Dаrrell Lee BROWN, Petitioner-Appellant, v. Richard H. RISON, Warden, et al., Respondent-Appellee.
No. 88-5535.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 9, 1989. Decided Jan. 23, 1990.
AFFIRMED.
Charles D. Weisselberg, William J. Genego, Tracy Dressner, Law Student, Post-
David C. Scheper, Asst. U.S. Atty., Los Angeles, Cal., for respondent-appellee.
Before WALLACE, CANBY and REINHARDT, Circuit Judges.
CANBY, Circuit Judge:
Darrell L. Brown appeals the dismissal of his petition for a writ of habeas corpus. 673 F.Supp. 1505. He contends that the federal Bureau of Prisons erroneously refused to credit his sentence for time spent in custody of a community treatment center prior to his sentencing. We reverse.
BACKGROUND AND PROCEDURAL HISTORY
Darrell L. Brown was arrested on charges of conspiracy to distribute cocaine and possession with intent to distribute cocaine,
Brown was sentenced on July 28, 1986, after spending 306 days at the center. The Bureau of Prisons credited his sentence with the 15 days he spent in county jail, but did not crеdit his sentence with the time spent at the community treatment center. Brown is scheduled for mandatory release on June 1, 1990. He has made several attempts to receive credit for the 306 days spent at the center.
In April, 1987, Brown filed a motion with the sentencing court requesting sentence credit for the time served at the center. The court stated that “insofar as this Court has the authority to grant defendant‘s motion, it wishes to do so,” and ordered that Brown receive credit for the 306 days spent in custody of the center. The Bureau refused to credit his sentence.
On June 7, 1987, Brown filed an “Informal Resolution” request with his correctional counselor. The counselor explained to Brown that the sentencing court did not have the authority to credit his sentence, and that under the Bureau‘s Program Statement No. 5880.20, time spent at a community treatment sentence was not time spent in custody for purposes of sentence credit. The counselor advised Brown that if he was not satisfiеd with this response, he should follow the Bureau‘s administrative procedures.
The Bureau of Prisons has established a three-step procedure for formal review of inmate complaints relating to any aspect of imprisonment. See
On June 9, 1987, Brown filed a form BP-9 with the warden. On June 19, 1987, the warden responded in the same manner as the correctional counselor, stаting that Bureau Program Statement No. 5880.24 controlled sentence credit, and under those guidelines Brown could not receive sentence credit. He stated that a copy of Brown‘s order from the sentencing judge, ordering sentence credit for the 306 days, had been forwarded to the Bureau‘s General Counsel. He also еxplained that the Bureau was pursuing a court appeal of the issues Brown had raised. Brown did not pursue the second and third steps of the administrative procedure. Instead, he filed this petition for a writ of habeas corpus,
DISCUSSION
A. JURISDICTION; EXHAUSTION OF ADMINISTRATIVE REMEDIES
We must address a threshold jurisdictional issue before we turn to the merits. Brown‘s failure completely to exhaust the Bureau‘s three-part grievance procedure does not divest us of jurisdiction. The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not а statutory requirement. See Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985); Montgomery v. Rumsfeld, 572 F.2d 250, 252 (9th Cir.1978). Because exhaustion is not required by statute, it is not jurisdictional. Morrison-Knudsen Co., Inc. v. CHG Int‘l, Inc., 811 F.2d 1209, 1223 (9th Cir.1987), cert. dismissed, ___ U.S. ___, 109 S.Ct. 358, 102 L.Ed.2d 349 (1988); Montgomery, 572 F.2d at 252. Accord Harris v. Martin, 792 F.2d 52, 54 n. 2 (3d Cir.1986) (court reached the merits despite petitioner‘s failure to exhaust his administrative remedies, implying that the exhaustion requirement is not jurisdictional); Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983).
Where exhaustion of administrative remedies is not jurisdictional, the district court must determine whether to excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court. Because the government did not cross appeal on any grounds, and did not otherwise discuss this issue in its brief or argument, we neеd not review the district court‘s finding that exhaustion was excused in this case. See Miller v. Fairchild Ind., Inc., 797 F.2d 727, 738 (9th Cir.1986).
B. INTERPRETATION OF 18 U.S.C. § 3568
Brown contends he should receive credit for the time he spent at the community treatment center because he was then in “custody” for purposes of
The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.
The statute does not define the term custody. The legislative history does not provide much guidance on whether specific types of detention constitute custody. The Bureau‘s position is that rеsidence in a community treatment center does not meet the “custody” requirement of
“In custody” is defined, for purposes of this program statement, as physical incarceration in a jail-type institution or facility ...
Time spent in residence in a residential community center ... under the provisions of
18 U.S.C. § 3146 as a condition of bail or bond, including the “Pretrial Services” program (18 U.S.C. §§ 3152 -3154 ), is not creditable as jail time since the degree of restraint provided by residence in a community center is not sufficient restraint to constitute custody within the meaning or intent of18 U.S.C. § 3568 .
We recognize that we must accord substantial deference to an interpretation of section 3568 by the agency charged with its administration, and must accept that interpretation if it is a reasonable one. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). We also recognize that the term “custody” may vary in meaning when used in different cоntexts. See Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir.1989). But for purposes of section 3568, we cannot accept as reasonable a definition of “custody” that excludes enforced residence under conditions approaching those of incarceration; to do so would be contrary to the considerations of fairness that must have underlain Congress‘s provision of credit for time served.
“To a normal English speaker, even to a legal English speaker, being forced to live in a halfway house is to be held in ‘custody‘.” Ramsey, 878 F.2d at 996. Having so observed, the Seventh Circuit nevertheless deferred to the Bureau of Prisons, noting both the “chameleon” nature of the term “custody” and the judgment involved in its application. Id. We understand both considerations, but reject them. The “ordinary and obvious meaning of [a] phrase is not to be lightly discounted.” INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1986). More important, however, is the fact that the conditions of Brown‘s confinement to the treatment center fall convincingly within both the plain meaning аnd the obvious intent of “custody” as it is used in section 3568.
During his stay at the treatment center, Brown was required to spend each evening and night, from 7 p.m. to 5 a.m., at the center, without outside contact. He was subject to all of the center‘s regulations. In addition, he had to maintain his employment, restrict his travel, and be subject to drug testing. The сenter‘s duty of supervision was established by its contract with Pretrial Services; the center was required to report any violations of Brown‘s release conditions to the United States Marshal. Brown was subject to this regime for 306 days prior to his sentencing.2
We conclude that it is not reasonable to rule, as the Bureau of Prisons has, that Brown‘s 306 days of enforced and supervised residence were not “days spent in custody in connection with the offense or acts for which sentence was imposed.”
We reverse and remand to the district court with instructions to grant the writ.
REVERSED AND REMANDED.
I concur in part A of the majority opinion. Because I find the Bureau of Prisons‘s interpretation of
The statute does not contain an explicit definition of the disputed phrase “in custody.” Using a dictionary definition, Brown‘s time in the rehabilitation center might or might not be said to be “in custody.” In some respects, the conditions of his residence at the center imposed substantial restrictions on his freedom: Brown was required to be present, without outside contact, from 7 p.m. to 5 a.m.; he could not travel beyond a three-county area; he had to maintain a job and undergo regular drug testing. On the other hand, his position hardly resembled that of someone in jail: he was restricted to the center only at night, and could move freely (subject to the three-county limitation) without oversight during the day. I do not think that the clear language of the statute compels a resolution either way.
The legislative history is similarly unhelpful. The relevant phrase was inserted in the statute as part of the Bail Reform Act of 1966. The stated intent was to correct the inequity arising when a person who could not make bail spent a longer time in jail (before and after conviction) than a person who could qualify for bail, even though the two received an identical sentence for an identical offense. See H.R. Rep. No. 2058, 86th Cong., 2d Sess. 1-2, reprinted in 1960 U.S.Code Cong. & Admin. News 3288, 3288-90; H.R.Rep. No. 1541, 89th Cong., 2d Sess. 4, 16, reprinted in 1966 U.S.Code Cong. & Admin.News 2293, 2294, 2306. It thus appears that Congress was drawing a line between those out on bail and those still “in custody“—however “custody” is defined. Congress probably did not contemplate the situation of a person such as Brown, who was out on bail but nevertheless subject to significant restrictions on his freedom.
When the text and the legislative history of a statute are unclear upon a particular point, we grant “great deference to the interpretation given the statute by the officers or agency charged with its administration.” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) (Udall). “To sustain [an agency‘s] application of [an ambiguous] statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.” Id., quoting Unemployment Commission v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946). Our sole inquiry is whether the agency‘s construction of the disputed term is a “reasonable one.” Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984).
Thе Bureau of Prisons concluded that time spent in rehabilitation centers before trial “is not creditable as jail time since the degree of restraint provided by residence in a community center is not sufficient restraint to constitute custody within the meaning or intent of 18 USC 3568.” Bureau of Prisons Program Statement MISB No. 5880.24 § 5(b)(5) (September 5, 1979). The Bureau relied upon judicial authority, from this circuit and elsewhere, establishing that time spent on bail—even with significant restrictions—does not constitute time spent in custody for purposes of jail credit. In United States v. Robles, 563 F.2d 1308, 1309 (9th Cir.1977), cert. denied, 435 U.S. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978), Robles was placed on bail with restrictions which required him to obey all laws and court orders, remain within the jurisdiction unless the court granted permission to travel, and keep his attorney informed about his address and employment. We held that such restriction did not place Robles “in custody” for purposes of section 3568. Id.; see also Polakoff v. United States, 489 F.2d 727, 730 (5th Cir.1974) (time spent on “highly restricted bond” does not meet section 3568 custody requirement); United States v. Peterson, 507 F.2d 1191, 1192 (D.C.Cir.1974) (custody for section 3568 purposes “mеans detention or imprisonment in a place of confinement“).
Brown‘s residence at the center, while imposing significant restrictions, was a condition of his bail. The restraint upon his freedom was substantially less than it would have been had he remained in jail. It might well be reasonable to treat the rehabilitation center as a place of confinement. However, I cannot say that it was unreasonable not to do so, and thus to deny Brown jail credit. We should not overturn an agency determination when the agency selects one of several competing reasonable interpretations. Udall, 380 U.S. at 16, 85 S.Ct. at 801. I would affirm the ruling of the district court.