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7/28/2019 Sacora Bureau of Prisons Violations Federal Defender Oregon
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No. 10-35553
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIM RAY SACORA,
Petitioner-Appellant,
LARRY L. BEAMAN,
Petitioner-Intervenor,
TODD SONOBE,
Petitioner-Intervenor,
v.
JEFF E. THOMAS, Warden,
Federal Prison Camp, Sheridan, Oregon,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
OPENING BRIEF OF APPELLANT
AND INTERVENOR CLASS REPRESENTATIVES
Stephen R. SadyChief Deputy Federal Public Defender
101 SW Main Street, Suite 1700
Portland, Oregon 97204
(503) 326-2123
Attorney for Petitioners
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TABLE OF CONTENTS
Page
Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of Jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Nature of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Standard of Review... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Statutory Framework And The Second Chance Act. . . . . . . . . . . . . . 8
B. Litigation Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
C. The BOP’s Categorical Presumption Of No More Than A Six-Month Community Placement At The End Of The Term Of Imprisonment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
D. The Record Regarding Implementation Of §§ 3621(b) And3624(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
E. Second Chance Act Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
F. The District Court Opinion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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I. The Prisoners’ Class Is Entitled To Relief Based On The District Court’sFinding That The Bureau Of Prisons, By Failing To Provide Notice-And-Comment, Violated § 553(b) Of The Administrative Procedure Act
In Promulgating The Second Chance Act Regulation. . . . . . . . . . . . . . . . . 26
A. Congress Expressly Required That The Relevant Aspects Of TheSecond Chance Act Be Implemented Through Formal Rule-Making. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
B. Even If Formal Rule-Making Were Not Expressly Mandated, TheMemoranda And Program Statement Promulgated WithoutFormal Rule-Making Are Substantive Or Legislative RulesRequiring Notice-And-Comment Under Well-Established
Precedent Of This Court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
II. The Bureau of Prisons Violated § 706 Of The Administrative ProcedureAct By Promulgating Its Six-Month Rule For Community CorrectionsWithout Adequate Empirical Support And Rationale. . . . . . . . . . . . . . . . . 35
A. The Bureau Of Prisons Promulgated The Six-Month Rule In TheAbsence Of Empirical Support, Based On Factual Errors, AndWithout Sufficient Articulation Of A Rationale. . . . . . . . . . . . . . . . 35
B. The District Court Incorrectly Disregarded The AffirmativeEvidence Supplied By The Parties That Documented The § 706Violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
III. By Continuing Its Six-Month Rule Without Substantial Change, TheBureau Of Prisons Violated Its Statutory Obligation Under 18 U.S.C. §3624(c) To Expand Community Corrections To Include Full And FairConsideration Of 12 Months In Community Custody. . . . . . . . . . . . . . . . . 42
A. The Plain Language Of § 3624(c), Which Created An Unfettered12-Month Availability For Pre-Release Placement, Is InconsistentWith The BOP’s Six-Month Rule.. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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B. The District Court Erred In Finding That The Statute WasAmbiguous And According Deference To The BOP.. . . . . . . . . . . . 46
IV. By Continuing Its Formal Six-Month Rule Without Substantial Change,
The Bureau Of Prisons Violated Its Statutory Obligation Under 18U.S.C. § 3621(b) To Provide Full And Fair Consideration Of RequestsFor Transfer To Community Corrections Prior To 12 Months Before
The Projected Release Date As Required By This Court’s Precedent InSmith v. Rodriguez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
A. Rodriguez Held That The Statutes Do Not Permit CategoricalLimitations On The Exercise Of Discretion Based On Time Left
To Serve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
B. The District Court Failed To Distinguish Rodriguez .. . . . . . . . . . . . 56
Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Statement of Related Cases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Brief Format Certification.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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TABLE OF AUTHORITIES
Page
FEDERAL CASES
Arrington v. Daniels,516 F.3d 1106 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . 7, 35, 37, 40
Asarco, Inc. v. E.P.A.,616 F.2d 1153 (9th Cir. 1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Ass’n of Pac. Fisheries v. E.P.A.,615 F.2d 794 (9th Cir. 1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Brewster v. Gage,280 U.S. 327 (1930). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Burlington Truck Lines, Inc.,371 U.S. 156 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Buschmann v. Schweiker ,676 F.2d 352 (9th Cir. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Chevron U.S.A., Inc. v. Natural Resources Defense Council ,467 U.S. 837 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 43, 46
Christensen v. Harris County,529 U.S. 576 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Chrysler Corp. v. Brown,441 U.S. 281 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 32
Colwell v. Department of Health and Human Services,558 F.3d 1112 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Cort v. Crabtree,113 F.3d 1081 (9th Cir. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
iv
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Crickon v. Thomas,579 F.3d 978 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 35, 36, 40
Demis v. Sniezek ,558 F.3d 508 (6th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Elwood v. Jeter ,386 F.3d 842 (8th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Friends of the Clearwater v. Dombeck ,222 F.3d 552 (9th Cir. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41
Fults v. Sanders,
442 F.3d 1088 (8th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Garza v. Davis,596 F.3d 1198 (10th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Goldings v. Winn,383 F.3d 17 (1st Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Gonzales v. Oregon,
546 U.S. 243 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Gunderson v. Hood ,268 F.3d 1149 (9th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Hart v. Massanari,266 F.3d 1155 (9th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Hemp Indust. Association v. DEA,
333 F.3d 1082 (9th Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Hiivala v. Wood ,195 F.3d 1098 (9th Cir.1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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Jonah R. v. Carmona,446 F.3d 1000 (9th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Krueger v. Martinez ,
665 F. Supp. 2d 477 (M.D. Pa. 2009).. . . . . . . . . . . . . . . . . . . . . . 20, 44, 50
Leocal v. Ashcroft ,543 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Levine v. Apker ,455 F.3d 71 (2d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Love v. Thomas,858 F.2d 1347 (9th Cir. 1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
McGee v. Thomas,2009 WL. 2182385 (D. Or. July 22, 2009).. . . . . . . . . . . . . . . . . . 20, 36, 46
Mada-Luna v. Fitzpatrick ,813 F.2d 1006 (9th Cir. 1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Marathon Oil Co. v. Lujan,937 F.2d 498 (10th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Miller v. Gammie,335 F.3d 889 (9th Cir. 2003) (en banc).. . . . . . . . . . . . . . . . . . . . . . . . 57, 59
Miller v. Whitehead ,527 F.3d 752 (8th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile
Insurance Co.,
463 U.S. 29 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36, 37, 39, 40, 42
Muniz v. Sabol ,517 F.3d 29 (1st Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 57
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National Association of Home Builders v. Defenders of Wildlife,551 U.S. 644 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
National Resources Defense Council v. U.S. Forest Serv.,
421 F.3d 797 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Natural Resources Defense Council v. Evans,316 F.3d 904 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Nw. Environmental Defense Ctr. v. BPA,477 F.3d 668 (9th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Pacific Gas and Electric Co. v. Federal Power Commission,506 F.2d 33 (D.C. Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Paulsen v. Daniels,413 F.3d 999 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 28, 29
Pickus v. U.S. Board of Parole,507 F.2d 1107 (D.C. Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Pierce County, Wash. v. Guillen,537 U.S. 129 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Riverbend Farms, Inc. v. Madigan,958 F.2d 1479 (9th Cir. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Rodriguez v. Smith,541 F.3d 1180 (9th Cir.2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Ryder Truck Lines, Inc. v. United States,716 F.2d 1369 (11th Cir. 1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Serrato v. Clark ,486 F.3d 560 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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Shalala v. Guernsey Mem'l Hospital ,514 U.S. 87 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Skidmore v. Swift & Co.,
323 U.S. 134 (1944). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 49, 50, 51
Skilling v. United States,130 S. Ct. 2896 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Smith v. Shettle,946 F.2d 1250 (7th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Stone v. INS ,514 U.S. 386 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Strong v. Schultz ,599 F. Supp. 2d 556 (D. N.J. 2009). . . . . . . . . . . . . . . . . . . . . 19, 20, 43, 44
United States v. Mead Corp.,533 U.S. 218 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 50
United States v. Wilson,503 U.S. 329 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Walker v. Copenhaver ,2010 WL 604674 (N.D. Cal. Feb. 19, 2010).. . . . . . . . . . . . . . . . . . . . . . . . 19
Woodall v. Fed. Bureau of Prisons,432 F.3d 235 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Yesler v. Cisneros,37 F.3d 442 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
FEDERAL STATUTES
5 U.S.C. § 551(4).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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5 U.S.C. § 553(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16, 21, 25, 26, 30, 31
5 U.S.C. § 706(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 24, 35, 36, 37, 42
18 U.S.C. § 3582(c)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46
18 U.S.C. § 3624(c)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
28 U.S.C. § 994(t). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
28 U.S.C. § 2241. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
MISCELLANEOUS
Reduction in Sentence for Medical Reasons, 71 Fed. Reg. 76619-01(Dec. 21, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46
United States Sentencing Comm'n, Symposium on Alternatives to Incarceration
(July 14-15, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 38
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STATEMENT OF JURISDICTION
The district court’s habeas corpus jurisdiction is based on 28 U.S.C. §§ 1331,
1343(4), and 2241. Jurisdiction is conferred on this Court to review the final order
denying relief by 28 U.S.C. §§ 1291 and 2253. The district court denied relief on
June 16, 2010. Mr. Sacora filed the notice of appeal on the same day, which is
therefore timely under Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure.
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STATEMENT OF ISSUES
I. Whether The Prisoners’ Class Is Entitled To Relief Based On The DistrictCourt’s Finding That The Bureau Of Prisons, By Failing To Provide
Notice-And-Comment, Violated § 553(b) Of The Administrative ProcedureAct In Promulgating The Second Chance Act Regulation For Two Reasons:
A) The Memoranda And Program Statement Create Rules RequiringNotice-And-Comment Because Congress Expressly Required That TheRelevant Aspects Of The Second Chance Act Be Implemented ThroughFormal Rule-Making; And
B) Even If Formal Rule-Making Were Not Expressly Mandated, TheMemoranda And Program Statement Promulgated Without Formal Rule-
Making Are Substantive Or Legislative Rules Requiring Notice-And-Comment Under Well-Established Precedent Of This Court.
II. Whether The Bureau of Prisons Violated § 706 Of The AdministrativeProcedure Act By Promulgating Its Six-Month Rule For CommunityCorrections Without Adequate Empirical Support And Rationale.
III. Whether By Continuing Its Six-Month Rule Without Substantial Change, TheBureau Of Prisons Violated Its Statutory Obligation Under 18 U.S.C. § 3624(c)
To Expand Community Corrections To Include Full And Fair ConsiderationOf 12 Months In Community Custody.
IV. Whether By Continuing Its Six-Month Rule Without Substantial Change, TheBureau Of Prisons Violated Its Statutory Obligation Under 18 U.S.C. §3621(b) To Provide Full And Fair Consideration Of Requests For Transfer ToCommunity Corrections Prior To 12 Months Before The Projected ReleaseDate As Required By This Court’s Precedent InSmith v. Rodriguez .
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STATEMENT OF THE CASE
Nature of the Case
This direct appeal involves a class of prisoners at the Federal Correctional
Institution at Sheridan, Oregon, who are challenging the Bureau of Prisons (BOP)’s
failure to implement changes in access to community custody required by the Second
Chance Act (SCA) and this Court’s precedent. On June 16, 2010, the Honorable
Malcolm F. Marsh, Senior United States District Judge for the District of Oregon,
entered an order granting relief only in the form of declaring the BOP’s regulation
invalid, but changing nothing by allowing continued enforcement of rules that the
petitioners contend violate the Administrative Procedure Act (APA) as well as the
underlying statutes.
Course of Proceedings
On May 12, 2008, Tim Ray Sacora filed a writ of habeas corpus pursuant to 28
U.S.C. § 2241 challenging the BOP’s administration of 18 U.S.C. § 3621(b)
regarding his transfer to a halfway house on grounds similar to those granted in
Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008). ER 565. After initial litigation,
the district court appointed counsel to represent Mr. Sacora, after which an amended
petition for habeas corpus relief was filed on September 2, 2009, by which time the
issue regarding transfer implicated pre-release custody under 18 U.S.C. § 3624(c) (as
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amended by the SCA). ER 547. On the same day, Mr. Sacora filed a motion to
certify a class defined as:
All federal prisoners serving sentences in the District of Oregon whohave been or will be considered for community corrections placementunder 18 U.S.C. §§ 3621(b) and 3624(c).
ER 545. After litigation regarding class certification, the district court entered on
December 3, 2009, an Opinion and Order granting the class certification in part,
described as covering pre-release prisoners under § 3624(c):
All federal prisoners serving sentences in the District of Oregon whohave been denied or will be denied community corrections placement inexcess of six months under 18 U.S.C. § 3624(c), pursuant to the Bureauof Prisons’ April 14, 2008, memorandum, Program Statement 7310-04and 28 C.F.R. § 570.20, et seq. . . .
ER 458. On December 24, 2009, petitioners Larry Beaman and Todd Sonobe filed
a motion to intervene as plaintiffs and class representatives for those seeking transfer
to halfway houses prior to pre-release custody under 18 U.S.C. § 3621(b). ER 449.
After further litigation, the district court granted the motion for Mr. Beaman and
Mr. Sonobe to intervene and changed its earlier order to amend the class definition
as follows:
All federal prisoners serving sentences in the District of Oregon whohave been denied or will be denied community corrections placement inexcess of six months under 18 U.S.C. § 3624(c) and 18 U.S.C.§ 3621(b), pursuant to the Bureau of Prisons’ April 14, 2008,memorandum, the Bureau of Prisons’ November 14, 2008,
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memorandum, Program Statement 7310.04, Program Statement 5100.08and 28 C.F.R. § 570.20, et seq.
ER 437.
On March 1, 2010, the petitioner class representatives filed a memorandum in
support of habeas corpus relief, along with exhibits in support. ER 188. On April 9,
2010, the BOP filed its response with two attachments and an accompanying
declaration. ER 99, 118. The class petitioners filed a reply and additional exhibits
on April 20, 2010. ER 61.
On June 15, 2010, after the district court noted that the intervenors had not
filed a single combined amended petition, the class representatives filed a second
amended petition for writ of habeas corpus. ER 38. The following day, the district
court entered an Opinion and Order granting in part the petition for habeas corpus,
declaring the BOP’s October 2008 regulation invalid for violation of the notice-and-
comment provisions of the APA, but denying relief in all other respects, entering
judgment the same day. ER 1, 3. On the same day, Mr. Sacora filed his Notice of
Appeal. ER 37.
At the outset of the Oregon litigation involving the SCA, the parties originally
proceeded through lead petitioners, with other prisoners’ cases stayed pendingSass
v. Thomas, (D. Or. July 23, 2009), appeal filed CA 09-35830 (9th Cir. Sept. 15,
2009), and Pierce v. Thomas, CV 08-705-MA (D. Or. July 1, 2009),appeal filed CA
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09-35781 (9th Cir. August 26, 2009). Mr. Sacora’s case was initially stayed pending
the lead petitioners’ litigation. However, those cases resulted in procedural
dismissals based on a ripeness question initiated by the Court for theSass group and
a mootness issue raised by the BOP in the Pierce group. Those cases were separately
appealed on the procedural grounds, with an accompanying request for the Court to
consider, as an alternative to remanding the cases, reaching the merits of the SCA
claims. Those cases were fully briefed by February 2010.
Shortly after the filing of the notice of appeal in Sacora, the class
representatives filed a motion with this Court to consolidate the present case with
Sass and Pierce with expedited briefing and calendaring to address the issues raised
in the district court’s opinion. On July 20, 2010, the Court granted the motion to
consolidate the three cases, set an expedited briefing schedule, and calendared the
case for oral argument in the first week of October 2010.
Standard of Review
A district court’s denial of a petition for writ of habeas corpus is reviewedde
novo. Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009); Jonah R. v. Carmona,
446 F.3d 1000, 1003 (9th Cir. 2006). The Court considers de novo whether an
agency complied with notice-and-comment as required under the APA. Paulsen v.
Daniels, 413 F.3d 999, 1002 (9th Cir. 2005); Natural Res. Def. Council v. Evans, 316
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F.3d 904, 910 (9th Cir. 2003). In reviewing BOP rules, the Court considers whether
the agency’s action is “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” Crickon, 579 F.3d at 982; Arrington v. Daniels, 516 F.3d
1106, 1112 (9th Cir. 2008) (citing 5 U.S.C. § 706(2)(A)). The Court also reviews
questions of statutory constructionde novo. Rodriguez , 541 F.3d at 1183. Because
an agency’s interpretation is governed byChevron U.S.A., Inc. v. Natural Res. Def.
Council , 467 U.S. 837 (1984), the court first looks to the statute, and determines “if
Congress has directly spoken to the precise question at issue, in such a way that the
intent of Congress is clear.” Rodriguez , 541 F3d at 1184 (citations omitted).
Traditional tools of construction, such as the rules of constitutional avoidance and
lenity, are available to determine the statute’s meaning. Chevron, 467 U.S. at 843
n.9; see Skilling v. United States, 130 S. Ct. 2896, 2929-30, 2932 (2010).
STATEMENT OF FACTS
Most of the relevant facts are set out in detail in the consolidated cases of Sass
and Pierce. For brevity’s sake, this class brief will summarize the factual subsections,
with reference to the relevant pages of the consolidated briefs for the full elaboration.
The discovery in Pierce was incorporated inSacora by attachment of exhibits to the
supporting memorandum. ER 213 n.6.
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A. Statutory Framework And The Second Chance Act1
The petitioners’ claims rest on two statutes that provide for transfer to
community corrections: 18 U.S.C. §§ 3621(b) and 3624(c). The first authorizes the
BOP to transfer prisoners to a halfway house at any time during the term of
imprisonment based on five factors listed in § 3621(b). ER 253. Because BOP
halfway houses are penal or correctional facilities, the BOP has discretion to transfer
a prisoner to community corrections at any time based on individualized
consideration of the five enumerated factors. ER 293. Congress reaffirmed the2
BOP’s authority under § 3621(b) in the SCA to designate or transfer prisoners to
community corrections at any time during the term of imprisonment. 18 U.S.C.
§ 3624(c)(4).
In contrast to the general authorization for transfer to community corrections,
§ 3624(c) mandates community placement, to the extent practicable, for the last part
of a sentence to facilitate community reentry. ER 254. Prior to the SCA, the statute
limited consideration of pre-release placement to a maximum of the lesser of six
months or 10 percent of the term of imprisonment. 18 U.S.C. § 3624(c) (repealed
2008). In the SCA, Congress required the BOP to utilize community corrections, to
Pierce at 5-9; Sass at 5-9.1
The BOP now refers to halfway houses as Residential Reentry Centers (RRC).2
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the extent practicable, for up to double the time before release compared to the pre-
SCA rate, while maintaining the six-month/10 percent period for home confinement:
(1) In general. – The Director of the Bureau of Prisons shall, to theextent practicable, ensure that a prisoner serving a term of imprisonmentspends a portion of the final months of that term (not to exceed 12months), under conditions that will afford that prisoner a reasonableopportunity to adjust to and prepare for the reentry of that prisoner intothe community. Such conditions may include a community correctionalfacility.
(2) Home confinement authority. – The authority under thissubsection may be used to place a prisoner in home confinement for theshorter of 10 percent of the term of imprisonment of that prisoner or 6months.
18 U.S.C. § 3624(c) (2008). The SCA requires that pre-release placement decisions3
be individualized, not categorical, using the factors enumerated in § 3621(b) to
designate or transfer prisoners to appropriate penal or correctional facilities – which
include RRCs. 18 U.S.C. § 3624(c)(6)(A).
In the SCA, Congress directed the BOP to issue implementing regulations
within 90 days that would include direction regarding the “sufficient duration” of
community placements:
The Director of the Bureau of Prisons shall issue regulations not later
than 90 days after enactment, which shall ensure that placement in acommunity correctional facility is
A full copy of the Act is set forth at ER 255.3
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(A) conducted in a manner consistent with § 3621(b) of this title;
(B) determined on an individual basis; and
(C) of sufficient duration to provide the greatest likelihood of successful reintegration into the community.
18 U.S.C. § 3624(c)(6) (2008). In a separate section of the SCA, Congress directed
that the Attorney General and the BOP, subject to available appropriations, establish
a federal prisoner reentry initiative. ER 281. In the chapter entitled “Improving
Federal Offender Reentry,” Congress anticipated that the BOP would create
incentives, including “the maximum allowable period in a community confinement
facility,” and change its former approach by referring to the need “to modify” BOP
“procedures and policies” to enhance implementation of reentry programs and
improve transition to the community. ER 281-82.
B. Litigation Background4
Prior to December 2002, the BOP did not interpret pre-SCA § 3624(c) as
limiting the length of end-of-term halfway house placement. ER 293. Thus, while
interpreting § 3624(c) to limit its authority to place prisoners in home detention to the
last 10 percent of the term of imprisonment, the BOP did not interpret the statute to
limit its authority under § 3621(b) to place prisoners at RRCs at any time during the
Pierce at 9-13; Sass at 9-14.4
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term of imprisonment. Id . The BOP guidelines for RRC placement provided that
prisoners may be referred for 180-day placements, “with placement beyond 180 days
highly unusual and only possible with extraordinary justification.” Id . In short, the
BOP policy established a six-month community-placement norm, allowing for longer
placement only in extraordinary circumstances under § 3621(b) and § 3624(c).
In December 2002, the BOP abruptly reinterpreted its authority under
§ 3621(b) to limit RRC placement to the last 10 percent of the term, not to exceed six
months. The change was prompted by an opinion letter issued by the Department of
Justice Office of Legal Counsel (OLC) concluding that, contrary to the BOP’s
previous interpretation of the statutes, former § 3624(c) capped the amount of time
the BOP can place a prisoner in a RRC at the lesser of 10 percent of his sentence or
six months. ER 323. As a consequence, the BOP almost immediately began to limit
its designations of prisoners to RRCs to no more than the last 10 percent of their
sentences, precluding all direct commitments as well. The BOP’s revised rules were
immediately and retroactively effective.
The reinterpretation of the statutes resulted in a flurry of challenges to the
BOP’s change in policy, mostly involving direct commitment cases.
Overwhelmingly, district courts granted relief, rejecting the OLC’s erroneous
interpretation of § 3621(b). The courts held that, as a matter of statutory construction,
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the plain language of § 3621(b) authorized placement and transfer of offenders to
RRCs at any time during their terms of imprisonment. See, e.g., Goldings v. Winn,
383 F.3d 17, 23-24 (1st Cir. 2004); Elwood v. Jeter , 386 F.3d 842, 846-47 (8th Cir.
2004). The courts also held that the OLC’s interpretation of § 3624(c) applied only
to the BOP’s affirmative obligation to provide re-entry programming in the
community, not its discretion under § 3621(b) to transfer to a halfway house at any
time.
The BOP responded to the courts’ rejections of its revised interpretation by
creating two new regulations with respect to placement of inmates in RRCs. In the
notice regarding the new regulations, the BOP explained that it relied on its purported
discretion to reinstitute its disqualification of all prisoners who were not yet within
10 percent of release from RRC placement. Under the new rules, the BOP conceded
that it had the discretion under § 3621(b) to place prisoners in RRC’s for longer than
the last 10 percent of the term of imprisonment, Community Confinement , 69 Fed.
Reg. 51213-01 (Aug. 18, 2004), but categorically eliminated RRC placement for all
inmates based on time from release, regardless of an inmate’s individual
circumstances. 28 C.F.R. § 570.20 (2005). As it had stated under its December 2002
policy, the BOP reiterated that it would designate prisoners to community
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confinement only “during the last ten percent of the prison sentence being served, not
to exceed six months.” 28 C.F.R. § 570.21 (2005).
The revised rules again resulted in litigation. Five courts of appeal, including
this Court, invalidated the BOP rules that categorically limited RRC placement to the
last 10 percent of the sentence, not to exceed six months. Rodriguez , 541 F.3d at
1184-87. Rodriguez and the other cases invalidating the BOP rules held that
§ 3621(b) gives the agency discretion to place prisoners at any time during the term
of imprisonment, but that discretion is “cabined by further mandatory direction to
consider the five factors enumerated in the statute.” 541 F.3d at 1186 (quoting
Wedelstedt , 477 F.3d at 1165). Accordingly, the rules were invalid because the
categorical exercise of discretion, based only on the length of the sentence remaining,
foreclosed consideration of the enumerated factors. Rodriguez , 541 F.3d at 1187.
C. The BOP’s Categorical Presumption Of No More Than A Six-
Month Community Placement At The End Of The Term Of
Imprisonment5
On April 14, 2009, five days after the SCA was signed into law, the BOP
issued rules that purport to implement the SCA. The April 14th Memorandum
directed staff to disregard the existing regulations and operations memoranda that
restricted RRC placement to the last 10 percent of the term of imprisonment, not to
Pierce at 13-18; Sass at 14-20.5
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exceed six months. ER 328. The April 14th Memorandum directed staff to make pre-
release decisions pursuant to Program Statement 7310.04, Community Corrections
Center (CCC) Utilization and Transfer Procedure (Dec. 16, 1998), with certain
“adjustments.”
The purported adjustments to Program Statement 7310.04 made by the April
14th Memorandum perpetuated a presumptive limitation to only six months of pre-
release placement, with required approval from both the Warden and the Regional
Director for any deviation:
(D) Regional Director Approval Required for Pre-Release RRC
Placement Beyond Six Months – While the Act makes inmateseligible for a maximum of 12 months pre-release RRCplacements, Bureau experience reflects inmates’ pre-release RRCneeds can usually be accommodated by a placement of six monthsor less. Should staff determine an inmate’s pre-release RRCplacement may require greater than six months, the Warden must
obtain the Regional Director’s written concurrence beforesubmitting the placement to the Community CorrectionsManager.
ER 328. The April 14th Memorandum ordered staff to disregard sections of the
Program Statement that quoted from the repealed § 3624(c), and substituted the
timeline to review RRC placement decisions to be made in advance of the final year
of imprisonment, with a final determination to be made no later than 17-19 months,
instead of 11 to 13 months, prior to release. Id . The April 14th Memorandum also
required consideration of the five-factor criteria set forth in § 3621(b). While
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implementing the six-month limit, absent extraordinary circumstances and Regional
Director approval, staff were instructed to “approach every individual inmate’s
assessment with the understanding that he/she is now eligible for a maximum of 12
months pre-release RRC placement.” ER 331.
In a public statement 90 days after the SCA’s enactment, the Director of the
BOP claimed that, based on purported research performed by the BOP, halfway house
placement for more than six months caused prisoners to do worse:
[O]ur research that we’ve done for many years reflects that manyoffenders who spend more than six months in a halfway house tend todo worse rather than better. The six months seems to be a limit for mostof the folks, at which time if they go much beyond that, they tend to failmore often than offenders that serve up to six months.
U.S. Sentencing Comm’n, Symposium on Alternatives to Incarceration at 267 (July
14-15, 2008) (statement of Harry Lappin, Director, Federal Bureau of Prisons).
Director Lappin also explained that financial considerations factored into the policy,
but ignored the minimal cost of home detention – $3,621.64 per year. Id .
On November 14, 2009, the BOP issued another memorandum – the November
14th Memorandum – to provide guidance to BOP “staff for considering and
responding to inmate requests for transfer to RRCs, when more than 12-months
remain from their projected release date.” ER 338. Staff were advised to avoid
telling prisoners they were “ineligible” when responding to requests for transfer, but
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reminded staff that RRC’s were for reentry purposes. Id . The memorandum
reiterated the six-month limitation, absent extraordinary circumstances.
D. The Record Regarding Implementation Of §§ 3621(b) And3624(c)6
Although Congress directed the BOP to issue regulations no later than 90 days
after enactment of the SCA, 18 U.S.C. § 3624(c)(6), or by July 8, 2008, the BOP did
not publish its first regulations in the Federal Register until over 100 days after the
congressional deadline. 73 Fed.Reg. 62440 (Oct. 21, 2008). ER 341. The BOP made
the new regulation immediately effective as an interim rule, claiming that good cause
existed for foregoing notice-and-comment as required under 5 U.S.C. § 553(b). The
BOP explained that it was foregoing the 30-day period required under 5 U.S.C.
§ 553(d) before a regulation can be effective because of the SCA time frame and
potential benefit to inmates. Id . The regulation did not address the six-month
limitation set forth in the April 14th Memorandum or otherwise describe the BOP’s
procedures and criteria for designating inmates to pre-release community confinement
or home detention to ensure placement “of sufficient duration to provide the greatest
likelihood of successful reintegration into the community” under § 3624(c)(6).
See Pierce at 18-24; Sass at 21-26.6
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The new regulation traced the new statute’s language on time frame and
community placement. The new regulation provided no guidance beyond the
statutory language regarding implementation of the SCA. ER 344. The BOP
explained that the new § 570.22 “informs inmates that they will be considered for pre-
release community confinement in a manner consistent with 18 U.S.C. § 3621(b),
determined on an individualized basis, and of duration sufficient to optimize the
likelihood of successful reintegration into the community,” and “reflects the
requirements of the Second Chance Act regarding the promulgation of these
regulations.” Id . The regulation and Federal Register notice are silent regarding the
BOP’s authority under § 3621(b) to transfer prisoners to community confinement at
any time during the term of imprisonment.
Mr. Sacora incorporated discovery in related litigation as supporting exhibits.
In response to requests for the empirical data supporting the six-month presumption,
the BOP provided an e-mail establishing that the six-month limit was not empirically
based:
I am trying to find out if there is any data to substantiate the length of time in a “halfway house” placement is optimally x number of months.
That is, was the “6-month” period literally one of tradition, or was theresome data-driven or empirical basis for that time frame? At one time,many years ago, I remember that there were studies that indicatedrecidivism would be greatest within the first few weeks – 90 days – andthat it would tend to drop off after the initial period.
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I worked on one of those studies but could not locate a copy.
– I’ve done a lot of searching of the literature,but so far have not found
anything to confirm that the “6-months” was empirically based .
ER 345 (emphasis added). The BOP provided seven studies, none of which
addressed whether RRC placements greater than six months were counterproductive.
ER 346. To the contrary, the provided studies support greater, rather than lesser,
RRC and community placements, including a study finding that longer RRC
placements resulted in decreased recidivism. ER 408.
The discovery revealed that the BOP has almost uniformly foreclosed greater
than six-month RRC placements throughout the country, with no approvals of over
six months from Sheridan:
At Sheridan, 74 requests were rejected while only three were forwardedto the Region for approval, and none of those were approved. The
Western Region rejected all but one request for greater than six months,and that was in response to a district court order strongly recommendingan eleven-month RRC placement based on medical grounds, which theBOP extended to only eight months.
ER 414, 419-21. The only region that allowed greater than six months was the
Northcentral Region, approving 37 of 41 requests, the majority of which were from
FCI Duluth. ER 413. The BOP provided no discovery demonstrating that six-month
RRC placements followed by six months of home confinement, or any earlier
commencement of RRCs, was even contemplated. The discovery also revealed that
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requests for placements of greater than six months are rejected based on inconsistent
and often contradictory grounds.
E. Second Chance Act Litigation
As with prior changes to community placement policies, prisoners across the
country filed petitions challenging the BOP’s implementation of the SCA. Many of
these petitions were denied on procedural grounds such as failure to exhaust
administrative remedies (Garza v. Davis, 596 F.3d 1198, 1203-04 (10th Cir. 2010)),
ripeness (Sass v. Thomas, 2009 WL 2230759, *4-6 (D. Or. July 23, 2009); Walker v.
Copenhaver , 2010 WL 604674, *1 (N.D. Cal. Feb. 19, 2010)), and mootness ( Demis
v. Sniezek , 558 F.3d 508, 513 (6th Cir. 2009); Pierce v. Thomas, 2009 WL 2476606
(D. Or. Aug. 10, 2009)).
In Strong v. Schultz , 599 F. Supp. 2d 556 (D. N.J . 2009), the court issued one
of the first decisions regarding the SCA. Upon review of the statutory language, the
court concluded that “[o]bviously, an underlying premise of these amendments is that
the more time an inmate spends in a CCC before he or she is released from BOP
custody, the more likely it is that his or her community reintegration will be
successful.” Id . at 562. Based on this conclusion,Strong held that the SCA created
a 12-month community placement presumption: “Congress intended that each inmate
would be considered for a placement of the longest duration – 12 months – although
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the ultimate placement may be less than 12 months, if warranted by application of the
§ 3621(b) factors.” Id . The court invalidated the BOP’s SCA rules instructing staff
that pre-release placement needs can usually be accommodated by a placement of six
months or less as inconsistent with the SCA amendments. Id . at 563.
Similarly, in Krueger v. Martinez , 665 F. Supp.2d 477, 483 (M.D. Pa. 2009),
the court found that Congress intended that each inmate be considered for the full 12
months of community corrections, without the six-month limitation that is “contrary
to the purpose of the Second Chance Act.” Given that the six-month limitation was
unsupported by the statutory text, the court found no basis for deference to the
agency. Id . at 484 n.3.
In McGee v. Thomas, 2009 WL 2182385 (D. Or. July 22, 2009), Judge Marsh
reached a different conclusion. The court found the SCA amendments “ambiguous
with respect to whether the § 3621(b) factors are exhaustive.” McGee, supra, at *5.
In deferring to the BOP’s position, the court noted that the language of the statute
required only that the BOP “consider placing inmates in an RRC for up to 12
months,” that under § 3624(c) the BOP may consider RRC as a suitable placement,
but does not require such placements, and that the duty to consider RRC placements
is limited “to the extent practicable.” McGee, supra, at *5-6 (emphasis in original).
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F. The District Court Opinion
On June 16, 2010, the district court issued an opinion and order granting in part
and denying in part the amended petition. ER 2. The court found that the BOP
violated §§ 553(b) and (d) of the APA in promulgating its regulation and enjoined the
use of the regulation. ER 1. The court denied relief on the remaining issues, finding
that the memoranda were interpretive and did not violation the relevant statutes.
Although this Court provides de novo review, several factual predicates of the
opinion need clarification.
The district court stated that the class sought a “guarantee” of a 12-month
placement. ER 11 (the authorizing statutes “do not guarantee a pre-release placement,
and certainly does not guarantee a 12-month placement.”); see also ER 14 (statute
does not “unambiguously guarantee” 12 months with less depending on § 3621(b)
factors). In contrast, the petitioners sought unprejudged consideration of 12 months,
objecting to the BOP’s six-month limitation on community placement. See, e.g., ER
23 (“The ‘ordinary or natural’ meaning of the statutory expansion of community
corrections from six to twelve months is that prisoners should be considered for the
full time available without prejudgment regarding the available time or duration.”);
ER 25 (“[T]he statute as a whole anticipates the starting point for community
corrections placements be twelve months, with less warranted based on the factors
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in § 3621(b)”); ER 27 (“Congress doubled the time for mandatory consideration of
prerelease custody.”) (emphasis added). The distinction between a “guarantee” and
fair consideration of the full 12 months is important in this Court’s BOP precedent.
See Serrato v. Clark , 486 F.3d 560, 566 (9th Cir. 2007) (“A prisoner’s right to
consideration for early release is a valuable one that we have not hesitated to
protect.”) (emphasis in original) (quotingCort v. Crabtree, 113 F.3d 1081, 1085 (9th
Cir. 1997)).
The district court incorrectly claimed that the petitioners sought “12 months of
RRC time, in addition to six months in home detention.” ER 13. On the contrary, the
petitioners merely pointed out that the BOP failed to consider starting the halfway
house earlier to allow maximum use of home detention within the 12 months
referenced in § 3624(c). ER 241 (“Even with a six-month limitation . . . there is still
no reason not to commence transfer to community corrections at twelve months in
order to commence home detention at six months.”). The petitioners never asserted
that § 3624(c) required consideration of 18 months of community corrections.
The district court also assumed that the statutory language – placements of
“sufficient duration to provide the greatest likelihood of success” – was self-
explanatory. ER 15. Similarly, the court construed the petitioners’ position on the
November memorandum to permit “daily transfer requests,” ER 18, where the only
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position was that, when the BOP did make a transfer decision, the standard that was
applied had to be properly promulgated and consistent with statute.
Finding the statutes ambiguous with respect to what factors the BOP may
consider in addition to those enumerated in § 3621(b), the district court reviewed the
April and November Memoranda under Skidmore v. Swift & Co., 323 U.S. 134
(1944). The court concluded that “the April Memorandum as a whole reveals its
reasonableness and persuasiveness,” and that requiring the Regional Director’s
approval for placements greater than six months was rational given the “allocation of
limited available prison resources.” ER 15-16. According to the district court, the
“thoroughness and persuasiveness of the BOP policy is evident in the November
Memorandum” because “responding to what could be daily transfer requests would
quickly overwhelm and unduly burden BOP staff,” ER 17-19, distinguishing this
Court’s Rodriguez decision because these rules did not “contain the same categorical
exclusion struck down in Rodriguez .” ER 19.
After finding review of BOP rulemaking and adherence to statutes was
appropriate, the district court found that the BOP violated the APA by failing to
subject its regulation to notice-and-comment without good cause, rendering the
regulation invalid. ER 20-21. However, the court found that the April and November
Memoranda and Program Statement 7310.04 were internal agency guidelines, akin
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to interpretive rules, to which the notice-and-comment provisions do not apply. ER
28-29. Additionally, the court found that the memoranda and program statement
satisfied the § 706(2)(A) requirements because “it is inherently logical that an internal
agency guideline that directs staff in exercising its discretion would contain a more
limited analysis of its justification than rules which have undergone notice and
comment.” ER 34. The district court refused to consider the extensive evidence in
support of the petitioners’ claims, asserting the evidence was beyond the scope of the
administrative record. ER 34.
SUMMARY OF ARGUMENT
In enacting the SCA, Congress required that prisoners should be placed in
community corrections for periods that would ensure the greatest likelihood of
successful reintegration. To that end, § 3624(c) was amended to double the amount
of time for community placements from six months to one year, and the BOP was
instructed to revise its rules to facilitate prisoner reentry. Rather than fully comply
with the SCA, the BOP promulgated rules that gave only lip service to the legislation,
perpetuating an effective six-month limitation on community placements. The SCA
rules are procedurally invalid under the APA and substantively violate the relevant
statutes.
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First, the district court correctly held that the BOP violated § 553(b) and (d) in
promulgating its SCA regulation. This finding should have resulted in relief for the
petitioners, but the district court allowed the six-month rule – which was not in the
regulation – to be applied against the petitioners through memoranda and program
statements. This was error under the APA for two reasons: a) because Congress
explicitly directed that the standards for duration of community corrections to achieve
the greatest likelihood of success be promulgated by notice-and-comment rule
making, the BOP lacked authority to circumvent that instruction through the six-
month memoranda; and b) under the functional analysis this Court uses to determine
whether a rule is interpretive or substantive, the six-month rules are substantive and
therefore invalid for failure to comply with § 553(b).
Second, the BOP’s actions were invalid under § 706 of the APA. The
memoranda and program statements articulate no data or reasoning to support the six-
month rule that essentially negates the SCA’s doubling of available time in
community corrections. In fact, the petitioners established that the six-month rule is
based on a myth: the BOP’s research department had to admit there was no evidence
that the rules were empirically based. The BOP also failed to establish consideration
of the most obvious ways to enhance re-entry: earlier transfer to RRCs to enable
appropriate prisoners to move more quickly to home detention, where the costs of
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confinement would be a fraction of the costs for greater custody and reintegration into
the community could be accelerated and enhanced.
Third, as two district courts have held even without discovery, the six-month
rule is inconsistent with the 12-month availability of community corrections under
the SCA. The undefined and restrictive requirement of extraordinary circumstances
in order to obtain more than six months’ community confinement is inconsistent with
§ 3624(c), alone as well as in context, especially given the full and fair consideration
required for any transfer under § 3621(b).
Fourth, for those persons who are not within a year of the projected release
date, the six-month rules violate the face of the statute, as construed by this Court in
Rodriguez . The district court’s failure to follow the reasoning of Rodriguez , instead
relying on authority rejected in Rodriguez , violated both § 3621(b) and the doctrine
of stare decisis.
ARGUMENT
I. The Prisoners’ Class Is Entitled To Relief Based On The District Court’s
Finding That The Bureau Of Prisons, By Failing To Provide Notice-And-
Comment, Violated § 553(b) Of The Administrative Procedure Act In
Promulgating The Second Chance Act Regulation.
Congress expressly required that the BOP promulgate substantive rules for the
administration of the SCA. In § 3624(c)(6), the BOP was required to promulgate
regulations, following notice-and-comment, within 90 days that would achieve three
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goals: placement in community facilities would be consistent with § 3621(b);
determinations would be made on an individual basis; and time in community
corrections would be “of sufficient duration to provide the greatest likelihood of
successful reintegration into the community.” § 3624(c)(6). The district court
correctly found that the BOP regulation was not only tardy by 100 days but violated
the APA’s notice-and-comment requirement. The APA violation applies to the
memoranda and program statement for two reasons. First, Congress clearly required
that the BOP promulgate through notice-and-comment the rules regarding the
“sufficient duration” of the time in community corrections. Second, under this
Court’s functional analysis whether a rule is substantive or interpretive, the
memoranda and program statement are substantive rules.
A. Congress Expressly Required That The Relevant Aspects Of
The Second Chance Act Be Implemented Through FormalRule-Making.
Congress was unequivocal in its directive to the BOP to implement the SCA
through formal rulemaking processes. Section 3624 (c)(6) provides that the BOP,
“not later than 90 days after” enactment, “shall issue regulations” that ensure
community placement “of sufficient duration to provide the greatest likelihood of
successful reintegration into the community.” 18 U.S.C. § 3624(c)(6)(C). By
requiring the BOP to proceed through formal rule-making, Congress decided the rules
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implementing the SCA – the memoranda and program statement – require notice-and-
comment: “It is fair to assume generally that Congress contemplates administrative
action with the effect of law when it provides for a relatively formal administrative
procedure tending to foster the fairness and deliberation that should underlie a
pronouncement of such force.” United States v. Mead Corp., 533 U.S. 218,
230 (2001); accord Marathon Oil Co. v. Lujan, 937 F.2d 498, 500 (10th Cir. 1991)
(“Administrative agencies do not possess the discretion to avoid discharging the
duties that Congress intended them to perform.”) (citing Public Citizen Health
Research Group v. Comm’r, FDA, 740 F.2d 21, 32 (D.C. Cir.1984)). Congress
expressly required the BOP to solicit input from those directly affected by the rules
to ensure the greatest likelihood of successful integration:
“In enacting the APA, Congress made a judgment that notions of
fairness and informed administrative decisionmaking require that agencydecision be made only after affording interested persons notice and anopportunity to comment.” Chrysler Corp. v. Brown, 441 U.S. 281, 316(1979); see also Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479,1485 (9th Cir. 1992) (“[T]he notice and comment requirements . . . aredesigned to ensure public participation in rulemaking.”). It is antitheticalto the structure and purpose of the APA for an agency to implement arule first, and then seek comment later.
Paulsen, 413 F.3d at 1004-05. The BOP violated these principles in promulgating
the Memoranda implementing the SCA.
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The district court correctly ruled that the regulation that purports to implement
the SCA is invalid for failure to adhere to the most basic principles of notice-and-
comment. ER 1; see also Chrysler Corp., 441 U.S. at 316; Paulsen, 413 F.3d at
1004-05; Buschmann v. Schweiker , 676 F.2d 352, 358 (9th Cir. 1982). Moreover, the
regulation is merely a watered-down version of the statute, providing no guidance on
how the agency intends to exercise its discretion. As held inGonzales v. Oregon, 546
U.S. 243, 257 (2006), “the near-equivalence of the statute and regulation belies” any
agency argument for deference. The regulation does not fulfill the expressed purpose
§ 3624(c)(6) – to make rules that address how to ensure the greatest likelihood of
successful reintegration into the community.
The district court erred in upholding the memoranda and program statement
independent of the regulation because § 3624(c)(6) expressly required that the
standards that they implemented be subject to formal rule-making. As the petitioners
argued, Congress explicitly decided that such rules were, in effect, substantive. ER
251 (“By requiring the promulgation of regulations through notice-and-comment,
Congress clearly intended that the BOP not rely on policy statements or internal
memoranda in implementing the SCA, but rather on substantive rules, especially
regarding the duration of the time in community corrections.”). Congress required
that the substance of how BOP personnel implemented the SCA – here with a
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virtually unrebuttable six-month maximum community placement – be subject to
formal rulemaking. The BOP failed to do so.
Nothing in the statute suggests that Congress intended the BOP to administer
the SCA through informal processes. The statute does not merely authorize the BOP
to promulgate regulations; the statute mandates that the BOP “shall” promulgate
regulations, requiring it to solicit comments from those affected by the SCA regarding
the substantive changes wrought by the SCA. The BOP had no option other than to
engage in formal rule-making in developing its rules and policies implementing the
SCA.
Further, by requiring the BOP to proceed through notice-and-comment,
Congress decided that the BOP’s rules implementing the SCA were substantive. The
plain language of the notice-and-comment provisions of the APA distinguishes
between substantive rules subject to notice-and-comment and interpretive rules and
general statements of policy, which are not. 5 U.S.C. § 553(a) and (b). By directing
the BOP to issue regulations, Congress clearly rejected informal rules regarding the
duration of community corrections. The memoranda and program statement
implementing the SCA’s change in the duration of community corrections are
statutorily substantive and, therefore, invalid for failure to comply with § 553(b).
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B. Even If Formal Rule-Making Were Not Expressly Mandated,
The Memoranda And Program Statement Promulgated
Without Formal Rule-Making Are Substantive Or Legislative
Rules Requiring Notice-And-Comment Under Well-
Established Precedent Of This Court.
Alternatively, even disregarding the statutory command, this Court’s precedent
requires that, under a functional analysis, the rules be considered substantive
regardless of the BOP’s characterization of the SCA rules as interpretative. The SCA
rules limiting community placement to six months in the absence of extraordinary or
compelling circumstances, and the concurrence of the Regional Director, are classic
substantive rules subject to the notice-and-comment provisions of the APA. Their
substantive nature is demonstrated conclusively by the BOP’s own documents
demonstrating that prisoners virtually never receive more than six months’
community confinement, with zero such placements from Sheridan. ER 66-68. As
substantive rules, they are invalid because they were not promulgated pursuant to
notice-and-comment under § 553(b).
Rules, regardless of the label the agency applies, may be substantive depending
on the functional effect on agency action. Christensen v. Harris County, 529 U.S.
576, 588 (2000) (“To defer to the agency’s position would be to permit the agency,
under the guise of interpreting a regulation, to createde facto a new regulation.”);
Colwell v. Dep’t of Health and Human Services, 558 F.3d 1112, 1125 (9th Cir. 2009).
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Whether a rule is substantive, and therefore requires notice-and-comment, depends
on the effect of the rule, not the agency’s characterization of the rule. Yesler v.
Cisneros, 37 F.3d 442, 449 (9th Cir. 1994) (“An agency cannot avoid the requirement
of notice-and-comment rulemaking simply by characterizing its decision as an
adjudication”). InGunderson v. Hood , 268 F.3d 1149, 1154 n.27 (9th Cir. 2001), this
Court rejected the BOP’s argument that, because program statements are by self-
definition interpretive, they are exempt from notice-and-comment:
This circular argument simply begs the question. Program Statementsare supposed to be interpretive, but that does not mean that they alwaysare. The label an agency attaches to its pronouncements is clearly notdispositive.
Accord Hemp Indust. Assn. v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003).
Substantive rules “have the force and effect of law,” while “interpretive rules”
and “general statements of policy” “do not have the force and effect of law.”
Chrysler Corp., 441 U.S. at 302 n.31 (citation omitted); see also Shalala v. Guernsey
Mem’l Hosp., 514 U.S. 87, 99 (1995). A substantive rule is one that establishes a
“binding norm” on agency officials’ exercise of discretion. In Mada-Luna v.
Fitzpatrick , this Court explained the difference between a policy statement and a
substantive rule, focusing on the difference between mere guidance and a directive,
as in the present case, that “narrowly limits administrative discretion” or establishes
a “ binding norm “ that “so fills out the statutory scheme that upon application one
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need only determine whether a given case is within the rule’s criterion,” effectively
replacing agency discretion with a new “binding rule of substantive law.” 813 F.2d
1006, 1013-14 (9th Cir. 1987) (quoting Ryder Truck Lines, Inc. v. United States, 716
F.2d 1369, 1377 (11th Cir. 1983)). “In these cases, notice-and-comment rulemaking
proceedings are required, as they would be for any other substantive rule, and they
will represent the only opportunity for parties to challenge the policy determinations
upon which the new rule is based.” Id .; see also Pacific Gas and Electric Co. v.
Federal Power Commission, 506 F.2d 33, 38-39 (D.C. Cir. 1974) (“An agency cannot
escape its responsibility to present evidence and reasoning supporting its substantive
rules by announcing binding precedent in the form of a general statement of policy.”).
The SCA provides binding directives for exercise of BOP discretion: the
exercise of discretion must ensure the greatest likelihood of successful reintegration.
The memoranda and program statement limit and control the BOP’s exercise of
discretion and, thus, are substantive rules subject to the APA notice-and-comment
requirements. Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1113-14 (D.C. Cir. 1974)
(substantive rules control the manner and circumstances in which the agency will
exercise its plenary power). The BOP’s rules meet all the criteria requiring notice-
and-comment because they set forth a list of criteria to govern such placement that
are (1) binding, that is, mandatory upon the officials to whom they are addressed, (2)
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exhaustive, in the sense that if none of the criteria is satisfied, the prison officials are
forbidden act; and (3) definite, in the sense that none of the criteria is so open-ended
that it leaves the officials with essentially limitless discretion. Smith v. Shettle, 946
F.2d 1250, 1252 (7th Cir. 1991).
This is not the case where the “list is open-ended – the criteria in it merely
illustrative and the officials free to [make decisions] for a reason that does not appear
on the list, or perhaps for no reason at all – or if any of the criteria on the list are
open-ended in the same sense.” Shettle, 946 F.2d at 1252. The six-month rule’s
substantive nature is reflected in the instruction that staff may not approve prisoners
for participation in community corrections for longer than six months unless there are
extraordinary circumstances. The memoranda are replete with references to “staff
shall” or “staff must.” This hardly suggests that BOP staff are at liberty to ignore the
criteria. And the proof is in the practice: no Sheridan prisoners are in fact approved
for more than six months community corrections.
The SCA rules do not explain something the statute already requires – nothing
in § 3621(b) and § 3624(c) even hints that placements are limited to six months
absent extraordinary circumstances. Rather, to track the statutes, the rules would
require a presumption that pre-release placements provided for the maximum amount
of statutorily available time of community placement unless the § 3621(b) factors
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counseled otherwise, and would not limit transfer decisions under § 3621(b) by the
policies governing pre-release placements. Because no exception to the notice-and-
comment requirements apply, the BOP’s rules implementing the SCA are invalid.
II. The Bureau of Prisons Violated § 706 Of The Administrative Procedure
Act By Promulgating Its Six-Month Rule For Community Corrections
Without Adequate Empirical Support And Rationale.
The SCA rules are invalid under 5 U.S.C. § 706(2)(A) because the BOP failed
to articulate a sufficient rationale and provide any basis on the record for adopting a
presumptive maximum of six months community confinement in the rulemaking
process. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
41 (1983); Crickon, 579 F.3d at 983; Arrington, 516 F.3d at 1114. Not only does the
administrative record fail to provide any rationale, the uncontroverted evidence
proves that no empirical data supports the counterintuitive claim that more
community corrections is counterproductive.7
A. The Bureau Of Prisons Promulgated The Six-Month Rule In
The Absence Of Empirical Support, Based On Factual Errors,
And Without Sufficient Articulation Of A Rationale.
The Supreme Court provided the analytic framework for application of § 706
of the APA in State Farm. 463 U.S. at 41. In upholding the decision of the lower
court that struck down new rules under § 706, the Supreme Court held that, when an
Pierce at 49-55; Sass at 45-52.7
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agency adopts a rule, the agency is required to “examine the relevant data and
articulate a satisfactory explanation for its action including a ‘rational connection
between the facts found and the choice made.’”State Farm, 463 U.S. at 43 (quoting
Burlington Truck Lines, Inc., 371 U.S. 156, 168 (1962). Section 706 applies to
“agency action,” which includes which includes any “agency statement of general or
particular applicability and future effect designed to implement, interpret, or prescribe
law or policy.” 5 U.S.C. § 551(4); see Crickon, 579 F.3d at 988 n.11 (finding that
BOP program statements and change notices, as well as the formal regulation,
violated § 706).
In the present case, the petitioners through discovery established that no
“relevant data,” required by State Farm, supported the six-month norm. On the
contrary, the BOP’s own research department said, that there is not “anything to
confirm that the ‘6-months’ was empirically based.” ER 345; see Crickon, 579 F.3d
at 985 (the lack of research studies supporting the BOP’s position supported the rule’s
invalidity under § 706). In fact, the Director’s claim that the rule was based on “our
research” ( supra at 17), contrasted with the admission that the rule was not
“empirically based,” establishes a factual error that alone should invalidate the rules
for violation of § 706(2)(A). Crickon, 579 F.3d at 986; Nat’l Res. Def. Council v.
U.S. Forest Serv., 421 F.3d 797, 816 (9th Cir. 2005) (the agency’s “reliance on an
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important mistake in fact” rendered the agency action “arbitrary and capricious in
violation of the APA.”).
The agency must also “cogently explain why it has exercised its discretion in
a given manner,” and the agency’s explanation must be sufficient to enable a
reviewing court “to conclude that the [agency’s action] was the product of reasoned
decision making.” State Farm, 463 U.S. at 48-49, 52; Arrington, 516 F.3d at 1112.
The BOP in the present case provided no reasoning in support of minimizing the time
in community corrections and failing to allow full and unprejudged consideration of
12 months in community corrections.
An agency rule is also arbitrary and capricious if the agency relied on factors
Congress did not intend it to consider, “entirely failed to consider an important aspect
of the problem,” offered an explanation inconsistent with the evidence before the
agency, or provided a rationale “so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43;
accord Arrington, 516 F.3d at 1112-13; Nw. Envtl. Def. Ctr. v. BPA, 477 F.3d 668,
687-88 (9th Cir. 2004). Even if a six-month limitation on halfway house placements
had some empirical support, the SCA rules would still violate § 706(2)(A) for failure
to consider an essential factor: with a six-month limitation of halfway houses, there
is still no reason not to commence transfer to community corrections at 12 months in
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order to commence home detention at six months. A top BOP official admitted that
the SCA does not bar such a norm for transfer to community corrections. U.S.
Sentencing Comm’n, Symposium on Alternatives to Incarceration, at 286-87 (July
14-15, 2008) (statement of Joseph Vroegh). Nevertheless, the BOP provided no
indication this obvious approach was considered.
Further, the relevant data – as well as statutory language – militates against the
six-month limit. The SCA interests in promoting successful reentry and in protecting
the public fisc strongly support providing the maximum time in community
corrections consistent with public safety. The SCA’s emphasis on greater utilization
of community resources has a common-sense basis: transition to a halfway house,
then home detention, for the maximum time promotes family reunification,
establishment of employment, and earlier participation in community-based treatment
and supervision that “provides the greatest likelihood of successful reintegration into
the community.”
The BOP also failed to consider potential the massive cost savings to the
taxpayers. Congress expressed concern regarding prison costs and incarceration rates
in enacting the SCA. By failing to consider earlier entry to community programs, the
BOP failed to consider the huge savings of custody costs: home detention costs only
$3,621.64 per year, compared with $22,871.00 for a halfway house bed, and $24,922,
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for a prison bed. ER 436. Director Lappin’s comment that, because the cost of
halfway house placement exceeds that of minimum security prisons, it is cost
beneficial to limit community corrections placement, ignores the reality that some
prisoners transfer directly from higher security institutions, which are more expensive
than minimum security facilities. Further, the BOP failed to consider that up to six
months in community corrections may be spent on home confinement, which costs
only $3,621.64 per year.
The violation of § 706 in this case had overwhelming consequences for the
class members. As established in the discovery, the BOP staff consistently applied
the six-month limitation to bar any prisoner from receiving more than six months
community corrections. Contrary to the statutory expectation, virtually nothing
changed. Despite the doubling of the available time in community corrections, no
significant increase occurred. Congress spoke clearly – within 90 days the BOP
needed to change its rules and regulations that limited community placement to six
months to ensure greater utilization of community corrections: “The Attorney
General shall take such steps as are necessary to modify the procedures and policies
of the Department of Justice with respect to the transition of offenders from the
custody of the Bureau of Prisons to the community.” ER 282 (emphasis added). The
BOP’s six-month rule violatedState Farm’s norms, as this Court has applied them
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in Arrington and Crickon, in a manner that is both unfair and inconsistent with
congressional intent to increase the duration of community placements.
B. The District Court Incorrectly Disregarded The AffirmativeEvidence Supplied By The Parties That Documented The
§ 706 Violation.
The district court ruled that “the data submitted by the parties concerning the
number of RRC placements” was “not helpful” and it refused to consider other
evidence as “outside the administrative record.” ER 34. In the absence of such data,
it ruled that the BOP rules were “inherently logical.” Id . The application of State
Farm and this Court’s precedent requires that the information obtained in discovery
be considered because, without it, the analysis provided in those cases cannot be
implemented.
The district court erroneously relied on the uncontroversial proposition that an
agency cannot rely on post hoc rationales to justify its rules. See Friends of the
Clearwater v. Dombeck , 222 F.3d 552, 560 (9th Cir. 2000) (“[T]he agency must
justify its final action by reference to the reasons it considered at the time it acted.”).8
Although the district court citedClearwater , the district court failed to consider its
statement that extra-record evidence “must be considered” when relevant.
In Clearwater , the agency attempted to present extra-record evidence that it8
had taken action after the onset of legal proceedings; thus, that evidence was“relevant to the question of whether relief should be granted.”
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Clearwater , 222 F.3d at 561. Such information is the reason for the discovery that
is necessary to reveal whether the agency made an error of fact or otherwise failed to
consider an important aspect of the issue. See, e.g., Love v. Thomas, 858 F.2d 1347,
1356 (9th Cir. 1988) (court could review additional material to explain agency action,
factors the agency considered, and the sufficiency of the agency’s consideration);
Asarco, Inc. v. E.P.A., 616 F.2d 1153, 1160 (9th Cir. 1980) (“[I]t is both unrealistic
and unwise to ‘straightjacket’ the reviewing court with the administrative record. It
will often be impossible . . . for the court to determine whether the agency took into
consideration all relevant factors unless it looks outside the record to determine what
matters the agency should have considered but did not.”); Assn. of Pac. Fisheries v.
E.P.A., 615 F.2d 794, 812 (9th Cir. 1980) (“If the studies showed that the Agency
proceeded upon assumptions that were entirely fictional or utterly without scientific
support, then post-decisional data might be utilized by the party challenging the
regulation.”).
The district court’s decision to review only the limited record the BOP
allegedly considered in creating the six-month rule defies common sense. The
extensive discovery established that the six-month rule was determinative of the
availability of community corrections and that the rule lacked empirical support. By
comparing the evidence – or lack of – that the BOP considered, the reviewing court
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could find the BOP failed to fulfill its obligations underState Farm and § 706(2)(A).
In any event, even on the administrative record alone, the BOP six-month rule failed
theState Farm test.
III. By Continuing Its Six-Month Rule Without Substantial Change, The
Bureau Of Prisons Violated Its Statutory Obligation Under 18 U.S.C.
§ 3624(c) To Expand Community Corrections To Include Full And Fair
Consideration Of 12 Months In Community Custody.
Although Congress made significant changes to § 3624(c), and provided the
BOP with explicit directives as to how those changes would be implemented, the
BOP merely perpetuated its prior practices without material change. Because the
SCA rules – the regulation, memoranda, and program statement – simply recapitulate
the pre-SCA rule of no more than six months community placement absent
extraordinary circumstances, they violate the plain language of the statute: the BOP
violated its statutory obligation under 18 U.S.C. § 3624(c) to expand its community
corrections program to include full and fair consideration of 12 months in halfway
house or home detention forms of custody, and the BOP acted inconsistently with the
plain text of the statute by imposing a six-month limitation in the absence of
extraordinary circumstances.9
Pierce at 46-48.9
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A. The Plain Language Of § 3624(c), Which Created An
Unfettered 12-Month Availability For Pre-Release Placement,
Is Inconsistent With The BOP’s Six-Month Rule.
The first step in analyzing the validity of agency action is to determine whether
the action is inconsistent with the authorizing statute that has spoken on the subject.
Chevron U.S.A. Inc. v. Natural Res. Def. Council , 467 U.S. 837, 842-43 (1984). The
“ordinary or natural” meaning of the statutory expansion of community corrections
from six to 12 months must be that prisoners be considered for the full time available
without prejudgment regarding the available time or duration. See Leocal v. Ashcroft ,
543 U.S. 1, 9 (2004) (statutory language should be given its “ordinary or natural”
meaning). By imposing a six-month limitation in the absence of extraordinary
circumstances, the BOP acted inconsistently with the plain text of the statute.
As the Strong court observed in holding that the rules directly contradict
Congress’s mandate for longer community placements:
By increasing the placement period to 12 months and requiring the BOPto ensure that placements are long enough to provide “the greatestlikelihood of successful reintegration,” Congress intended that eachinmate would be considered for a placement of the longest duration – 12months – although the ultimate placement may be less than 12 months,if warranted by application of the § 3621(b) factors, i.e., the nature and
circumstances of the offense, the inmate’s history and pertinentcharacteristics, and any statement by the sentencing court.
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599 F. Supp. 2d at 562. Similarly, in Krueger , the court found, without discovery,
that the six-month rule “functionally placed a lid on the [staff’s] discretion.” 665 F.
Supp. 2d at 483. The six-month rule violated the SCA:
The BOP’s memorandum add additional hurdles that find no support inthe text of the Second Chance Act. While it may be true that any givenprisoner need not be placed in a RRC for longer than six months, it isnot universally true that every prisoner will benefit from the samelimitations. By depriving the initial decision maker of the ability torecommend placement unfettered by a presumptive six month cap, theBOP significantly reduces the possibility of a truly individualizedreview that objectively determines the duration required “to provide the
greatest likelihood of successful reintegration into the community. 18U.S.C. § 3624(c)(6)(C).
Id . The BOP’s rules are invalid because they are not only inconsistent with the SCA
but render it a nullity on the length of pre-release placement.
Strong and Krueger apply the ordinary and natural meaning of the SCA. They
are also consistent with the “fundamental canon of statutory construction that the
words of a statute must be read in their context and with a view to their place in the
overall statutory scheme.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 666 (2007) (citations omitted). The amendment doubling the
maximum pre-release placement must be read in concert with the command that the
BOP’s regulations “shall ensure that placement in a community correctional
facility . . . is . . . of sufficient duration to provide the greatest likelihood of successful
reintegration into the community.” 18 U.S.C. § 3624(c)(6)(C). Accordingly, while
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this new language may create a ceiling for pre-release placement, the statute as a
whole anticipates that the starting point for community corrections placements be 12
months, with less warranted based on the factors in § 3621(b). The statutory
language and changes do not authorize the BOP to simply continue to limit pre-
release custody to six months.
Moreover, the extraordinary justification standard for exceptions is undefined
in the SCA rules. The only other reference to “extraordinary” justification relates to
18 U.S.C. § 3582(c), where a prisoner with “extraordinary and compelling reasons,”
may have his sentence reduced upon motion of the BOP. 18 U.S.C.
§ 3582(c)(1)(A)(I). The injection of “extraordinary” is especially problematic in10
light of the BOP’s administration of § 3582(c)(1), restricting relief to only those with
lethal medical problems, Reduction in Sentence for Medical Reasons, 71 Fed. Reg.
76619-01 (Dec. 21, 2006), despite the Sentencing Commission’s broader
interpretation in U.S.S.G. §1B1.13. The BOP’s dismal track record for
recommending § 3582(c) reductions presents a clear indication that the “extraordinary
Section 3582(c)(1) provides that, in any case, the court, “upon a motion of 10
the Director of the Bureau of Prisons, may reduce the term of imprisonment (and mayimpose a term of probation or supervised release with or without conditions that doesnot exceed the unserved portion of the original term of imprisonment), afterconsidering the factors set forth in section 3553(a) to the extent that they areapplicable, if it finds that . . . extraordinary and compelling reasons warrant such areduction; . . . .”
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justification” requirement virtually precludes any consideration beyond a six-month
community placement. In fact, despite Congress’s explicit delegation to the
Commission regarding § 3582(c)(1)(A)(I) in 28 U.S.C. § 994(t), the BOP publicly
and categorically refuses to follow the Commission’s guideline. The use of 11
“extraordinary” for exceptions establishes how the BOP applies the six-month
limitation as a categorical rule.
B. The District Court Erred In Finding That The Statute Was
Ambiguous And According Deference To The BOP.
The district court’s statutory analysis is not only premised on errors as to the
claims raised ( supra at 22-23), the conclusion that the statute is ambiguous with
respect to whether the BOP may consider additional factors to those enumerated in
§ 3621(b) is misplaced.
The district court erred in finding that there was ambiguity in the statute as to
whether the statute required consideration of 12 months’ community corrections
without prejudgment that no more than six months was appropriate. ER 12. The
district court should have exhausted all available means of construction before
determining that the statute was ambiguous on this question. Chevron, 467 U.S. at
843 n.9. Traditional canons of statutory construction simply do not support the
Reduction in Sentence for Medical Reasons, 71 Fed. Reg. 76619-01 (Dec. 21,11
2006).
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district court’s reading of the statute as ambiguous. For example, the district court
erred in focusing on the first clause of § 3624(c)(6)(C) – that the placement be of
significant duration – and discounted the import of the second clause – to provide the
greatest likelihood of successful reintegration. ER 10.
Although the SCA does not require that community placements be of a certain
duration, it does require that the placements be of sufficient duration to provide the
greatest likelihood of successful integration. Consideration of “costs” and requiring
“extraordinary” circumstances cannot be reconciled with the requirement that, based
on the needs of each individual prisoner, the placement be of sufficient duration to
provide that prisoner with the greatest likelihood of successful reintegration. As a
practical matter the statute indicates that, as the starting point, the optimal duration
of community placement is for a full year.
The district court’s analysis also runs afoul of the rule of the statutory canon
of construction that, when a statute is amended, the amendment is intended to have
meaning in the real world. See United States v. Wilson, 503 U.S. 329, 336 (1992)
(“[W]hen Congress alters the words of a statute, it must intend to change the statute’s
meaning.”). Even if the SCA rules were within the limits of the SCA – which they
are not – the BOP failed to heed Congress’s intent that the change in law have real
and substantial effect, either by creating a new right or withdrawing an existing one.
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Pierce County, Wash. v. Guillen, 537 U.S. 129, 145 (2003) (citingStone v. INS , 514
U.S. 386, 397(1995)); see also Brewster v. Gage, 280 U.S. 327, 337(1930) (“The
deliberate selection of language so differing from that used in the earlier acts
indicates that a change of law was intended.”); Hiivala v. Wood , 195 F.3d 1098, 1103
(9th Cir.1999) (“When Congress alters the wording of a statute, we presume that
Congress intended a change in the law.”). In Guillen, the Court observed that a
reading of an amended statute to protect what was already protected before the
amendment gave the amendment no “‘real and substantial effect,’ and, accordingly,
cannot be the proper understanding of the statute.” Guillen, 537 U.S. at 145 (quoting
Stone, 514 U.S. at 397).
Congress amended § 3624(c) in three ways that unmistakably call for greater
utilization of community corrections: first, Congress doubled the time for mandatory
consideration of pre-release custody in community corrections from six to 12 months;
second, Congress disapproved of the 10 percent limitation on the time for community
corrections in halfway houses, so prisoners who received less than 60 months are
eligible for the full 12 months; and third, Congress added a separate provision for
home detention maintaining the six months or 10 percent limitation as available in
addition to the time in a halfway house. The SCA rules failed to implement any of
the amendments’ intended changes. Instead, they recapitulate the pre-SCA practice
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of only theoretical eligibility for more than six months that, while giving lip service
to the statutory command, in practice, denies prisoners community corrections
placement of more than six months.
The SCA rules also directly contradict Congress’s mandate calling for
“improved reentry procedures.” In enacting the SCA, Congress directed the BOP to
“enhance case planning and implementation of reentry programs, policies, and
guidelines, [and] to improve such transition to the community, including placement
of such individuals in community corrections facilities.” ER 282-83 (emphasis
added). Congress also expected that an incentive be added to achieve maximum
allowable time in community confinement. ER 282. Perpetuating the norm of a six-
month maximum community confinement placement neither enhances nor improves
the BOP’s transition programs. The only change wrought by the SCA rules is that a
fraction of the prisoner population – those sentenced to less than five years who
received less than 6 months placement under the 10 percent rule – are now eligible
for a six-month placement – a result already mandated by Rodriguez . 541 F.3d at
1184.
The district court also erred in finding the SCA rules reasonable under
Skidmore based on factors the BOP did not raise or advance. Skidmore deference
must be based on the thoroughness of the BOP’s consideration (although the BOP
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failed to consider essential factors), the validity of the BOP’s reasoning (although the
BOP acknowledged the rules lacked empirical support), the consistency with earlier
pronouncements (although Congress called for change, the BOP simply continued its
former practice), and those factors which give the BOP the power to persuade
(although directed to engage in formal rule-making, the BOP failed to do so and
provided no reasoning for its effective nullification of the 12-month availability of
mandatory consideration of community corrections). Skidmore, 323 U.S. at 140;
accord United States v. Mead , 533 U.S. 218, 228 (2001). As found in Krueger , the
memoranda provide no basis for Skidmore deference. 665 F. Supp. 2d at 484 n.3.
The district court erred in its conclusory Skidmore references. The guidance
contained in the memoranda and program statement 7310.04 are inconsistent with,
not complementary to, the provisions of the statutes and provide no persuasive
reasoning. Although SCA rules acknowledge the statutes, the virtually irrebuttable
presumption of no more than six months in community corrections are not entitled to
Skidmore respect. Skidmore requires inquiry into not just whether there is discretion
to act, as the district court suggests, but also to the validity and thoroughness of the
agency’s reasoning. The administrative record is bereft of explanation. The
proffered reasons for the six-month limitation – that research showed that prisoners
with longer community placements do worse and that it is less expensive to keep
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people in prison – is contradicted by common sense and the record from discovery
indicating that no such studies exist. Nothing in the administrative record supports
the district court’s reliance onSkidmore.
The district court held that requiring Regional Director approval for extended
RRC placements based on extraordinary circumstances is consistent with § 3621(b)
and “rationally related to one of the mandatory statutory factors governing all
prisoner placements – the allocation of limited available prison resources.” ER 14.
Except in Director Lappin’s comments to Congress stating that RRC placements were
costlier than minimum security prison placement – a statement the district court
expressly stated it did not consider (ER 32) – the record does not indicate that the
allocation of limited available prison resources factored into the BOP’s decision to
perpetuate the prior practice. Under Skidmore, the district court may not supply the
BOP with reasons for the six-month limitation that the agency itself did not proffer.
Moreover, the district court misread § 3621(b)(1) by elevating a single factor
– consideration of “the resources of the facility contemplated” – at the expense of the
statutory imperative that the BOP “shall” ensure that prisoners are placed in RRCs for
a “sufficient duration to provide the greatest likelihood of successful reintegration
into the community.” Section § 3621(b)(1) provides that, in determining an
appropriate and suitable facility that meets the minimum standards of health and
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habitability for a particular prisoner, the BOP shall consider “the resources of the
facility contemplated” in addition to the other enumerated factors. There is nothing
in the plain language of the statute to conclude that “resources” refers only to bed
space or financial concerns, as the district court suggests. To the contrary,
“resources” should be read to include programming opportunities or medical or
psychological services.
The district court’s analysis also conflicts with this Court, as well as the
majority of circuits to consider the BOP’s obligations under §§ 3621(b) and 3624(c).
This Court has held that the BOP has an affirmative duty to consider prisoners for
pre-release RRC placements and that it must consider each of the factors in § 3621(b)
in making individualized placement decisions. Rodriguez , 541 F.3d at 1184-85. The
SCA should enhance the statutory obligation that each of the § 3621(b) factors be
considered in determining the length of RRC placement, focusing those
considerations on ensuring the greatest likelihood of successful reintegration.
Instead, the district court suggests that allocation of limited resources displaces
consideration of the other factors or frustrates the intent of the SCA that prisoners
spend more, rather than less, time in RRCs.
Although Congress has entrusted the BOP with the management of the prison
population, which includes allocation of resources, the district court was incorrect in
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concluding that the BOP’s authority is unfettered. ER 14 (“Congress has vested the
BOP with exclusive control over management of its inmate population, specifically
directing consideration of resources.”). To the contrary, even § 3621(b)(1), upon
which the district court relies, cabins the BOP’s discretion over the management of
prisoners because it requires the BOP to individually consider each of the § 3621(b)
factors. Section 3621(b) does not focus on conservation of agency resources –
especially given the added inexpensive home detention – as a factor governing
prisoner placements, and the district court misread the statute when it construed that
as not only a permissible statutory criterion, but a mandatory one that trumps the
enumerated factors.
IV. By Continuing Its Formal Six-Month Rule Without Substantial Change,
The Bureau Of Prisons Violated Its Statutory Obligation Under 18 U.S.C.
§ 3621(b) To Provide Full And Fair Consideration Of Requests For
Transfer To Community Corrections Prior To 12 Months Before TheProjected Release Date As Required By This Court’s Precedent In Smith
v. Rodriguez .
This case presents the same issue resolved in Rodriguez : whether BOP rules
that categorically limit the exercise of discretion to transfer prisoners to community
corrections at any time during the term of imprisonment violated § 3621(b). There,
the BOP denied the prisoner community corrections consideration because he was not
within the last 10 percent of his sentence, despite statutory authorization to transfer
at any time based on five listed factors. Here, class members, represented by
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intervenors Beaman and Sonobe, were denied community corrections consideration
because prisoners are only eligible for RRC consideration for reentry purposes for a
presumptive duration of six months absent extraordinary circumstances – precisely
the same standard applied for pre-release transfers under § 3624(c). In both
Rodriguez and the present case, the BOP categorically limited its discretion under
§ 3621(b) to the time remaining on the sentence by reference to § 3624(c), the pre-
release statute. In both Rodriguez and the present case, this categorical limitation
violated § 3621(b). Under the rules of stare decisis, the district court was not free to
disregard this Court’s governing precedent.12
Under this Court’s controlling precedent, the district court should have held
that the BOP’s policies and practices violated the plain meaning of the relevant
statute. The SCA rules relating to transfers prior to the end of the term of
imprisonment – the November 14th Memorandum and Program Statement 7310.04
– violate § 3621(b) because the six-month limitation and the extraordinary
justification requirement are in effect categorical limitations on the statutory authority
to transfer prisoners at any time based on the enumerated factors.
Sass at 34-41.12
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A. Rodriguez Held That The Statutes Do Not Permit Categorical
Limitations On The Exercise Of Discretion Based On Time
Left To Serve.
In Rodriguez , this Court held that, to meet the statutory requirements, decisions
under § 3621(b) must be made on an individualized basis, not categorically:
We are persuaded that the BOP regulations conflict with the provisionsof § 3621(b). As the Third Circuit decision explained: “While the BOPmay exercise considerable discretion, it must do so using the factors theCongress has specifically enumerated.” Woodall , 432 F.3d at 247. Weagree with the Third Circuit that an “unavoidable conflict” existsbecause the statute requires the BOP to consider five factors in
determining CCC placement, while the regulation provides that theenumerated factors will not be fully considered. Id . at 249. We also
join the Third Circuit in its conclusion that the regulations’ constructionis not “permissible . . . because they fail to take into account Congress’sindications that certain individualized factors . . . should beconsidered . . .” Id. (citation omitted); see also Levine, 455 F.3d at 85(“Categorical rulemaking, like all forms of agency regulation, must beconsistent with unambiguous Congressional instructions . . .”); Fults,442 F.3d at 1091.
Rodriguez , 541 F.3d at 1187. The Court explained that the BOP is “ specfically
required to consider such factors as the resources of the facility considered . . . the
history and characteristics of the prisoner, the statements made by the sentencing
court concerning the purposes of imprisonment in a particular case, any
recommendations as to type of facility made by the court . . . [and only] [a]fter
considering these factors, the Bureau of Prisons may designate the place of
imprisonment.” 541 F.3d at 1187 (quoting S.Rep. No. 98-225, reprinted in 1984
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U.S.C.C.A.N. 3182, 3324-25) (emphasis in original). Because the SCA rules
categorically exclude placements based on a six-month limitation,“they necessarily
fail to apply the mandatory factors listed in § 3621(b) to those inmates” in violation
of Congress’s clear intent for individualized assessment. 541 F.3d at 1187.
B. The District Court Failed To Distinguish Rodriguez .
The district court fundamentally misunderstood the petitioners’ claims in
determining that Rodriguez was distinguishable. The district court found that the
SCA rules “do not contain the same type of categorical exclusion struck down in
Rodriguez,” concluding that “the BOP is providing exactly what Rodriguez requires
– individualized placement decisions under § 3621(b)” because they “permit, through
the demonstration of individual circumstances, extended RRC placements.” ER 17.
The district court misreads Rodriguez . This Court rejected the premise that
residual discretion to make individualized determinations saved the regulation. In
distinguishing Muniz v. Sabol , 517 F.3d 29 (1st Cir. 2008), the Court noted:
The Muniz opinion “emphasize[d] that were the regulation to leave littleor no room for the opportunity of the individualized assessment impliedby Congress, we would regard that as contrary to intent of the statute.”517 F.3d at 39 n. 17. However, that is precisely what the categorical
BOP regulations accomplished – they left “no room for the operation of the individualized assessment” expressly mandated in § 3621(b). Id.We cannot agree with the First Circuit that the categorical failure tocomply with unambiguously expressed Congressional intent can berationalized away.
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governing § 3624(c) end-of-sentence transfers. ER 340 (“An RRC placement beyond
six months should only occur when there are unusual or extraordinary circumstances
justifying such placement, and the Regional Director concurs.”). Additionally, staff
are reminded that “RRCs provide a transitional environment for inmates nearing the
end of their sentences.” ER 340. Thus, while the BOP acknowledges its statutory
obligations, the BOP rules disregard the statutory requirements as identified in
Rodriguez and other Circuits to have considered the matter. Under the BOP’s current
and former rules, the class is effectively precluded from serving any more than the
last six months of their sentences in community corrections.
The district court was not free to disregard the broad bases for this Court’s
precedent in Rodriguez . In an extensive discussion of the principles of binding
authority, this Court held that lower courts may not ignore previous appellate
decisions that are on point:
A district judge may not respectfully (or disrespectfully) disagree withhis learned colleagues on his own court of appeals who have ruled on acontrolling legal issue, or with Supreme Court Justices writing for amajority of the Court. Binding authority within this regime cannot beconsidered and cast aside; it is not merely evidence of what the law is.Rather, caselaw on point is the law. If a court must decide an issue
governed by a prior opinion that constitutes binding authority, the latercourt is bound to reach the same result, even if it considers the ruleunwise or incorrect. Binding authority must be followed unless and untiloverruled by a body competent to do so.
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Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) (emphasis in original). Not
only the holding of this Court but its reasoning and explications of the governing
rules of law must be followed. Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.
2003) (en banc). The district court considered but cast aside this Court’s precedent
in Rodriguez in clear violation of the principles of stare decisis.
CONCLUSION
The SCA rules violate the unambiguous statutory directives that the BOP
change its prior practices that limited community placements to six months absent
extraordinary reasons. The BOP has not done so. Instead, the agency perpetuates the
prior practices without proper justification or process. The SCA rules are invalid and
may not be applied to the members of the class who request transfer to community
placement. For the foregoing reasons, the Court should reverse the district court
decision to the extent it denied the petition and enter an order granting the relief
requested in the second amended petition (ER 60).
Respectfully submitted: August 9, 2010.
/s/ Stephen R. SadyStephen R. Sady
Attorney for Petitioners
On the brief:
Lynn DeffebachResearch & Writing Attorney
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IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIM RAY SACORA,
Petitioner-Appellant, CA No. 10-35553
LARRY L. BEAMAN, and TODD SONOBE,
Petitioner-Intervenors,
v.
JEFF E. THOMAS, Warden,Federal Prison Camp, Sheridan, Oregon,
Respondent-Appellee.
STATEMENT OF RELATED CASES
I, Stephen R. Sady, counsel of record for the appellant and intervenor class
representatives, state pursuant to the Ninth Circuit Court of Appeals Rule 28-2.6, that
the consolidated cases of Pierce v. Thomas, No. 09-35781, and Sass v. Thomas,
09-35830, should be deemed related, as should the following cases in which stays
have been requested pending the outcome of the consolidated cases: Clarine v.
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Thomas, No. 09-35828, Whitfield v. Thomas, No. 09-35825, and Badger v. Thomas,
No. 09-35829.
Dated: August 12, 2010.
/s/ Stephen R. Sady
Stephen R. SadyAttorney for Petitioners
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IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIM RAY SACORA,
Petitioner-Appellant, CA No. 10-35553
LARRY L. BEAMAN, and TODD SONOBE,
Petitioner-Intervenors,
v.
JEFF E. THOMAS, Warden,Federal Prison Camp, Sheridan, Oregon,
Respondent-Appellee.
BRIEF FORMAT CERTIFICATION PURSUANT TO FRAP 32(a)(7)(C)AND NINTH CIRCUIT RULE 32-1
Pursuant to FRAP 32(a)(7)(C) and Ninth Circuit Rule 32-1, I certify that the
Opening Brief of Appellant is proportionately spaced, has a typeface of 14 points or
more, and contains 13,653 words, excluding the portions exempted by Fed. R. App.
P. 32(a)(7)(B)(iii), if applicable.
Dated this August 12, 2010.
/s/ Stephen R. Sady
Stephen R. SadyAttorney for Petitioners
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CERTIFICATE OF SERVICE
I hereby certify that on August 12, 2010, I electronically filed the foregoing
Opening Brief of Appellant with the Clerk of the Court for the United States Court
of Appeals for the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
/s/ Lisa M. Powell
Lisa M. Powell
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