Bohner v. Daniels, CIV.99-1116-HA.

• Decision Date: 06 February 2003
• Docket Number: No. CIV.99-1116-HA.,CIV.99-1116-HA.
• Court: U.S. District Court — District of Oregon
• Parties: Dennis W. BOHNER, Petitioner, v. Charles A. DANIELS,<SMALL><SUP>1</SUP></SMALL> Respondent.

243 F.Supp.2d 1171

Dennis W. BOHNER, Petitioner, v. Charles A. DANIELS,¹ Respondent.

No. CIV.99-1116-HA.

United States District Court, D. Oregon.

February 6, 2003.

Stephen R. Sady, Chief Deputy Federal Defender, Portland, for Petitioner.

Michael W. Mosman, United States Attorney, Kenneth C. Bauman, Assistant U.S. Attorney, Portland, for Respondent.

OPINION and ORDER

HAGGERTY, Chief Judge.

The Ninth Circuit reversed this court's denial of petitioner's motion to amend his habeas corpus petition to include a claim under the Administrative Procedures Act (APA) (docs.#24, 31). Accordingly, petitioner's motion to amend his habeas co petition (doc. # 17) is GRANTED, and the court will consider petitioner's habeas corpus petition as having been so amended. See Fed.R.Civ.P. 15(b); Dunn v. Trans World Airlines, Inc., 589 F.2d 408, 412-13 (9th Cir.1978). The petition for habeas corpus, as amended, is GRANTED.

BACKGROUND 18 U.S.C. § 3621(b) directs the Bureau of Prisons (BOP) to provide substance abuse treatment to those prisoners who have a "treatable condition of substance addiction or abuse." As an incentive for prisoners to seek treatment, Congress made one-year sentence reductions available to prisoners convicted of nonviolent offenses who completed the substance abuse treatment programs. 18 U.S.C. § 3621(e)(2)(B).

Prior to 1997, the BOP's implementing regulation and program statements defined "nonviolent" offense to exclude any conviction accompanied by the possession of a firearm or other dangerous weapon. The Ninth Circuit rejected such an interpretation, holding that the BOP cannot define "nonviolent offense" to exclude firearm possession when Congress defines "nonviolent offense" in precisely the opposite way. Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir.1997); see also Downey v. Crabtree, 100 F.3d 662, 667 (9th Cir.1996).

In response, the BOP amended its regulation and program statements governing prisoners' eligibility for early release. See 28 C.F.R. 550.58; P.S. 5162.04 (Oct. 9, 1997); P.S. 5330.10 (Oct. 9, 1997) (the "1997 rule and program statements"). Relying instead on its discretion rather than on an interpretation of the term "nonviolent offense," the BOP's 1997 rule and program statements excluded exactly the same prisoners from early release eligibility who were ineligible under the old rules. Id. The courts upheld this exercise of the BOP's discretion. Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001); Bowen v. Hood, 202 F.3d 1211 (9th Cir.2000), rev'g Gavis v. Crabtree, 28 F.Supp.2d 1264 (D.Or.1998) (holding that the BOP's new interpretation conflicted with the unambiguously expressed intent of Congress, meriting no deference).

In this case, petitioner Bohner, among 51 others, raises APA challenges to the BOP's 1997 regulation and program statements. The case returns to this court following the Ninth Circuit's decision in Grier v. Hood, holding that it would not have been futile to allow petitioners to amend their petitions to add the APA challenges. 46 Fed.Appx. 433 (9th Cir.2002).

DISCUSSION

1. Jurisdictional Challenges

During the lengthy procedural history of this case, many of the prisoners have been released from the physical custody of the BOP and are serving their terms of supervised release outside the District of Oregon. For example, petitioner Bohner now resides in the District of Hawaii. The government raises various jurisdictional challenges to granting relief to those petitioners who are outside the District of Oregon and who have been released.

a. Subject Matter Jurisdiction Under 28 U.S.C. § 22U

A petition for writ of habeas corpus under 28 U.S.C. § 2241 may be filed only in the district court with "jurisdiction over the prisoner or his custodian." Andrino v. United State Bd. of Parole, 550 F.2d 519, 520 (9th Cir.1977). The proper respondent is the petitioner's immediate custodian. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.1992) At the time petitioner filed his writ, he was an inmate at the Federal Correctional Institution (FCI) in Sheridan, Oregon, and Robert A. Hood was the warden. Since filing the writ, however, petitioner has finished serving his sentence and is now serving a term of supervised release in the District of Hawaii, where he was convicted. The government contends that the federal habeas corpus statute fails to provide petitioner Bohner with subject matter jurisdiction because this court "lost" jurisdiction when he was released from the custody of the BOP.

This court maintains subject matter jurisdiction over the petition. In Carafas v. LaVallee, the Supreme Court considered the habeas petition of a petitioner who had been released from state custody prior to his case being heard. 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). The Court concluded that "under the statutory scheme, once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such application." Id. at 238. Notwithstanding petitioner's release from physical custody of the BOP, he is still considered to be "in custody" for purposes of his habeas corpus petition. See Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (concluding that the petitioner was in custody for purposes of the habeas corpus statute because he is subject to restraints "not shared by the public generally") (quoting Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963)). Because petitioner continues to serve his term of supervised release, he satisfies the custody requirement of 28 U.S.C. § 2241. See Williamson v. Gregoire, 151 F.3d 1180, 1182-83 (9th Cir.1998).

The government argues petitioner's case is distinguishable because not only has he been released from the physical custody of the BOP, but he is serving his term of release in Hawaii—outside the jurisdiction of the District of Oregon. As stated above, subject matter jurisdiction attached when petitioner filed his habeas petition while an inmate in the state of Oregon. The fact that he is now in Hawaii is relevant only to the issue of mootness, considered below.

b. Mootness

"A case becomes moot when it no longer satisfies the case-or-controversy requirement of Article III, Section 2, of the Constitution." United States v. Verdin, 243 F.3d 1174 (9th Cir.2001). A case is moot unless the parties "continue to have a personal stake in the outcome of the lawsuit" through all stages of the judicial proceedings. Spencer v. Kemna, 523 U.S. 1, 7,118 S.Ct. 978, 140 L.Ed.2d 43 (1998). In the habeas context, "the question is not whether the precise relief sought at the time the application [for the writ] is still available. The question is whether there can be any effective relief." West v. Secretary of Dept. of Transportation, 206 F.3d 920, 925 (9th Cir.2000).

This court already considered whether the fact that a petitioner was no longer in the physical custody of the BOP rendered his petition moot. Gavis, 2001 WL 34039136 at *1 (ruling upon numerous petitions, including those of Gavis and Bohner). The case was not moot because a favorable ruling would have benefitted the petitioner under 18 U.S.C. § 3583(e), which "allows a sentencing court to change the term (duration) of supervised release by `terminating a term of supervised release ... at any time after the expiration of one year of supervised release,' 18 U.S.C. § 3583(e)(1) ...'" Id. (citing Gunderson v. Hood, 268 F.3d 1149, 1153 (9th Cir.2001)). While it is true that if petitioner receives a favorable outcome in this court, 18 U.S.C. § 3583(e) requires a subsequent petition to his sentencing court, the possibility that the sentencing court would reduce a term of supervised release is not speculative under Gunderson, and the case is not moot. See Grier, 46 Fed. Appx. at 433 (impliedly finding petitioner's petition not moot by reviewing this court's Gavis decision).

2. Petitioner's APA Challenge to the BOP's Rule & Program Statements

Petitioner completed the substance abuse program, but based upon the 1997 rule and program statements, the BOP did not grant him early release. He challenges his denial of eligibility for early release, asserting that, in issuing the 1997 rule and program statements, the BOP failed to comply with the APA.

a. The 1997 Rule Violates the APA

i. Failure to Comply with Notice and Comment Requirements

In Grier v. Hood, the Ninth Circuit reversed this court's denial of petitioner Gavis' (among others) motion to amend his petition to add APA challenges to the 1997 rule and program statements. Grier, 46 Fed.Appx. at 433. First, the court ruled that Fed.R.Civ.P. 15(b)'s requirement that the parties exhibited "express or implied consent" to an amendment of the petition for writ of habeas corpus was met. Id. at 439. Further, there was no requirement that petitioner exhaust his administrative remedies. Id.

Of particular importance to the disposition of this case, however, the Ninth Circuit observed in Grier that petitioner's amendment to his petition would not have been futile because it was clear from the record that the BOP violated 5 U.S.C. § 553(d)'s requirement that an agency publish a substantive rule "not less than 30 days before its effective date," subject to certain exceptions: Based on the undisputed facts as to the procedural history of the rule promulgation it is apparent that the procedures utilized to adopt the regulation did not comply with the APA. The Bureau violated the APA's thirty-day advance notice requirement by making the 1997 regulation effective as of October 9, 1997, rather than as of November 14, 1997, thirty days after the October 15, 1997 publication in the Federal Register. Thus, based on the undisputed facts, the requirements of the APA were not observed.

Id. at 440. Recognizing that "[t]he BOP does not dispute [that its rule violated the thirty-day advance notice...