Abbott v. Federal Bureau of Prisons, No. 3:2011cv01047 - Document 27 (D. Or. 2012)
Court Description: OPINION AND ORDER. Petitioner's Amended Petition for Writ of Habeas Corpus 11 is DENIED. Signed on 9/28/2012 by Judge Michael W. Mosman. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON SHANE AARON ABBOTT , Case No. 3 : 11 - cv - 01047 - MO Petitioner , v. OPINION AND ORDER J . E . THOMAS , Warden , Respondent . STEPHEN R . SADY Office of the Federal Public Defender 101 SW main Street , Suite 1700 Portland , OR 97204 Attorney for Pet i tioner S . AMANDA MARSHALL United Sta t es Attorney RONALD K. SILVER Assistant United States Atto r ney 1000 SW Thi r d Avenue , Suite 600 Portland , OR 97204 - 2902 Attorneys for Respondent 1 - OPINION AND ORDER Mosman, District Judge . Petitioner , an inmate at the Federal Correctional Institution , Sheridan, Oregon , brings this habeas corpus action pursuant to 28 U. S . C. § 2241 . He alleges that the Bureau of Prisons ( " BOP " ) rules that categorically bar him from participating in the Residential Drug Abuse Program ( " RDAP " ) based on outstanding state bench warrants that expire prior to his release from federal custody are invalid under the governing statute and Administrative Procedures Act ("APA " ). under § 706 of the Petitioner also challenges the rule under which he is ineligible for the RDAP - related sentence reduction incentive under 18 U. S.C . 3621(e) . § The Court finds that the BOP ' s rules that define admission criteria for RDAP beyond the eligibility disqualify criteria inmates with specified detainers required components of the program, BOP ' s authority . in who the statute , cannot complete and that all the are a valid exercise of the The Court also finds that Petitioner's challenge to BOP rules that render him ineligible for sentence reduction is without merit . Habeas Corpus Accordingly , the Amended Petition for Writ of (#11) is DENIED . BACKGROUND I. Statement of the Case On April 1 , 2010, Petitioner was convicted of Conspiracy to Distribute Marijuana in violation of 21 U. S . C . States District Court , District of Montana , § 846 in the United and sentenced to 60 months imprisonment and 5 years post-prison supervision . 2 - OPINION AND ORDER (#12 , Ex. Gat 6 . ) The sentencing court recommended Petitioner participate in the Residential Drug Abuse Program ( " RDAP " ) if eligible. (Id . ) Petitioner was designated to FCI Sheridan ("Sheridan " ) on June 16 , 2010. (#21 , at 5 . ) is August 3, 2014 . At the outstanding time bench His projected good conduct time release date (#20, Attach . 1 at 1 . ) Petitioner warrants was issued sentenced , in 2005 there and County , Washington, for failure to appear. 1 2006 were by (#11 , at 5.) two Kitsap A bench warrant from Missoula Municipal Court , Montana, issued in 2009 Case # 2008 - 1997 , was also outstanding . the outstanding concluded Center warrants , Petitioner ( " RRC " ) 7310 . 04(10) (f) , was (#21 , at 3.) Petitioner ' s not placement eligible pursuant which provides , in Unit for As a result of Team at Sheridan Residential to Program relevant part , Reentry Statement that inmates "with unresolved pending charges , or detainers , which will likely lead to arrest , conviction , or confinement " will not ordinarily be allowed to Petitioner ' s participate first in RRC programs . 2 Program Review Report , ( Id ., dated June at 30 , 4. ) 2010 , listed the outstanding warrants as " pending charges " and provided 1 Bench warrant in Washington v . Abbott , Case No. 13272208 expires April 7 , 2013 ; bench warrant in Washington v . Abbott , Case No . 13272209 expires on May 27 , 2014 . (#11 , Amended Pet . at 5. ) 2 In prison litigation , Residential Reentry Center ( " RRC " ) placement may also be referred to as Community Correction Center ( " CCC " ) placement or " halfway house " placement . 3 - OPINION AND ORDER Petitioner written notice that he was placement as a result of the warrants. Petitioner's Program Unit Coordinator placement . September Team of advised not (Id ., the eligible for at 5 - 6 . ) Drug Abuse Treatment ineligibility Petitioner's RRC for RRC RRC placement is a required component of RDAP . 23 , 2011, the Drug Abuse Treatment On Coordinator at Sheridan interviewed Petitioner for RDAP eligibility and advised Petitioner that he did not qualify for RDAP due to " a pending issue that would prevent Attach. 3. ) him from attending a halfway house ." (#21, Petitioner ' s Unit Team advised him that a possible consequence of placement in an RRC when outstanding warrants exist would be his arrest on the state warrants . be placed in escape status , enforcement custody would If arrested , " he would and any time he would spend in law not be credited toward sentence once he was returned to federal custody ." On August 26, 2011, his federal (#21 , at 7 . ) Petitioner filed a Motion to Compel in this court pursuant to 28 U. S . C . § 1361. Petitioner sought to enjoin the BOP from giving effect to the outstanding state bench warrants that prevent his participation in RDAP and RRC placement , and require that he be held in a medium security facility . (#2 . ) Petitioner asserted that his and the BOP's repeated efforts to move Washington and Montana to a final disposition of the matters were fruitless . (Id . ) The Court construed Petitioner ' s motion as a petition for writ of habeas corpus pursuant to 28 U. S . C . § 2241, and granted the accompanying Motion for Appointment of Counsel on 4 - OPINION -AND ORDER September 16 , 2011 . 3 counsel , On December 2 , 2011 , with the assistance of Petitioner filed an Amended Petition ( #11 ) , in which he argues that the rules excluding inmates with detainers from RDAP on the basis they are unable to complete the RRC component , violate the governing statute. (#25 , Reply at 4-7.) He further asserts that , even if the rules are a valid exercise of the BOP's authority under the statute , APA. II. the rules are procedurally invalid under the ( Id . at 11-12. ) Statutory Framework Congress vested the " control and management of Federal penal and correctional institutions " in the Attorney General , " who shall promulgate rules for the government thereof § 4001 . 18 " u. s . c . In§ 4042(a ) , Congress specified : " The Bureau of Prisons , Attorney General , shall - under the direction of the (1) have charge of the management and regulation of all Federal penal and correctional institutions ; * * * (3) provide for the protection , instruction , and discipline of all persons charged with or convicted of offenses against the United States ." In 18 U. S.C. § 3621 , Congress specified , in relevant part: (b) Place of imprisonment .-- The Bureau of Prisons shall designate the place of the prisoner ' s imprisonment . The Bureau may designate any available penal or correctional 3 In appointing counsel , it was the Court ' s expectation that counsel would assist Petitioner in his efforts to obtain final disposition of the outstanding state court warrants that give rise to his ine l igibility for RRC placement . 5 - OPINION AND ORDER facility that the Bureau determines to be appropriate and suitable , considering(1 ) the resources of the facility contemplated ; (2) the nature and circumstances of the offense ; ( 3 ) the history and characteristics of the prisoner ; ( 4) any statement by the court that imposed the sentence(A ) concerning the purposes for which the sentence to imprisonment was determined t o be warranted ; or (B) recommending a type of penal or correctional facility as appropriate ; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 9 94 (a) ( 2 ) of title 28 . In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status . The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another . The Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse. Any order , recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have no binding effect on the authority of the Bureau under this section to determine or change the place of imprisonment of that person . (Emphasis added . ) Section 3621(e) mandates residential substance abuse treatment programs , and reads in relevant parts , as follows. (1 ) Phase - in . In order to carry out the requirement . . . that every prisoner with a substance abuse problem have the opportunity to participate in appropriate substance abuse treatment, the Bureau of Prisons shall, subject to the availability of appropriations, provide residential substance abuse treatment (and make arrangements for appropriate aftercare) - * * * (C) for all eligible prisoners by the end of fiscal year 1997 and thereafter, with priority 6 - OPINION AND ORDER for such treatment accorded based on an eligible prisoner ' s proximity to release date. (2) Incentive ... . (B) Period of custody. - -The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the [BOP] , but such reduction may not be more than one year from the term the prisoner must otherwise serve . ( 3) Report . - -The [BOP] shall transmit to [named Congressional Committees an annual report] . Such report shall contain -(A) a detailed quantitative and qualitative description of each substance abuse treatment program, residential or not, operated by the Bureau; (B) a full explanation of how eligibility for such programs is determined, with complete information on what proportion of prisoners with substance abuse problems are eligible; and (C ) a complete statement of to what extent the [BOP] has achieved compliance with the requirements of this title . (Emphasis added.) Section 3621 (e) (5) provides definitions for sub - section 3621(e) , and specifies : (A) the term residential substance abuse treatment means a course of individual and group activities and treatment , lasting at least 6 months , in residential treatment facilities set apart from the general prison population .. .. 11 11 11 ; (B) the term "eligible pri·soner" means a prisoner who is-(i) determined by the Bureau of Prisons to have a substance abuse problem, and (ii) willing to participate in a residential substance abuse treatment program[.] 7 - OPINION AND ORDER (C) the term " aftercare " means placement , case management and monitoring of the participant in a communi t y - based treatment program when the participant leaves the custody of the Bureau of Prisons. (Emphasis added.) Section 3624(c) , provides for prerelease custody, and specifies: (1) In general. -- The Director of 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. * * * (4)No limitations .--Nothing in this subsection shall be construed to limit or restrict the authority of the Director of the [BOP] under section 3621. (Emphasis added . ) III. Regulatory Framework and Internal Agency Guidelines In response to the mandate in 3621(e) to provide residential drug treatment , the BOP established RDAP . The implementing regulations for all BOP drug treatment programs are codified at 28 C . F . R . §§ 550 . 50 - 550.56. Sections 550 . 53 - 550 . 56 are specific to RDAP and the Transitional Drug Abuse Treatment ( " TDAT " ) component . The regulations that apply to Petitioner were published in 2009 , following notice - and - comment rule - making under § 553 of the APA . See 74 Fed . Reg . 1892 - 01 Section 550 . 53(a) (January 14 , 2009) . defines the three components of drug treatment that are required for prisoners to successfully complete 8 - OPINION AND ORDER RDAP. 4 Section program . 5 550 . 53 (b) sets out admission criteria for the Section 550 . 53(e) specifies that the Drug Abuse Program Coordinator decides whether to place inmates in RDAP based on the admission criteria set forth in§ 550.53(b) . 6 4 § 550.53 Section 550 . 56 sets Residential Drug Abuse Treatment Program (RDAP) (a) RDAP . To successfully complete the RDAP , inmates must complete each of the following components : (1) Unit - based component. Inmates must complete a course of activities provided by drug abuse treatment specialists and the Drug Abuse Program Coordinator in a treatment unit set apart from the general prison population. This component must last at least six months. (2) Follow-up services. If time allows between completion of the unit - based component of the RDAP and transfer to a community- based program, inmates must participate in the follow - up services to the unit - based component of the RDAP . (3) Transitional drug abuse treatment (TDAT) component . Inmates who have completed the unit - based program and (when appropriate) the follow - up treatment and are transferred to community confinement must successfully complete community- based drug abuse treatment in a community-based program to have successfully completed RDAP. The Warden, on the basis of his or her discretion, may find an inmate ineligible for participation in a community-based program . 5 § 550.53(b) Admission Criteria. Inmates must meet all of the following criteria to be admitted into RDAP. a . ( 1 ) Inmates must have a verifiable substance use disorder . b . (2) Inmates must sign an agreement acknowledging program responsibility . c. (3) When beginning the program , the inmate must be able to complete all three components described in paragraph (a) of this section . * * * d . Ordinarily, have 24 months or more remaining on their sentence. 6 § 550 . 53(e) Placement in RDAP. The Drug Abuse Program Coordinator decides whether to place inmates in RDAP based on the 9 - OPINION AND ORDER out the Transitional Drug Abuse Treatment Program. 7 agency guidelines in Program Statement (PS) BOP internal P5330.11 restate the regulations and provide further implementing instructions for the various drug abuse programs . With respect to the Drug Abuse Program Coordinator ' s decision whether to place inmates in RDAP , PS P5330.11 , chpt 2 . 5.9 specifies : The DAPC must also determine .if the inmate can fully engage in treatment : i . e ., communicate in English and/or comprehend treatment expectations . * * * In some instances, the DAPC may find the inmate cannot fully engage in treatment and does not qualify for the program , even if there is substantiating documentation (see 18 U. S.C. § 3624(f) (4) [mandatory functional literacy requirement] and 28 C. F . R . §§ 544 . 40 - 544 . 44 [mandatory English - as - a - second- language program]) . With respect to TDAT , PS P5330 . 11 , chpt 2 . 7 . 2 specifies : 2.7.2. RRC Placement . Ordinarily , inmates who participate in the TDAT must receive no less than a 120 day placement in an RRC . It is not always possible to criteria set forth in paragraph (b) of this section . 7 § 550 . 56 Community Transitional Drug Abuse Treatment Program (TDAT) . (a) For inmates to successfully complete all components of RDAP , they must participate in TDAT in the community. If inmates refuse or fail to complete TDAT , they fail the RDAP and are disqualified for any additional incentives . (b) I nmates with a documented drug abuse problem who did not choose to volunteer for RDAP may be required to participate in TDAT as a condition of participation in a community- based program , with the approval of the Transitional Drug Abuse Program Coordinator . (c) Inmates who successfully complete RDAP and who participate in transitional treatment programming at an institution must participate in such programming for at least one hour per month . 10 - OPINION AND ORDER complete transitional drug abuse treatment in less than 120 days . The implementing instructions subject to APA rule-making . in program See 5 U. S . C . § 553(b) (A) notice or hearing is required by statute , not (A) apply to statements interpretive were not ( " Except when [APA rule-making] does rules, general statements of policy , or rules of agency organization , procedure, or practice " ) . DISCUSSION Recognizing that this Court does not have jurisdiction to review individualized determinations relating to RDAP participation and early release eligibility, Petitioner clearly states that he is not challenging the individualized determination that inelig ible for RDAP based on pending warrants/detainers . 8 he is Rather, he asserts he is (1) raising "a categorical challenge to the BOP's policy of denying violating under § § ' eligible prisoners' participation in RDAP as 3621 (e) (1) (C) ; and (2) raising a categorical challenge 706 of the APA to both the denial of participation in RDAP and the disqualification from the sentence reduction incentive for persons deemed inappropriate for commun it y corrections ." Reply at 6 . ) He further asserts that, ( #25' even if the rules are a valid exercise of the BOP's authority under the statute, the rules are procedurally invalid under the APA . (Id . at 11 - 12 . ) Respondent argues the petition should be denied because : 8 See Reeb v . Thomas , 636 F.3d 1224 (9th Cir . 2011) (courts lack subject matter jurisdiction to review individualized RDAP determinations . ) 11 - OPINION AND ORDER ( 1) this Court has already upheld reasonableness of PS 7310.04(10) (f) 9 ; the validity and (2) the Ninth Circuit has already found that requiring participation in a community- based treatment program for successful completion of RDAP is a permissible construction of 18 U.S.C . § 3621(e); (3) 28 C . F.R. § 550 . 53 is a published regulation that was subject to the rigors of the APA . . . and entitled to full Chevron deference; and , (4) It is not relevant whether Petitioner's outstanding warrants will expire prior to his projected release date because he must be eligible for RRC placement at the point he would begin RDAP pursuant to BOP policy ." (#19 , at 3 . ) I. BOP's construction of the statute. A. Standards . As set forth by the Supreme Court in Chevron, U. S.A. , Inc . , v. Natural Resources Defense Council, Inc., a court reviews an agency's construction of a statute it administers as follows . 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 ; for the court, as well as the agency , must give effect to the unambiguously expressed intent of Congress . If, however, the court determines congress has not directly addressed the precise question at issue , the court does not simply impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation . Rather , if 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. 9 Program Statement 7310 . 04(10) specifies : " Inmates in the following categories shall not ordinarily participate in CCC programs: * * * (f) Inmates with unresolved pending charges , or detainers , which will likely lead to arrest, conviction , or confinement ." 12 - OPINION AND ORDER 467 U. S . 837, 842 - 43 (1984) . words or phrases in a The meaning or ambiguity of certain statute may only become evident context of the entire statute . deference " Chevron is the See National Ass ' n of Home Builders 551 U. S . 644 , 646 - 47 v . Defenders of Wildlife, in appropriate (2007 ) . 'when it appears that Congress delegated authority to the agency generally to make rules carrying the claiming force of deference authority."' law , was and that promulgated the agency in the interpretation exercise of Astrue v . Capato ex rel. B.N . C., 132 S.Ct. 2021, 2034 (2012) (quoting United States v. Mead Corp ., 533 U. S. 218 , (2001) . that To survive review under an Chevron , 226-27 agency 's interpretation need only be a permissible interpretation of the statute , and a court will defer to agency regulations promulgated after notice-and - comment so long as they are not capricious , or manifestly contrary to the statute ." " arbitrary , Chevron , 467 U. S. at 844 . B. Analysis Following notice-and - comment rulemaking , the BOP published the 2009 rules governing drug treatment programs under the authority delegated to its Director in 28 C.F . R. 1892-01 (Jan . 14, 2009) . § Petitioner 0 . 96 . See 7 4 Fed . Reg . argues the statute unambiguously identifies which inmates must be admitted to RDAP in § 3621 (e) (1) (C) requirement that and that the BOP 13 - OPINION AND ORDER "it is ' provide contrary to residential the statutory substance abuse treatment (and make arrangements for appropriate aftercare) ' 'all eligible prisoners ... '" for for the RDAP admission criteria to require that an inmate must be able to complete the TDAT component " when beginning [RDAP] " . (1) (#25 , at 7.) The Court disagrees . Statutory construction of§ 3621(e) (1) (C). As the agency charged with carrying out mandate for prisons, residential the management BOP of has RDAP , substance the abuse authority including to rules the congressional treatment publish that in rules establish federal for the admission criteria , unless Congress has spoken to the issue and the statute unambiguously establishes c o ngressional intent to limit the BOP's authority to do so . Petitioner argues prisoners , " as found in § 3 621 (e) ( 1) (C ) , that " all eligible precludes the BOP from publishing rules that disqualify prisoners from RDAP because they cannot complete the required TDAT component. Ho wever , the language " all eligible prisoners" and the definition of "eligible prisoner" specified in § 3621 (e) (5) (B ) do not stand alone . and not conflict with the BOP's overall management of Federal prison programs , To hav e meaning authority over the these provisions must be read in the context of§ 3621(e) and§ 3621 as a whole. Section 3621(b) charges the BOP with designating the appropriate and suitable place of imprisonment for federal inmates , authorizes the BOP to transfer a prisoner from one facility to another at any time, and requires that the BOP provide appropriate substance abuse for each prisoner 14 - OPINION AND ORDER the Bureau determines has a treatable condition of substance 3621 (e) (1) specifies that, appropriate substance abuse Bureau shall, provide subject residential to to addiction satisfy treatment the in or the abuse requirement of (b) , for "the appropriations, treatment arrangements for appropriate aftercare)-- [.]" Section 3 621 (e) ( 3) (A) Section subsection availability substance abuse. (and make (Emphasis added.) requires that the BOP provide "a detailed quantitative and qualitative description of each substance abuse treatment program, residential or not, operated by the Bureau" in an annual report to Congress . unambiguous These provisions do not convey an intent by Congress to limit the BOP's authority to define the programs it establishes to satisfy the drug treatment mandate. Quite the contrary . with a reporting requirement. They are broad grants of authority The Court, therefore, concludes that the statutory gap with respect to the quantitative and qualitative description of the residential substance abuse treatment program is to be filled by the BOP, and may include defining required components of the program. In § 3621 (e) (5) (B) , the statute broadly defines "eligible prisoner" for residential treatment purposes as a prisoner the BOP has determined has a substance abuse problem and who is willing to participate in a residential substance abuse program. However , while Congress provided a definition of "eligible prisoner'' that sets forth two criteria for residential treatment eligibility, defining two criteria does not unambiguously convey an intent to 15 - OPINION AND ORDER foreclose the BOP from also taking into consideration factors that are inherent in the BOP ' s prison programs treatment . and overall mandate in § 3 621 to manage to provide substance appropriate abuse Factors such as : the history and characteristics of the prisoner , their security designation , their ability to understand and perform the requirements More fundamentally , imposed . of a program , and § 3621 (e) (3) (B) the sentence requires that the BOP's annual report to Congress include " a full explanation of how eligibility for determined , with prisoners with such [substance complete substance abuse information abuse treatment] on problems are is proportion what programs of eligible [ . ] " The Court , thus , concludes§ 3621 (e) (1) (C) is not intended to foreclose the BOP from publishing admission criteria for RDAP , and admissions criteria are entitled to deference under Chevron , the so long as they are not arbitrary , capricious , or manifestly contrary to the statute . (2) TDAT as an admission criteria. In implementing the mandate for residential substance abuse treatment, the BOP required components: defined RDAP such that it includes three the unit - based component that provides 500 contact hours over nine to 12 months ; follow - up services as time allows before the transitional component ; abuse treatment § 550 . 53-56 . BOP relied on in a and transitional drug community-based program. See 28 C . F . R. In designing RDAP to include three components , the treatment 16 - OPINION AND ORDER principles recognized by the American Psychiatric Association ( "APA " ) . The requirement that inmates complete " transitional services programming in a community- based program and /o r in a Bureau institution " is first found in the RDAP regulations published in 1995 . Reg. FR 60 (May 27692 - 01 28 C . F . R. 25, 1995) , 550 . 56 ; WL 1995 see also Fed . 314099 ( FR ) . In finalizing three interim final rules published in 1995 , 1996 , and the BOP published and addressed comments relating to the 1997 , community- based drug treatment requirement . 01 (0e c . 22 , 2 0 0 0 WL 18 6 5 5 4 4 2000 ) , See 65 Fed . Reg . 80745- ( FR ) . The BOP incorporated input from the APA , but specifically stated that the BOP " does not believe that it is practicable to enhance transitional services within the results ." institution Id. at sufficiently to Responding *80747 . ensure to the intended an APA comment that ineligibility for community based treatment should not preclude RDAP participation, the BOP reiterated its position that the community based treatment component was an essential complement to institutional treatment and critical for treatment success . *80747-48. about And in response to public defenders expressing concern exclusion corrections , Id . at of inmates with the BOP reiterated that detainers the from residential community treatment program requires a community- based treatment component to ensure optimal treatment outcomes. Id . Petitioner argues his inability to satisfy the TDAT requirement cannot be used to disqualify him from RDAP since he is otherwise statutorily eligible. disagrees. 17 -OPINION AND ORDER The Court In McLean v . Crabtree, 173 F . 3d 1176, 1182 - 83 (9th Cir . 1999), the Ninth Circuit up h eld the BOP's authority under the statute t o require that inmates complete the community treatment component (TDAT ) to successfully complete RDAP and be eligible for the early release incentive under § 3621 (e) (2 ) (B ) . 10 Petitioner argues that because McLean challenged the TDAT requirement in the c o ntext of inmate ineligibility for early release under 3621 (e) (2 ) (B), § it d o es not speak to the validity o f the admission requirement in the 2009 regulations . In McLean , First , Petitioner's argument is unavailing . the Ninth Circuit made two distinct findings. the circuit court analyzed the validity of the regulation that required prisoners to complete TDAT as a component of RDAP to successfully complete that program . The Ninth Circuit concluded that the TDAT requirement was a permissible construction of the statute. The circuit court then reviewed whether it was permissible for the BOP to disqualify inmates from early release eligibility if they could not complete TDAT , successfully complete RDAP . and thus could not The Ninth Circuit held that it was permissible under the statute for the BOP to disqualify inmates fr om RDAP and complete TDAT. the early release incentive if they could not Because the analysis upholding the TDAT requirement 10 The Fifth Circuit upheld the same provision in an almost identical challenge in Rublee v . Fleming , 160 F.3d 213 , 215 (5th Cir.1998) (permissible interpretation of statute to require TDAT and disqualify those ineligible for RRC placement from early release eligibility). 18 - OPINION AND ORDER stands independently disqualification , of analysis validity the the of the upholding TDAT early release requirement as a component of RDAP is applicable in reviewing Petitioner ' s challenge to the RDAP admissions criteria . Even if this Court did not apply the holding in McLean, an independent analysis leads to the same conclusion , that requiring that inmates complete TDAT is a permissible construction of the statute and entitled to deference under Chevron . Section 3621 (e) ( 1) specifies: " in order to carry out the requirement of the last sentence of subsection (b) of this section , that every opportunity treatment , prisoner to the with a participate Bureau shall , substance in abuse appropriate subject to the problem have substance the abuse availability of appropriations, provide residential substance abuse treatment (and make arrangements added . ) for appropriate aftercare) -- [ . ] " (Emphasis Use of the adjective " appropriate " signals an intent to convey to the BOP the authority to design treatment programs that are suitable or proper to address substance addiction or abuse . 11 It also implies that there will be a determination made as to which treatment is suitable or proper for a prisoner . The statute does not unambiguously convey an intent by Congress to limit the BOP's 11 "Appropriate " (adj . ) : " (1) suitable or fitting for a particular purpose , person , occasion , etc . " - Random House Webster ' s Unabridged Dictionary , 2nd ed . ; or " specially suitable : fit ; proper " - Websters 3rd New International Dictionary , unabridged . 19 - OPIN I ON AND ORDER authority to define the s ubstance abuse treatment programs it establishes in response to t he mandate to provide treatment . As designed, defines RDAP is cons i s t ent with residential substance abuse § 3621 (e) (5) (A) , which treatment as consisting of individual and group activities and treatment that last at least 6 months , in a residential facility set apart from the general prison population; and the requirement for community-based aftercare. program with construction TDAT three of the component required specifically the Defining RDAP as components statutory directive addresses is a a permissible to provide appropriate residential substance abuse treatment , and it is neither arbitrary nor capricious , nor contrary to the statute for the BOP to disqualify prisoners from RDAP admission if they are disqualified from any of RDAPs requi r ed components . The RDAP admission criteria are , therefore , entitled to deference . (3) Disqualification from the early release incentive . Petitioner challenges the BOP ' s authority to disqualify him from the early release incentive based on his inability to complete all required components of RDAP as a result of outstanding state warrants . Petitioner cites to Rodriguez v . Smith , 541 F.3d 1 1 80 (9th Cir . 2008) , in arguing that the reasoning in Kurt v . Daniels which upheld the BOP policy denying RRC placement to inmates with outstanding detainers/warrants is no longer valid. Kurt v. Daniels , 3 : 06 - cv- 00726 - MO (D. Or . P7310 . 04 (10) (f)). 20 - OPINION AND ORDER Feb . 14 , 2007) (upholding PS In Rodriguez , the Ninth Circuit held that 11 [b]ecause the BOP regulations categorically exclude CCC placement of inmates with more than ten percent of their sentences remaining , they necessarily fail to apply the mandatory factors listed in§ 3621(b) to those inmates [ , ] 11 and are invalid . 541 F. 3d at 1187 . In Kurt , this Court upheld PS P7310.04 (10) (f) , which denies RRC placement of inmates with pending charges or detainers , finding the restrictions permissible under § 3621 (b) (3) (directing the BOP to consider five factors , including the characteristics and history of the inmate in determining eligibility for RRC placement) . The Court was unconvinced that because the relevant statute requires the BOP to consider all five factors in making community correction placement decisions , the BOP was precluded from denying eligibility based on just one of those factors . The Court finds nothing in Rodriguez that undermines its conclusion in Kurt that PS P7310 . 04 (10) (f) is a reasonable statutory interpretation under Chevron , and that it is permissible to deny RRC placement based on one of the five factors to be considered pursuant to 3621 (b) . To the extent Petitioner argues the BOP must apply the five enumerated factors , he presents no evidence the Unit Team at Sheridan did not do so. record shows Petitioner's Presentence Report ( 11 PSR 11 ) , Unit Team closely And the reviewed his investigated pending warrants , and made determination that he was ineligible for RRC placement based on unresolved warrants. 21 - OPINION AND ORDER (#21 , at 3 - 4.) Moreover , it is well established that the statute governing RDAP does not convey a protected interest in the early release incentive under § See Lopez, 3621 (e) (2). (2001); Moody v . Daggett, 429 U. S. 531 U.S. (statutory congressional language intent to of § leave 241-42 78 , 88 n . 9 (1976 ) ; Jacks , 114 F . 3d at 986 n.4 ; Downey v . Crabtree , 100 F.3d 662 , 1996) 230 , 3621 (e) to the 670 " reflects Bureau (9th Cir . unequivocal final decisions regarding whether to grant eligible inmates a sentence reduction. . . . Relevant legislative history also supports this conclusion ." ) Furthermore, the BOP's authority to disqualify statutorily eligible inmates from the early release incentive has been upheld . Lopez , 531 U. S . at 242; Peck v. Thomas , 2012 WL See 2308187 (C . A . 9 (Or.)) (upholding disqualification based on conviction for firearms possession) ; 173 McClean , F.3d 1176 (upholding disqualification of inmates with detainers) ; Rublee v. Fleming , 160 F . 3d 213 , 215 (5th Cir . 1998) (same) . 4. Challenged rules are procedurally valid. The Court has reviewed Petitioner 's claim that the rules he challenges are procedurally invalid under the APA and finds his arguments unavailing . APA rulemaking does not require the BOP explain or justify the self-explanatory admission criteria that requires prisoners be eligible for all required components of RDAP to be admitted to the program. Determining the eligibility of inmates for RDAP rests with the BOP. 22 - OPINION AND ORDER Tapia v . United States, 131 S.Ct. 2382, 2390-91 can recommend program [b]ut (2011) ("A particular a sentencing facility or with BOP." ) . ... [placement] in decisionmaking authority rests court the Determining whether an inmate is eligible for placement in an RRC also rests with the BOP, and is not reviewable by the Court. Thomas, from 2011 WL 1791198 Reeb v. Thomas, (D.Or. 2011 May 10, WL See Binford v. 2011) (applying reasoning 723106, to find substantive discretionary RRC decisions not reviewable in district court.) CONCLUSION Based on the foregoing, Petitioner's Amended Petition for Writ of Habeas Corpus (#11) is DENIED. IT IS SO ORDERED. DATED this ~ day of September, 2012. Michael W. Mos United States District Judge 23 - OPINION AND ORDER
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