No.

-----------------

IN THE SUPREME COURT OF THE UNITED STATES

LONNIE PECK, Petitioner,

v.

J. E. THOMAS, Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner, Lonnie Peck, requests leave to file the attached petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit without prepayment of costs and to proceed in forma pauperis pursuant to Rule 39.1 of this Court and 18 U.S.C. 3006A(d)(7). The petitioner was represented by counsel appointed under the Criminal Justice Act in the District of Oregon and on appeal in the Ninth Circuit Court of Appeals, and therefore no affidavit is required. Respectfully submitted this

r0

da ofJanuary, 2013.

Steph R. Sady Attorney for Petitioner

No. _ _ _ __ _ __

IN THE SUPREME COURT OF THE UNITED STATES

LONNIE PECK, Petitioner,

v.
J. E. THOMAS, Respondent.

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Stephen R. Sady Chief Deputy Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204 (503) 326-2123 Attorney for Petitioner

QUESTION PRESENTED

Whether Bureau of Prisons' rules that categorically disqualify statutorily eligible prisoners from a one-year sentence reduction under 18 U.S.C. 362l(e) are arbitrary and capricious, in violation of 706 of the Administrative Procedure Act, where the agency invoked its discretion and "correctional experience" to implement rules without consulting available empirical data or explaining the process it used to reach its conclusions.

TABLE OF CONTENTS Page

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

I.

Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdictional Statement ...... ... ..... .... . . .. . . .. . .. .. .. . .. ....... .. 2 Statutes and Regulations Involved ........ .. . . . ... . . ... .... ........ ... . 2 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Reasons For Granting The Writ ... . .. ... . ..... . .. . .... ... . ..... . . ... . . 9 A. The Ninth Circuit Has Joined The Third, Fifth, Eighth And Tenth Circuits In Failing To Apply This Court's Well-Established Standard Of APA Review To The Bureau OfPrisons ............ . .. . ..... .. 10
1.

II. III. IV. V.

The Ninth Circuit Failed To Hold The BOP's Rules To The Minimum Level Of Reasoned And Empirical Support Under The AP A, As Required By This Court . . . . . . . . . . . . . . . . . . . . . . 12 The Ninth Circuit Provided A Rationale Not Articulated By The Agency, Which Separately Disregards This Court's Controlling Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 In Upholding The BOP Rules, The Third, Fifth, Eighth and Tenth Circuits Erroneously Relied On This Court's Decision In Lopez In Finding A Sufficient Public Safety Rationale And Gave Undue Deference To The BOP .. . . .. ............ ... .. 14

2.

3.

B.

This Court Should Address The Extraordinarily Important Issue Of Providing Robust Administrative Review To Address The BOP's Invocation OfUnconstrained Discretion To Limit Access To Sentence Reductions .. ... ... . . ..... .... . .. . . . .. .. . . . . . . . . .. . .. . . . ... . 16

1.

Congress Intended 3621 (e) To Ameliorate Negative Effects Of Over-Incarceration And For The BOP To Implement It To Maximize The Benefits OfEarly Release ... . . . . .. .. . . ... ... 17 Available Empirical Data Identify Important Policy Considerations Absent From The Administrative Record . . . . . . . 18 The Agency's History OfLegal Error, Inadequate Notice-AndComment, And Cursory Rationales Favor Particularly Rigorous Judicial Review For APA Compliance ...................... 19 The Interest At Stake - Human Freedom Increased Through A Sentence Reduction - Also Warrants Scrupulous Judicial Review Of Agency Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2.

3.

4.

VI.

Conclusion .. . . ... . ...... . ....... .... .... . ... . . . .. . . .. . . . ..... .. . 21

Certificate of Service and Mailing

INDEX TO APPENDIX

Appendix A Ninth Circuit opinion (June 19, 2012) . . .. .. .. . .. .... .. ... . .. . . .... 1 Appendix B District Court opinion (March 30, 2011) ....... . .. ... . . . ... ... . ... 18 Appendix C Denial of Rehearing and Rehearing En Bane (October 5, 2012) . . .. . .. 37

11

TABLE OF AUTHORITIES Page FEDERAL CASES

Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) ......................... .. ........ 5, 6, 12 Burlington Truck Lines v. United States, 371 U.S. 156 (1962) ......................................... ... 10, 11 Byrd v. Hasty, 142 F.3d 1395 (11th Cir. 1998) ..... . .................... . ... ... ...... 4 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 u.s. 402 (1971) ........ . ......................... . ......... ... 11 Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009) ....... . . . . ..... . ... ......... . ....... . ... 6 Davis v. Crabtree, 109 F.3d 566 (9th Cir. 1997) ... . ... ......... ....... ................. . 4 Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996) ......... ... .. . ............ .... ..... . .... 4 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ...... .. ......... . ..... .. . ... .. ................ 19 Fristoe v. Thompson, 144 F.3d 627 (lOth Cir. 1998) . . ................................. . .... 4 Gardner v. Grandolsky, 585 F.3d 786 (3d Cir. 2009) ......... .............................. 8, 15 Gatewood v. Outlaw, 560 F.3d 843 (8th Cir. 2009) ......... ... ............. . ......... 8, 14, 15 Handley v. Chapman, 587 F.3d 273 (5th Cir. 2009) ........ ... .. ..... .... ................ 8, 15

111

Judulang v. Holder, 132 S. Ct. 476 (2011) . . . .. .. .. ........ . . . . . . . . . .. . ........ ... . 9, 11, 16 Licon v. Ledezma, 638 F.3d 1303 (lOth Cir. 2011) ... . . . .. . . .. .... . . . . . . .. . .. ... . . . . . . 8, 15 Lopez v. Davis, 531 u.s. 230 (2001) . .. . .. .. .... .. . ....... . .. . . .. . .. 5, 7, 8, 14, 15, 16, 20 Martin v. Gerlinski, 133 F.3d 1076 (8th Cir. 1998) .. . . . ... .... .... .. ..... . . .. . ... . . . . . . .. . 4 Moon v. Thomas, 787 F. Supp. 2d 1154 (D. Or. 2011) .. ... .. . .. . ... . ... ........ . .. . .. . . . 1 Morton v. Ruiz, 415 u.s. 199 (1974) ............................................... 19 Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 u.s. 29 (1983) ...... . ... . .... . . . ... . . . .. .. . ...... 5, 6, 10, 14, 16, 20 Paulsen v. Daniels, 413 F .3d 999 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Peck v. Thomas, 682 F.3d 1201 (9th Cir.), amended, 697 F.3d 767 (9th Cir. 2012) . . 2, 8, 9, 12, 13 Peck v. Thomas, 787 F. Supp. 2d 1145 (D. Or. 2011) ... . . . ..... . ....... . .... .. . . . . ... .. 1 Pelissero v. Thompson, 170 F.3d 442 (4th Cir. 1999) .. . .. . . . . . ...... ... ....... . .. .. ... ... . . .. 4 Suesue v. Thomas, No. CV 10-1295-MO, 2011 WL 1527365 (D. Or. Apri120, 2011) .. . . . . ... . .. . .. . . ..... ...... . . 1 Venegas v. Henman, 126 F.3d 760 (5th Cir. 1997) .. . . . .. .. . .. . .. . . . . . .. . . . . . . . ... .. ... . .. . 4

IV

FEDERAL STATUTES
5 u.s.c. 706 .................................... . ......... 5, 10, 11, 12, 20 18

u.s.c. 922(g)

................ . ......... . ................... . ........ 4

18 U.S.C. 924(c) ........................... . ......................... 4, 5 18 U.S.C. 3583(e) ... ... ................................................ 9 18 U.S.C. 3621(e) .................. . ....... .. ...... 2, 3, 4, 5, 9, 13, 16, 17, 18 21 U.S.C. 841 ......................................................... 4 28

u.s.c. 1254(1) ...................................................... 2

28 C.F.R. 550.55 ....... .. ....... .. ................................... 3, 7 28 C.F.R. 550.58 (1995) ...... . . . ..... .......... . ................... 4, 6, 15 74 Fed. Reg. 1892, 1893 ............ . ............ . . ...................... 13

Conf Rep. to Consolidated Appropriations Act of2010, 155 Cong. Rec. H13631-03 .. 13 Crime Control Act of 1990, Pub. L. No. 101-647, 2903, 104 Stat. 4789, 4913 (1990) . 2
Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 62 Fed. Reg. 53690-01 (Oct. 15, 1997) ............. . ...... . 5 Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 65 Fed. Reg. 80745 (Dec. 22, 2000) ..................... .. 5 Drug Abuse Treatment Program: Subpart Revision and Clarification and Eligibility of D.C. Code Felony Offenders for Early Release Consideration, 74 Fed. Reg. 1892-01 (Jan. 14, 2009) ........................... ..... 6, 7

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 32001, 108 Stat. 1796, 1896 (1994) ........ .. ... ... ....................... ... 2

No. _________________

IN THE SUPREME COURT OF THE UNITED STATES

LONNIE PECK, Petitioner, v. J. E. THOMAS, Respondent.

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

The petitioners, through their attorney, Stephen R. Sady, respectfully request that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit entered on June 19, 2012, affirming the denial of habeas corpus relief.

I.

Opinions Below
The district court denied habeas relief in each petitioner's case. Peckv. Thomas, 787

F.Supp.2d 1145 (D. Or. 2011); Moon v. Thomas, 787 F.Supp.2d 1154 (D. Or. 2011); Suesue

v. Thomas, No. CV. 10-1295-MO, 2011 WL 1527365 (D. Or. April20, 2011). Their appeals

were consolidated, and the Ninth Circuit affirmed the denials of habeas corpus relief in a published opinion on June 19, 2012. Peck v. Thomas, 682 F.3d 1201 (9th Cir. 2012). The Ninth Circuit amended its opinion and denied panel and en bane rehearing on October 5, 2012. Peck v. Thomas, 697 F.3d 767 (9th Cir. 2012). II. Jurisdictional Statement This Court's jurisdiction is invoked under 28 U.S.C. 1254(1) (2006).

III.

Statutes and Regulations Involved In 1990, Congress amended the Sentencing Reform Act to mandate that the Bureau

of Prisons (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 treatment. Crime Control Act of1990, Pub. L. No. 101-647, 2903, 104 Stat. 4789, 4913 (1990) (codified at 18 U.S.C. 3621(b)). In 1994, Congress enacted 18 U.S.C. 3621(e) to provide nonviolent prisoners with an early release incentive because too few prisoners volunteered to undergo the intensive residential drug program. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 32001, 108 Stat. 1796, 1896 (1994) (codified at 18 U.S.C. 3621(e)). The provision of 3621(e) related to eligibility got the residential program states: Substance abuse treatment. (2) Incentive for prisoners' successful completion of treatment program.(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 Bureau

of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve .... (5) Definitions.- As used in this subsection(B) the term "eligible prisoner" means a prisoner who is(I) determined by the Bureau of Prisons to have a substance abuse problem; and (ii) willing to participate in a residential substance abuse treatment program .... 18 U.S.C. 3621(e). While the regulations promulgated by the BOP regarding eligibility for early release upon completion of RDAP have a substantial history, discussed below, the current rule provides in relevant part: (b) Inmates not eligible for early release. As an exercise of the Director's discretion, the following categories of inmates are not eligible for early release: (4) Inmates who have a prior felony or misdemeanor conviction for: (I) Homicide (including deaths caused by recklessness, but not including deaths caused by negligence or justifiable homicide); (ii) Forcible rape; (iii) Robbery; (iv) Aggravated assault; (v) Arson; (vi) Kidnaping; or (vii) An offense that by its nature or conduct involves sexual abuse offenses committed upon minors .... (5) Inmates who have a current felony conviction for: (ii) An offense that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device) .... 28 C.F.R. 550.55 (effective March 16, 2009).

IV.

Statement of the Case

In 1994, Congress authorized a sentence reduction of up to one year for federal

prisoners convicted of "nonviolent" offenses who successfully completed in-prison 3

residential drug treatment. 18 U.S.C. 3621(e). In 1995, the BOP promulgated a rule disqualifYing statutorily eligible prisoners whose "current offense is determined to be a crime of violence as defined in 18 U.S.C. 924(c)(3)" and who had ever been previously convicted of"homicide, forcible rape, robbery or aggravated assault." 28 C.P.R. 550.58 (1995). The BOP issued a companion program statement that defined "crimes of violence" to include convictions for being a felon in possession of a firearm under 18 U.S.C. 922(g) and drugtrafficking convictions under 21 U.S.C. 841 that involved a two-level enhancement under the United States Sentencing Guidelines for possession of a firearm. Statement No. 5162.02 (July 24, 1995). Challenges to the original 1995 rule led to a circuit split regarding the validity of BOP's definition of"crimes of violence" to include firearm possession. The Eighth, Ninth, Tenth and Eleventh Circuits invalidated the BOP's rules, holding that offenses involving the mere possession of :firearms were not categorically crimes ofviolence. Byrdv. Hasty, 142 F.3d 1395, 1398 (11th Cir. 1998); Fristoe v. Thompson, 144 F.3d 627, 631 (lOth Cir. 1998); BOP Program

Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998); Davis v. Crabtree, 109 F.3d 566,
569 (9th Cir. 1997); Downey v. Crabtree, 100 F .3d 662, 670 (9th Cir. 1996). The Fourth and Fifth Circuits upheld the BOP's statutory interpretation. Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir. 1999); Venegas v. Henman, 126 F.3d 760, 763 (5th Cir. 1997). In October 1997, in response to the majority of circuits invalidating its definition of "crimes of violence," the BOP published an immediately effective interim rule and

accompanying program statement that dropped the reference to 924( c), and, in its place, asserted the Director's discretion to administratively disqualifY the same category of statutorily eligible prisoners. Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 62 Fed. Reg. 53690-01 (Oct. 15, 1997). Prisoners again challenged the offense-of-conviction rules regarding firearms possession as violating the statute. In Lopez v. Davis, this Court held, as a matter of statutory construction, that 18 U.S.C. 3621(e) granted the BOP discretion to administratively disqualifY statutorily eligible prisoners from the sentence reduction. 531 U.S. 230, 244 (200 1). This Court expressly declined to address whether the BOP complied with the Administrative Procedure Act (APA) in promulgating the 1997 interim rule. Id at 244 n.6. The Ninth Circuit addressed the AP A notice-and-comment issue and invalidated the 1997 interim rule in Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005). By 2000, the BOP promulgated a final version of the 1997 interim rule with essentially identical language. Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 65 Fed. Reg. 80745 (Dec. 22, 2000). Prisoners then challenged the 2000 rule under 706 of the AP A. The Ninth Circuit recognized that this Court had not conclusively decided the procedural validity of the final rule, then held it invalid under 706(2)(A) of the APA because the BOP had "failed to set forth a rationale for its decision to categorically exclude prisoners convicted on [firearm possession] offenses .... " Arrington v. Daniels, 516 F.3d 1106, 1114 (9th Cir. 2008) (citing Motor

Vehicle Mfrs. Ass 'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983)). Following Arrington and State Farm, the Ninth Circuit also invalidated the BOP's rule barring
statutorily eligible prisoners based on prior convictions -no matter how stale- because the rule lacked a reasoned basis and was premised on legal errors. Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009). The Crickon court described the types of administrative steps needed for a valid rule: [The BOP] did not reference pertinent research studies, or case reviews. It did not describe the process employed to craft the exclusion. It did not articulate any precursor findings upon which it relied. It did not reveal the analysis used to reach the conclusion that the categorical exclusion was appropriate. Indeed, the administrative record is devoid of any substantive discussion of the rationale underlying the BOP's exercise of its discretion.

Crickon, 579 F .3d at 986. The court went on to specifically note the need for an explanation
for use of decades old prior convictions, which would not count as criminal history under the Sentencing Guidelines, to disqualifY prisoners categorically from the program:
It is more difficult to comprehend the rationale for including older convictions in a regulatory scheme crafted as part of an incentive to encourage participation in a prison-sponsored drug rehabilitation program. The difficulty increases when the apparent inconsistency with Congress's expressed intent is considered. Absent articulation of a rational connection between the factors the BOP examined and the conclusions it reached, 28 C.P.R. 550.58(a)(l)(iv) must be invalidated.

!d. at 987.
In January 2009, the BOP published revised rules incorporating the provisions contained in the 2000 final rule that the Ninth Circuit invalidated in Arrington. Drug Abuse Treatment Program: Subpart Revision and Clarification and Eligibility ofD.C. Code Felony
6

Offenders for Early Release Consideration, 74 Fed. Reg. 1892-01 (Jan. 14, 2009). The rules continue to provide that, as "an exercise ofthe Director's discretion," inmates with a current felony conviction for an offense involving "the carrying, possession, or use of a firearm or other dangerous weapon or explosives" are not eligible for early release under the RDAP incentive. 28 C.F.R. 550.55(b)(5)(ii) (2009); Program Statement 5162.05 at 4 (Mar. 16, 2009). The rules also provide that, in the Director's discretion, prisoners are ineligible for early release who have prior convictions for homicide, forcible rape, robbery, aggravated assault, arson, kidnaping, or an offense involving the sexual abuse of minors. 28 C.F .R. 550.55(b)(4)(i-vii) (2009); Program Statement 5162.05 at 4 (Mar. 16, 2009). Explaining the 2009 rule's denial of early release for prisoners whose offenses involved firearms, the BOP stated: [I]n the correctional experience of the Bureau, the offense conduct of both armed offenders and certain recidivists suggests that they pose a particular risk to the public. There is a significant potential for violence from criminals who carry, possess or use firearms. As the Supreme Court noted in Lopez v. Davis, "denial of early release to all inmates who possessed a firearm in connection with their current offense rationally reflects the view that such inmates displayed a readiness to endanger another's life." The Bureau adopts this reasoning. The Bureau recognizes that there is significant potential for violence from criminals who carry, possess or use firearms while engaged in felonious activity. Thus, in the interest of public safety, these inmates should not be released months in advance of completing their sentences. 74 Fed. Reg. at 1895 (citation omitted in original). The BOP also discussed the 2009 rule's exclusion of prisoners with certain prior convictions: In exercising the Director's statutory discretion, we considered the crimes of homicide, forcible rape, robbery, aggravated assault, arson, and kidnaping, as 7

identified in the FBI's Uniform Crime Reporting Program (UCR), which is a collective effort of city, county, state, tribal, and federal law enforcement agencies to present a nationwide view on crime. The definitions of these terms were developed for the National Incident-Based Reporting System and are identified in the UCR due to their inherently violent nature and particular dangerousness to the public. The Director ofthe Bureau exercises discretion to deny early release eligibility of inmates who have prior felony or misdemeanor conviction for these offenses because commission of such offenses rationally reflects the view that such inmates displayed readiness to endanger the public. 74 Fed. Reg. at 1894. The BOP did not cite to any empirical studies or case reviews, or describe the process it used to reach its conclusions, or address the use of stale convictions. The Third, Fifth, Eighth and Tenth Circuits have each upheld some version ofthe rule under the AP A on two separate grounds: first, that this Court implicitly held in Lopez that the BOP had put forth a sufficient and contemporaneous public safety rationale; and second, that the BOP had additionally put forth a sufficient "uniformity rationale," evidenced by the BOP's consistent litigation posture. See Licon v. Ledezma, 638 F.3d 1303, 1311 (lOth Cir.

2011);Handleyv. Chapman, 587 F.3d 273,282 (5th Cir. 2009); Gardnerv. Grandolsky, 585
F.3d 786,791-92 (3d Cir. 2009); Gatewoodv. Outlaw, 560 F.3d 843,848-49 (8th Cir. 2009). In the decision below, the Ninth Circuit joined those circuits in upholding the 2009 rule under the APA. Peckv. Thomas, 697 F.3d 767, 776 (9th Cir. 2012) ("We join our sister circuits in holding that the Bureau has not violated the AP A in excluding inmates from consideration of early release who have a current conviction for felon in possession or a past

conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnaping, or child sexual abuse."). Each of the petitioners here was statutorily eligible for the sentence reduction Congress provided as an incentive for nonviolent prisoners to enter and to complete intensive residential drug treatment under 18 U.S.C. 3621(e). Each was deemed administratively ineligible for a sentence reduction of up to one year under the BOP's 2009 rule. Each has a potential remedy under 18 U.S.C. 3583(e) for modification or termination of the term of supervised release. Peck, 697 F.3d at 269 n.l.

V.

Reasons For Granting The Writ

The Court should grant certiorari because the Ninth Circuit has joined four other

circuits in failing to apply and to enforce this Court's well-established standard of agency review under the APA to the BOP. The extraordinarily low bar for review of BOP

regulations effectively eliminates most of the AP A's benefits for federal prisoners, leading to wasteful policies of over-incarceration and implementation of the program without the benefit of the empirical study and rational rule-making that is routine in other administrative contexts. This Court should require the same standard for empirical support and explicit reasoning as this Court routinely requires in the context of regulations pertaining to safety, the environment, and other administrative areas. This Court should also apply its reasoning in Judulang v. Holder, 132 S. Ct. 476,488 (2011), to reject the contention that an agency's

long-standing adherence to an inadequately supported rule has relevance under 706 of the APA. The Court's decision would have an extraordinary and immediate effect: these regulations involve hundreds of prisoners each year who successfully complete in-prison residential substance abuse treatment. Ifthese prisoners were eligible for sentence reductions as Congress provided, the decreased incarceration rates would help address the dangers to inmates and guards alike of prison over-crowding as well as the fiscal waste of overincarceration. A. The Ninth Circuit Has Joined The Third, Fifth, Eighth And Tenth Circuits In Failing To Apply This Court's Well-Established Standard Of APA Review To The Bureau Of Prisons.

This Court has "frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner" and recognizes the necessity to "make the requirements for administrative action strict and demanding." Motor Vehicle Mfrs. Ass 'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983) (citing Burlington Truck Lines v. United States, 371 U.S. 156, 167 (1962)). InState Farm, this Court struck down a rule under the arbitrary and capricious standard because the agency failed to offer the rational connection between facts and judgment when it did not provide a transparent factual analysis in support of its decision to not require seat belts. Jd at 56. In reaching its decision, this Court reaffirmed that an agency violates the AP A when there are "no findings and no analysis ... to justify the choice made" and "no indication of the basis on which the [agency]

10

exercised

its

expert

discretion,"

lest

"expertise,

the

strength

of modern

government ... become a monster which rules with no practical limits on its discretion." Id at 48 (citing Burlington Truck Lines, 371 U.S. at 167).

It is equally well-established that 706 of the APA requires a reviewing court to

engage in a substantial inquiry based on the record that was before the agency when it made its decision, and that "[t]he court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,416,420 (1971). This Court recently reaffirmed the rigorous level of procedural transparency required by the AP A. In Judulang, the Court addressed the adequacy under 706 of the immigration agency's explanation for a rule disqualifYing a class of aliens from a discretionary benefit, reinforcing the importance of judicial review of agency action. 132 S. Ct. at 479. Noting that 706's requirement of a "reasoned explanation" is not "a high bar, but ... an unwavering one," the Court emphasized the need for transparent decision-making, including "consideration of relevant factors" and examining the reasons for agency decisions -or absence thereof- as the case may be. !d. at 484 (citations omitted). In Judulang, the Court expressly rejected the rationale of the other circuits that the Ninth Circuit has now joined here: "Arbitrary agency action becomes no less so by simple dint of repetition" and

"longstanding capriciousness receives no special exemption from the APA." 132 S. Ct. at 488. Thus, the BOP's persistence in adhering to a position, which has never been adequately explained or supported by relevant data, should have been irrelevant to the 706 analysis.

11

1.

The Ninth Circuit Failed To Hold The BOP's Rules To The Minimum Level Of Reasoned And Empirical Support Under The APA, As Required By This Court.

In the decision below, the Ninth Circuit panel upheld the 2009 regulation under 706 of the AP A, concluding that "the agency offered a public safety rationale in the administrative record." Peck, 697 F.3d at 772. The Ninth Circuit concluded that the BOP had cured the "defect identified in Arrington- a failure to articulate any supporting rationale in the administrative record" because the BOP "clearly stated" that, in its "correctional experience," the offense conduct of those prisoners categorically excluded by the rule "suggests that they pose a particular risk to the public." I d. at 773 (emphasis in original). The Ninth Circuit acknowledged that "[a]lthough the Bureau could have proffered a fuller explanation, the AP A does not demand more." !d. The court further concluded that the BOP is "entitled to rely on an existing index of serious crimes" to identify crimes that are dangerous under the governing statute and that it is "entitled to invoke its experience as a justification" for the 2009 rule. !d. at 774-76. The BOP did not even address its use of stale convictions. By accepting the agency's cursory and conclusive rationales, and noting that any rationale will pass muster under the AP A, the Ninth Circuit failed to apply the strict and demanding standard of review of agency action required by this Court.

12

2.

The Ninth Circuit Provided A Rationale Not Articulated By The Agency, Which Separately Disregards This Court's Controlling Authority.

The Ninth Circuit also erroneously asserted a ground in support ofupholdingthe 2009 rule never mentioned in the rule's administrative record. The Ninth Circuit cited to the Federal Register for the proposition that "the Bureau is already struggling with its limited resources to accommodate all of the inmates who currently wish to participate," which alone warranted cutting the eligibility of statutorily qualified prisoners. Peck, 697 F.3d at 776. But the cited portion of the Federal Register was unrelated to the disqualifYing rule; rather, it addressed the long wait that inmates who wish to participate in RDAP face before entering the program. See 74 Fed. Reg. 1892, 1893 (Bureau ofPrisons Jan. 14, 2009). By relying on a statement that the BOP did not claim supports its rule, the Ninth Circuit panel disregarded this Court's controlling authority, which hold that only the agency's own express justifications can be asserted in support of a rule. When an agency fails to explain or reconcile its findings itself, the judiciary cannot fill the gap. Even worse, the rationale provided by the judiciary supports increased eligibility: the BOP has expressly noted that increased use ofthe 3621(e) sentence reduction would save money. Conf Rep.

to Consolidated Appropriations Act of2010, 155 Cong. Rec. H13631-03, at H13887 (daily
ed. Dec. 8, 2009); Pub. L. No. 111-17, 123 Stat. 3034 (2009) ("[t]o the greatest extent possible, BOP shall prioritize the participation of nonviolent offenders in [RDAP] in a way

13

that maximizes the benefits of sentence reduction opportunities for reducing the inmate population.").

3.

In Upholding The BOP Rules, The Third, Fifth, Eighth and Tenth Circuits Erroneously Relied On This Court's Decision In Lopez In Finding A Sufficient Public Safety Rationale And Gave Undue Deference To The BOP.

In Lopez, this Court held that the 1997 version of the rule was substantively reasonable, but expressly declined to address whether it was procedurally valid. 531 U.S. at 244 n.6. Yet, in upholding the 2000 version of the rule under the APA, the Eighth Circuit had "no difficulty concluding, as the Court obviously did in Lopez, that public safety was the contemporaneous rationale for the interim and final rules, and not merely a post hoc rationalization by appellate counsel." Gatewood v. Outlaw, 560 F.3d 843, 848 (8th Cir. 2009). The Eighth Circuit also found that, in light of the BOP's efforts to "implement the same substantive policy in the face of continued judicial resistance," that it is "appropriate to discern the reasons for the agency's final rule from the various prior interim rules, Program Statements, and litigation positions reflecting that consistent policy." !d. at 847 (emphasis added). The court ultimately concluded that "[w ]hen the agency has articulated and acted on a consistent rationale throughout the course of a lengthy informal rulemaking process, the final rule is not arbitrary and capricious because the rationale was not fully reiterated in the final agency action." !d. at 848. The Third Circuit expressly followed Gatewood (and purportedly State Farm) in holding that a public safety rationale "may reasonably be discerned from the regulatory 14

history and attendant litigation" and concluding that the BOP had not violated the AP A in promulgating the 1997 and 2009 rules because it '"has articulated and acted on a consistent rationale throughout the course of a lengthy informal rulemaking process.'" Gardner v.

Grandolsky, 585 F.3d 786, 792-93 (3d Cir. 2009) (quoting Gatewood, 560 F.3d at 848)
(emphasis added). The Third Circuit also found it "extremely significant that in Lopez, the Supreme Court upheld both the reasonableness of the 1997 interim regulation and the BOP's public safety rationale." !d. (citing Lopez, 531 U.S. at 244) (emphasis in original). The Fifth Circuit recognized that this Court "did not dispositively establish the validity of the categorical exclusion" in Lopez because "it did not hold that 28 C.P.R. 550.58(a) satisfied theAPA's procedural requirements." Handleyv. Chapman, 587 F.3d 273,278 (5th Cir. 2009). Nonetheless, the Fifth Circuit noted that the public safety rationale was

"obvious" and concluded "as the Supreme Court did in Lopez, that public safety was the contemporaneous rationale for the BOP's categorical exclusion" in the 2009 rule as "readily discerned from [the BOP's] prior interim rules, Program Statements, and consistent litigation position." !d. at 282. Finally, in upholding the 2000 and 2009 rules, the Tenth Circuit assumed that "it is unlikely the Supreme Court upheld the public safety rationale [in Lopez] without considering whether that rationale was merely a post hoc rationalization conjured for appeal." Licon v.

Ledezma, 638 F.3d 1303, 1310-11 (lOth Cir. 2011). The Tenth Circuit also concluded that
because "the BOP has consistently attempted to implement a policy denying early release

15

eligibility to firearm possession offenders in the face of judicial challenges," "it is permissible to consider the prior versions ofthe rule, the related Program Statements, and the position advanced by the BOP in past litigation to discern the BOP's rationale for the 2000 and 2009 rules." !d. at 1309-10. These courts all misapply State Farm in confusing substantive reasonableness and compliance with the APA's procedural requirements: Lopez decided only substantive reasonableness and expressly reserved the procedural reasonableness of the rule. The courts also repeatedly rely on litigation positions in violation of this Court's prohibition on post-hoc rationales. Not only do these cases misread this Court's decision in Lopez, they also reward the BOP for defying judicial review, providing a blanket license for the agency to continue violating the APA. Under the "uniformity rationale" these cases adopted to uphold the BOP rules, any legally erroneous agency rule will be eventually found valid under the APA, so long as the agency puts forth the same argument long enough. This Court expressly rejected such a basis for supporting an agency rule in Judulang. 132 S. Ct. at 488.

B.

This Court Should Address The Extraordinarily Important Issue Of Providing Robust Administrative Review To Address The BOP's Invocation Of Unconstrained Discretion To Limit Access to Sentence Reductions.

At a time when Congress is directing the BOP to maximize its authority to release prisoners earlier, the BOP denies prisoners the mitigating effect of the 3621(e) incentive and promotes wasteful and expensive prison overcrowding by refusing to fully implement the sentence reduction program for statutorily eligible prisoners. The agency has continued 16

to rely on cursory explanations that have no empirical support and whose only apparent origin is from legal responses to litigation. The need for full compliance with AP A standards is especially imperative where the statute creates a norm of eligibility, the agency has previously unlawfully promulgated rules on this precise subject matter, and where the commodity at issue is human liberty by way of early release from incarceration.

1.

Congress Intended 3621 (e) To Ameliorate Negative Effects OfOverIncarceration And For The BOP To Implement It To Maximize The Benefits OfEarly Release.

Section 3 621 (e) has two purposes: to provide effective drug treatment in order to reduce recidivism, and to reduce the time prisoners who successfully complete the program spend incarcerated in order to reduce prison populations. Prisoners who complete the Residential Drug Abuse Treatment Program (RDAP) are sixteen percent less likely to recidivate and fifteen percent less likely to relapse to drug use within three years of release.

Fiscal Year 2012 Budget Request for the Bureau ofPrisons: }fearing Before the Subcomm. on Commerce, Justice, Science and Related Agencies of the H Comm. on Appropriations,
112th Cong. (Mar. 15, 2011) (statement of Harley Lappin, Director, Federal Bureau of Prisons). The BOP is currently operating at 139 percent of capacity, creating dangers to prisoners and guards and thwarting in-prison rehabilitative programs.

17

2.

Available Empirical Data IdentifY Important Policy Considerations Absent From The Administrative Record.

A recent report of the General Accounting Office has identified areas where the BOP could save millions of dollars based on full implementation of available ameliorative programs. U.S. Gov'tAccountability Office, GAO 12-30-20, Bureau ofPrisons: Eligibility and Capacity Impact Use ofFlexibilities to Reduce Inmates' Time in Prison (2012). 1 The Defenders' response to Congress demonstrates the massive scope of the BOP's institutional failure generally to provide rational and data-based policies, with resulting mass overincarceration. Report on Behalf of the Federal Public and Community Defenders, GAO

Report Reveals Multiple Ways to End the Waste of Millions on Unnecessary OverIncarceration (April 4, 2012). 2 On the 3621(e) program, the Defenders identified the
complex policy questions that the BOP has never addressed in excluding statutorily eligible pnsoners: (1) the data on recidivism and relapse for excluded prisoners compared with those who receive the sentence reduction; (2) the reduction in overcrowding and cost savings that would be realized by including additional statutorily eligible prisoners; and (3) cost savings realized by reducing the risk of reoffending through the RDAP program.

!d. at 11. Further, the BOP never considered narrowing the exclusions, which would save
millions and allow non-violent offenders go home sooner. !d. at 12.

Available at: http://www.gao.gov/products/GA0-12-320.

Available at: http:/I or. fd.org/Case%20Documents/Defender%20GA0%20Response% 20with%20Attachment%204.4. 12.pdf.

18

3.

The Agency's History Of Legal Error, Inadequate Notice-AndComment, And Cursory Rationales Favor Particularly Rigorous Judicial Review For APA Compliance.

An agency's power to "make rules that affect substantial individual rights and obligations carries with it the responsibility not only to remain consistent with the governing legislation, but also to employ procedures that conform to the law." Morton v. Ruiz, 415 U.S. 199,232 (1974) (citations omitted). In light ofthe BOP's history ofviolatingthe APA, the Court should require especially scrupulous compliance with the APA's requirements that administrative action be neutral, rational, and empirically supported. For over fifteen years, BOP rules implementing the RDAP sentence reduction incentive that disqualified statutorily eligible prisoners situated identically to the petitioners in this case have been invalidated by the courts of appeals. In the face of this unprecedented and well-documented history of agency errors, the Court should require rigorous compliance and compensatory clarity in promulgation of the rules covering the same subject matter. Moreover, the history of violating the APA raises constitutional questions. Mere cursory judicial review of

unrestrained agency discretion "might violate important constitutional principles of separation of powers and checks and balances." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 539 (2009) (Kennedy, J., concurring).

19

4.

The Interest At Stake- Human Freedom Increased Through A Sentence Reduction -Also Warrants Scrupulous Judicial Review Of Agency Action.

This case calls for more scrupulous application of the State Farm standard for application of 706 of the APA given that the agency is dealing in human freedom measured in time spent incarcerated. The incentive for successful completion of the RDAP program is one of only three statutes that reduce a sentence through administrative action. By requiring strict and demanding review of agency action, the Court furthers Congress' intent that the RDAP program be administered to maximize the sentence reduction, which means prisoners can return sooner to their families and communities. Moreover, stringent judicial review of agency action is necessary to ensure full compliance with procedures that prescribe reasoned decision-making where freedom is at stake. Congress has spoken on the identical issue and concluded that, at least categorically by statute, the identical class of prisoners is eligible for sentence reduction. As noted by this Court in Lopez, the agency has the power to create categorically ineligible groups within the universe of statutorily eligible prisoners, 531 U.S. at 244, but where Congress has spoken, the agency should provide a compelling rationale, supported by reviewable evidence, to exclude statutorily eligible prisoners from the ability to earn a sentence reduction of up to one year.

20

VI.

Conclusion The Court should grant certiorari to vindicate the core purposes of the writ. The legal

issue is extraordinarily important because the freedom ofhundreds of prisoners and millions of taxpayer dollars are at stake. The Court's function of providing precedential guidance is also implicated because the Ninth Circuit joined four other circuits in failing to apply correctly this Court's governing precedent in determining APA compliance, while extending undue deference to the BOP in a manner that diminishes the Judiciary's crucial role in protecting those affected by administrative action. To address an exceptional issue and to vindicate this Court's precedent on judicial review of agency action, the Court should issue a writ of certiorari. Dated this 2nd day of January, 2013 .

Stephen . Sady Attorney for Petitioner

21

No. _________________

IN THE SUPREME COURT OF THE UNITED STATES

LONNIE PECK, Petitioner, v. J. E. THOMAS, Respondent.

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

CERTIFICATE OF SERVICE AND MAILING

I, Stephen R. Sady, counsel of record and a member of the Bar of this Court, certify that pursuant to Rule 29.3, service has been made of the within PETITION FOR WRIT OF CERTIORARI on the counsel for the respondent by hand-delivery on January 2, 2013, an exact and full copy thereof addressed to: Ronald K. Silver Assistant U.S. Attorney 1000 SW Third, Suite 600 Portland, Oregon 97204
1

and by depositing in the United States Post Office, in Portland, Oregon on January 2, 2013, first class postage prepaid, an exact and full copy thereof addressed to: Donald B. Verrilli, Jr. Solicitor General of the United States Room 5614 Department of Justice 950 Pennsylvania Avenue, N. W. Washington, DC 20530-0001 Further, the original and ten copies were mailed to the Honorable William K. Suter, Clerk of the United States Supreme Court, by depositing them in a United States Post Office Box, addressed to 1 First Street, N.E., Washington, D.C., 20543, for filing on this 2nd day of January, 2012, with first-class postage prepaid. Dated this January 2, 2013.

Stephen R. Sady Attorney for Petitioner Subscribed and sworn to before me this January 2, 2013 .

OFFICIAL SEAL

JILL C OOZARK
NOTARY PUBUC-OREGON COMMISSION NO. 442717

MY COMMISSIO NEXPIRES OCTOBER 28, 2013

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LONNIE P ECK,

Petitioner-Appellant,
v.

No. 11-35283 D.C. No. 3:10-cv-00709-MO

J. E.

THOMAS,

Respondent-Appellee.

Louis D . MooN, Petitioner-Appellant,

No. 11-35296 D .C. No. 3:10-cv-01154-MO

v.
J.E.
THOMAS,

Warden, Respondent-Appellee.

DEVEN SuEsUE, AKA Devon Suesue, Petitioner-Appellant, v. J. E.

THOMAS,

No. 11-35355 D.C. No. 3:10-cv-01295-MO OPINION

Warden, Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding Argued and Submitted March 7, 2012-Portland, Oregon Filed June 19, 2012

7097

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P ECK

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T HOMAS

Before: William A. Fletcher, Raymond C. Fisher, and Jay S. Bybee, Circuit Judges . Opinion by Judge Bybee

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COUNSEL

Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Oregon, for the appellant. Ronald K. Silver, Assistant United States Attorney, Portland, Oregon, for the appellant.

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OPINION

BYBEE, Circuit Judge: Petitioners Lonnie Peck, Louis Moon, and Deven Suesue are statutorily eligible for early release from prison in exchange for the successful completion of a residential drug abuse treatment program ("RDAP"). The Bm-eau of Prisons ("BOP"), however, has enacted a regulation disqualifying them from the early release incentive on the basis of their current convictions for felon in possession and one petitioner's past conviction for robbery. See 28 C.F.R. 550.55(b). Petitioners each filed for a writ of habeas corpus asking the district court to invalidate the regulation Ullder 706 of the Administrative Procedure Act ("APA"). The district court dismissed the petitions, and the appeals were consolidated. We have jurisdiction under 28 U.S.C. 1291 and 2253 1 and we affirm.
I.

FACTS AND PROCEDURAL BACKGROUND

Petitioners were each convicted of being a felon in possession of a firearm under 18 U.S.C. 922(g), and are either currently serving sentences in BOP facilities or serving terms of supervised release. Al the time of his conviction Petitioner Moon had a past conviction for robbery, but he received no criminal histo1y points under t11e Sentencing Guideline because the conviction was more than 15 years old.
Although two of the three petitioners nrc currcnlly serving terms of supervised release, "relief may still be nvailable in the form of modification, amendment, or termination of their supervised release." Arrington v. Daniels. 516 F.3d 1106, 1111 n.4 (9th Cir. 2008) (citing 18 U.S.C. 3583(c)(2)); see also Pnul.t eu v. Daniels, 4t3 F.3d 999, I005 n.3 (9lh Cir. 2005). Here. becaus..: the petitioners completed RDAP while in prison. a decision invnlidnting lhc regulation tendcring them ineligible for early release in exchange for completing RDAP could provide a basis to shorten their terms of supervised release.
1

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In 1990, Congress directed the BOP to create programs to treat substance abuse among inmates. See 18 U.S.C. 362 1(b). To encourage participation in this program, Congress subsequently detcnnincd that irunates who successfully complete the program would be eligible for up to one year of early release from prison-as long as the inmate had been convicted of a "nonviolent offense." Id. 362l(e)(2)(B). Under the authority delegated by this statute, the BOP has implemented a regulation that categorically excludes certain classes of inmates from eligibility for 362l(e)'s early release incentive. See 28 C.F.R. 550.55(b). Petitioners challenge two aspects of this regulation: first, the exclusion of irunates convicted of "[a]n offense that involved the ... possession ... of a firearm," id. 550.55(b)(5)(ii); and second, the exclusion of irunates who have a prior conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or child sexual abuse, regardless of the age ofthat conviction, id. 550.55(b)(4). The history of the BOP's attempts to implement these categorical exclusions is lengthy but relevant. Initially, the regulation defined the tc1m "nonviolent offense" in 3621 (e) with reference to the statutory definition of "crime of violence" found in 18 U.S.C. 924(c)(3). See 28 C.F.R. 550.58 (1995). We invalidated that regulation, holding that the inclusion of a 922(g) possession charge is not a reasonable interpretation of the term "crime of violence" in 924(c)(3). Davis v. Crabtree, l 09 F.3d 566, 569 (9th Cir. 1997). This eventually created a circuit split. 2
2 Thc Eighth, Tenth, and E!cvcnlh Circuit. agreed that the rcgnlation adopted an unreasonable delinilion of "crime of violence," see M<ll'fin v. Gerlinski, 133 F.J<.I 1076, 1079 (8!h Cir. 1998); Frisroa v. Thompson, I 44 f.3d 627, 63 1 (I Oth Cir. 1998); Byrd v. Has~v. 142 r.3d 1395, 1398 (lith ir. 1998). but the fourlh and Fifth Circuit. held otherwise, see Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir. 199.9); Venegas v. Hemuan, 126 F.3d 760, 763 (5th Cir. 1997).

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To resolve this circuit split, the BOP dropped the reference to 924(c)(3) and instead asserted its discretionary authority to determine eligibiUty fo r early release m1der 3621(e). In 1997, the BOP published an interim rule, effective immediately, that categorically excluded from eligibility for early release inmates wi th cttrrcnt convictions for felony offenses "involv[ing] the can-ying, possession, or use of a firearm." 28 C.F.R 550.58(a)(l )(vi) (1998). In addition, the regulation continued to exclude prisoners with prior convictions for certain offenses. ld. 550.58(a)(l)(iv). We upheld the Bureau's authority to so disqualify otherwise statutorily eligible inmates. See Bowen v. Hood, 202 F.3d 1211, 1220 (9th Cir. 2000) (holding that the 1997 rule's exclusion based on firearms possession was a reasonable exercise of discretion granted by the statute); Jacks v. Crabtree, 114 F.3d 983, 986 (9th Cir. 1997) (holding that the 1995 rule's exclusion of inmates with prior convictions for certain offenses was entitled to deference and was reasonable). The Supreme Court later agreed, holding that 'lhe agency's interpretation is reasonable both in taking accotmt of preconviction conduct and in making categorical excl.u ions. ' Lopez v. Davis, 531 U.S. 230, 242 (2001). The Court explained that "the Bureau need not blind itself to preconviction conduct that the agency reasonably views as jeopardizing life and limb. By denying eligibility to violent offenders, the statute manifests congressional concern for precooviction behavior- and for the very conduct leading to conviction." ld. The Court also found that '[t)h Bureau reasonably concluded that an i11mate s prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence and therefore appropriately determines the early release decision." ld. at 244. The Lopez Court declined to reach the question of whether the BOP had complied with the notice-and-comment provisions of the APA in promulgating the 1997 rule. Id. at 244 n.6. We took up this question in Paulsen v. Daniels, holding

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that the BOP had violated the APA by "implement[ing] a rule first, and then seek[ing] comment later." 413 F.3d 999, 1005 (9th Cir. 2005). We invalidated the 1997 interim rule, declined to reinstate the 1995 version because it was also invalid, and noted that the law cuuently in effect was a final rule that had been promulgated in 2000. Id. at 1008. The 2000 rule fmalized the 1997 interim rule without change. Id. at 1003; see 28 C.F.R. 550.58 (2001). Once again, we invalidated the BOP's efforts. In Arrington v. Daniels, we held that the 2000 rule, insofar as it categorically excluded inmates convicted of firearm-possession offenses, was arbitrary and capricious under 706(2)(A) of the APA because the agency failed to give a reasoned basis for its action. 516 F.3d 1106, 1113-14 (9th Cir. 2008). In Arrington, we found that the administrative record did not contain the rationale advanced by the agency during litigation, id. at 1113, and concluded that the BOP had "failed to set forth a rationale for its decision to categorically exclude prisoners convicted of offenses involving the carrying, possession, or use of firearms from eligibility for a sentence reduction under 3621(e)," id. at 1114. Following Arrington, we invalidated the exclusion based on prior convictions in Cricko11 v. Thomas, 579 F.3d 978 (9th Cir. 2009). Crickon noted that "[o]ur recent 1uling in Arrington sq uarely control.s the outcome of the present case " id. at 983, and once again criticized the BOP for enacting a regulation without articulating a supporting rationale id. at 984-85. Not to be deterred, the BOP responded to Arrington and Crickon by enacting identical provisions in a 2009 mle. See 28 C.F.R. 550.55. It is this rule that Petitioners here challenge-specifically, the exclusions set forth in 28 C.F.R. 550.55(b)(5)(ii) and 550.55(b)(4). At the outset, we note that every other circuit court to consider the issue has held either the current or prior version of this regulation to be valid under the APA. See Licon v. Ledezma, 638 F.3d 1303, 1311

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PECK V. THOMAS

(1Oth Cir. 20 II ); Giannini v. Fed. Bureau a/Prisons 405 F. App'x 96, 97 (8th ir. 2010); Stevenson v. FCJ Wt1seca, 383 F. App'x 587, 588 (8th Cir. 201 O) Handley v. Chapman, 587 F.3d 273 282 (5th Cir. 2009); Gardner v. Grcmdolsky, 5 5 F.3d 786 791-92 (3d Cir. 2009); Gatel1'ood v. Outlaw, 560 F.3d 843, 848-49 (8th Cir. 2009).

The district court issued three separate opinions, each finding that the BOP's regulation is valid under APA 706. Petitioners timely appealed. Petitioners argue that: (1) the articulated rationale is once again insufficient to justify the rule; (2) a heightened AP A standard should apply to rules that involve the loss of liberty; (3) the legal error in the accompanying Program Statement infects the regulation and renders it invalid; (4) the BOP was required to reach a de ision on the basis of available statistics rather than merely invoking its experience; and (5) the BOP's interpretation conflicts with Congress' expressed intent. In response, the BOP argues that it has cured the defects identified in Arrington and Crickon, and that the public safety rationale justifies the regulation. 3
II.

DISCUSSION

A.

The BOP Satisfied 706 of the APA by Articulating a Public Safety Rationale.

[1] Section 706 of the AP A grants authority to a reviewing court to "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 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). Agency action is presumed to be valid and must be
3 We review a district court's dismissal of a petition for writ of habeas corpus de novo. Bowen, 202 F.3d at 1218.

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upheld if a reasonable basis exists for the agency decision. Sacora v. Thomas, 628 F.3d 1059, 1068 (9th Cir. 2010) (citing Crickon, 579 F.3d at 982). "A reasonable basis exists where the agency considered the relevant factors and articulated a rational connection between the facts fotmd and the choices made." Arrington, 516 F.3d at 1112 (intemal quotation marks omitted). The district court correctly found that, in enacting the categorica l exclusion at issue in this case, the agency offered a public safety rationale in lhe administrat ive record. The BOP argues that this cures !he procedural defects identified by the Arrington and Crickon courts. Petitioners argue tha t while it is tme that we previously invalidated the regulation for the failure to offer any contemporaneous rationale, it is not hue that the present regulation's rationale cmed that procedural defect. We uphold the regulation. I. The Bureau Did Not Violate the APA in Enacting 28 C.F.R. 550.55(b)(5)(ii).

When enacting the 2009 regulation, the Bureau stated: The Director of the Bureau exercises discretion to deny early release eligibility to inmates who have a felony conviction for the offenses Iis ted in 550.55(b)(5)(i)-(iv) because comm.ission of such offenses illustrates a readiness to endanger the public. Denial of early release to all inmates convicted of these offenses rationally reflects the view that, in committing such offenses, these inmates displayed a readiness to endanger another's life. The Director of the Bureau, in his discretion, chooses to preclude from early release consideration inmates convicted of offenses involving canying, possession or use of a firearm and offenses that present a serious risk of physical force against person or

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property, as described in 550.55(b)(5)(ii) and (iii). Further, in the correctional experience of the Bureau, the offense conduct ofboth armed offenders and certain recidivists suggests that they pose a patticular risk to the public. There is a significant potential for violence from criminals who carry, possess or use firearms. Drug Abuse Treatment Program: Subpart Revision and Clarification and Eligibility of D.C. Code Felony Offenders for Early Release Consideration, 74 Fed. Reg. 1892, 1895 (Bureau of Prisons Jan. 14, 2009).

(2 J The defect identified in Arrington- a fail me to articulate any supporti ng rationale in the administrative record, 516 F.3d at J 113- has been cured here. The Bureau dearly stated that, "in the correctional experience of the Bureau, the offense conduct of both am1ed offenders and certain recidivists suggests tbat they pose a particular risk to the public." 74 Fed. Reg. at 1895. The Bureau fmther explained that it wa exercising it discretion because '[t]bere is a significant potential for violence from crimi!lals who carry, pos e s or usc ftrearms" and that "in committing such offenses, these inmates displayed a readiness to endanger another's life." Id. Although the Bureau could have proffered a fuller explanation, the AP A does not demand more.
2. The Bureau did not violate the APA in enacting 28 C.F.R. 550.55(b)(4).

With regard to the exclusion based on prior convictions in 550.55(b)(4), the BOP explained: In exercising the Director's statutory discretion, we considered the crimes of homicide, forcible rape, robbery, aggravated assault, arson, and kidnaping, as identified in the FBI's Uniform Crime Reporting Program (UCR), which is a collective effort of city,

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county, state, tribal, and federal law enforcement agencies to present a nationwide view on crime. The definitions of these terms were developed for the National Incident-Based Reporting System and are identified in the UCR due to their inherently violent nature and particular dangerousness to the public. The Director of the Bureau exercises discretion to deny early rei ase eligibility to inmates who have a ptior felony or misdemeanor conviction for these offenses because commission of such offenses rationally reflects the view that such inmates displayed readiness to endanger the public. 74 Fed. Reg. at 1894.

[31 We had previously criticized this portion of the BOP's regulation because, "[b ]eyond explaining tha t it decided upon the four identi.tied categories or convictions becau e of the variation in violence level that may be found in state convictions, lhe BOP provided no exp lanation for its decision to look to prior convictions as the appropriate basis to detcrmin categorical exclu ions." Crickon 579 F.3d at 9 4 (citation omitted). This time the BOP has explained, minimally, that "comm ission of such offenses [homicide forcible rape robbery, aggravated assault, arson, and kidnaping] rationally reflects the view that such inmates displayed readiness to endanger the public." 74 Fed. Reg. at 1894. As we and the Supreme Court have found, this reasoning is pem1issible and based on common sense. Lopez, 531 U.S. at 242; Jacks, 114 F.3d at 985-86. Now that the agency has explicitly relied on such reasoning in lhe administrative record, we see uo reason to overturn the regu lation. Nor does the lack of a temporal restri.ction on prior convictions invalidate the regulation: implicit in the Bureau' reasoning is the determination that a prior conviction for any of the e offenses, no matter its ngc ''rationally reflects Lbe view Lhat such inmates displayed _ readincs. to endanger lhe public." 74 Fed. Reg. at 1894.

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v.

THOMAS

Petitioners argue that this rationale is insufficient because it relies on erroneous facts. The BOP stated that it chose the particular crimes "as identified in the FBI's Unifom1 Crime Reporting Program (UCR)." ld. The Bureau then explained that ''[!]he definitions of these terms were developed for the National Incident-Based Reporting System and are identified in the UCR due to their inherently violent nature and particular dangerousness to the public." ld. Petitioners point out, however, that the crimes were actually identified in the UCR because they are "serious crimes, they occur with regularity in all areas of the country, and they are likely to be reported to the police." Fed . Bureau of Investigation, Uniform Crime Report, Crime in the United States, 2009, at 1 (Sept. 2010), http://www2.fbi.gov/ucr/cius2009/documents/09offensede finitions .pdf. The Petitioners ' argument misses the mark. First, it is not clear that "seriousness" is a significantly different measure from "violent nature" and "dangerousness." The agency is entitled to rely on an existing index of serious crimes to identify crimes that are dangerous. Second, the BOP never states that it chose these crimes because they were listed in the UCR as dangerous and violent. Instead, it states that: (1) these crimes are listed in the UCR as dangerous and violent, and (2) the commission of these crimes "rationally reflects the view that such inmates displayed rcadines 10 endanger the public." 74 Fed. Reg. at 1894. Because the agency is entitled to reach the latter determination the regulation is valid uodcr the APA. B.

This Case Does Not Callfor Application of a Heightened APA Standard, If Any &:ists.

{4] Petitioners argue that "[t]his case calls for more scrupulous application of the State Farm standard in light of' the fact that it "involves human freedom," whereas "[t]he State Farm standard for application of 706 of the APA evolved through cases involving standard areas of administrative regu-

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lation, such as auto safety, pollution control, and financial transactions." Petitioners cite no case that has ever adopted this proposition. Furthermore, even if "loss of liberty" were to be reviewed under a hypothetically heightened standard, such a standard would not be applicable to this case. An inmate has no liberty interc t in a entcncc reduction in exchange for completion of RDAP. McLean v. Crabtree 173 F.3d 1176, l l 4-85 (9th Cir. 1999) ("[D]enial merely rncans that the i1m1nte wLU have to serve 011t his sentence as expected.' (quoting Jacks, 114 F.3d at 986 n.4)). If there is no liberty interest in the reduction, then a denial of eligibility for that reduction cannot affect an inmate's liberty interest. Petitioners also argue that the BOP's "history of violating the AP A" should be taken into account when applying the State Farm standard. But the BOP's unsuccessful attempts to enact the regulation at issue do not demonstrate willful noncompliance with statutory mandates, and no court has ever fotmd this to be case. C.

The Legal Error in the Accompanying Program Statement Does Not Render the Regulation Invalid.

[5) J>etitioners note that in the Program Statement accompanying the 2009 rule, the BOP continued to define a feloniu-possession crime under 18 U.S. C. 922(g) as a crime of violence. See Program Statement No. 5162.05, at 3-4 (Bureau of Prisons Mar. 16, 2009), available at www.bop.gov/po licy/ progstat/5162_ 005 .pdf. This is in conflict with our pronouncement to the contrary in Davis, 109 F.3d at 569. However, Petitioners point to nothing in the administrative record indicating that th BOP relied on its categorization of 922(g) as a "crime of violence' when reaching its decision to adopt 550.55(b)(5)(ii). Instead Petitioners shift the burden to the agency !o affirmatively demon trate that it has not r lied 011 this legal error in enacting 550.55(b)(5)(ii), by

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v.

T!IOMAS

arguing that "the BOP failed to establish that the legal enor did not taint the exercise of discretion in the parallel program statement." It does not make sense to require an agency to state all of the reasons for which it did not reach a decision, and Petitioners have not directed us to any authority supporting the proposition that this burden is on the agency. Because Petitioners have not identified any evidence in the record showing that in promulgating 550.55(b)(5)(ii) the BOP relied on the proposition that a violation of 922(g) is categorically a crime of violence under 924(c)(3), they have not shown that the regulation is infected by the legal error contained in the program statement.
D.

The BOP Was Not Required to Reach a Decision on the Basis of Statistics or Other Empirical Evidence.

Pe titioners argue that, in light of the' read[y] availab[ility]' of relevant ''empirical data or smdies,' the BOP's decision not to collect and con icier any of that evidence invalidate Lh regulation. Petitioners contend that the rcgulati.on fails to comply with lhc "clear road map ' that "li t[ ] the missing agency actions needed for compliance with the APA' which we gave in Crickon. In Crickon, we stated: [T]he BOP gave no indication of the basis for its decision. It did not reference pertinent research studies, or case reviews. It did not describe the process employed to craft the ex.clu ion. It did not articulate any precursor findi.ngs upon which it relied. It did not reveal the analysis used to reach the conclusion that the categorical exclusion was appropriate. Indeed, the administrative record is devoid of any substantive discussion of the rationale underlying the BOP's exercise of its discretion. 579 F.3d at 985. The flaw in Petitioners' reasoning is that Crickon did not indicate that these actions are necessary for

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v.

THOMAS

7111

an agency's compliance with the APA; it merely listed several actions which would have been sufficient for APA compliance. Crickon does not support Petitioners' argument that the BOP was required to develop and rely on detailed statistics before promulgating this rule. In Sacora v. Thomas, we noted that "[t]he BOP ... is entitled to use its experience in interpreting and administering a statute." 628 F.3d at 1067. We held that, although "[i]t may have been preferable for the BOP to Sllpporl its conclu ions with empirical re earch," " it was reasonable for the BOP to rely on its experience, even withour having quantified it in the form of a study." ld. at 1069. Petitioners eli tinguish Sacora because tbc rule at issue in that case limited half-way house placement to SLX months and the agency did not have 'a large trove of untapped ... data" concerning the proposed change, wberea in this ca e the BOP has many yeaJS of sratistics based on its past efforts to categorically exclude cel'tain prisoners from the early release i11Centive. Thi distinction is unpersua ive. Sacora made no mention of whether it wottld have been feasib le for the BOP to gather data related to halfway house placement, and no indication that this consideration was a factor in the decision. We follow Sacora and hold that the BOP is entitled to invoke its experience as a justification for the present rule. E.

The BOP's Interpretation Does Not Coryflict with Congress' Expressed Intent.
Petitioners argue rhat narrowing of the categories of tat1t-

torily eligible inmates is inconsistent with Congres ' intent o

" maximize the early release incentive and to redttce the prison population." Althottgh it is true that our decision in Crickon criticized the BOP for enacting a regulali.on that was 'difficult to square with Congrc s' expr ssed intent to provide an incentive to encourage maximum participation in the BOP's substance abuse treatment programs ' 579 F.3d at 986, the idea that the regulation should be struck down solely because

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v.

THOMAS

of perceived inconsistencies with congressional intent, as distinct from congressional command, is in tension with the Supreme Court's mling in Lopez. See 531 U.S. at 242 ("[A]ll we must decide is whether the Bureau, the agency empowered to administer the early release program, has filled the statutmy gap in a way that is reasonable in light of the legislature's revealed design. We think the agency's interpretation is reasonable both in taking account of preconviction conduct and in making categorical exclusions." (citations omitted) (internal quotation marks omitted)). Furthermore, the administrative record reflects the fact that the Bureau has had some difficulty in accommodating all of the inmates who wish to participate in RDAP: Currently, the Bureau has over 7000 imnates waiting for residential treatment that is provided with limited Bureau resources. Also, inmates are selected for admission based on their proximity to release. Unfortunately, these two factors result in some inmates being on the waiting list for a long time.

Because the early release is such a powerful incentive, as evidenced by over 7000 illl11ates waiting to enter treatment, the Bureau must take appropriate measures to ensure that inmates requesting treatment actually have a substance abuse problem that can be verified with documentation. 74 Fed. Reg. at 1893. It would be unreasonable to criticize the Bureau for failing to maximize irunate participation when the Bureau is already struggling with its limited resources to accommodate all of the inmates who eulTently do wish to participate. It is clear to us that the agency is entitled to take a categorical approach to solving this problem.

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III.

CONCLUSION

We join our sister circuits in holding that the Bureau bas not violated the AP A in excluding inmates from consideration for early release who have a current conviction for felon in possession or a past conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or chi ld sexual abuse. AFFIRMED.

Appendix A

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Case 3:1 0-cv-00709-MO

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Page 1 of 19

Page 10#: 276

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

LONNIE PECK, Petitioner,

CV. 10-709-MO

v.
JEFFREY THOMAS, Warden, Respondent .

OPINION AND ORDER

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 K . SILVER Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97204-2902 Attorneys for Respondent

1 - OPINION AND ORDER

Appendix B

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Document 2 1

Filed 03/30/11

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Page ID#: 277

Mosman, District Judge. Petitioner, an inmate at Federal Satellite Camp, Sheridan,

Oregon ("SCP Sheridan") at the time of filing, brings this habeas corpus action pursuant to 28 U.S.C. of

2241 .

He alleges the Bureau at 28 C. F . R.

Prisons'

("BOP")

regulations, that

codified

550.55 (b) (5) (ii) (2009), current felony

categorically disqualify inmates for an offense involving the

with a

conviction

carrying, possession, or use of a firearm or other dangerous weapon or explosives from the early release incentive associated with the Residential Drug Abuse Treatment Program ( "RDAP"), are procedurally invalid. Petitioner asks the Court to invalidate the 2009 and

regulations under the Administrative Procedures Act

("APA"),

order the BOP to evaluate his eligibility for the early release incentive without regard to the 2009 rules. administrative

Upon review of the finds 28 C . F.R.

record,

the

Court

550 . 55 (b) (5) (ii) (2009) internal

to be valid under the APA. guideline used sec. for 3,

Although an eligibility is unlawful

associated

agency

determinations,

Program Statement P5162.05,

under Ninth Circuit law to the extent it categorizes a 922(g) conviction, Felon in Possession of Firearm, as a disqualifying

crime of violence, Petitioner's ineligibility does not rest solely on the unlawful ( #17) guideline. Therefore, Respondent's Motion to

Dismiss

is granted,

and the Amended Petition for Writ of

Habeas Corpus (#16) denied.

I I I
2 - OPINION AND ORDER

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BACKGROUND I . Statu t ory Background . 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 18 has a

treatable condition of substance addiction or abuse." 362l(b). mandate for

u.s.c.
for

In 362l{e), Congress articulated a specific statutory residential substance abuse treatment programs

"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) . 1 offenses." 'section 3621 (e) (2) 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." The statute does not define "non-violent

3 - OPINION AND ORDER

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Beginning in 1995, 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 for non-violent offenders. 2 These regulations and

guidelines have excluded inmates convicted of a felony involving a firearm from eligibility for early release under substantive and procedural validity of the

3621 (e) (2).

The

BOP's

categorical

exclusion of inmates from eligibility for early release have been challenged in court repeatedly. The Ninth Circuit upheld the substantive validity of 28 C.F.R.

550.58 (a) (1) (vi) (B) in Bowen v. Hood, 202 F.3d 1211 (2000) . 3

The

circuit court held the categorical exclusion of certain inmates from early release eligibility was a proper exercise of the BOP's discretion under the statute, and stated: "we see nothing

unreasonable in the Bureau's making the common-sense decision that there is a significant potential for violence from criminals who carry, possess or use firearms while engaged in their felonious

employment, even if they wound up committing a nonviolent offense this time."

Id.

at 1119.

The following year,

the Supreme Court

upheld the substantive validity of the BOP's categorical exclusion of inmates from eligibility for early release in Lopez v. Davis,
2 The regulations and internal guidelines relevant to this action include: 28 C.F.R. 550.55(b) (5) (ii) (2009); Program Statement P5331.02 and P5162.05 (effective March 16, 2009).

28 C.F.R. 550.58(a) (1) (vi) (B) (2000) was re-codified as 28 C.F.R. 550.55(b)(5)(ii)(2009). 4 - OPINION AND ORDER

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531 U.S. 230

(2001).

Finding 28 C.F.R.

550.58(a) (1) (vi) (B) was

a proper exercise of the Bureau's discretion under the statute, the Court stated: [T] he Bureau need not blind itself to pre-conviction conduct that the agency reasonably views as jeopardizing life and limb.

*****
[T]he statute's restriction of early release eligibility to nonviolent offenders does not cut short the considerations that may guide the Bureau. [T]he Bureau may consider aspects of the conduct of conviction, even though the conviction is a criterion of statutory eligibility.
Id.

at

243-244.

The

Court

also

held

the

"Bureau

reasonably in

concluded than an

inmate's prior involvement with firearms,

connection with the commission of a felony, suggests his readiness to resort to life-endangering violence and therefore appropriately determines the early release decision." In Lopez,
Id.

the Supreme Court did not address the procedural

Id. at 244

validity of the categorical exclusions under the APA.

n.6 (notice and comment requirement "not raised or decided below, or presented in Circuit, the petition for the BOP's certiorari.") . and In the Ninth related program

however,

regulations

statements have been invalidated under

70 6 (2) (A)

of the APA.

Section 706 (2) (A) specifies a "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." 5 - OPINION AND ORDER

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II.

Ninth Circuit Litigation Under 5 U. S.C . 7 06 (2) (A) .

A. 1995 Rule

28 C.F.R.

550.58(a) (1995).

In

550.58 and Program Statement P5162.02,

an accompanying

internal agency guidelines, the BOP defined which inmates had been convicted of "crimes of violence" and would therefore be excluded from eligibility for early release. "Felon firearm possession" was

categorized as a crime of violence rendering inmates ineligible for early release. Cir. In Davis v.
Crabtree,

109 F. 3d 566, felon the

568-70

(9th

1997) (inmate the

convicted of being Circuit held

in possession of a offense "felon in

firearm),

Ninth

that

possession of firearm" had to be regarded as a nonviolent offense for purposes of regulation was

3621 (e)

sentence reduction, The court stated:

and therefore the "the BOP may not

invalid.

interpret the term "nonviolent offense" to exclude the offense of felon in possession of a 100 F.3d 662 firearm. We are bound by Downey [v.

Crabtree,

(9th Cir. 2006) (crime of violence does not

encompass felon firearm possession under Ninth Circuit law) (citing cases)]."
B. Davis,

109 F. 3d at 668-70.

1997 Interim Rule.

Responding

to

Circuit

split

on

the

question

of

the

substantive validity of the 1995 regulations, the BOP promulgated 28 C.F.R. on

550.58(a} (1} (vi) (B) (1997). the Director's discretion

In

this

rule,

the

BOP to

relied

under

the

statute

categorically exclude inmates convicted of certain offenses from early release eligibility, including those with offenses involving 6 - OPINION AND ORDER

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the carrying, possession, or use of firearms, instead of relying on an interpretation of the statutory language "non-violent offenses" as it had in the 1995 rule. In Paulsen v. Daniels, 413 F.3d 999

(9th Cir. 2005), the Ninth Circuit found the BOP violated the APA in promulgating the regulation was made 1997 interim rule to because its (1) the interim in the

effective prior

publication

Federal Register; and (2) although the BOP solicited comments, the comments were not taken into account prior to the regulation being made effective. 4 C. In

2000 Final Rule.

December 2000, respecting the notice and comment

requirement under 553 of the APA, the BOP promulgated 28 C.F.R.

550.58 (a) (1) (vi) (B) (2000), a final regulation that was identical In Arrington v. Daniels, 516 F.3d 1106, Circuit The invalidated Circuit the found rule the under first

to the 1997 interim rule. (9th

Cir.

2008) of

the the

Ninth APA.

706 (2) (A)

Ninth

rationale identified by the lower court as a basis for categorical exclusion the increased risk that offenders with con v ictions

involving firearms might pose to the public - was "entirely absent from the administrative record." court noted,
4 Under the APA, agencies issuing rules must: (1) publish notice of the proposed rule-making in the Federal Register; (2) provide a period of comment on the proposed rule and consider comments submitted during the period before adopting the rule; and (3) publish the adopted rule not less than thirty days before its effective date. 5 U.S.C. 553(b)-(d).

Arrington, 516 F.3d at 1113.

The

7 - OPINION AND ORDER

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the Bureau articulated this rationale in its brief to the Supreme Court in Lopez . . . and is precisely the type of post-hoc rationalization that the [court is forbidden] to consider in conducting review under the APA. Because no public safety rationale is present in the administrative record, the district court erred in relying on this explanation as a basis for its conclusion that the final rule withstands arbitrary and capricious review.
Id .

The Ninth Circuit also found the second rationale proffered by BOP, need of for uniformity, with did not justify a categorical involving

the

exclusion

prisoners

non-violent

convictions

firearms instead of a categorical inclusion of prisoners with nonviolent conv ictions involving firearms. found the BOP had not exp l ained why,
Id. at 1114.

The court it

in seeking uniformity,
Id .

chose to exclude prisoners rather than include them . In a separate challenge to the 2000 Final Rule, contesting the BOP's consideration of prior

this time in

convictions

eligibility determinations occurred, codified at 28

without regard to how long ago they C.F.R.

550.58(a)(l)(iv) ,

the

Ninth

Circuit again invalidated the ru l e under 706 (2) (A).

Thomas,

Cricken v.

579 F . 3d 978, 985-87

(9th Cir . 2009 ) .

The court found:

Despite issuing three interim rules and receiving comments relating to the use of prior convictions in response to at least two of these three rules , the BOP never identified, explained , or analyzed the factors it considered in crafting the categorical exclusion [based on prior convictions].

*****

8 - OPINION AND ORDER

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[A] 1 though the BOP provided a limited explanation for its decision to include all prior convictions without temporal restriction, see 65 Fed.Reg. at 80746, the reasoning articulated by the BOP is cursory and nonresponsive to the comments.

*****
Because the BOP failed to articulate in the administrative record the rationale underlying its decision to adopt a categorical exclusion of inmates with specific prior convictions, we conclude that the BOP's promulgation of the categorical exclusion in 28 C.F.R. 550.58 (a) (1) (iv) did not comply with the APA. See Arrington, 516 F.3d at 1114 (requiring articulation of agency rationale) .
Id.

As a

result of the Davis and Arrington decisions,

the BOP

promulgated new interim rules governing early release eligibility. In January 2009, the BOP promulgated a final rule, and again relied on the discretion of the Director under the governing statute , as recognized in Lopez, to categorically exclude inmates convicted of certain offenses. 5 of the APA, The validity of the 2009 Rule under C.F.R .

706 (2) (A) is the

specifically 28

550.55(b) (5) (ii),

subject of this habeas action.

5 In one action, the 2009 Rule finalized three proposed rules, issued in 2000, 2004, and 2006 . 74 FR 1892-01, 2009 WL 76657 (January 14, 2009.) The 2009 rules are applicable to all inmates applying to RDAP after March 16, 2009.

9 - OPINION AND ORDER

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III. Factual Background. Petitioner was convicted in July 2009 of felon in possession of a firearm, false statement during a firearms transaction, and

possession of stolen firearms in violation of 18 U.S.C. (a)(6), and (j). (#17, at 2; #18 Attach. 2.)

922 (g),

He was sentenced to

48 months imprisonment to be followed by three years of supervised release. (Id.) Petitioner's projected good-time credit release

date is November 7, 2011.

(#17, at 2; #18 Attach. 2.)

Petitioner applied for RDAP in December 2009, and was later admitted to the program. ineligible On for March 17, 2010, Petitioner was

determined to be

early release under

18 U.S. C.

3621(e), with the Offense Review form specifying: sec. for 3a, 18

"Pursuant to a

PS 5162.05, conviction

as well as the regulations cited above, USC 922(g) will preclude early

release

eligibility . "

(#20, at 3.)

Petitioner challenges the validity of

the rules under which the BOP designated him ineligible for early release under

706 (A) (2) of the APA.

DISCUS S I ON

In Lopez v . Davis, 531 U.S. 230 , 244 (2001), the Supreme Court held that the BOP has discretion under 18 U. S. C . the

3621

to

promulgate

regulations

categorically denying

early

release

incentive associated with RDAP to prisoners who possessed a firearm in connection with their offenses, and that it was reasonable for the BOP to do so. Thus, the issue in this proceeding is not

whether the BOP has the authority under the governing statute to 10 - OPINION AND ORDER

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promulgate such a categori cal exclusion, or whether the exclusion is consistent with the statute. exclusion in the 2009 Rather, the issue is whether the codified at 28 C.F . R.

rule,

550.55 (b) (5) (ii), is invalid under 706 (2) (A) of the APA because it is arbitrary and capricious. which the Ninth

Like 550.58 (a) (1) (vi) (B) (2000), in

Arrington

Circuit

invalidated

pursuant with

to a

706(2)(A),

550 . 55(b)(5)(ii)

provides

that

inmates

current felony conviction for an offense involving "the carrying, possession, explosives " associated contends or are with 2009 use not of a firearm for or other dangerous release weapon or

eligible

the

early of

incentive Petitioner as those

successful rules

completion

RDAP . 6 infirmities

the

"suffer the

same

invalidated in Davis and Arrington and should be invalidated once again." The (#16, Amended Pet . at 2.) government argues:
(1)

the

BOP

policy

disqualifying

inmates with convictions for Felon in Possession of a Firearm from eligibility for
Crabtree,

early release F . 3d 566, 569

does

not

conflict with 1997) ,

Davis

v.

109

(9th

Cir .

because

in

promulgating 28 C . F.R.

550.55(b) (5) (ii)

the BOP relied on the

discretion of the Director for excluding categories of inmates from eligibility, not on an interpretation of "non-violent offenses" as it had in promulgating the 1995 rule invalidated in Davis ;
Davis v. Lopez,

(2) in

531 U. S. 230,

243

(2001), the Supreme Court held

28 C.F'.R . 550.55(b) (5) (ii) replaced 550 . 58(a) (1) (vi) (B) following re-codification of the Code of Federal Regulations.
11 - OPINION AND ORDER

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the

Director

has

discretion

under

the

governing from

statute

to

categorically eligibility;

exclude and (3)

certain

inmates

early

release

the 2009 regulations satisfy the intent of

Congress and the BOP provided a sufficient rationale to satisfy procedural requirements in promulgating the 2009 rules. 6-9.) For the reasons

(#16, at

set forth below the Court finds valid under of a

2 8 C. F. R.

550.55 (b) (5) (ii) (2009) the

706 (2) (A) 922(g)

of the APA, but as a

finds

categorization

conviction

disqualifying "crime of violence" in Program Statement P5162.05, sec. 3a unlawful under Ninth Circuit law. I. Jurisdiction The Court has jurisdiction to review claims alleging BOP

action is contrary to established federal law, violates the U.S. Constitution, or exceeds the statutory authority Congress vested in the agency.
Staacke v. United States Secretary of Labor, 841 F.2d

278, 281 (9th Cir. 1988).

To obtain judicial review under the APA, final agency action. See 5 U.S.C.

petitioners must challenge a

704; Oregon Natural Desert Ass'n v. United States Forest Serv., 982 (9th Cir. 2006). Agency action "includes the 5 U.S. C.

465 F.3d 977,

whole or a part of an agency rule."

551 ( 13) .

There is

no question that the 2009 rules at issue here constitute final agency action, and can be challenged under the APA.
Abbott Laboratories on other v. Gardner, See generally

387

U.S.
v.

136,

150-51 430

(1967), U.S. 99

overruled

grounds,

Califano

Sanders,

12 - OPINION AND ORDER

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( 1977) (APA provides action) .

for

review the

of

regulations has

as

final to

agency review

Accordingly,

Court

jurisdiction

Petitioner's claim alleging that the rule the BOP promulgated in 2009, disqualifying inmates from early release eligibility based on firearm possession, is procedurally invalid under

706 (2) (A) of

the APA because the BOP offered insufficient rationale to support it. II. Judicial Review Under Section 706 (2 ) (A) o f the APA Under

7 0 6 ( 2) (A)

of the APA,

a "reviewing court shall hold findings, abuse and conclusions or

unlawful and set aside agency action, found to be arbitrary, capricious, an

of discretion,

otherwise not in accordance with law." the 'arbitrary and capricious' not to substitute its

"The scope of review under

standard is narrow and a court is that of the agency ."

Motor

judgment for

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)

(scope of review standard is narrow and deferential); 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. (9th Cir. 2010) Cir. 2009)).
Sacora v. Thomas,

628 F.3d 1059,

1068

(citing Cricken v. Thomas, 579 F.3d 978, 982 (9th

The court, however, may not supply a basis for the

Mora-

agency's action that the agency itself does not provide.

13 - OPINION AND ORDER

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Document 21

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Page 14 of 19

Page I0#: 289

Meraz v. Thomas, 601 F . 3d 933, 941 (2010).

In Arrington, the Ninth

Circuit specified : [a) reasonable basis exists where the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made . Although we may uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned, we may not infer an agency's reasoning from mere silence . 516 F. 3d at omitted) . less than 1112 (citations omitted) (internal quotation marks

"However, even when an agency explains its decision with ideal clarity, a reviewing court will not upset the

decision on that account if the agency's path may reasonably be discerned . " at 982.)
Mora - Meraz, 601 F.3d at 941 (quoting Cricken, 579 F.3d

In Sacora , the Ninth Circuit found it was reasonable for

the BOP "to rely on its experience , even without having quantified it in the from of a study." 463 U. S . at 43 capric i ous if 628 F . 3d at 1069 (citing State Farm,

("Normally, an agency ru l e would be arbitrary and the agency offered an explanation for its

decision that runs counter to the evidence before the agency, or is so implaus i ble that it could not be ascribed to a difference in view or the product of agency expertise) (emphasis added)));
see

also Ranchers Cattleman Action Legal Fund United Stockgrowers of America v. U. S.D . A.,

415 F.3d 1078 ,

1093

(9th Cir.

2005).

The

court rejected the argument that BOP policies pertaining to inmate p l acement in residential re-entry centers were arbitrary and

capricious because they were promulgated without empirical support and without a sufficiently articulated rationale. 14 - OPINION AND ORDER
Id . at 1068-69 .

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III. Analysis In challenging the exclusion of inmates with firearm-related convictions from early release, Petitioner contends that the BOP's explanations for the rule (#19, "are inadequate, unsupported by any

empirical evidence."

at 13.)

Petitioner argues that the

BOP's claims of public safety concerns and that in its experience offenders who carry, risk to possess, or use firearms pose a particular support the regulation

the public are

insufficient to

because the BOP cites to no studies or reports.

(#19, at 14.)

Petitioner also contends the BOP's reliance on Lopez is misplaced because "the BOP provided no evidence upon which it based its that felons in possession of a firearm pose a

conclusion

significantly greater risk of violence." finds Petitioner's arguments unpursuasive. stated in Sacora,

(Id. at 15.)

The Court

As the Ninth Circuit

"[i]t may have been preferable for the BOP to However, it is

support its conclusions with empirical research.

reasonable for the BOP to rely on its experience, having quantified it in the form of a study."

even without

628 F.3d at 1068-69; is arbitrary and

see also State Farm,

463

U.S.

at

43

(action

capricious if it cannot be ascribed to agency expertise). The comments and responses published in the promulgation of 28 C.F.R.

550.55(b) (5) specify:

2004 Proposed Rule: Early release eligibility of inmates convicted of an offense involving a firearm. The second commenter also recommended that 550.55(b) (5) (ii) be altered so that inmates convicted 15 - OPINION AND ORDER

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of an offense that involved the carrying or possession (but not use) of a firearm or other dangerous weapon or explosives would be eligible for early release consideration. The commenter further recommended that 550.55 (b) (5) (iii) be deleted, granting eligibility for early release consideration to inmates convicted of an offense that, by its nature or conduct, presents a serious potential risk of physical force against the person or property of another. Under 18 U.S.C. 3621 (e), the Bureau has the discretion to determine eligibility for early release consideration (See Lopez v. Davis, 531 U.S. 230 (2001)). The Director of the Bureau exercises discretion to deny early release eligibility to inmates who have a felony conviction for the offenses listed in 550.55 (b) (5) (i)(iv) because commission of such offenses illustrates a readiness to endanger the public. Denial of early release to all inmates convicted of these offense rationally reflects the view that, in committing such offenses, these inmates displayed a readiness to endanger another's life. The Director of the Bureau, in his discretion, chooses to preclude from early release consideration inmates convicted of offenses involving carrying, possession or use of a firearm and offenses that present a serious risk of physical force against person or property, as described in 550.55 (b) (5) (ii) and (iii). Further, in the correctional experience of the Bureau, the offense conduct of both armed offenders and certain recidivists suggest that they pose a particular risk to the public. There is a significant potential for violence from criminals who carry, possess or use firearms. As the Supreme Court noted in Lopez v. Davis, "denial of early release to all inmates who possessed a firearm in connection with their current offense rationally reflects the view that such inmates displayed a readiness to endanger another's life. Id. at 240. The Bureau adopts this reasoning. The Bureau recognizes that there is a significant potential for violence from criminals who carry, possess or use firearms while engaged in felonious activity. Thus, in the interest of public safety, these inmates should not be released months in advance of completing their sentences. Fed. Reg. 74, for 1892, 1895 (Jan. 14, 2009). for In articulating its release to those

rationale

denying

eligibility

early

inmates with firearm offenses the BOP cited Lopez, 16 - OPINION AND ORDER

in which the

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Page 10#: 292

Supreme Court recognized as reasonable the rationale that inmates with convictions for firearm offenses had demonstrated a propensity for violence, and the BOP relied on its expertise and experience. While the Ninth Circuit found the 2000 version of the the

regulation at issue here invalid under the APA in Arrington,

BOP's failure to articulate its rationale in the administrative record was central to the court's decision. 516 F.3d at 1113. The

court was clear it did not consider the rationale proffered in briefs to the Supreme Court in Lopez because it deemed that to constitute post-hoc rationalization not available for its rule

consideration in under the APA, administrative

reviewing the procedural validity of the

which requires a rationale be articulated in the record.

I d.

The

court,

however,

acknowledged

rational explanations for the ineligibility of inmates with firearm offenses had been recognized by the Supreme Court in Lopez and by the Ninth Circuit in Bowen. 516 F.3d at 1116.

In promulgating the 2009 regulations, the BOP articulated its rationale for excluding inmates with firearm offenses from early release eligibility in the administrative record, and responded to the comments submitted on the issue. While Petitioner contends the

rational in the administrative record is insufficient, review under

706 (2) (A) is narrow and deferential and agency action is presumed

to be valid if a reasonable basis exists for the agency decision . The court must not substitute its judgement for that of the agency . This Court finds a reasonable basis for the BOP ' s action was

17 -OPINION AND ORDER

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Page ID#: 293

published in

the

administrative

record and concludes

28

C. F. R.

550.55 (b) (5) (ii) discretion or

(2009) is not arbitrary, capricious, an abuse of not in accordance with law, and is

otherwise

procedurally valid under 706 (2) (A) of the APA. The Court, however, finds the BOP's internal agency guideline associated with the 2009 regulation, Program Statement P5162.05,

sec. 3 invalid under Ninth Circuit law to the extent it categorizes a 922 (g) (felon in possession) conviction as a crime of violence Davis v . Crabtree, 109 F . 3d 566, 569 (9th Cir. 1997) felon in possession of a Thus, an eligibility

in all cases.

(for the purposes of 3621 (e) (2) (B), firearm is a nonviolent offense) .

determination for an inmate convicted of violating 922(g) which rests solely on P5162.05, sec.3 is unlawful in the Ninth Circuit . Petitioner's ineligibility, however, also rests on the lawful

governing regulation which relies on the Director's discretion to deny eligibility. Therefore, Petitioner's early release

ineligibility stands despite the invalidity of P5162.05, sec.3 . 7 Petitioner's Offense Review (#20, at p.3) specifies: "Pursuant to PS 5162.05, sec. 3a, as well as the regulations cited above, a conviction for 18 USC 922(g) will preclude early release eligibility." Due to a clerical oversight , subsection I of the offense review does not specify the current offense conviction and regulation that disqualifies Petitioner. The Court notes, however, that Petitioner's amended petition, supporting memorandum, and current conviction leave no doubt that offense (2) (Felon in possession, referencing 28 C.F . R. 550.55 (b) (5) (ii)), is the basis for his ineligibility. (#16, at 2; #19, at 9.) The Court further notes section 4 of program statement P5162.05 lists offenses that in the Director's discretion preclude inmates from early release, including felon in possession of a firearm, in holding with the 2009 regulations. 18 - OPINION AND ORDER
7

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Page 10#: 294

CONCLUSION

Based on the foregoing, Respondent's Motion to Dismiss (#17) is GRANTED, and Petitioner's Amended Petition for Writ of Habeas Corpus (#16) is DISMISSED with prejudice.

IT IS SO ORDERED. DATED this 29th day of March, 2011.

Is/ Mich a el W. Mosman Michael W. Mosman United States District Judge

19 - OPINION AND ORDER

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LONNIE
PECK,

Petitioner-Appellant,

No. 11-35283 D.C. No. 3: 10-cv-00709-MO

v.
J. E. THOMAS,

Respondent-Appellee.

Lou1s D. MooN, Petitioner-Appellant,

No. 11-35296 D.C. No. 3:10-cv-01154-MO

v.
J.E. THOMAS, Warden, Respondent-Appellee.

DEVEN SUESUE, AKA Devon Suesue, Petitioner-Appellant,

No. 11-35355 D.C. No. 3: 10-cv-01295-MO ORDER AND AMENDED OPINION

v.
J. E. THOMAS, Warden, Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding Argued and Submitted March 7, 2012-Portland, Oregon Filed June 19, 2012 Amended October 5, 2012
12059

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Before: William A. Fletcher, Raymond C. Fisher, and JayS. Bybee, Circuit Judges. Opinion by Judge Bybee

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COUNSEL

Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Oregon, for the appellant. Ronald K. Silver, Assistant United States Attorney, Portland, Oregon, for the appellant.

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ORDER

The opinion filed on June 19, 2012, slip op. 7097 and available at 682 F.3d 1201 (2012), is amended as follows :
1. At slip op. 7109, the following sentence should be changed from "But the BOP's unsuccessful attempts to enact the regulation at issue do not demonstrate willful noncompliance with statutory mandates, and no court has ever found this to be case." to "But the BOP's unsuccessful attempts to enact the regulation at issue do not demonstrate willful noncompliance with statutory mandates, and no court has ever found this to be the case."

2. At slip op. 7109, the following sentence should be added at the end of the sentence above: "We uphold the regulation under the usual AP A standard. See 5 U.S.C. 706(2)(A); State Farm , 463 U.S. at 42-43 ." With this amendment, the panel judges have voted to deny appellant's petition for panel rehearing and petition for rehearing en bane. The full court has been advised of the petition for rehearing en bane and no judge has requested a vote on whether to rehear the matter en bane. Fed. R. App. P . 35. Appellant's petition for panel rehearing and petition for rehearing en bane, filed August 3, 2012, is DENIED. No further petitions for panel rehearing or rehearing en bane will be considered.

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OPINION
BYBEE, Circuit Judge: Petitioners Lonnie Peck, Louis Moon, and Deven Suesue are statutorily eligible for early release from prison in exchange for the successful completion of a residential drug abuse treatment program ("RDAP"). The Bureau of Prisons ("BOP"), however, has enacted a regulation disqualifying them :fi-01n the early release incentive on the basis of their current convictions for felon in possession and one petitioner's past conviction for robbery. See 28 C.F.R. 550.55(b). Petitioners each filed for a writ of habeas corpus asking the district court to invalidate the regulation under 706 of the Administrative Procedure Act ("AP A"). The district court dismissed the petitions, and the appeals were consolidated. We have jurisdiction under 28 U.S.C. 1291 and 2253 1 and we affirm.

I.

FACTS AND PROCEDURAL BACKGROUND

Petitioners were each convicted of being a felon in possession of a firearm under 18 U.S.C. 922(g), and are either currently serving sentences in BOP facilities or serving terms of supervised release. At the time of his conviction, Petitioner Moon had a past conviction for robbery, but he received no criminal history points under the Sentencing Guidelines because the conviction was more than 15 years old.
Although two of the three petitioners are currently serving terms of supervised release, "relief may still be available in the form of modification, amendment, or termination of their supervised release." Arrington v. Daniels, 516 F.3d 1106, 1111 n.4 (9th Cir. 2008) (citing 18 U.S.C. 3583(c)(2)); see also Paulsen v. Daniels, 413 F.3d 999, 1005 n.3 (9th Cir. 2005). Here, because the petitioners completed RDAP while in prison, a decision invalidating the regulation rendering them ineligible for early release in exchange for completing RDAP could provide a basis to shorten their terms of supervised release.
1

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P ECK V. THOMAS

In 1990, Congress directed the BOP to create programs to treat substance abuse among imnates. See 18 U.S.C. 3621 (b). To encourage participation in this program, Congress subsequently determined that inmates who successfully complete the program would be eligible for up to one year of early release from prison-as long as the inmate had been convicted of a "nonviolent offense." !d. 362l(e)(2)(B). Under the authority delegated by this statute, the BOP has implemented a regulation that categorically excludes certain classes of inmates from eligibility for 3621(e)'s early release incentive. See 28 C.F.R. 550.55(b ). Petitioners challenge two aspects of this regulation: first, the exclusion of imnates convicted of "[a]n offense that involved the ... possession ... of a firearm," id. 550.55(b)(5)(ii); and second, the exclusion of imnates who have a prior conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or child sexual abuse, regardless of the age of that conviction, id. 550 .55(b)( 4). The history of tile BOP's attempts to implement these categorical exclusions is lengthy but relevant. Initially, the regulation defmed the te1m "nonviolent offense" in 3621 (e) with reference to the statutory definition of "crime of violence" found in 18 U.S.C. 924(c)(3). See 28 C.F.R. 550.58 (1995). We invalidated that regulation, holding that the inclusion of a 922(g) possession charge is not a reasonable interpretation of the term "crime of violence" in 924(c)(3 ). Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir. 1997). This eventually created a circuit split_2
The Eighth, Tenth, and Eleventh Circuits agreed that the regulation adopted an unreasonable definition of "crime of violence," see Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998); Fristoe v. Thompson, 144 F.3d 627, 631 (lOth Cir. 1998); Byrd v. Hasty, 142 F.3d 1395, 1398 (II th Cir. 1998), but lhe Fourth and Fifth Circuits held otherwise, see Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir. 1999); Ven egas v. Henman, 126 F.3d 760, 763 (5th Cir. 1997).
2

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To resolve this circuit split, the BOP dropped the reference to 924(c)(3) and instead asserted its discretionary authority to detennine eligibility for early release under 362l(e). In 1997, the BOP pubjjsbed an interim rule, ef fective immediately, that categorically excluded from eligibility for early release inmates with currenl convictions for felony offenses "involv[ing] the carrying, possession, or use of a fiream1." 28 C.F.R 550.58(a)(1)(vi) (1998). In addition, the regulation continued to exclude prisoners with prior convictions forcertain offenses. !d. 550.58(a)(l )(iv). We upheld the Bureau's authority to so disqualify otherwise statutorily eligible iim1ates. See Bowen v. Hood, 202 F.3d 1211, 1220 (9th Cir. 2000) (holding that the 1997 rule's exclusion based on firearms possession was a reasonable exercise of discretion granted by the statute); Jacks v. Crabtree, 114 F.3d 983, 986 (9th Cir. 1997) (holding that the 1995 rule's exclusion of inmates with prior convictions for certain offenses was entitled to deference and was reasonable). The Supreme Court later agreed, holding tbar ''lhe agency's interpretation is reasonable both in taking account ofpreconvicLion conduct and in making categorical exclusions.' Lopez v. Davis, 531 U.S. 230, 242 (2001). The Court explained that "the Bureau need not blmd itself to preconviction conduct that the agency reasonably views as jeopardizing life and limb. By denying eligibility to violent offenders, the statute manifests congressional concern for preeonvi lion behavior- and for the very conduct leading to conviction." Jd. The Court also found that "[t]he Bureau reasonably concluded that an inmate's prior involvement with fiream1s, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence and therefore appropriately determines the early release decision." !d. at 244. The Lopez Court declined to reach the question of whether the BOP had complied with the notice-and-comment provisions of the APA in promulgatmg the 1997 mle. ld. at 244 n.6. We took up this question in Paulsen v. Daniels, holding

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that the BOP had violated the AP A by "implement[ing] a rule first, and then seek[ing] comment later." 413 F.3d 999, 1005 (9th Cir. 2005). We invalidated the 1997 interim rule, declined to reinstate the 1995 version because it was also invalid, and noted that the law currently in effect was a final rule that had been promulgated in 2000. Id. at 1008. The 2000 rule finalized the 1997 interim rule without change. ld. at 1003; see 28 C.F.R. 550.58 (2001). Once again, we invalidated the BOP's efforts. In Arrington v. Daniels, we held that the 2000 rule, insofar as it categorically excluded imnatcs convicted of fircrum-possession offenses, was arbitrary and capricious under 706(2)(A) of the APA because the agency failed to give a reasoned basis for its action. 516 F.3d 1106, 1113-14 (9th Cir. 2008). In Arrington, we found that the administrative record did not contain the rationale advanced by the agency during litigation, id. at 1113, and concluded that the BOP had "failed to set forth a rationale for its decision to categorically exclude prisoners convicted of offenses involving the carrying, possession, or use of tircarms from eligibility for a sentence reduction under 362l(e)," id. at 1114. Following Arrington, we invalidated the exclusion based on prior convictions in Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009). Crickon noted that "[o]ur recent ruling in Arrington squarely controls the outcome of the present case," id. at 983, and once again criticized the BOP for enacting a regulation without articulating a supporting rationale, id. at 984-85. Not to be deterred, the BOP responded to Arrington and Crickon by enacting identical provisions in a 2009 rule. See 28 C.F.R. 550.55. It is this rule that Petitioners here challenge-specifically, the exclusions set forth in 28 C.F.R. 550.55(b)(5)(ii) and 550.55(b)(4). At the outset, we note that every other circuit court to consider the issue has held either the current or prior version of this regulation to be valid under the AP A . See Licon v. Ledezma, 638 F.3d 1303, 1311

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(1Oth Cir. 2011 ); Giannini v. Fed. Bureau of Prii'Om;, 405 F. App'x 96, 97 (8th Cir. 2010); Stevenson v. FCI Wa. eca, 383 F. App'x 587, 588 (8th Cir. 2010); Handley v. Chapman, 587 F.3d 273, 282 (5th Cir. 2009); Gardner v. Grando!sky, 585 F.3d 786, 791-92 (3d Cir. 2009); Gatewood v. Outlaw, 560 F.3d 843, 848-49 (8th Cir. 2009). The district court issued three separate opinions, each finding that the BOP's regulation is valid under APA 706. Petitioners timely appealed. Petitioners argue that: (1) the articulated rationale is once again insufficient to justify the rule; (2) a heightened AP A standard should apply to mles that involve the loss of liberty; (3) the legal enor in the accompanying Program Statement infects the regulation and renders it invalid; (4) the BOP was required to reach a decision on the basis of available statistics rather than merely invoking its experience; and (5) the BOP's interpretation conflicts with Congress' expressed intent. In response, the BOP argues that it has cured the defects identified in Arrington and Crickon, and that the public safety rationale justifies the regulation. 3 II.
A.

DISCUSSION

The BOP Satisfied 706 of the APA by Articulating a Public Safety Rationale.

[1] Section 706 of the AP A grants authority to a reviewing court to "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 scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of th agency.' Motor Vehicle Mfrs. Ass 'n v. Stare Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Agency action is presumed to be valid and must be
3 We review a district com1's dismissal of a petition for writ of habeas corpus de novo. Bowen, 202 F.3d at 1218.

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upheld if a reasonable basis exists for the agency decision. Sacora v. Thomas, 628 F.3d 1059, 1068 (9th Cir. 2010) (citing Crickon, 579 F.3d at 982). "A reasonable basis 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 (internal quotation marks omitted). The district court correctly found that, in enacting the categorical exclusions at issue in this case, the agency offered a public safety rationale in the administrative record. The BOP argues that this cures the procedural defects identified by the Arrington and Crickon courts. Petitioners argue that, while it is true that we previously invalidated the regulation for the failure to offer any contemporaneous rationale, it is not hue that the present regulation's rationale cmed that procedural defect. We uphold the regulation.

1.

The Bureau Did Not Violate the APA in Enacting 28 C.F.R. 550.55(b)(5)(ii).

When enacting the 2009 regulation, the Bureau stated: The Director of the Bureau exercises discretion to deny early release eligibility to inmates who have a felony conviction for the offenses listed in 550.55(b )(5)(i)-(iv) because commission of such offenses illustrates a readiness to endanger the public. Denial of early release to all inmates convicted of these offenses rationally reflects the view that, in committing such offenses, these inmates displayed a readiness to endanger another's life. The Director of the Bureau, in his discretion, chooses to preclude from early release consideration inmates convicted of offenses involving carrying, possession or use of a firearm and offenses that present a serious risk of physical force against person or

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property, as described in 550.55(b)(5)(ii) and (iii). Further, in the correctional experience of the Bureau, the offense conduct of both armed offenders and certain recidivists suggests that they pose a particular risk to the public. There is a significant potential for violence from criminals who carry, possess or use firearms . Drug Abuse Treatment Program: Subpart Revision and Clarification and Eligibility of D.C. Code Felony Offenders for Early Release Consideration, 74 Fed. Reg. 1892, 1895 (Bureau of Prisons Jan. 14, 2009). [2] The defect identified in Arrington-a failure to articulate any supporting rationale in the administrative record, 51 6 F.3d at 1113-has been cured here. The Bureau clearly stated that, "in the corr-ectional experience of the Bureau, the offense conduct of both am1ed offenders and certain recidivists suggests that they pose a particular risk to the public." 74 Fed. Reg. at 1895 . The Bureau further explained that it was exercising its discretion because "[t]here is a significant potential for violence from criminals who carry, possess or use firearms" and that "in committing such offenses, these inmates displayed a readiness to endanger another's life." !d. Although the Bureau could have proffered a fuller explanation, the AP A does not demand more. 2. The Bureau did not violate the APA in enacting 28 C.F.R. 550.55(b)(4).

With regard to the exclusion based on prior convictions in 550.55(b)(4), the BOP explained: In exercising the Director's statutory discretion, we considered the crimes of homicide, forcible rape, robbery, aggravated assault, arson, and kidnaping, as identified in the FBI's Uniform Crime Reporting Program (UCR), which is a collective effort of city,

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county, state, tribal, and federal law enforcement agencies to present a nationwide view on crime. The definitions of these terms were developed for the National Incident-Based Reporting System and are identified in the UCR due to their inherently violent nature and particular dangerousness to the public. The Director of the Bureau exercises discretion to deny early release eligibility to inmates who have a prior felony or misdemeanor conviction for these offenses because commission of such offenses rationally reflects the view that such inmates displayed readiness to endanger the public. 74 Fed. Reg. at 1894.
[3) We had previously criticized this portion of the BOP's regulation because, "[b ]eyond explaining that it decided upon the four identified categories of convictions because of the variation in violence level that may be found in state convictions, the BOP provided no explanation for its decision to look to prior convictions as the appropriate basis to determine categorical exclusions." Crickon, 579 F.3d at 984 (citation omitted). This time, the BOP bas explained, minimally, that "commission of such offenses [homicide, forcible rape, robbery, aggravated assault, arson, and kidnaping] rationally reflects the view that such itm1ates displayed readiness to endanger the public." 74 Fed. Reg. at 1894. As we and the Supreme Court have found, this reasoning is pem1issible and based on common sense. Lopez, 531 U.S. at 242; Jacks, 114 F.3d at 985-86. Now that the agency has explicitly relied on such reasoning in the administrative record, we see no reason to overturn the regulation. Nor does the lack of a temporal restriction on prior convictions invalidate the regulation: implicit in the Bureau's reasoning is the determination that a prior conviction for any of these offenses, no matter its age, "rationally reflects the view that such inmates displayed readiness to endanger the public." 74 Fed. Reg. at 1894.

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Petitioners argue that this rationale is insufficient because it relies on erroneous facts. The BOP stated that it chose the particular crimes "as identified in the FBf's Unifonn Crime Reporting Program (UCR)." Id. The Bureau then explained that "[t]he definitions of these terms were developed for the National Incident-Based Reporting System and are identified in the UCR due to their inherently violent nature and particular dangerousness to the public." !d. Petitioners point out, however, that the crimes were actually identified in the UCR because they are "serious crimes, they occm with regularity in all areas of the country, and tl1ey are likely to be reported to the police." Fed. Bureau of Investigation, Uniform Crime Report, Crime in the United States, 2009, at 1 (Sept. 2010), http:/ /www2. fbi. gov/ucr/ cius2009I documents/09offensede finitions.pdf. The Petitioners' argument misses the mark. First, it is not clear that "seriousness" is a significantly different measure from "violent nature" and "dangerousness." The agency is entitled to rely on an existing index of serious crimes to identify crimes that arc dangerous. Second, the BOP never states that it chose these crimes because they were listed in the UCR as dangerous and violent. Instead, it states that: (1) these crimes are listed in the UCR as dangerous and violent, and (2) the commission of these crimes "rationally reflects the view that such inmates displayed readiness to endanger the public." 74 Fed. Reg. at 1894. Because the agency is entitled to reach the latter determination, the regulation is valid under the APA. B.

This Case Does Not Callfor Application of a Heightened APA Standard, If Any Exists.

[4] Petitioners argue that "[t]his case calls for more scrupulous application of the State Farm standard in light of' the fact that it "involves human freedom," whereas "[t]he State Farm standard for application of 706 of the AP A evolved through cases involving standard areas of administrative regu-

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lation, such as auto safety, pollution control, and financial transactions." Petitioners cite no case that has ever adopted this proposition. Furthermore, even if "loss of liberty" were to be reviewed under a hypothetically heightened standard, such a standard would not be applicable to this case. An inmate has no liberty interest in a sentence reduction in exchange for completion of RDAP. McLean v. Crabtree, 173 F.3d 1176, 1184-85 (9th Cir. 1999) ("[D]enial merely means that the inmate will have to serve out his sentence as expected." (quoting Jacks, 114 F.3d at 986 n.4)). If there is no liberty interest in the reduction, then a denial of eligibility for that reduction cannot affect an inmate's liberty interest. Petitioners also argue that the BOP's "history of violating the APA" should be taken into account when applying the State Farm standard. But the BOP's unsuccessful attempts to enact the regulation at issue do not demonstrate willful noncompliance with statutory mandates, and no court has ever fotmd this to be the case. We uphold the regulation under the usual APA standard. See 5 U.S .C. 706(2)(A); State Fann, 463 U.S. at 42-43. C.

The Legal Error in the Accompanying Program Statement Does Not Render the Regulation Invalid.

[5) Petitioners note that in the Program Statement accompanying the 2009 rule, the BOP continued to define a felonin-possession crime under 18 U.S.C. 922(g) as a crime of violence. See Program Statement No. 5162.05, at 3-4 (Bureau of Prisons Mar. 16, 2009), available at www.bop.gov/policy/ progstat/5162_005.pdf. This is in conflict with our pronouncement to the contrary in Davis, 109 F.3d at 569. However, Petitioners point to nothing in the administrative record indicating that the BOP relied on its categorization of 922(g) as a "crime of violence" when reaching its decision to adopt 550.55(b)(5)(ii). Instead, Petitioners shift the bur-

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den to the agency to affinnatively demonstrate that it has not relied on this legal enor in enacting 550.55(b )(5)(ii), by arguing that "the BOP failed to establish that the legal error did not taint the exercise of discretion in the parallel program statement." It does not make sense to require an agency to state all of the reasons for which it did not reach a decision, and Petitioners have not directed us to any authority supporting the proposition that this burden is on the agency. Because Petitioners have not identified any evidence in the record showing that in promulgating 550.55(b)(5)(ii) the BOP relied on the proposition that a violation of 922(g) is categorically a crime of violence under 924(c)(3 ), they have not shown that the regulation is infected by the legal enor contained in the program statement. D.

The BOP Was Not Required to Reach a Decision on the Basis of Statistics or Other Empirical Evidence.

Petitioners argue that, in light of the "read[y] availab[ility]" of relevant "empirical data or studies," the BOP's decision not to collect and consider any of that evidence invalidates the regulation. Petitioners contend that the regulation fails to comply with the "clear road map" that "list[s] the missing agency actions needed for compliance with the APA" which we gave in Crickon. In Crickon, we stated: [T]he BOP gave no indication of the basis for its decision. It did not reference pertinent research studies, or case reviews. It did not describe the process employed to craft the exclusion. It did not articulate any precursor findings upon which it relied. It did not reveal the analysis used to reach the conclusion that the categorical exclusion was appropriate. Indeed, the administrative record is devoid of any substantive discussion of the rationale underlying the BOP's exercise of its discretion.

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579 F.3d at 985. The flaw in Petitioners' reasoning is that Crickon did not indicate that these actions are necessmy for an agency's compliance with the APA; it merely listed several actions which would have been SU;fficient for APA compliance. Crickon does not support Petitioners' argument that the BOP was required to develop and rely on detailed statistics before promulgating this rule. In Sacora v. Thomas, we noted that "[t]he BOP .. . is entitled to use its experience in interpreting and administering a statute." 628 F.3d at 1067. We held that, although "[i]t may have been preferable for the BOP to support its conclusions with empirical research," "it was reasonable for the BOP to rely on its experience, even without having quantified it in the fonn of a study." !d. at 1069. Petitioners distinguish Sacora because the rule at issue in that case limited half-way house placement to six months, and the agency did not have "a large trove of untapped ... data" concerning the proposed change, whereas in this case, the BOP has many years of statistics based on its past efforts to categorically exclude certain prisoners from the early release incentive. This distinction is unpersuasive. Sacora made no mention of whether it would have been feasible for the BOP to gather data related to halfway house placement, and no indication that this consideration was a factor in the decision. We follow Sacora and hold that the BOP is entitled to invoke its experience as a justification for the present rule.

E. The BOP's Interpretation Does Not Conflict with Congress' Expressed Intent.
Petitioners argue that natTowing of the categories of statutorily eligible inmates is inconsistent with Congress' intent to "maximize the early release incentive and to reduce the prison population." Although it is true that om decision in Crickon criticized the BOP for enacting a regulation that was "difficult to square with Congress's expressed intent to provide an incentive to encourage maximum participation in the BOP's

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substance abuse treatment programs," 579 F.3d at 986, the idea that the regulation should be struck down solely because of perceived inconsistencies with congressional intent, as distinct from congressional command, is in tension with the Supreme Court's ruling in Lopez. See 531 U.S. at 242 ("[A]ll we must decide is whether the Bureau, the agency empowered to administer the early release program, has filled the statutmy gap in a way that is reasonable in light of the legislature's revealed design. We think the agency's interpretation is reasonable both in taking account of preconviction conduct and in making categorical exclusions." (citations omitted) (internal quotation marks omitted)). Furthermore, the administrative record reflects the fact that the Bureau has had some difficulty in accommodating all of the inmates who wish to participate in RDAP: Currently, the Bureau has over 7000 inmates waiting for residential treatment that is provided with limited Bureau resources. Also, inmates are selected for admission based on their proximity to release. Unfortunately, these two factors result in some inmates being on the waiting list for a long time.

Because the early release is such a powerful incentive, as evidenced by over 7000 inmates waiting to enter treatment, the Bureau must take appropriate measures to ensure that inmates requesting treatment actually have a substance abuse problem that can be verified with documentation. 74 Fed. Reg. at 1893. It would be unreasonable to criticize the Bureau for failing to maximize inmate participation when the Bureau is already struggling with its limited resources to accommodate all of the inmates who currently do wish to par-

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ticipate. It is clear to us that the agency is entitled to take a categorical approach to solving this problem. III. CONCLUSION

We join our sister circuits in holding that the Bureau has not violated the APA in excluding inmates from consideration for early release who have a current conviction for felon in possession or a past conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or child sexual abuse. AFFIRMED.

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