Opinion
CV 04-634-HA.
October 1, 2004
OPINION AND ORDER
Petitioner brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. On September 15, 2004, this court issued an Order denying the petition without prejudice, stating that petitioner may re-file his petition after he had exhausted his administrative remedies. Order dated Sep. 15, 2004, at 5. Petitioner filed a Motion for Reconsideration on September 16, 2004, and a Supplement to the Motion on September 30, 2004, with an attached exhibit indicating that petitioner has now exhausted all available administrative remedies. Respondent did not file a response to the Motion for Reconsideration.
The court's denial of petitioner's writ for habeas relief was based on petitioner's failure to exhaust his administrative remedies. Petitioner has now exhausted all such remedies and the court considers the writ on its merits. For the following reasons, petitioner's writ is granted.
DISCUSSION
A thorough recital of the facts and procedural history of this case was set forth in the court's September 15, 2004, Order, and it is unnecessary to repeat it at length here. Petitioner is being housed by the Bureau of Prisons (BOP) at the Federal Correctional Institution (FCI Sheridan) in Sheridan, Oregon. In January 1999, petitioner was accepted into the BOP's residential substance abuse treatment program (DAP), but was denied eligibility for the sentence reduction based on a two-point sentencing enhancement because he possessed a firearm during the commission of his offense. Nonetheless, petitioner elected to remain on the DAP wait list. In June 2000, petitioner declined further participation in DAP, effectively removing himself from the wait list. In March 2003, petitioner renewed his application for DAP, which was accepted, and he was again placed on the wait list. The BOP informed petitioner that although he would be placed on the wait list, he was still ineligible for a sentence reduction.
18 U.S.C. § 3621(e) provides "that every prisoner with a substance abuse problem [shall] have the opportunity to participate in appropriate substance abuse treatment. . . ." In 1994, as an incentive for prisoners to seek treatment, Congress made one-year sentence reductions available to prisoners convicted of nonviolent offenses who successfully completed the substance abuse treatment programs. 18 U.S.C. § 3621(e)(2)(B).
Prior to 1997, the BOP's regulation and program statements defined a "nonviolent" offense to exclude any conviction accompanied by the possession of a firearm or other dangerous weapon. The Ninth Circuit rejected the BOP's interpretation, holding that the BOP cannot define "nonviolent offense" to exclude firearm possession when Congress defines "nonviolent offense" in precisely the opposite way. Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir. 1997); see also Downey v. Crabtree, 100 F.3d 662, 667 (9th Cir. 1996).
Accordingly, the BOP amended its regulation and program statements governing prisoners' eligibility for early release. See 28 C.F.R. § 550.58; P.S. 5162.04 (Oct. 9, 1997); P.S. 5330.10 (Oct. 9, 1997) (the "1997 rule and program statements"). Relying instead on its discretion rather than on an interpretation of the term "nonviolent offense," the BOP's 1997 rule and program statements excluded exactly the same prisoners from early release eligibility who were ineligible under the old rules. Id.
The courts upheld this exercise of the BOP's discretion, but declined to consider whether the October 1997 rule and program statements were invalid because they were not implemented in accordance with the notice and comment provisions of the Administrative Procedures Act (APA). Lopez v. Davis, 531 U.S. 230, 244 (2001); Grassi Hood, 251 F.3d 1218, 1221 (9th Cir. 2001); Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000), rev'g Gavis v. Crabtree, 28 F. Supp. 2d 1264 (D. Or. 1998) (holding that the BOP's new interpretation conflicted with the unambiguously expressed intent of Congress, meriting no deference).
In May 2003, this court held in Bohner v. Daniels, 243 F. Supp. 2d 1171 (D. Or. 2003), that the 1997 rules were invalid because they were promulgated in violation of the APA. The court granted relief to prisoners who had been accepted into the program prior to the promulgation of the final rules in December 2000. The court's decision has been appealed to the Ninth Circuit. At the date of this opinion and order, the Ninth Circuit has yet to render an opinion.
1. The 1997 Rule Violates the APA
The Supreme Court has stated that if an agency, such as the BOP, violates 5 U.S.C. § 553(d)'s requirement that an agency publish a substantive rule "not less than 30 days before its effective date," the rule is invalid as to persons disqualified prior to the issuance of the final rule. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 225 (1988) (Scalia, J., concurring); see also Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir. 1982).
In Bohner, this court found that:
Based on the undisputed facts as to the procedural history of the rule promulgation, it is apparent that the procedures utilized to adopt the regulation did not comply with the APA. The Bureau violated the APA's thirty-day advance notice requirement by making the 1997 regulation effective as of October 9, 1997, rather than as of November 14, 1997, thirty days after the October 15, 1997 publication in the Federal Register. Thus, based on the undisputed facts, the requirements of the APA were not observed.Bohner, 243 F. Supp. 2d at 1174-75.
Furthermore, this court found that the BOP violated Section 553(b)'s general notice requirement:
The purpose [of Section 553(b)] is both (1) to allow the agency to benefit from the expertise and input of the parties who file comments with regard to the proposed rule, and (2) to see to it that the agency maintains a flexible and open-minded attitude towards its own rules, which might be lost if the agency had already put its credibility on the line in the form of "final" rules.Id. at 1175; see Nat'l Tour Brokers' Ass'n v. United States, 591 F.2d 896, 902 (D.C. Cir. 1978); see also Buschmann, 676 F.2d at 357 (9th Cir. 1982) (observing that the notice and comment procedures protect "the right of the people to present their views to the government agencies which increasingly permeate their lives" and that "the interchange of ideas between the government and its citizenry provides a broader base for intelligent decision-making and promotes greater responsiveness to the needs of the people. . . .").
In Bohner, this court found the BOP's violation of Section 553(b) just as evident as its violation of Section 553(d). The BOP referred to the 1997 rule as an "interim rule" and invited the public to submit comments. As with most interim rules, the 1997 rule became effective immediately. In fact, the BOP published nothing in the Federal Register until October 15, 1997, while the effective date of the regulation was October 9, 1997. Bohner, 243 F. Supp. 2d at 1175. Additionally, the court found that no statutory exceptions to Section 553(b)'s notice and comment requirements applied. Id. at 1175-76.
The BOP asserted in Bohner that even if the 1997 rule is invalid, the 1997 program statements provide separate grounds for excluding petitioner from eligibility for early release. This court rejected that argument. According to Grassi, regardless of the invalidity of the BOP's 1997 rule, its 1997 program statement stands. Grassi, 251 F.3d at 1221. However, Grassi declined to analyze the regulation under the APA, holding instead that regardless of whether the 1997 regulation violated the APA, the program statement has continuing validity. Id.
In Gunderson v. Hood, 123 F. Supp. 2d 1219, 1220 n. 1 (D. Or. 2000), this court vacated judgment and stayed the case pending the Ninth Circuit's mandate in Bowen. Petitioner Gunderson moved to lift the stay on grounds that the new program statements were in conflict with the BOP's new regulation, denying him a benefit that the regulation standing alone would not. Id. at 1220-21. Affirming this court's denial of relief to Gunderson, the Ninth Circuit held that "[b]ecause, in this instance, Program Statement 5162.04 did no more than `clarify or explain existing law,' it was interpretive and thus not subject to the rigors of the APA." Gunderson, 268 F.3d at 1149, 1155 (9th Cir. 2001).
This court originally granted Gunderson's writ for habeas corpus under the controlling law in this circuit at that time. However, as a result of Bowen, the law regarding the BOP's ability to deny inmates one-year sentence reduction changed substantially, and the court's original grounds for granting the petition were not longer valid. Accordingly, the court vacated the judgment and stayed the case pending the Ninth Circuit's mandate in Bowen.
Grassi's holding is in direct conflict with Gunderson's holding that the program statement merely interprets the regulation, and thus the program statement cannot be viable on its own. In Bohner, this court found that the precedents cannot be reconciled, and that it was without power to decide which should govern. Bohner, 243 F. Supp. 2d at 1178-79; Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1478 (9th Cir. 1987) (appropriate mechanism for resolving an irreconcilable panel conflict is an en banc decision).
Nonetheless, in Bohner, this court concluded only one outcome was possible: the program statements may not be used to deny a petitioner early release. Bohner, 243 F. Supp. 2d at 1179. If Grassi is correct, the 1997 program statements would deny a petitioner a sentence reduction independent of the 1997 rule. Accordingly, the program statements should have been classified as legislative rules, and promulgated in compliance with the APA's notice and comment requirements. However, because they were not, they cannot be relied upon to deny a petitioner early release. Id.
Alternatively, if Gunderson is correct, the 1997 program statements only interpret the 1997 rule. As explained in Bohner, the 1997 rule is invalid, leaving no rule for the 1997 program statements to interpret. Thus, the 1997 program statements cannot be relied upon to deny a petitioner early release. Id. 2. Application of Bohner to Petitioner
Petitioner was convicted of a nonviolent offense and claims he is eligible for reduction of his period of custody under 18 U.S.C. § 3621(e). Petitioner was deemed ineligible under the invalid 1997 interim rules. He argues that he is entitled to be treated as eligible under the statute and former regulation because promulgation of a rule without following the APA "renders it ineffective so far as extinguishing rights of those otherwise within the class of beneficiaries. . . ." Morton v. Ruiz, 415 U.S. 199, 235-36 (1974). Petitioner further argues that an improperly promulgated interim rule cannot be cured by a properly promulgated final regulation, and that relief is available to the class of persons adversely affected by the interim rule. See Bohner, 243 F. Supp. 2d at 1176. This court agrees.
Moreover, the court rejects respondent's argument that because petitioner had to reapply to the program, the final rules promulgated in December 2000 govern. Applying the 2000 rules to petitioner violates the retroactivity doctrine. See Bowen, 202 F.3d at 1222 (finding that the BOP cannot apply its rule changes to prisoners accepted into the program before October 1997 without violating the retroactivity doctrine); see also Cort v. Crabtree, 113 F.3d 1081, 1085-86 (9th Cir. 1997). Furthermore, as explained above, because the 1997 rules cannot be applied to petitioner because they are procedurally invalid under the APA, the only other valid rules in effect when petitioner applied for the program were those promulgated in 1995 and interpreted by Downey and Davis. CONCLUSION
For these reasons, petitioner's petition for writ of habeas corpus (Doc. #1) is GRANTED and it is ORDERED that the BOP deem petitioner eligible for a reduction of his period of custody. Furthermore, upon petitioner's successful completion of DAP, the BOP shall grant a reduction of one year from petitioner's sentence.
IT IS SO ORDERED.