Paulsen v. Daniels
| Decision Date | 27 June 2005 |
| Docket Number | No. 03-35343.,No. 03-35337.,No. 03-35360.,No. 03-35344.,No. 03-35356.,No. 03-35351.,No. 03-35340.,No. 03-35341.,No. 03-35346.,No. 03-35355.,No. 03-35354.,No. 03-35347.,No. 03-35349.,No. 03-35339.,No. 03-35352.,No. 03-35350.,03-35337.,03-35360.,03-35356.,03-35355.,03-35354.,03-35352.,03-35351.,03-35350.,03-35349.,03-35347.,03-35346.,03-35344.,03-35343.,03-35341.,03-35340.,03-35339. |
| Citation | 413 F.3d 999 |
| Parties | Clarence I. PAULSEN, III, Petitioner-Appellee, v. Charles A. DANIELS, Warden, of FCI Sheridan, Respondent-Appellant. Jeffrey D. Pullins, Petitioner-Appellee, v. Charles A. Daniels, Warden, Respondent-Appellant. Dennis W. Bohner, Petitioner-Appellee, v. Charles A. Daniels, Warden, Respondent-Appellant. Randolph Brown, Petitioner-Appellee, v. Charles A. Daniels, Warden, Respondent-Appellant. Jeremy E. James, Petitioner-Appellee, v. Charles A. Daniels, Warden, Respondent-Appellant. Karlos Lamar Grier, Petitioner-Appellee, v. Joseph Crabtree, Warden, Federal Correction Institution, Sheridan, OR, Respondent-Appellant. Shawn Robert Lee, Petitioner-Appellee, v. Robert Hood, Respondent-Appellant. Adrian L. Johnson, Petitioner-Appellee, v. Charles A. Daniels, Warden, Respondent-Appellant. Sabil M. Mujahid, Petitioner-Appellee, v. Charles A. Daniels, Warden, Respondent-Appellant. Jacob Jones, Petitioner-Appellee, v. Charles A. Daniels, Warden, Respondent-Appellant. Vincente Subia, Petitioner-Appellee, v. Charles A. Daniels, Warden, Respondent-Appellant. Jason Robert Tuite, Petitioner-Appellee, v. Robert A. Hood, Warden, Respondent-Appellant. Sean Moore, Petitioner-Appellee, v. Charles A. Daniels, Warden, Respondent-Appellant. Earl Leonard, Petitioner-Appellee, v. Charles A. Daniels, Warden, Respondent-Appellant. Charles R. Norgaard, Petitioner-Appellee, v. Charles A. Daniels, Warden, Respondent-Appellant. Robert Allen Furnas, Petitioner-Appellee, v. Charles A. Daniel, Warden, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas M. Gannon, Department of Justice, Criminal Division, Washington, D.C., for the respondents-appellants.
Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, OR, for the petitioners-appellees.
Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding. D.C. Nos. CV-99-01746-HA, CV-00-00174-HA, CV-99-01116-ALH, CV-01-01250-ALH, CV-99-00872-ALH, CV-98-01544-ALH, CV-99-01747-HA, CV-99-00802-HA, CV-99-00199-HA, CV-99-00518-ALH, CV-99-00011-ALH, CV-01-01259-ALH, CV-99-00596-ALH, CV-00-00888-ALH, CV-01-01094-HA, CV-99-00795-HA.
Before BEEZER, THOMAS, and W. FLETCHER, Circuit Judges.
We consider in this appeal whether the Bureau of Prisons ("Bureau") violated the Administrative Procedure Act ("APA") in adopting an interim regulation pertaining to an early release incentive program for federal prisoners who had successfully completed a substance abuse program. We conclude that the district court correctly held that the Bureau violated the APA, and that the petitioners were entitled to relief.
This appeal is the latest chapter in a series of cases concerning a program created by Congress for the purpose of supplying substance abuse treatment to prisoners. In 1990, faced with a burgeoning federal prison population incarcerated for drug-related offenses and evidence that prison substance abuse treatment programs sharply reduce recidivism, Congress required the Bureau to "make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." Crime Control Act of 1990, Pub.L. 101-647, § 2903, 104 Stat. 4789, 4913 (). Concerned by an apparent lack of program interest, Congress amended the statute in 1994 to provide federal prisoners with incentives to complete a Bureau substance abuse treatment program by authorizing the reduction of incarceration for prisoners "convicted of a nonviolent offense" who successfully completed such a program. The incentive provision reads: "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." Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, § 32001, 108 Stat. 1796, 1897 (codified at 18 U.S.C. § 3621(e)(2)(B)).
The Bureau published a regulation to implement the early release incentive one year later. The Bureau defined prisoners who had not been convicted of a nonviolent offense and thus were ineligible for early release as those prisoners who were currently incarcerated for committing a crime of violence as defined in 18 U.S.C. § 924(c)(3). 28 C.F.R. § 550.58 (1995); see 60 Fed.Reg. 27,692, at 27,695. Following the promulgation of the 1995 regulation, the Courts of Appeals reached differing conclusions on the question of whether the Bureau had discretion to further define a crime of violence as an offense involving a firearm, and thus exclude from eligibility for the early release incentive those prisoners who were incarcerated for such offenses. See Lopez v. Davis, 531 U.S. 230, 234-35, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001).
In light of the split among the Circuits, the Bureau promulgated an interim regulation, which is the subject of this litigation, on October 15, 1997 and made the regulation effective approximately one week prior, on October 9, 1997. 28 C.F.R. § 550.58(a)(1)(vi)(B) (1997); 62 Fed.Reg. 53,690. The 1997 interim regulation, like the one it superceded, made ineligible for the early release incentive those prisoners currently incarcerated for an offense that involved the possession, use, or carrying of a firearm. 28 C.F.R. § 550.58(a)(1)(vi)(B). The 1997 interim regulation differs from the 1995 regulation by relying on "the discretion allotted to the Director of the Bureau of Prisons in granting a sentence reduction to exclude [enumerated categories of] inmates," 62 Fed.Reg. at 53,690, rather than defining the statutory terms "prisoner convicted of a nonviolent offense" or "crime of violence."
The commentary accompanying the 1997 interim regulation noted that the Bureau was "publishing this change as an interim rule in order to solicit public comment while continuing to provide consideration for early release to qualified inmates." 62 Fed.Reg. at 53,690. However, the effect of the implemented interim regulation was to deny program eligibility to certain categories of inmates, including the petitioners. The commentary further provided that comments on the interim rule were due on December 15, 1997, and that the comments would be considered before final action was taken. Id.
On December 22, 2000, the Bureau replaced the 1997 interim regulation with a final regulation, which adopted the 1997 regulation without change. See 65 Fed. Reg. 80,745. The commentary accompanying the final regulation noted that the Bureau had received approximately 150 comments from individuals and organizations, 138 of them identical. Id. at 80,747. The Bureau's summary of those comments did not mention any challenge by any commenter to the procedural regularity of the 1997 regulation. See id. at 80,747-80,748.
The petitioners are a group of sixteen prisoners or former prisoners who were convicted of various offenses involving the carrying, possession, or use of firearms, and who were sentenced to terms of imprisonment, at least in part, at the Federal Correctional Institution in Sheridan, Oregon ("FCI Sheridan"). Between December 1997 and October 2000, while the petitioners were serving their terms of imprisonment at FCI Sheridan, they were informed that they were eligible to participate in the Bureau's in-prison substance abuse treatment program. The petitioners were further informed that because their offenses involved the carrying, possession, or use of firearms, they were not eligible for early release under the Bureau's 1997 interim regulation. Between December 1998 and August 2001, the petitioners filed for habeas corpus relief under 28 U.S.C. § 2241, asserting that they were categorically eligible for a sentence reduction for participation in the treatment program under 18 U.S.C. § 3621(e).
After we issued our decision in Bowen v. Hood, 202 F.3d 1211 (9th Cir.2000)—in which we held that the Bureau, in 7594 its 1997 interim regulation, validly exercised its discretion in making prisoners who were convicted of an offense involving the carrying, possession, or use of a firearm ineligible for the early release incentive— the petitioners moved for leave to amend their habeas petitions to add a claim challenging the procedural regularity of the 1997 regulation. The United States District Court for the District of Oregon denied the motions and dismissed the petitions. See Gavis v. Hood, 2001 WL 34039136 (D.Or.2001). We reversed the district court in Grier v. Hood, 46 Fed. Appx. 433, 440 (9th Cir.2002), holding that the petitioners should have been allowed to amend their habeas petitions pursuant to Fed.R.Civ.P. 15(b), as allowing such amendments would not be futile.
In Bohner v. Daniels, 243 F.Supp.2d 1171 (D.Or.2003), the district court on remand considered the petition of Dennis W. Bohner and held that the Bureau's 1997 regulation violated section 553(b) and (d) of the APA,1 the APA violations were not harmless under 5 U.S.C. § 706, and therefore the regulation was invalid. Id. at 1175-77. The district court granted the petitioner's motion to amend his habeas petition and granted his petition for a writ of habeas corpus. Id. at 1179. Following the reasoning in Bohner, the district court ordered habeas relief for the remainder of the petitioners. These timely appeals followed. In December 2003, we ordered the appeals in the cases of all sixteen petitioners consolidated.
The Bureau plainly violated the APA in its promulgation of the 1997 interim regulation. The APA requires agencies...
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