Peck v. Thomas, 697 F.3d 767

Petitioners convicted as felons in possession of a firearm seek to invalidate BOP's § 550.55(b) exclusions from RDAP early release via habeas corpus under the APA.
The challenged regulation categorically excludes inmates with firearm offenses or certain prior conviction categories from eligibility for early release under 18 U.S.C. § 3621(e).
Prior circuit history and agency practice show the BOP repeatedly attempted to implement similar exclusions, with Arrington and Crickon later invalidating prior rationale lapses.
The BOP issued the 2009 rule codifying exclusions in § 550.55, which Petitioners challenge as failing to provide a adequate contemporaneous rationale.
The district court and the panel acknowledged the need to evaluate whether the BOP’s public-safety justification and record satisfy APA § 706(2)(A).
The court ultimately affirms the regulation, holding the BOP’s articulated rationale adequate and not requiring statistical empirical support.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the BOP satisfy APA § 706(2)(A)?	Petitioners argue the rationale is inadequate due to Arrington/Crickon defects.	BOP cured defects and provided a public-safety rationale in the record.	Yes; regulation upheld under the usual APA standard.
Are § 550.55(b)(5)(ii) and § 550.55(b)(4) valid under the APA?	Rationale for firearm-related and prior- conviction exclusions is insufficient or unsupported.	Rationale relies on public-safety concerns and common-sense judgments about recidivism and violence.	Yes; both exclusions are valid under the APA.
Should a heightened APA standard apply because of liberty interests?	Loss of liberty warrants heightened scrutiny.	No liberty interest in the RDAP reduction itself; standard review remains.	No heightened standard; ordinary APA review applies.
Does a misstatement in the accompanying Program Statement taint § 550.55(b)(5)(h)?	Legal-error in the Program Statement could infect the regulation.	No evidence the BOP relied on that error when enacting § 550.55(b)(5)(h).	No; regulation not infected by the program-statement error.
Was reliance on empirical statistics required in promulgation?	Crickon requires consideration of empirical data; failure invalidates.	BOP may rely on agency experience; empirical data not mandatory.	No.agency may rely on experience; statistics not required.

Davis v. Crabtree, 109 F.3d 566 (9th Cir. 1997) (firearms-related exclusion deemed reasonable previous agency action)
Lopez v. Davis, 531 U.S. 230 (S. Ct. 2001) (agency may consider preconviction conduct in exclusions)
Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) (invalidated 2000 rule for lack of rationale; requires reasoned basis)
Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009) (voided regulation for lacking articulation; emphasizes rationale necessity)
Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005) (discusses rulemaking and contemporaneous rationale)
Sacora v. Thomas, 628 F.3d 1059 (9th Cir. 2010) (agency may rely on experience without empirical studies)
Jacks v. Crabtree, 114 F.3d 983 (9th Cir. 1997) (upholds deference to agency discretion in interpretation)
Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000) (agency discretion to categorically exclude certain inmates)