*1 — U.S. —, statute at Ashcroft, binding authority S.Ct. odds with v. (2004), this court.8 nor Clark v. Mar 160 L.Ed.2d —
tinez, —, U.S. 125 S.Ct. AFFIRMED. (2005), address the relation L.Ed.2d 734 deference to the rule ship of Chevron Rather, both cases reference the
lenity. lenity concerning unrelated
rule of
dicta
Leocal,
n.
points. See “consistency” requires apply
(stating lenity to a that has
ing the rule of statute applica criminal and noncriminal
both
Clark,
tions);
(citing
at 724
S.Ct.
PAULSEN, III,
Clarence I.
lenity
to the rule of
in Leocal
reference
Petitioner-Appellee,
Thompson/Center
v.
and United States
v.
Co.,
and n.
Arms
504 U.S.
517-18
Camacho. The cases relied on do not do so. v. Daniels, Warden, Charles A.
IV Respondent-Appellant. Pacheco-Camacho established Jeremy James, Petitioner-Appellee, E.
phrase imprisonment” “term 3624(b)(1) ambiguous, reasonable, interpretation BOP’s Mujahid’s Daniels, Warden, is thus entitled to deference. Charles A. position Respondent-Appellant. on an interpretation rests of this ling. Mujahid's Mujahid filing petition fashioned his initial before Our denial of panel opening as both an brief and present prejudice record is without to review banc, hearing petition initial en should timely on a basis. conclude that Pacheco-Camacho is control- *2 Leonard, Petitioner-Appellee, Grier, Earl Petitioner-
Karlos Lamar Appellee, v.
v. Daniels, Warden, A. Charles Respondent-Appellant. Warden, Crabtree, Federal Joseph Sheridan, Institution, Correction Norgaard, R. Petitioner- Charles OR, Respondent-Appellant. Appellee, Petitioner-Appellee, Lee, Robert Shawn v. Daniels, Warden, A. Charles
v. Respondent-Appellant. Hood, Respondent-Appellant. Robert Furnas, Allen Petitioner- Robert Petitioner-Appellee, Johnson, Adrian L. Appellee, v. v. Warden, Daniels, A.
Charles Warden, Daniel, A. Charles Respondent-Appellant. Respondent-Appellant. 03-35360, 03-35356, 03-35337, 03- Nos. Petitioner-Appellee, Mujahid, M. Sabil 03-35352, 03-35351, 35355, 03-35354, v. 03-35346, 03-35350, 03-35349, 03-35347, 03-35341, 03-35340, 03-35344, 03-35343, Daniels, Warden, A. Charles 03-35339 Respondent-Appellant. . Appeals, United States Court Petitioner-Appellee, Jones,
Jacob Ninth Circuit. v. April 2005. Argued and Submitted Daniels, Warden, A. Charles Filed June Respondent-Appellant. Subia, Petitioner-Appellee, Vincente
v. Warden, Daniels, A.
Charles
Respondent-Appellant. Tuite, Petitioner- Robert
Jason
Appellee, Hood, Warden, Respondent-
Robert A.
Appellant. Moore, Petitioner-Appellee,
Sean
.v Daniels, Warden,
Charles A.
Respondent-Appellant.
I chapter is the latest This concerning of cases cre- series purpose sup- by Congress ated pris- substance abuse treatment plying burgeoning faced with a oners. population incarcerated prison federal offenses and evidence that drug-related pro- abuse treatment prison substance recidivism, sharply Congress grams reduce to “make available required the Bureau *4 treatment for appropriate substance abuse Gannon, Department Thomas M. Jus- the Bureau determines has a prisoner each Division, D.C., tice, Washington, Criminal condition of substance addiction treatable respondents-appellants. for the 1990, Control Act of or abuse.” Crime Sady, Deputy R. Chief Federal Stephen 101-647, 2903, 4789, § Pub.L. Stat. Defender, Portland, OR, for the (codified Public as amended at 18 U.S.C. petitioners-appellees. 3621(b)). by an apparent § Concerned interest, Congress amend- program
lack of provide in 1994 to federal ed the statute a prisoners complete with incentives pro- Bureau substance abuse treatment of in- gram by authorizing the reduction “convicted of a prisoners carceration for successfully who com- nonviolent offense” program. pro- such a The incentive pleted a con- period prisoner reads: “The vision remains in victed of a nonviolent offense successfully completing a custody after may be reduced program treatment Prisons, may Bureau of but such reduction BEEZER, THOMAS, and Before W. year than one from the term not be more FLETCHER, Judges. Circuit prisoner must otherwise serve.” Vio- lent Control and Law Enforcement Crime
THOMAS, Judge. Circuit 103-322, 32001, § Act of Pub.L. (codified at 18 U.S.C. Stat. whether the We consider 3621(e)(2)(B)). § (“Bureau”) violated the Bureau of Prisons (“APA”) published The Bureau Procedure Act Administrative early release incentive one adopting regulation pertaining implement an interim year prisoners later. The Bureau defined early to an release incentive nonviolent successfully who had not been convicted of a prisoners who had federal ineligible early program. offense and thus were completed a substance abuse prisoners as those who were cur court cor- We conclude district committing a crime rently incarcerated for rectly the Bureau violated the held APA, of violence as defined 18 U.S.C. petitioners and that the were enti- 924(c)(3). (1995); § 550.58 28 C.F.R. tled to relief. 27,692, 27,695. 15,1997, Follow December and that Fed.Reg. the comments see 60 regula would be considered before final promulgation action ing tion, differ was taken. Appeals reached the Courts question on the of whether
ing conclusions
22, 2000,
On December
the Bureau re
had discretion to further defíne
the Bureau
placed
the 1997 interim
with a
involving
as an offense
a crime
violence
final regulation,
adopted
which
the 1997
firearm,
eligibility
exclude from
and thus
regulation without change. See 65 Fed.
pris
for the
release incentive those
80,745.
Reg.
commentary
The
accompany
were incarcerated for such of
oners who
ing
the final
noted that the Bu
Davis,
Lopez v.
fenses. See
U.S.
reau had received approximately 150 com
234-35, 121
trict Court A peti and dismissed nied motions plainly Bureau violated the The Hood, 2001 WL tions. See Gavis of the 1997 inter promulgation APA in its (D.Or.2001). We reversed requires agencies regulation. im Hood, 46 court in Grier v. Fed. district it de procedures certain when follow (9th Cir.2002), holding Appx. (1) rule, publish including: cides to issue a should have been allowed rule-making in ing proposed notice of the pursuant petitions amend their habeas 553(b); § Register, the Federal 5 U.S.C. 15(b), allowing as such Fed.R.Civ.P.. (2) per for interested providing period not be futile. amendments would rule, proposed sons to comment on the Daniels, F.Supp.2d In Bohner v. comments will be considered which (D.Or.2003), the district on re court rule, id. at agency prior adopting petition of Dennis W. considered mand 553(c); adopted publishing § held that the Bureau’s 1997 Bohner and thirty days before its rule not less than 553(b) (d) section regulation violated date, exceptions that effective with certain APA,1 the APA violations were 553(d). here, id. at applicable are not *6 706, § under 5 and there harmless APA, enacting -Congress “In regulation was invalid. Id. fore the judgment made a that notions of fairness granted 1175-77. The court district decisionmak- and informed administrative petitioner’s motion to amend his habeas agency decisions be made petition ing require for a petition granted and his writ affording persons interested no Following only at 1179. after corpus. of habeas Bohner, opportunity an to comment.” court tice and reasoning in district (B) agency good part: §. cause finds provides, in relevant when 1. 5 U.S.C. 553 (and finding incorporates the and a brief (b) making proposed rule General notice of rules published Register, statement of reasons therefor in the be in the Federal shall issued) persons subject public procedure thereto are named unless that notice and personally or otherwise and served unnecessary, either impracticable, thereon are accordance have actual notice thereof in contrary public or interest. with law. The notice shall include— time, (1) place, a statement of the and (d) required publication or service of a making proceedings; public nature of rule than substantive rule shall be made not less (2) legal authority reference to under date, except— days effective before its proposed; which the rule is and (1) grants or a substantive rule which (3) terms or substance of the either the recognizes exemption a re- an or relieves proposed description sub- rule or a striction; jects and issues involved. (2) interpretative rules and statements of Except hearing required when notice or policy; or statute, apply does not this subsection —‘ provided by agency as otherwise rules, (A) interpretative general to state- good published and cause found agency organ- policy, ments of or rules of the rule. ization, procedure, practice; or Brown, 281, promulgation 441 U.S. of the interim rule and Chrysler Corp. v. hav- 1705, (1979); 316, ing 60 L.Ed.2d an to opportunity comment on the rule Farms, v. Riverbend Inc. Madi see also applied before it was to them. The Bu- (9th Cir.1992) gan, 958 F.2d argues requirement reau that this was sat- (“[T]he requirements comment notice and petitioner isfied because each had at least partic designed public ... are to ensure thirty days notice between when the 1997 rulemaking.”). in It is antithetical ipation regulation was made effective and when purpose of the APA to the structure applied was to him. first, a rule agency implement for an The Bureau’s 1997 interim and then seek comment later. The district prior was made effective publication its correctly concluded that the Bureau court Register. in the Federal Although 553(b) (d). Bohner, violated comments, Bureau solicited those com F.Supp.2d at 1175.2 ments were not taken into account before the 1997 interim made ef B fective; rather, these comments were con Although the Bureau does not prior promulgation sidered of the 2000 that it the APA seriously contest violated final regulation. procedural These viola rule, promulgating in the 1997 interim tions of the APA threatened petitioners’ standing that the lack argues petitioners public concrete interest to have the partici satisfy injury “To challenge the rule. pate rulemaking that made them a[petitioner] asserting requirement, fact ineligible for sentence reduction. The injury that ‘the must show deny effect was to them designed procedures question are sentence reduction. The clear protect some threatened concrete interest ly injury have sustained fact afford of his that is the ultimate basis of his ” ing standing petit them to file their habeas Beach, standing.’ City Long Cantrell v. ions.3 (9th Cir.2001) (quoting Lujan Wildlife, 504 U.S. Defenders of 573 n. 112 S.Ct. 119 L.Ed.2d C (1992)). argues peti The Bureau The Bureau contends its viola they tioners cannot demonstrate that suf *7 fact, tions of the APA’s notice and comment injury contending fered an in only requirements in were harmless because no petitioners’ concrete interest was receiving petitioner ineligibility advance notice of the Bureau’s was advised of his relief, Although argument filing corpus 2. in oral Daniels seemed on the initial for habeas violated, question to APA was destroyed whether the by a transfer of the and it is not opening Daniels did not raise this issue in his accompanying petitioner and the custodial brief; therefore, Daniels has waived this is- Rison, change.” v. 894 F.2d 354 Francis Kama, See United States v. 394 F.3d sue. (9th 1990) (quoting Cir. Santillanes v. United Cir.2005) (9th ("Generally, an is- Comm’n, States Parole 754 F.2d appellant sue is waived when the does not (10th 1985)) (internal quotations marks Cir. specifically distinctly argue and the issue in omitted). argues that The Bureau also Boh brief.”). opening his or her However, ner’s case is moot. it concedes the possibility supervised that Bohner's term of ju 3. Bureau also contends that we lack The might reduced or as a release be modified petitioner risdiction over Bohner's be decision; therefore, this case result of the is serving supervised cause he is now term of Hood, v. not moot as to Bohner. Gunderson Oregon. outside release the District (9th Cir.2001). 268 F.3d Bureau is mistaken. attaches "[J]urisdiction interim tions that were before us Idaho Farm under the 1997 Babbitt, advance 58 F.3d until after a reasonable Bureau Federation (9th Riverbend, Cir.1995), period Sage would have ex- 1392 or notice-and-comment Rebellion, complied the Bureau harm pired, had brush in which we found requires us to take “due APA. The error. less rule. account” of the harmless error See Bureau, In Farm we held that Idaho 706; Riverbend, F.2d at (“FWS”) the Fish and Wildlife Service’s However, in River- as we stated by Endangered Species failure to abide bend, we: (“ESA”) actual notice of the give Act great applying must exercise caution proposed regulation listing of the —the rule in the adminis- the harmless error Springs an endan- Bruneau Hot Snail as rulemaking trative context. The reason gered species under the ESA—to apparent: Harmless error is more is county Commissioner one which readily than in the civil or abused there Springs to was a Snail was believed inhabit agency criminal trial context. An is not APA. at 1405. harmless error under the Id. required adopt a rule that conforms provide The failure to actual notice to the any way to the comments presented because, Commissioner was harmless al- reasons, long explains it. as it its So though the did not receive Commissioner may adopt a rule that all commentators notice, pro- actual he was aware of the Thus, stupid unnecessary. think or if posed regulation, by demonstrated his as the harmless error rule were to look presenting petition opposing listing result, always solely agency could testifying public hearings at adopted the claim that it would have Therefore, proce- matter. the FWS’s complied same rule if it had even bearing pro- dural had no on the violation gutting To procedures. the APA avoid used, rendering cedure mistake FWS’s requirements, the APA’s harmless. analysis in administra- harmless error rulemaking must therefore focus on tive Riverbend, we considered the claim process as well as the result. We group of a of domestic handlers of navel to provide have held that the failure oranges challenged procedure who only notice and comment is harmless Secretary Agriculture used agency’s “clearly where the mistake had market. regulate orange the navel bearing procedure no on the used F.2d at 1482-83. We determined substance of decision reached.” Secretary’s rulemaking satisfy failed to Sagebrush Re- (quoting 958 F.2d requirements APA’s because the Secre- bellion, Hodel, Inc. v. 764-65 tary good did not cause for demonstrate *8 (9th Cir.1986)). failing give to sufficient notice in the Fed- weekly Orange Register eral of the Naval
Here,
clearly
the
mistake
had
Bureau’s
(“NOAC”)
Administrative
Committee
bearing
procedure
on the
used. The
meetings in which NOAC settles on what
APA
Bureau’s violation of the
was not
give
Secretary
recommendation to
technical;
pro
Bureau failed to
merely
the
following
for
volume restric-
the
week’s
pe
notice-and-comment
required
vide the
tions;
Secretary
and
the
failed to allow
effectuating the 1997
riod before
interim
public
by
the
to comment
means other
thereby
par
regulation,
precluding public
Therefore,
than
at
rulemaking.
personal participation
the NOAC
ticipation
the
meetings.
provided
Id. at 1487.
the situation here is not similar
situa
We
why
ability
participate
in the decision-mak-
as to
the Secre-
following explanation
ing process. Id. at 764-65.
We noted
tary’s error was harmless:
public that
“[t]he same
would comment on
ground
us knew
parties
all
before
proposed
administrative withdrawal
an annual
there would be
rules:
would in all likelihood comment on a con-
weekly
setting proposed
position paper
withdrawal,
gressional
since the
of
impact
restrictions;
the NOAC
volume
all
persons
both actions on
concerned
Tuesday during the
every
meet
would
period
would be identical for a substantial
season;
for de-
starting point
that the
(footnote
of time at least.”
Id. at 765
Tuesday meetings
at
would
bate
those
omitted).
addition,
hearings provid-
In
for that week in the
figure
be the
listed
public
with the opportunity
ed
to com-
(or in the NOAC’s
position paper
annual
ment on
congres-
both administrative and
it); that
would
versions of
there
updated
Therefore,
sional withdrawal.
Id.
we held
at
public
comment
opportunity
be
procedures
that the
used were unaffected
fi-
Tuesday meetings; and that the
by
deficiency.
the notice’s
would be issued
nal volume restrictions
This
by
Secretary soon afterwards.
The distinction between Idaho Farm
existed for decades
system regulation
of
Riverbend,
Bureau,
Sagebrush Rebellion
challenge;
only
it was
after
without
and the situation we consider here is
into
some handlers ran
trouble
clear,
quite
and it is this distinction that
that, in look-
Agriculture
Department
procedur
makes the difference between a
they came with this
ing
escape,
up
for an
al violation of the APA that
is harmless
they
right that the
challenge. While
are
and one that is not.
in the three
Whereas
Secretary
comply
must
with some
cases,
parties
aforementioned
interested
their be-
requirements,
APA’s technical
sufficiently
received some notice that
en
lack of
challenge
lated
is evidence
participate
abled them to
in the rulemak-
Secretary’s
from the
prejudice resulting
ing process
agency
before the relevant
past thirty-five
in the
failure to do so
rule, here,
adopted
petitioners
were
years.
fact,
given
opportunity.
no such
In
petitioners
any
received no notice of
kind
(footnotes omitted).
Id. at 1487-88
in
until after the Bureau made the 1997
Rebellion,
Sagebrush
determined
terim rule effective. That
had
by
Secretary
notice
provided
that the
already-ef
opportunity
protest
an
concerning
proposed
of the Interior
ap
prior
fective rule
to the time was
withdrawal of the Snake River Birds of
plied to each of them does
render
Prey National Conservation Area from the
Chrysler,
harmless. See
violation
operation
public
mining
laws
313-16,
1705;
River
U.S. at
technically deficient under the Federal
bend,
Thus, here,
Policy Management
Land
Act of
bearing
the Bureau’s mistake had a
sufficiency
drawing on the standard
used,
procedure
and this mistake was
APA. 790
rulemaking
notice of
under the
not harmless.
Nonetheless,
F.2d at 764.
we decided
Schweiker,
that the lands
Buschmann v.
partment Wel- FWS procedures fare failed to conform to the in remedies its error order to 553(b) (d) of required by section prevent potential extinction of the proposing APA when an amendment to a Oil, Snail); 633 F.2d at Springs Western regulation concerning sup- the valuation of in (leaving challenged desig 813 effect the in port and maintenance household situa- designated geographi nation —that certain eligi- tions that affected certain individuals’ failing cal in California as to meet areas Security Income benefits. bility for Social quality during federal air reen standards — Secretary give did not Id. at 356. The process actment of the deliberative “to an thirty-day provide advance notice of or thwarting unnecessary way avoid in an public for the comment opportunity operation of the Clean Air Act State prior to its effec- proposed amendment during the time the California delibera that date. Id. We concluded this er- tive reenacted”). process tive is The district and held that ror was not harmless correctly proper court concluded that the interim amendment was invalid. Id. at remedy was to hold the Bureau’s 1997 provides Buschmann the critical interim invalid. and leads to the analysis inquiry for our determination the APA vio- inevitable invalidating agency The effect in this case. lation was not harmless previously rule to reinstate the rule Smoking force. Action on & Health v. D Bd., 795, F.2d Civil Aeronautics 713 797 the Bureau violated Given (D.C.Cir.1983). previ the rule Because APA, and that the violation was force, ously in regulation, 1995 errone harmless, question of reme turn we ously interpreted 18 dy. “Ordinarily when is not 3621(e)(2)(B), Downey, see 100 F.3d at APA, compliance promulgated 668, applicable rule is the final rule is invalid.” Idaho Farm 22, that was effectuated on December Bureau, 1405; 58 F.3d at see W.C. v. Bow subsequent 2000. The enactment of the (9th en, 1502, Cir.1987), 807 F.2d 1505 only final can prospective rule have effect. (9th Cir.1987); by, F.2d amended 819 237 Bowen, Georgetown Hosp. Univ. Buschmann, 355-56; 676 F.2d at Western (D.C.Cir.1987), F.2d on other aff’d EPA, Oil & Gas Ass’n v. 633 F.2d grounds, 488 U.S. 109 S.Ct. (9th Cir.1980); Grier, Fed. see also (1988). Therefore, L.Ed.2d 493 the 1997 occasion, n. 2. have Appx. at 439 On interim is invalid as those equity requires an invalid determined persons disqualified by prior to the issu stay “a strict recon place rule while ance of the final rule. procedural rights” struction of and “a re process enactment of the deliberative Ill provision petitioners’ par for the
correct Oil, is achieved. ticipation” Western sum, entirely the district court was F.2d at 813. correct in its conclusion. affirm the We This is not one of those occasions be judgments of the district court in the con- impossible. cause such a reconstruction is granting corpus solidated cases the habeas Bureau, See Idaho Farm 1405- petitions. (holding equity desig demands the an endan AFFIRMED. Springs nation of the Snail as
1009 Cir.2001). (9th BEEZER, concurring. F.3d Judge, 1218 We construed Circuit petitioner the in contesting Grassi as court. opinion in the of the I concur the 1997-interim whether com- appeal was last time this consolidated The APA plied procedural requirements. us, to observe a separately I wrote before declined, however, Id. at We application in case law over the tension our petitioner decide that issue because the Act Administrative Procedures of the challenge failed to also va- (“APA”) Program of to a Bureau Prison’s Statement, lidity Program of the 1997 Hood, 46 Fed. See Grier v. Statement. that, “independent as document[]” rele- Cir.2002) (9th (Beezer, J., Appx. 440 here, separately vant excluded from the again I once concurring). separately write early program release same class remains unre to note that this tension in prisoners regula- described the interim solved. tion. Id. held that petitioner We not entitled to relief because the interim I regulation’s compliance with APA had This court’s invalidation of the Bureau’s “continuing validity” “no effect” on the the culmina- 1997 interim marks Program Statement. Id. at 1221-22. Bu- challenges of a series of to the tion result, this not perhaps Given sur- year concerning prison- actions that reau’s prising Program that the 1997 Statement eligibility early program. er for an subject itself next became the of an APA eligibility criteria The Bureau detailed Hood, challenge. We held Gunderson v. separate in two docu- for this (9th Cir.2001), 1155 that the ments, other within a week of each issued Program comply Statement need not Hood, F.3d in 1997. See Gunderson v. merely because it was inter- (9th Cir.2001). 1149, 1151 The documents (the preting a substantive and a consisted of an interim regulation) subject interim that was Program Prisoners have new Statement. reading Program APA. Far from arguing with the Bureau over the been authority separate capable Statement as a documents, gov- validity of these which pris- outlining policy disqualifying collectively ernment on refers to as regula- interim independent oners of the rule,” interim ever since. the “1997 tion, Program concluded that the State- interim challenges The first the 1997 clarify explain ment “did no more than grounds. on substantive Prison- rule were (internal existing quotation law.” Bureau exceeded its argued ers omitted). again marks and citation We establishing discretion in certain re- prisoner. relief to the denied requirements. lease We held proper 1997 actions were a use II Hood, Bowen v. Bureau’s discretion. prior stage cases set the for the These (9th Cir.2000). 1211, 1220 The Su- F.3d goal of the current present lawsuit. Davis, preme agreed. Lopez Court See petitioners, like that of the 531 U.S. Gunderson, invalidate the Grassi and is to (2001). L.Ed.2d 635 policy of the 1997 Bureau application difference, of challenged procedur- prison Prisoners next their sentences.1 The course, challenges validity previous al of the interim rule. The first between the Hood, one is that here we hold favor challenge occurred Grassi v. court, agency's attempt opinion policy was first 1. As noted in the *11 .But I note that so petitioners. America, addressing holding, again we once avoid UNITED STATES of the tension between Grassi Gunder- Plaintiff-Appellee, explain do not how particular, son. regulation ‘quali invalidating the interim- when, un petitioners for relief
fies these VO, Defendant-Appellant. K. Rick Gunderson, Program Statement is der subject not itself No. 03-10699. Grassi, and, under remains requirements Appeals, United States Court of excluding prisoners adequate basis early program, indepen release Ninth Circuit. from the See 46 regulation. dent of the interim Nov. 2004. Argued Submitted (Beezer, J., concurring). Fed.Appx. at 441 ques simple There is a answer this Filed June tion, at as far as the cases before us least on chal are concerned: no one
lenges the district court’s conclusion may not be program statement[]
“the deny petitioner[s] early release.”
used to Daniels, F.Supp.2d
Bohner v. (D.Or.2003).2 I remain'unconvinced language supports in Grassi this
conclusion, any recognize other but may
solution be more at odds with even impor
either Grassi Gunderson. More
tantly, by contesting point not this holding, government court’s
district
appears to concede that Grassi does
prevent granting peti from relief to the us I to take
tioners. see no reason issue
such a concession.
Grassi,
disqualify
ly barring
per
from the
as
relief
involving
prisoners incarcerated for crimes
Program
Statement must be treated as a
possession
rule,”
of a
But it was the
firearm.
"legislative
require
which would
com-
substantively
to be a
valid
first
held
Bohner,
pliance
procedures.
with APA
See
excluding
prisoners.
basis for
class of
this
F.Supp.2d
at 1178-79. The Bureau’s
Bowen,
(discussing
at 1217
See
202 F.3d
procedures prevented
failure to follow these
it
Crabtree,
(9th Cir.1997);
Davis v.