Sacora v. Thomas

• Citation: 628 F.3d 1059
• Decision Date: 06 December 2010
• Docket Number: No. 10-35553,10-35553
• Parties: Tim Ray SACORA, Petitioner-Appellant, Larry L. Beaman; Todd H. Sonobe, Petitioners-Intervenors, v. Jeff E. THOMAS, Warden, Federal Prison Camp, Sheridan, Oregon, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

628 F.3d 1059

Tim Ray SACORA, Petitioner-Appellant,Larry L. Beaman; Todd H. Sonobe, Petitioners-Intervenors,

v.Jeff E. THOMAS, Warden, Federal Prison Camp, Sheridan, Oregon, Respondent-Appellee.

No. 10-35553.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 2010.

Filed Dec. 6, 2010.

Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, OR, for the petitioner-appellant and petitioner-intervenors.

Kelly A. Zusman, Appellate Chief, Office of the United States Attorney, Portland, OR, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon, Malcolm F. Marsh, District Judge, Presiding. DC No. 3:08-cv-0578 MA.

Before: A. WALLACE TASHIMA, RICHARD A. PAEZ, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Tim Ray Sacora, Larry L. Beaman, and Todd Sonobe (collectively "Petitioners") brought this habeas corpus action pursuant to 28 U.S.C. § 2241 challenging the policies by which the Bureau of Prisons ("BOP") places inmates in community correctional facilities, also known as residential re-entry centers ("RRCs").¹ Petitioners contend that the substance of the BOP's policies violates the statutory provisions that the policies purport to implement, 18 U.S.C. §§ 3621(b) and 3624(c), and that the procedure by which the policies were adopted violates the Administrative Procedure Act ("APA").

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We conclude that the BOP's policies violate neither the statutory provisions that they implement nor the APA. We therefore affirm the judgment of the district court.

I. BACKGROUND

A. Statutory and Regulatory Background

Two statutory provisions govern the BOP's authority to place inmates in itscustody in RRCs: 18 U.S.C. §§ 3621(b) and 3624(c). Section 3621 governs the authority of the BOP to designate a prisoner's placement in general while he or she is in the BOP's custody. In the context of RRCs, this section governs the BOP's authority in cases where a prisoner who has more than a year left to serve of his or her prison sentence requests a transfer to such a facility.² The policies and procedures by which the BOP classifies and designates inmates is set forth in its Program Statement 5100.08, Inmate Security Designation and Custody Classification (2006) ("Program Statement 5100.08"), available at http:// www. bop. gov/ policy/ progstat/ 5100_ 008. pdf.

Congress also charged the BOP with preparing prisoners for reentry to the community during the final months of their terms of imprisonment. See 18 U.S.C. § 3624(c). Pursuant to this section, prisoners may be placed in a RRC or in home confinement. The BOP's policies on the use of RRCs are set forth in the agency's Program Statement 7310.04, Community Corrections Center (CCC) Utilization and Transfer Procedure (1998) ("Program Statement 7310.04"), available at http:// www. bop. gov/ policy/ progstat/ 7310_ 004. pdf.

Prior to enactment of the Second Chance Act of 2007 ("SCA"), Pub.L. No. 110-199, 122 Stat. 657 (2008) (codified at 42 U.S.C. §§ 17501-17555), § 3624(c) provided that the BOP

shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community.

18 U.S.C.A. § 3624(c) (West 2008). The subsection also provided that this authority extended to placing a prisoner in home confinement. Id.

Section 3624(c) was amended on April 9, 2008, by the SCA to provide that the BOP

shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a community correctional facility.

Accordingly, after enactment of the SCA, § 3624 governs the designation of prisoners to RRCs for the final months of their sentences. ³

On April 14, 2008, five days after the SCA went into effect, BOP officials issued a memorandum (the "April 14 Memorandum") explaining the changes to the law and setting forth guidance to BOP staff about how to administer the new law. On October 21, 2008, well past the 90 day deadline provided for in the SCA, the BOP issued the regulations required by the statute. See Pre-Release Community Confinement, 73 Fed.Reg. 62440-01 (Oct. 21, 2008) (codified at 28 C.F.R. §§ 570.20-.22). Noting that the statutory deadline of July 8, 2008, had passed, the BOP determined that "[a]dopting these rules through the normal notice-and-comment procedures would not be consistent with the short statutory time-frame provided for implementing these regulatory changes" and that "[r]equiring formal notice-and-comment procedures would be contrary to the public interest in this case." Id. at 62442. Accordingly, the BOP issued the regulations as an interim final rule, and chose to "forgo the requirement under 5 U.S.C. § 552(d) which provides for regulations to go into effect 30 days after the date of publication." Id. Substantively, the regulations: (1) define the terms "community confinement" and "home detention"; (2) provide that inmates may be designated to community confinement as a condition of pre-release custody for a period not to exceed 12 months and to home detention for a period not to exceed the shorter of ten percent of the inmate's term of imprisonment or six months; ⁴ and (3) provide that inmates will be considered for community confinement in a manner consistent with § 3621(b) on an individual basis,with placements of sufficient duration to provide the greatest likelihood of successful reintegration into the community.

The April 14 Memorandum details the relevant statutory changes made by the SCA, explains how BOP staff should make placement decisions in light of the statutory changes, and provides a redline of 18 U.S.C. §§ 3621 and 3624(c) demonstrating those changes. The memorandum advises that "[w]ith minor adjustments[,] ... staff should make inmates' pre-release RRC placement decisions on an individual basis using current bureau policy, Program Statement No. 7310.04...." The memorandum goes on to note that because the SCA has increased the maximum allowable pre-release community corrections placement period to 12 months, BOP staff must review inmates for pre-release community corrections placements earlier than before, 17-19 months prior to their projected release dates. Further, it reminds staff that inmates must be individually considered for pre-release placements in community corrections facilities and that this individual consideration must be based on the criteria set forth in § 3621(b). Quoting § 3624(c)(6)(C), the April 14 Memorandum also notes that the SCA requires staff to ensure that pre-release placements in community corrections facilities are "of sufficient duration to provide the greatest likelihood of successful reintegration to the community," emphasizing that "[t]his means Bureau staff must 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." Accordingly, the memo cautions that provisions in Program Statement 7310.04 reflecting "any other possible maximum timeframe must be ignored." However, the April 14 Memorandum also notes that

[w]hile the Act makes inmates eligible for a maximum of 12 months pre-release RRC placements, Bureau experience reflects inmates' pre-release RRC needs can usually be accommodated by a placement of six months or less. Should staff determine an inmate's pre-release RRC placement may require greater than six months, the Warden must obtain the Regional Director's written concurrence before submitting the placement to the Community Corrections Manager.

On November 14, 2008, BOP officials issued another memorandum (the "November 14 Memorandum") which provides guidance to BOP staff when considering inmate requests for transfers to RRCs before the final 12 months of the inmate's sentence. It notes that "[i]nmates are legally eligible to be placed in an RRC at any time during their prison sentence[s]," and that "[s]taff cannot, therefore, automatically deny an inmate's request for transfer to a RRC." Instead, "inmate requests for RRC placement must receive individualized consideration." The memorandum further notes that "[t]elling an inmate that he/she is ineligible for RRC placement is the same as automatically denying the inmate from even being considered for such placement, and is not in accord with Bureau policy." However, as in the April 14 Memorandum, the November 14 Memorandum advises BOP staff that "a RRC placement beyond six months should only occur when there are unusual or extraordinary circumstances justifying such placement, and the Regional Director concurs."

B. Factual and Procedural Background

Petitioner Sacora, a prisoner at the Federal Correctional Institution at Sheridan, Oregon ("FCI Sheridan"), filed, pro se, a petition for writ of habeas corpus challenging the policies by which the BOP made its determinations regarding community confinement. After counsel was appointed, Sacora moved for certification of a class of"[a]ll federal prisoners serving sentences in the District of Oregon who have been or will be considered for community corrections placement under 18 U.S.C. §§ 3621(b) and 3624(c)."

The district court found that Sacora met the requirements for class certification with respect to his claims under § 3624(c) and the April 14 Memorandum. It also found, however, that Sacora had not alleged any injury from application of the November 14 Memorandum or the BOP's refusal to exercise its discretion to place him in a RRC prior to the final 12 months of his...