Calvern J. Bellis v. Randy J. Davis

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Calvern J. BELLIS, Shon Pierson, Brian T. Shields, David J. Miller, Thane Martin, George Cook, Ryan Scott Clark, Sean A. Winston, Tim Walker, and Christopher A. Lopez, Appellees, v. Randy J. DAVIS, Warden, Federal Prison Camp, Yankton, South Dakota; and Federal Bureau of Prisons, Appellants.

No. 99-1203, 99-1204, 99-1205, 99-1206, 99-1207, 99-1211, 99-1212, 99-1213, 99-1214, 99-1611

United States Court of Appeals, Eighth Circuit

Submitted: May 12, 1999. Decided: Aug. 10, 1999.

186 F.3d 1092

offer sound guidance“). Concerns of notice and fairness are particularly relevant for Title IX, which was enacted pursuant to the Spending Clause. See

Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 1669, 143 L.Ed.2d 839 (1999). Title IX is set in a contractual framework whereby educational institutions agree to the condition not to discriminate on the basis of sex in return for federal funding. See

Gebser, 118 S.Ct. at 1997. As noted, Title IX provides no notice that educational institutions will be subject to liability for prior events. It would be unfair to impose a greater duty than that which the educational institutions agreed to assume. Cf.

Martin, 119 S.Ct. at 2007 (finding that retroactive application would “upset the reasonable expectations of the parties“).

Gross argues in the alternative that retroactive application of Title IX is not necessary in her case because she did not realize “that she had been damaged” until July 8, 1994.⁵ Appellant‘s Brief at 18. Aside from the fact that this is not what the complaint alleges—the complaint alleges she “realized the existence of a cause of action for the first time“—the argument fails.

Gross‘s argument is legally insufficient because all alleged discrimination was completed well before the statute was passed. Delayed realization of damage or of the existence of a cause of action cannot create a cause of action which did not exist at the time the events occurred and which is clearly not intended to be applied retroactively. She could not have brought this action at the time the events occurred. Gross‘s interpretation would defeat congressional intent and put statutory interpretation, particularly that of retroactivity, into a tailspin producing bizarre results.

III. CONCLUSION

For the foregoing reasons, we affirm the decision of the district court.

Craig Peyton Gaumer, AUSA, Sioux Falls, SD, argued (Karen E. Schreier, United States Attorney, on the brief), for Appellant.

Mark V. Meierhenry, Sioux Falls, SD, argued, for Appellee.

Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

In these consolidated appeals, ten federal prisoners petitioned for a writ of habeas corpus, see 28 U.S.C. § 2241(a), against the U.S. Bureau of Prisons (BOP) and Warden Randy Davis of the Federal Prison Camp in Yankton, South Dakota. Each of the appellees has completed or is scheduled to complete the BOP‘s voluntary residential drug abuse treatment program, see 18 U.S.C. § 3621(b). The statute, see 18 U.S.C. § 3621(e)(2), authorizes the BOP to offer an early-release incen-tive to certain federal prisoners in order to encourage them to enroll in its voluntary drug abuse treatment program. The statute also provides that “[t]he 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,” see 18 U.S.C. § 3621(e)(2)(B).

To implement the statute, the BOP promulgated regulations and a program statement which together define inmates’ eligibility for the early-release incentive. See 28 C.F.R. § 550.58 and Federal Bureau of Prisons Program Statement 5162.04, (categorization of offenses) (Oct. 9, 1997). The regulations and the program statement identify two groups of offenses. The first consists of various federal offenses that the director of the BOP has determined to be “crimes of violence“; inmates convicted of these offenses are, by the terms of the statute, excluded from eligibility for the early-release incentive. See Federal Bureau of Prisons Program Statement 5162.04, §§ 1-2, §§ 5-6, § 9. The second is a group of crimes (called “director‘s discretion offenses“) a conviction for which renders an inmate ineligible for the early-release incentive. See 28 C.F.R. § 550.58(a)(1)(iv), § 550.58(a)(1)(vi)(A), § 550.58(a)(1)(vi)(B), § 550.58(a)(1)(vi)(C), and Federal Bureau of Prisons Program Statement 5162.04, §§ 1-2, § 5, § 7, § 9. It is this second group of offenses that is at issue in this appeal.

The regulations pertaining to “director‘s discretion offenses” state, inter alia, that inmates convicted of “a felony . . . [t]hat involved the carrying, possession, or use of a firearm or other dangerous weapon” are not eligible for early release. See 28 C.F.R. § 550.58(a)(1)(vi)(B). Section 7 of the program statement identifies more particularly the offenses that the director of the BOP has decided will preclude eligibility for early release. Relying on the regulations and the program statement, the BOP determined that the appellees were ineligible for the early-release incentive, either because they had been convicted of being a felon in possession of a firearm, or because they had received a sentencing enhancement under the federal sentencing guidelines for possession of a dangerous weapon during the commission of a federal drug offense.

In their petitions to the district court, the appellees contended that the BOP exceeded its statutory authority by categorically excluding inmates who were not convicted of violent offenses from eligibility for the early-release incentive. The district court granted the appellees’ petitions, and the BOP and the warden appeal. We disagree.

We have previously recognized that 18 U.S.C. § 3621(e)(2) vests broad discretion in the BOP to determine which individuals, among the group of statutorily eligible inmates convicted of nonviolent offenses, are appropriate candidates for early release. See

Love v. Tippy, 133 F.3d 1066, 1069 (8th Cir.1998), cert. denied,

524 U.S. 956, 118 S.Ct. 2376, 141 L.Ed.2d 743 (1998). The statute states only that the prison term of an inmate convicted of a nonviolent offense “may be reduced by the Bureau of Prisons” (emphasis added), see 18 U.S.C. § 3621(e)(2)(B). The language is discretionary and does not mandate that the BOP grant a sentence reduction to any particular inmate or class of inmates. Cf.

Morgan v. Rabun, 128 F.3d 694, 699 (8th Cir.1997), cert. denied,

523 U.S. 1124, 118 S.Ct. 1809, 140 L.Ed.2d 947 (1998) (finding “may” language in state statute discretionary). Under the plain language of this statute, “[c]ommission of a ‘nonviolent offense’ makes a prisoner eligible for consideration but does not . . . grant the boon he seeks. Eligibility is not entitlement.”

Bush v. Pitzer, 133 F.3d 455, 457 (7th Cir.1997).

Nor does the statute mandate that the BOP exercise its discretion by making individual, rather than categorical, assessments of eligibility for inmates convicted of nonviolent offenses. In fact, Con-gress expected the BOP to make early-release determinations “based on criteria to be established and uniformly applied,” H.R.Rep. No. 103-320 (section-by-section analysis), 1993 WL 537335 (Nov. 3, 1993). It is well settled, moreover, that where Congress has left a gap in a statute for an agency to fill, we defer to the agency‘s interpretation so long as it is a permissible construction of the statute. See

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-45, 866, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also

Love, 133 F.3d at 1069.

The BOP chose to exercise the discretion granted to it under the statute by identifying additional categories of inmates who are ineligible for the early-release program because, although their offenses may be “nonviolent” within the meaning of the statute, their underlying conduct indicates that they pose a serious risk to public safety. We think that the BOP‘s decision to exclude these additional categories of inmates from eligibility represents a manifestly permissible construction of the statute and an appropriate exercise of the BOP‘s discretion.

The appellees contend that the BOP‘s current regulations and the program statement interpreting the relevant statutory language are contrary to our decision in

Martin v. Gerlinski, 133 F.3d 1076 (8th Cir.1998). We disagree. In

Martin, 133 F.3d at 1078, we examined the portion of the statute that limits eligibility for early release to nonviolent offenders, see 18 U.S.C. § 3621(e)(2)(B). In striking down an earlier set of regulations that attempted to interpret the statutory term “nonviolent offense,” we held that the BOP must look to the offense of conviction, not to sentencing factors, in determining whether an offender was convicted of a “nonviolent offense” and thus eligible under the statute for the early-release incentive.

Martin, 133 F.3d at 1079-81. We did not, however, address the question at issue in this appeal, namely, whether the BOP may, as an exercise of its discretion, see 28 C.F.R. § 550.58(a)(1), look to sentencing factors in deciding which individuals among statutorily eligible inmates are appropriate candidates for early release.

Martin is therefore of no relevance to the present case.

We conclude that the BOP acted within its authority in excluding the appellees from the early-release program under 18 U.S.C. § 3621(e)(2). We therefore reverse the district court‘s grant of the appellees’ petitions, and remand with instructions to enter judgment consistent with this opinion.

Notes

5

Gross relies on the following provision of state law:

Any civil action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later.

S.D. Codified Laws § 26-10-25. But see

Egerdahl v. Hibbing Community College, 72 F.3d 615, 617-18 (8th Cir. 1995) (finding the applicable statute of limitations for Title IX to be the one used for section 1983 actions).

Case Details

Case Name: Calvern J. Bellis v. Randy J. Davis

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 10, 1999

Citation: 186 F.3d 1092

Docket Number: 99-1203, 99-1204, 99-1205, 99-1206, 99-1207, 99-1211, 99-1212, 99-1213, 99-1214, 99-1611

Court Abbreviation: 8th Cir.