Handley v. Chapman

Decision Date29 October 2009
Docket NumberNo. 09-10061.,09-10061.
PartiesDeborah Rae HANDLEY, Petitioner-Appellant, v. W. Elaine CHAPMAN, Warden, FMC Carswell; Federal Bureau of Prisons, Respondents-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Deborah Rae Handley, Fort Worth, TX, pro se.

Appeal from the United States District Court for the Northern District of Texas.

Before SMITH, DENNIS and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Deborah Handley appeals, pro se, the dismissal, for lack of ripeness and standing, of her petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. We vacate the dismissal and render judgment on the merits for defendants.

Handley was imprisoned for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). She applied for the residential drug abuse program ("RDAP") of the Federal Bureau of Prisons ("BOP") but was denied eligibility for placement. The relevant statute, 18 U.S.C. § 3621(e)(2)(B), empowers the BOP to grant a discretionary sentence reduction not exceeding one year to an inmate convicted of a nonviolent felony who successfully completes the drug abuse program.

The BOP exercised its discretion in issuing an implementing regulation that categorically excludes early-release eligibility for those inmates whose "current offense is a felony .... [t]hat involved the carrying, possession, or use of a firearm." 28 C.F.R. § 550.58(a)(1)(vi)(B). That regulation was held to be a reasonable exercise of the BOP's statutory authority in Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). But in Arrington v. Daniels, 516 F.3d 1106 (9th Cir.2008), the court invalidated the BOP's categorical exclusion because, in the court's view, the agency had failed to articulate a rationale for its policy choice in the administrative record. Citing Arrington, Handley challenges the regulation as arbitrary and capricious under § 706 of the Administrative Procedure Act ("APA").

We decline to follow Arrington, concluding instead that public safety was the contemporaneous rationale for the BOP's policy. We held valid a prior version of the regulation in Venegas v. Henman, 126 F.3d 760, 765 (5th Cir.1997), and the BOP complied with the APA's procedural requirements when it changed course from that prior regulation. Alternatively, we conclude that the BOP's newest version of the regulation, codified at 28 C.F.R. § 550.55, applies to Handley, because its application would not have an impermissible retroactive effect. Handley's arbitrary-and-capricious challenge fails as to this newest rule, because BOP's comment to § 550.55 includes a detailed rationale for its policy choice.

I.

Title 18 U.S.C. § 3621 governs the imprisonment of persons convicted of federal crimes. In 1990, Congress amended the statute to provide that "[t]he Bureau shall ... make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance abuse addiction or abuse." Pub.L. 101-647, § 2903, 104 Stat. 4913. Congress again amended the statute in 1994 to encourage prisoner participation by providing an early-release incentive that states, "The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve." 103 Pub.L. No. 322, § 32001, 108 Stat. 1796, 1896-97 (codified at 18 U.S.C. § 3621(e)(2)(B)).

In 1995, the BOP published its first rule and implementing regulation defining early-release criteria under § 3621(e). See 60 Fed.Reg. 27692-27695; 28 C.F.R. § 550.58. Congress had explicitly limited the incentive to prisoners convicted of "non-violent offense[s]" but had not defined that term. The BOP filled the gap by adopting the definition of "crime of violence" contained in 18 U.S.C. § 924(c)(3). Several months later, it issued a program statement in which it defined "crimes of violence" to include firearms convictions under 18 U.S.C. § 922(g) and drug-trafficking convictions under 21 U.S.C. § 841 that involved possession of a firearm. Program Statement No. 5162.02, §§ 7, 9 (July 24, 1995). The courts of appeals divided over the validity of both categorizations.1

In response to the lack of consistency arising from the split among the circuits, the BOP in 1997 issued an interim rule that no longer tied eligibility to the definition of "nonviolent offense" or "crime of violence." See 62 Fed.Reg. 53690 (Oct. 15, 1997). The new rule, 28 C.F.R. § 550.58(a)(1), relied instead on the discretion vested in the agency to issue additional early-release criteria beyond those mandated by § 3621(e)(2)(B).

The 1997 rule provided, in relevant part, as follows: "As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release:

... (vi) Inmates whose current offense is a felony:

(A) That has as an element, the actual, attempted, or threatened use of physical force against the person or property of another, or

(B) That involved the carrying, possession, or use of a firearm or other dangerous weapon ...."

28 C.F.R. § 550.58(a)(vi) (1998). Thus, under the 1997 rule, felon-in-possession-of-firearm offenses and drug-trafficking offenses with a sentence enhancement for use of a firearm were no longer "violent" offenses but were rather "nonviolent offenses" that were ineligible for the early-release incentive because of the nature of the preconviction conduct. The BOP also published a new program statement that included felon-in-possession offenses under 18 U.S.C. § 922(g) and drug-trafficking offenses with a sentence enhancement for firearm use within the category of "Offenses That at the Director's Discretion Shall Preclude an Inmate's Receiving Certain Bureau Program Benefits." Program Statement 5162.04, § 7 (Oct. 9, 1997).

The amended rule produced more litigation and another divide among the circuits—this time, as to whether the BOP had acted within the permissible bounds of its discretion in narrowing the class of prisoners eligible for early release under § 3621(e).2

In Lopez, the Court held that the BOP could, within its discretion, categorically deny early release eligibility to all inmates who possessed a firearm in connection with their current offense. The Court then concluded that the 1997 interim rule was a reasonable exercise of that discretion:

Having decided that the Bureau may categorically exclude prisoners based on their preconviction conduct, we further hold that the regulation excluding Lopez is permissible. The Bureau reasonably concluded that an inmate's prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence and therefore appropriately determines the early release decision.

Lopez, 531 U.S. at 244, 121 S.Ct. 714.

Lopez, however, did not dispositively establish the validity of the categorical exclusion, which is why that policy continues to be litigated. As an initial matter, the Court expressly declined to consider whether the 1997 interim rule complied with the APA's notice-and-comment requirements. Id. at 245 n. 6, 121 S.Ct. 714. Moreover, the above-stated rationale for the BOP's policy—that prior firearm possession in connection with a felony suggests a risk of life-endangering recidivism—was not explicitly contained in the administrative record. Rather, the Court, in making that statement, relied on the BOP's brief. See Lopez, 531 U.S. at 236, 121 S.Ct. 714. In short, the Lopez Court held that the categorical exclusion of early release eligibility for felons in possession of a firearm was a permissible exercise of BOP discretion reasonably executed, but the Court did not hold that 28 C.F.R. § 550.58(a) satisfied the APA's procedural requirements.

By 2000, the BOP had promulgated a final version of the 1997 interim rule, with essentially identical language, after notice and comment. See 65 Fed. Reg. 80745 (Dec. 22, 2000), codified at 28 C.F.R. § 550.58(a). The Ninth Circuit in Arrington, 516 F.3d at 1114, held the BOP's final rule invalid under § 706(2)(A) of the APA because BOP had "failed to set forth a rationale for its decision to categorically exclude prisoners convicted of [firearm possession] offenses."

The Arrington panel rejected two rationales offered by the BOP in defending the regulation. The first—the public safety rationale cited with favor in Lopez—was "entirely absent from the administrative record" and was thus the sort of "`post hoc rationalization[]' of appellate counsel that we are forbidden to consider in conducting review under the APA." Id. at 1113 (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). The second—the need for uniformity in the application of the eligibility regulation—though articulated in the administrative record, provided "no explanation for why the Bureau exercised its discretion" by categorical exclusion rather than categorical inclusion. Id. at 1113-14. In other words, in the Ninth Circuit's view, the BOP's uniformity rationale failed under arbitrary-and-capricious review because the BOP could have reached that goal just as easily through categorical eligibility, and the administrative record did not provide a rationale for the decision categorically to exclude. Id.

The two circuits that have had the opportunity to consider Arrington have declined to follow it.3 The overwhelming majority of district courts, given the opportunity, have also rejected Arrington.4

In addition, the BOP has adopted a new version of the regulation at issue, effective March 16, 2009. See 28 C.F.R. § 550.55. That version provides a much more detailed rationale for the categorical exclusion:

Under 18 U.S.C. 3621(e), the Bureau has the...

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