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").
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.
Two statutory provisions govern the BOP's authority to place inmates in its
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
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
Accordingly, after enactment of the SCA, § 3624 governs the designation of prisoners to RRCs for the final months of their sentences.
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
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."
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
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 sentence pursuant to § 3621(b). Accordingly, the district court certified the class of prisoners injured by the application of § 3624(c) and the April 14 Memorandum. The court also granted leave either to amend the petition to allege injuries under § 3621(b) and the November 14 Memorandum, or to identify an additional class representative who could make such allegations. Subsequently, Petitioners Beaman and Sonobe, also prisoners at FCI Sheridan, sought leave to intervene and be named as class plaintiffs, alleging injuries pursuant to § 3621(b) and the November 14 Memorandum. The district court granted the motion to intervene and certified the following class:
After Petitioners filed a second amended petition setting forth all claims of Sacora and the intervening Petitioners, the district court granted the petition with respect to the BOP's formal regulations, 28 C.F.R. §§ 570.20-.22, finding that the BOP's failure to use notice-and-comment provisions in promulgating those regulations violated the APA, and enjoined the BOP from considering inmates for placement in RRCs pursuant to those regulations. The district court denied the petition in all other respects. Petitioners filed their notice of appeal the same day.
"We review de novo a district court's decision granting or denying a petition for a writ of habeas corpus filed pursuant to [28 U.S.C.] § 2241." Mora-Meraz v. Thomas, 601 F.3d 933, 939 (9th Cir. 2010) (alteration in the original) (internal quotation marks omitted). We also review questions of statutory interpretation de novo. See, e.g., Rodriguez v. Smith, 541 F.3d 1180, 1183 (9th Cir.2008). In addition, "[w]hether an agency pronouncement is interpretive or substantive is a legal question that we review de novo." Mora-Meraz, 601 F.3d at 939 (alteration in the original) (internal quotation marks omitted).
In reviewing an agency's interpretation of a statute it administers, a court
Although Petitioners are correct that the statute mandates that the BOP's regulations "ensure that placement in a community correctional facility . . . is . . . of sufficient duration to provide the greatest likelihood of successful reintegration into the community," 18 U.S.C. § 3624(c)(6)(C), the statute also provides that this period is "not to exceed 12 months." 18 U.S.C. § 3624(c)(1) (emphasis added). In delegating the authority to the BOP to adopt regulations implementing the SCA, the space between "sufficient duration" and "12 months" was expressly left to the BOP to fill. The BOP's policy—that six months in a RRC constitutes a "sufficient duration" in most cases, but that each inmate is eligible for a 12-month placement and must be considered for placement in a RRC on an individual basis—is facially consistent with the statute.
If the challenged policies had been adopted pursuant to the notice-and-comment process, this would be the end of the inquiry. See United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (holding that "administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority"); Chevron, 467 U.S. at 843, 104 S.Ct. 2778 ("[I]f 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."). However, because Program Statement 7310.04 and the April 14 Memorandum "do[ ] not purport to carry the force of law and [were] not adopted after notice and comment,"
Analyzed in light of Skidmore, the BOP's policies are reasonable and sufficiently persuasive. The April 14 Memorandum provides that BOP "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" and clearly states that "[p]rovisions in [Program Statement] 7310.04 that reflect any other possible maximum timeframe must be ignored."
The April 14 Memorandum does note that "Bureau experience reflects inmates' pre-release RRC needs can usually be accommodated by a placement of six months or less." The BOP, however, is entitled to use its experience in interpreting and administering a statute, as Mead recognizes. See Mead, 533 U.S. at 228, 121 S.Ct. 2164 (noting that the "fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the . . . [agency's] relative expertness" in determining whether to grant that deference). Further, the SCA expressly provides that "[n]othing in [§ 3624(c)] shall be construed to limit or restrict the authority of the Director of the Bureau of Prisons under section 3621." 18 U.S.C. § 3624(c)(4). Thus, the ultimate point of reference for RRC placement decisions under § 3624(c) is the set of factors set forth in § 3621(b), including the resources of the facility contemplated, the nature and circumstances of the offense, and the history and characteristics of the prisoner. See 18 U.S.C. § 3621(b). Given the statutory mandate that the BOP consider the resources of the facility to which it is considering designating a given prisoner when making placement decisions, it is not unreasonable for the agency to conserve the resources of RRCs by applying an extra check on the longest placements in RRCs. In addition, the BOP's decision to require unusual circumstances demonstrating a need for longer placements is persuasive given Congress' expressed purpose in enacting the SCA "to assist offenders reentering the community from incarceration . . . by providing sufficient transitional services for as short of a period as practicable." 42 U.S.C. § 17501(a)(5).
As for the regulation's consistency with earlier pronouncements, ironically, it is Petitioners who argue that the challenged policies are too consistent with earlier pronouncements, by arguing that the BOP merely continued its previous rule without making changes Petitioners contend the SCA requires. The BOP did make changes to the rule, however, to accommodate the new statutory time frame: after the April 14 Memorandum each inmate's pre-release placement review was to take place somewhere between 17 and 19 months before the inmate's release, instead of the 11 to 13 months provided for in Program Statement 7310.04. See Program Statement 7310.04, at 7. This change affords each inmate the opportunity to be
For substantially the same reasons, the similar policy set forth in the November 14 Memorandum is consistent with § 3621(b) and sufficient under Skidmore. Petitioners argue, however, that the policy as set forth in the November 14 Memorandum is contrary to our decision in Rodriguez v. Smith, 541 F.3d 1180 (9th Cir.2008). We disagree.
In Rodriguez, we held that the prior version of the regulations codified at 28 C.F.R. §§ 520.20 and 520.21 was invalid, because it "categorically exclude[d] inmates from RRC eligibility without considering the mandatory factors articulated in § 3621(b)." 541 F.3d at 1187. No such problem exists here. Although the November 14 Memorandum does set forth a presumption that RRC placements of longer than six months should occur only "when there are unusual or extraordinary circumstances justifying such placement[ ] and the Regional Director concurs," the Memorandum also admonishes BOP staff that they "cannot . . . automatically deny an inmate's request for transfer to a RRC" because "[i]nmates are legally eligible to be placed in an RRC at any time during their prison sentence[s]." The memorandum also reminds the BOP staff that they "must individually consider the request, just as they would any other request for lower security transfer." Further, the memorandum reminds the staff that when they review an inmate's transfer request, they should review the five factors set forth in 18 U.S.C. § 3621(b) that, we noted in Rodriguez, are "mandatory". Rodriguez, 541 F.3d at 1187. Accordingly, we conclude that the BOP's policy as set forth in the November 14 Memorandum does not violate the SCA.
Petitioners also challenge the BOP's policies under the APA, 5 U.S.C. § 706, arguing that the policies were promulgated without empirical support and without a sufficiently articulated rationale. Under § 706, the APA requires courts to "hold unlawful and set aside agency action, findings, and conclusions found to be[] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
"Under the arbitrary and capricious standard, our review . . . is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir.2009) (internal quotation marks omitted).
Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir.2008) (citations omitted) (internal quotation marks omitted).
In this case, the BOP relied on "Bureau experience" to explain its choice to require unusual circumstances and additional checks before placing prisoners in RRCs
"Under the APA, a federal administrative agency is required to follow prescribed notice-and-comment procedures before promulgating substantive rules." Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1124 (9th Cir.2009); see 5 U.S.C. § 553. "However, these notice and comment requirements are not applicable to `interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.'" Mora-Meraz, 601 F.3d at 939 (quoting 5 U.S.C. § 553(b)(3)(A)). Of course, an agency cannot, "under the guise of interpreting a regulation . . . create de facto a new regulation." Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).
We have previously distinguished a "general statement of policy," 5 U.S.C. § 553(b), from a substantive rule:
Colwell, 558 F.3d at 1124 (quoting Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013-14 (9th Cir.1987)) (all alterations but the second and the last in the original) (internal
Mora-Meraz, 601 F.3d at 940 (alteration in the original) (internal citations omitted) (quoting Gunderson v. Hood, 268 F.3d 1149, 1154 (9th Cir.2001)).
The ultimate question is "what did the new [memoranda] do?" Gunderson, 268 F.3d at 1154. As discussed above, the challenged policies are consistent with the statute. Further, the policies in the memoranda "merely provide[] guidance to agency officials in exercising their discretionary power while preserving their flexibility and their opportunity to make individualized determination[s]." Colwell, 558 F.3d at 1124 (second alteration in the original) (quoting Mada-Luna, 813 F.2d at 1013). The policies provide that in the normal case, six months is sufficient placement in a RRC, but the policies allow BOP staff to determine what constitutes the "unusual or extraordinary" circumstances for which six months is not sufficient. Similarly, the requirement that the Regional Director approve placements of more than six months merely assigns a particular official the responsibility of exercising the authority delegated to the BOP and its Director by statute. Although Petitioners provided statistics suggesting that this language ("unusual or extraordinary circumstances") has been interpreted strictly in some regions, including the BOP's Western Region (which encompasses FCI Sheridan), these statistics also indicate that greater numbers of prisoners in other regions have been placed in RRCs for longer than six months. These regional differences demonstrate that the BOP's rule allows staff to make individualized determinations and does not create a new binding rule of substantive law. Accordingly, we conclude that the challenged policies are not substantive rules; thus, they are not subject to the notice-and-comment requirements of § 553 of the APA.
The SCA does not require the BOP to make any placements in a RRC for longer than six months; the statute affords the BOP the option to make placements up to 12 months. Because the agency's construction is entitled to some deference under Skidmore, and because the BOP used its experience in placing prisoners in RRCs in crafting its policies, we conclude that the policies are based on a reasonable construction of the SCA. Similarly, although documentation and empirical evidence may be desirable, the BOP permissibly relied on its experience administering RRC placements in crafting its policies, and those policies are not arbitrary or capricious. Finally, because the challenged policies are not binding rules, but instead allow implementing officials to use their discretion in individual cases, the BOP was not required to promulgate the policies through the APA's notice-and-comment procedures.
The judgment of the district court is
18 U.S.C. § 3621(b).
18 U.S.C. § 3624(c).
42 U.S.C. § 17501(a)(5) (emphasis added).
