Close v. Thomas

• Decision Date: 06 June 2011
• Docket Number: 10–35857,10–35858,10–35853,10–35852,10–35854,10–35851,10–35856,Nos. 10–35850,10–35859.,10–35855,s. 10–35850
• Citation: 11 Cal. Daily Op. Serv. 9767,2011 Daily Journal D.A.R. 11684,653 F.3d 970
• Parties: Christopher CLOSE, Petitioner–Appellant,v.Jeff E. THOMAS, Warden, Respondent–Appellee.Danny R. Sass, Petitioner–Appellant,v.Jeff Thomas, Warden, Respondent–Appellee.Michael Lee Stockton, Petitioner–Appellant,v.Jeff E. Thomas, Respondent–Appellee.Bradley Alan Moschetti, Petitioner–Appellant,v.Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, Respondent–Appellee.Rafi Shotland, Petitioner–Appellant,v.Jeff E. Thomas, Respondent–Appellee.Edelmiro Tamez, Jr., Petitioner–Appellant,v.Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, Respondent–Appellee.Larry D. Beverly, Petitioner–Appellant,v.Jeff E. Thomas, Respondent–Appellee.Kevin Jerome Snoozy, Petitioner–Appellant,v.Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, Respondent–Appellee.Edward Anderton, Petitioner–Appellant,v.Jeff E. Thomas, Respondent–Appellee.Robert Scott Merry, Petitioner–Appellant,v.Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

653 F.3d 970

11 Cal. Daily Op. Serv. 9767

2011 Daily Journal D.A.R. 11,684

Christopher CLOSE, Petitioner–Appellant,

v.Jeff E. THOMAS, Warden, Respondent–Appellee.Danny R. Sass, Petitioner–Appellant,

v.Jeff Thomas, Warden, Respondent–Appellee.Michael Lee Stockton, Petitioner–Appellant,

v.Jeff E. Thomas, Respondent–Appellee.Bradley Alan Moschetti, Petitioner–Appellant,

v.Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, Respondent–Appellee.Rafi Shotland, Petitioner–Appellant,

v.Jeff E. Thomas, Respondent–Appellee.Edelmiro Tamez, Jr., Petitioner–Appellant,

v.Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, Respondent–Appellee.Larry D. Beverly, Petitioner–Appellant,

v.Jeff E. Thomas, Respondent–Appellee.Kevin Jerome Snoozy, Petitioner–Appellant,

v.Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, Respondent–Appellee.Edward Anderton, Petitioner–Appellant,

v.Jeff E. Thomas, Respondent–Appellee.Robert Scott Merry, Petitioner–Appellant,

v.Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, Respondent–Appellee.

Nos. 10–35850

10–35851

10–35853

10–35852

10–35854

10–35855

10–35856

10–35857

10–35858

10–35859.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 2011.*Filed Aug. 3, 2011.

Stephen R. Sady, Chief Deputy Federal Public Defender, District of Oregon, Portland, OR, for petitioner-appellants Christopher Close, et al.Dwight C. Holton, United States Attorney District of Oregon, Kelly A. Zusman, Appellate Chief United States Attorney District of Oregon, Kevin Danielson, Assistant United States Attorney District of Oregon, Portland, OR, for respondent-appellee Jeff E. Thomas, Warden, FCI Sheridan.Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, Senior District Judge, Presiding. D.C. Nos. 3:09–cv–01172–HA, 3:09–cv–01224–HA, 3:09–cv–01290–HA, 3:09–cv–01349–HA, 3:09–cv–01368–HA, 3:09–cv–01347–HA, 3:09–cv–01385–HA, 3:09–cv–01365–HA, 3:10–cv–00007–HA, 3:09–cv–01367–HA.Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

Petitioner Christopher Close and nine other similarly situated prisoners (collectively “Close” or “Petitioners”) appeal the district court's judgment denying their 28 U.S.C. § 2241 habeas corpus petitions. These consolidated habeas petitions require us to consider the manner in which the Bureau of Prisons prioritizes a prisoner's eligibility for entering into a Residential Drug Abuse Treatment Program. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Finding no error in the Bureau of Prisons' interpretation of the governing statute, 18 U.S.C. § 3621(e)(1), we affirm the district court's judgment.

I. Factual and Procedural Background

In 1990, Congress required that the Bureau of Prisons (“BOP”) provide substance abuse treatment for inmates with a treatable condition of substance addiction or abuse. 18 U.S.C. § 3621(b). As a result, BOP instituted Residential Drug Abuse Treatment Programs (“RDAP”). Four years later, Congress amended § 3621, providing that BOP could reward inmates who successfully completed RDAP with early release. 18 U.S.C. § 3621(e)(2)(B). The statute permits BOP to consider only nonviolent offenders for this early release incentive, and it permits early release of up to only one year. Id. Even though violent offenders cannot benefit from the early release provision, those with substance abuse problems are still eligible for participation in RDAP. Congress directed that BOP place RDAP-eligible inmates into programs “with priority for such treatment accorded based on an eligible prisoner's proximity to release date.” 18 U.S.C. § 3621(e)(1)(A).

Neither the statute nor its regulations, 28 C.F.R. §§ 550.50—.57, indicate whether BOP should factor in the early release incentive when it determines how close inmates are to their release date. The issue is significant because demand for RDAP far exceeds its availability and “proximity to release date” dictates inmates' priority on the long RDAP wait list. So if a nonviolent inmate is 24 months from the end of his term of imprisonment, should BOP rank him on the RDAP wait list as though he were only 12 months from the end of his term of imprisonment because he would be eligible for § 3621(e)'s early release upon successful RDAP completion? BOP has answered this question both ways at different times. For some time, BOP did factor in potential early release for eligible inmates when ranking them on the RDAP wait list. As a result, a nonviolent offender scheduled to be released in 24 months would be ranked on the wait list at the same level as a violent offender with only 12 months remaining in his term of imprisonment. Currently, however, as reflected in an internal policy statement, BOP does not take the potential early release into account when calculating a nonviolent inmate's proximity to release.¹

In March 2009, an Oregon district court found that “proper statutory construction compels the conclusion that the BOP is required to perform wait list calculations that include the prisoner's projected § 3621(e) release date.” Thurman v. Thomas, No. 06–1400, 2009 WL 936663, at *4 (D.Or. March 30, 2009). The district court observed that “[f]ailing to do so currently results in a significant diminution or the outright elimination of the statutorily created incentive of sentence reductions for prisoners who seek and complete RDAP.” Id. The district court concluded that “inmates eligible for the discretionary sentence reduction for up to one year for completing RDAP should be ranked on the wait list according to their projected § 3621(e) release dates.” Id.

Petitioner Close is an RDAP-eligible nonviolent offender housed in BOP's Sheridan, Oregon facility. After learning of the district court's order in Thurman, Close filed a pro se 28 U.S.C. § 2241 habeas corpus petition on October 1, 2009. The only issue Close raised in this petition was whether BOP should rank him on the RDAP wait list in conformity with the district court's order in Thurman—that is, taking into account his potential eligibility for § 3621(e) early release. On January 26, 2010, the district court consolidated Close's petition with nine others raising the same issue and designated Close's case as the lead. The district court subsequently granted BOP's motion for summary judgment, denying all of the consolidated habeas petitions. The district court found “that the conclusions in Thurman are neither binding nor dispositive in this matter.” All Petitioners filed timely notices of appeal.

II. Standard of Review and Jurisdiction

We review de novo a district court's denial of a 28 U.S.C. § 2241 habeas corpus petition. Mora–Meraz v. Thomas, 601 F.3d 933, 939 (9th Cir.2010). We recently held that “federal courts lack jurisdiction to review the BOP's individualized RDAP determinations made pursuant to 18 U.S.C. § 3621.” Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir.2011). We clarified, however, that “[a]lthough judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority, Reeb's habeas petition alleges only that the BOP erred in his particular case.” Id. Close and the other petitioners in this case do not challenge individualized determinations. Rather, they challenge the system that BOP uses to rank all RDAP-eligible inmates on the RDAP wait list. These petitions allege that the “BOP action is contrary to ... its statutory authority.” Id. Therefore, the petitions are within this court's jurisdiction.²

III. Discussion

Close argues that the statutory phrase “proximity to release” in 18 U.S.C. § 3621(e) requires that BOP give nonviolent offenders priority placement in RDAP to maximize the opportunity for a one-year sentence reduction upon successful completion of the program. BOP contends that the plain language of the statute unambiguously allows it to calculate “proximity to release” without incorporating the possibility of early release.

When we “review[ ] an agency's construction of the statute which it administers, [we are] confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter....” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If we determine that “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778.

To determine Congress's intent, “[a]s always,” the “starting point is the plain language of the statute.” Greenwood v. CompuCredit Corp., 615 F.3d 1204, 1207 (9th Cir.2010) cert. granted, ––– U.S. ––––, 131 S.Ct. 2874, 179 L.Ed.2d 1187 (2011). We have explained that “[i]f the plain meaning of the statute is unambiguous, that meaning is controlling.” Id. The statute at issue here reads, in pertinent part: “the Bureau of Prisons shall, subject to the availability of appropriations, provide residential substance abuse treatment ... for all eligible prisoners by the end of fiscal year 1997 and thereafter, with priority for such treatment accorded based on an eligible prisoner's proximity to release date.” 18 U.S.C. § 3621(e)(1)(C) (emphasis added). Subsection (e)(2)(B) provides that “[t]he 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.” 18 U.S.C. § 3621(e)(2)(B).

Subsection (e)(5) contains definitions for certain terms “[a]s used in this subsection.” 18 U.S.C. § 3621(e)(5). The terms defined in (e)(5) do not include “priority,” “proximit...