petitioner has been placed in a Residential Re-Entry
Center ("RRC") and his potential release date moved forward, and
there was no further relief the Court could grant.
2 - OPINION & ORDER

(#22, at 2.)

Petitioner argued the case was not moot because the underlying
legal challenge to the SSSR rule had not been resolved; and because
he remained in BOP custody and the Court could provide equitable
relief

for

the

injury

he

alleges

application of the SSSR rule.

-

over

incarceration

from

(#23, at 2.)

The Court found the question of the validity of the SSSR rule
remained unresolved.

Under Ninth Circuit precedent, when a legal

dispute is unresolved and there is a possibility the petitioner
could receive a reduction in his term of supervised release under
18 U.S.C. § 3583(e), even if it requires filing a separate action,
mootness is defeated. See Kittel v. Thomas, 620 F.3d 949, 951 (9th
Cir. 2010).

The Court, thus, rejected the government's contention

Petitioner's claim was moot and ordered briefing on the merits.
The Court now reviews Petitioner's challenge to the SSSR rule on
the merits.
I.

Statutory and Regulatory Framework
In 18 U.S.C. §§ 3621-3625, Congress vested the BOP with broad

authority to manage the imprisonment of a convicted person, and
specified "[t]he Bureau shall make available appropriate substance
abuse treatment for each prisoner the Bureau determines has a
treatable condition of substance addiction or abuse."

18 U.S.C.

§ 3621(b). In § 3621(e), Congress articulated a specific statutory
mandate for residential substance abuse treatment programs for

3 - OPINION & ORDER

"eligible prisoners."

The program the BOP created to satisfy this

mandate is the Residential Drub Abuse Program ("RDAP").
In 1994, Congress enacted the Violent Crime Control Law
Enforcement Act of 1994 ("VCCLEA"), which amended 18 U.S.C. § 3621
to include a discretionary early release incentive for inmates
convicted of non-violent offenses who successfully completed RDAP.
18 U.S.C. § 3621(e)(2).

Exercising its broad discretion under the

statute, the BOP promulgated a series of implementing regulations
and internal agency guidelines for administering the early release
incentive.
The

regulations

governing

RDAP

and

the

associated

early

release incentive are found at 28 C.F.R. §§ 550.50-550.57 (2009).
Section 550.55(c)(2) specifies the BOP may limit the time frame of
early release based upon the length of sentence imposed by court
order. The associated internal agency guidelines that are relevant
to this action are found in Program Statement P5331.02 (3/16/2009)
- Early Release Procedures Under 18 U.S.C. § 3621(e).

Section 10

of the program statement specifies, in relevant part:
Following completion of Transitional Drug Abuse Treatment
(TDAT), inmates found to be eligible for an early release
under 18 U.S.C. § 3621(e) may receive that early release
based upon the length of their sentence, as detailed in
the table below.
Sentence Length
30 MONTHS or LESS
31-36 MONTHS
37 MONTHS OR MORE

4 - OPINION & ORDER

Early Release Time-Frame
No more than 6 months
No more than 9 months
No more than 12 months

Any change in current
by order of the Court
sentence computation
example, a 36-month
sentence will result
release.

offense sentence length as imposed
will result in a recalculation of
and provisional incentive. For
sentence reduced to a 24-month
in no more than a 6-month early

(emphasis in original).
While the substantive and procedural validity of the BOP's
regulations and internal agency guidelines pertaining to RDAP and
early release have been challenged repeatedly, courts have upheld
the BOP's broad exercise of discretion under § 3621 to narrow the
class of inmates eligible for early release and to otherwise manage
RDAP-related matters. See Lopez v. Davis, 531 U.S. 230 (2001) (BOP
had discretion under governing statute to promulgate regulations
that

categorically

deny

early

release

eligibility

to

certain

categories of inmates); Sacora v. Thomas, 628 F.3d 1059 (9th Cir.
2010)(BOP's residential reentry center ("RRC") policies reasonably
implemented the Second Chance Act and were not arbitrary and
capricious); Mora-Meraz, 601 F.3d 933 (9th Cir. 2010)(12-month rule
requiring documentation of substance abuse for RDAP eligibility is
not inconsistent with regulation and is a valid interpretive rule);
Jacks v. Crabtree, 114 F.3d 983 (9th Cir. 1997)(BOP has discretion
to promulgate regulations that categorically deny early release
eligibility to certain categories of inmates); Downey v. Crabtree,
100 F.3d 662 (9th Cir. 1996)(BOP has exclusive authority to decide
RDAP eligibility).
5 - OPINION & ORDER

II.

Statement of the Case
In 2008, Petitioner pled guilty to conspiracy to manufacture,

possess with intent to distribute, and to distribute anabolic
steroids, and to money laundering.

(#1, Ex. 1 at 1.)

sentenced to five years probation.

(Id. at 2.)

He was

Petitioner

violated the terms of his probation and, in July 2009, he was
sentenced to 30-months imprisonment, to be followed by 36 months of
supervised

release.

(Id.

Ex.

2

Petitioner enrolled in RDAP.

at

2-3.)

In

October

2009,

His projected release date, with

sentence reduction under § 3621(e)(2), was set to April 23, 2011,
with an anticipated transfer date to a Residential Re-entry Center
(RRC) of November 1, 2010.

(#26.)

On August 3, 2010, Petitioner

filed the instant petition challenging the SSSR rule under which
the BOP limited his early release incentive to 6 months or less.
(#1,

at

4-5.)

On

September

21,

2010,

the

BOP

removed

the

application of SSSR, and recalculated Petitioner's early release
date to March 25, 2011.

(#26.)

His transfer date for RRC

placement remained the same to allow 145 days of RRC time.

(Id.)

DISCUSSION
Petitioner

challenges

the

SSSR

rule

arguing

it

is

a

substantive rule "because it modifies the statutory authority to
reduce

nonviolent

offenders

sentences

up

to

one

year"

and,

therefore, it is subject to notice and comment requirements under

6 - OPINION & ORDER

the APA. (#27 at 4.)

He further argues the rule does not withstand

§ 706(2)(A) review and is arbitrary and capricious. (Id. at 6-12.)
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
rule-making 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.

"An agency's obligation to comply with the APA's notice and
comment provisions is an administrative requirement that must be
fulfilled,

notwithstanding

whether

susceptible to judicial review."
569 (9th Cir. 2007).

an

agency's

action

is

Serrato v. Clark, 486 F.3d 560,

However, the notice-and-comment requirements

do not apply to "interpretive rules, general statements of policy,
or rules of agency organization, procedure or practice," unless
notice and hearing is required by a governing statute.
§ 553(b)(A); Mora-Meraz, 601 F.3d at 939.

5 U.S.C.

The statutes governing

federal prisons, imprisonment, and RDAP do not require notice and
hearing. See 18 U.S.C. §§ 4001, 4042, 3621-3626. Therefore, under
the APA, only the BOP rules that are substantive rules are subject
to the notice-and-comment requirement.

7 - OPINION & ORDER

A substantive rule effects a change in existing law or policy
and alters the substantive obligations of the parties.

Gunderson

v. Hood, 268 F.3d 1149, 1154 (9th Cir. 2001); see also Chrysler
Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) ("[substantive] rules
have the force and effect of law", citing the Attorney General's
Manual on the APA (1947), at 30 n.3).

In contrast, "agencies issue

interpretive rule to clarify or explain existing law or regulations
so as to advise the public of the agency's construction of the
rules it administers."

Gunderson, 268 F.3d at 1154 (internal

citations and quotations omitted).

Petitioner contends the SSSR

rule is a substantive rule because "it modifies the statutory
authority to reduce nonviolent offenders sentences up to one year."
(#27 at 4.)

The Court disagrees.

The statute governing RDAP specifies "[t]he period a prisoner
convicted

of

a

nonviolent

offense

remains

in

custody

after

successfully completing a treatment program may be reduced by the
[BOP], but such reduction may not be more than one year from the
term the prisoner must otherwise serve.

18 U.S.C. § 3621(e)(2)(B)

(emphasis added).

The implementing regulations for the early

release

specify,

incentive

in

relevant

part,

"[u]nder

the

Director's discretion allowed by 18 U.S.C. 3621(e), we may limit
the time-frame of early release based upon the length of sentence
imposed by the Court." 28 C.F.R. § 550.55(c)(2) (emphasis added).

8 - OPINION & ORDER

The SSSR rule in the BOP's internal guidelines specifies the amount
of early release incentive the BOP might award an inmate based on
the length of sentence.

Program Statement P5331.02, Section 10.

The SSSR rule explains and clarifies the amount of time the BOP may
be inclined to award inmates depending on the length of their
sentence.

The rule does not effect a change in the BOP's statutory

authority to exercise its discretion to reduce sentences.

See

Lopez, 531 U.S. at 241 (BOP "has the authority, but not the duty
...

to

reduce

[the]

term

of

imprisonment"

under

18

U.S.C.

§ 3621(e)(2)(B)). Nor does it alter the substantive obligations of
the parties since the early release incentive remains purely
discretionary.

The Court, therefore, concludes the SSSR rule is

interpretive and, thus, is not subject to APA notice and comment
requirements.
is

See Mora-Meraz, 601 F.3d at 940 (twelve-month rule

interpretive);

(clarifying

see

regulatory

also

Gunderson,

ambiguities

is

268

F.3d

at

the

function

1154-55
of

an

interpretive rule).
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
9 - OPINION & ORDER

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
based solely on the administrative record. Id. However, the Ninth
Circuit has not ruled on whether interpretive rules exempt from
notice

and

requirement.

comment

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

10 - OPINION & ORDER

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.
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
11 - OPINION & ORDER

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 leads 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
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 SSSR rule

is inconsistent with the governing statute and regulations that it
is invalid under § 706(2)(A).
/ / /
12 - OPINION & ORDER

2.

Sliding Scale Sentence Reduction (SSSR) Rule

The statute governing RDAP specifies, in relevant part:
(A) Generally. Any prisoner who, in the judgment of the
Director of the [BOP], has successfully completed a
program of residential substance abuse treatment provided
under paragraph (1) of this subsection, shall remain in
the custody of the [BOP] under such conditions as the
Bureau deems appropriate.
(B) Period of Custody. The period a prisoner convicted
of a nonviolent offense remains in custody after
successfully completing a treatment program may be
reduced by the [BOP], but such reduction may not be more
than one year from the term the prisoner must otherwise
serve.
Section 3621(e)(2) (emphasis added).

The implementing regulations

for RDAP incentives specify:
(a) An inmate may receive incentives for his or her
satisfactory participation in the RDAP. Institutions may
offer the basic incentives described in paragraph (a)(1)
of this section.
(1) Basic incentives.
***
(iv) Early release, if eligible under § 550.55.
28 C.F.R. § 550.54 (emphasis added).

The discretionary nature of

the early release incentive is well established.

Lopez, 531 U.S.

at 241; Reeb v. Thomas, 636 F.3d 1224, 1229 n.4 (9th Cir. 2011);
Jacks, 114 F.3d at 986 n.4.
The implementing regulations for early release specify:
(c) Early release time-frame.
(1) Inmates so approved may receive early release up to
twelve months prior to the expiration of the term of
13 - OPINION & ORDER

incarceration, except as provided in paragraphs (c)(2)
and (3) of this section.
(2) Under the [BOP] Director's discretion allowed by 18
U.S.C. 3621(e), we may limit the time frame of early
release based upon the length of sentence imposed by the
Court.
(3) If inmates cannot fulfill their community-based
treatment obligations by the presumptive release date, we
may adjust provisional release dates by the least amount
of time necessary to allow inmates to fulfill their
treatment obligations.
28 C.F.R. § 550.55(c) (emphasis added).

Promulgation of the

regulation was subject to notice and comment procedures, through
which the BOP received a comment stating: "the [BOP] should,
instead of giving a year off, award time off up to a year based on
the inmate's level of dedication to their sobriety, as determined
by

a

council

consisting

of

the

local

DAP

Coordinator

and

specialists." 74 Fed. Reg. 1895 (January 14, 2009)(comments on the
2004 proposed rule).

The BOP responded:

In fact, we award time off of "up to" a year, based on
several factors, including the inmate's level of
dedication to sobriety. Title 18 U.S.C. 3621(e)(2)(B)
gives the Bureau the discretion to reduce the period of
incarceration for an inmate who successfully completes
[RDAP], but "such reduction may not be more than one
year." In § 550.55(c), we have chosen to exercise this
discretion by awarding early release based on successful
completion of [RDAP], the length of sentence imposed by
the Court, and fulfillment of the inmate's community
based treatment obligations by the presumptive release
date.
In § 550.55(c)(2), we add language explaining that, under
the Director’s discretion allowed by 18 U.S.C. 3621(e),
we may limit early release based upon the length of
sentence imposed by the Court. We add this provision to
14 - OPINION & ORDER

adhere to the Court’s intent in determining the length of
the sentence. An early release of a substantial period of
time (e.g., twelve months) for relatively short sentences
would diminish the seriousness of the offense and unduly
undercut the sentencing court’s punitive intent, as
manifested in the length of the sentence imposed.
Id.
Agency action subject to rule-making notice and comment must
be upheld if it is consistent with the governing statute.
§

550.55(c)

is

not

inconsistent

with

§

Petitioner does not challenge its validity.

Section

3621(e)(2)(B),

and

He does, however,

challenge the validity of the accompanying internal agency SSSR
rule.
Because the SSSR rule is an internal agency guideline that
clarifies a valid regulation, and outlines how the BOP may choose
to exercise its broad discretion in awarding the early release
incentive based on the sentence imposed by the court, the rule is
only invalid under § 706(2)(A) if it is inconsistent with the
governing statute or regulations.
MO.

See Ruby v. Thomas, CV 10-191-

And the SSSR rule is not inconsistent with either.
Section 3621(e)(2) provides for a purely discretionary early

release incentive.

Section 550.55(c) specifies the BOP may limit

the amount of discretionary incentive based on length of sentence.
The SSSR rule provides details of how the BOP may limit the
discretionary incentive, as § 550.55(c) says it may. The SSSR rule

15 - OPINION & ORDER

is consistent with the regulation and is, therefore, valid under § 706(2)(A).
Even if the Court were to find SSSR rule inconsistent with the
statute or regulation relief is not warranted.

The SSSR is an

internal agency guideline that can be altered by the bureau at
will, Jacks, 114 F.3d 985 n.1 (internal guidelines may be altered
at will, citing Koray v. Sizer, 21 F.3d 558, 562 (3rd Cir. 1994),
rev'd on other grounds sub nom Reno v. Koray, 515 U.S. 50 (1995)),
and Petitioner has not shown that he has suffered an injury from
its

application.

The

failure

of

the

BOP

to

award

what

is

recognized to be a purely discretionary early release incentive
does

not

constitute

an

injury

warranting

habeas

relief.

See

Greenholtz v. Inmates of the Nebraska Penal and Correctional
Complex, 442 U.S. 1, 7 (1979) ("There is no constitutional or
inherent right of a convicted person to be conditionally released
before the expiration of a valid sentence."); see also Reeb, 636
F.3d at 1227 ("a substantive decision by the BOP to . . . deny a
sentence reduction for completion of the [RDAP] is not reviewable
by the district court.")
/ / /
/ / /
/ / /

16 - OPINION & ORDER

CONCLUSION
Based on the foregoing, Petitioner's Petition for Writ of
Habeas Corpus is DENIED, with prejudice.
IT IS SO ORDERED.
DATED this

31

day of May, 2011.

/s/ Michael W. Mosman
Michael W. Mosman
United States District Judge

17 - OPINION & ORDER