Mora-Meraz v. Thomas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO MORA-MERAZ, 

Petitioner-Appellant, No. 09-35413

v.

 D.C. No.

3:08-cv-00709-HA

J. E. THOMAS, Warden, FCI

Sheridan, OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, Senior District Judge, Presiding

Argued and Submitted

March 3, 2010—Portland, Oregon

Filed April 14, 2010

Before: Richard A. Paez, Richard C. Tallman, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Tallman

5591

5594 MORA-MERAZ v. THOMAS

COUNSEL

Stephen R. Sady, Lynn Deffebach (argued), Office of the Fed-

eral Public Defender for the District of Oregon, Portland, Ore-

gon, for the petitioner-appellant.

Kent S. Robinson, Kevin Danielson, Suzanne A. Bratis

(argued), Office of the United States Attorney for the District

of Oregon, Portland, Oregon, for the respondent-appellee.

OPINION

TALLMAN, Circuit Judge:

Antonio Mora-Meraz (“Mora-Meraz”), a federal prisoner in

the custody of the United States Bureau of Prisons (the “Bu-

reau”), appeals the denial of his § 2241 petition for habeas

corpus relief. He was convicted of possession of cocaine with

the intent to distribute, and was sentenced to 120 months of

incarceration. In the district court, he challenged the Bureau’s

decision to deny him eligibility for admission to the Residen-

tial Drug Abuse Program (the “RDAP”) at the Federal Cor-

rectional Institution at Sheridan, Oregon.

The RDAP is an intensive drug abuse program requiring a

minimum of 500 hours of treatment apart from the general

prison population. Program Statement 5330.10, Chapter 5.1.1

The program utilizes both individual and group therapy ses-

sions and lasts for six to twelve months. Id. Additionally,

1

The Bureau has subsequently repealed Program Statement 5330.10,

and has now issued new policy statements governing psychology treat-

ment programs and RDAP early release benefit procedures. However,

these new policy statements took effect on March 16, 2009, and are not

retroactive. Because Program Statement 5330.10 was in effect during the

Bureau’s evaluation of Mora-Meraz, it is the relevant program statement

for this case.

MORA-MERAZ v. THOMAS 5595

individuals enrolled in the RDAP are required to complete

transitional courses in a community-based program once

placed in a halfway house or on supervised release. Id. The

RDAP is attractive to prisoners because, as an incentive to

participate in substance abuse rehabilitation, it grants up to

one year sentence credit to those who successfully complete

it.

Before the district court, Mora-Meraz claimed that the

Bureau’s unwritten requirement that he present documented

proof of substance use within twelve months of imprisonment

was invalid because it was not subject to notice and comment

as required by the Administrative Procedure Act (“APA”),

and because the Bureau failed to articulate a rational explana-

tion for the requirement. We hold that the Bureau did not run

afoul of the APA’s procedural requirements and affirm the

district court’s denial of Mora-Meraz’s petition for habeas cor-

pus.2

I

A

Congress has outlined the terms of federal imprisonment in

18 U.S.C. § 3621. In 1990, the statute was amended to direct

the Bureau to “make available appropriate substance abuse

treatment for each prisoner the Bureau determines has a treat-

able condition of substance addiction or abuse.” Pub. L. 101-

647, § 2903, 104 Stat. 4789, 4913 (1990) (codified at 18

U.S.C. § 3621(b)).

2

Counsel represented at oral argument that Mora-Meraz has since been

transferred to a halfway house to serve the last six months of his custodial

sentence. Although he can no longer participate in the prison-based

RDAP, he argues that this appeal is not moot because, if he prevails, he

will seek a one-year reduction in his overall sentence. Because we deny

his claims on the merits, we need not decide whether the relief he requests

is nonetheless available based on his current custodial status.

5596 MORA-MERAZ v. THOMAS

The Violent Crime Control and Law Enforcement Act of

1994 also partially amended 18 U.S.C. § 3621. Under this

revision, eligible prisoners are able to participate in substance

abuse programming and treatment available while incarcer-

ated in federal institutions. Pub. L. No. 103-322, § 32001, 108

Stat. 1796, 1896-97 (1994) (codified at 18 U.S.C.

§ 3621(b)(5), (e)). An inmate may be “eligible” for a program

such as the RDAP if he is (1) “determined by the Bureau of

Prisons to have a substance abuse problem,” and (2) “willing

to participate in a residential substance abuse treatment pro-

gram.” 18 U.S.C. § 3621(e)(5)(B). As “an incentive . . . to

draw into treatment many inmates who may otherwise not be

willing to undergo a difficult and painful treatment program,”

Congress allowed for a potential one-year sentence reduction

upon successful completion of the RDAP. H.R. Rep. No. 103-

320, at 5 (1993); 18 U.S.C. § 3621(e)(2)(A), (B).3

The Bureau promulgated a regulation further defining eligi-

bility for the RDAP.4 This regulation read, in relevant part:

(a) Eligibility. An inmate must meet all of the fol-

lowing criteria to be eligible for the residential drug

abuse treatment program.

(1) The inmate must have a verifiable docu-

mented drug abuse problem.

3

The incentive provision in § 3621 reads: “The period a prisoner con-

victed of a nonviolent offense remains in custody after successfully com-

pleting 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.” 18 U.S.C. § 3621(e)(2)(B).

4

The regulation has been revised several times and has been amended

again since Mora-Meraz was evaluated. Because drug abuse program rules

are prospective in nature, see Bowen v. Hood, 202 F.3d 1211, 1220-21

(9th Cir. 2000); Cort v. Crabtree, 113 F.3d 1081, 1085 (9th Cir. 1997), the

2008 version is the appropriate regulation to review in this case.

MORA-MERAZ v. THOMAS 5597

28 C.F.R. § 550.56(a) (2008). Neither the statute nor the regu-

lation defines “verifiable documented drug abuse problem.”

The Bureau has issued a program statement explaining how

it determines whether an inmate has a “verifiable documented

drug abuse problem.” Under Program Statement 5330.10,

Chapter 5.4.1(a)(1), eligibility is based on multiple compo-

nents. “[D]rug abuse program staff shall . . . conduct[ ] the

Residential Drug Abuse Program Eligibility Interview fol-

lowed by a review of all pertinent documents in the inmate’s

central file to corroborate self-reported information.” Program

Statement 5330.10, Chapter 5.4.1(a)(1). “The inmate must

meet the diagnostic criteria for substance abuse or dependence

indicated in the Diagnostic and Statistical Manual of the Men-

tal Disorders, Fourth Edition, (DSM — IV).” Id. Furthermore,

there must be verification in the Presentence Investi-

gation . . . report or other similar documents in the

central file which supports the diagnosis. Any writ-

ten documentation in the inmate’s central file which

indicates that the inmate used the same substance,

for which a diagnosis of abuse or dependence was

made via the interview, shall be accepted as verifica-

tion of a drug abuse problem.

Id.

Since the Bureau bases its substance abuse or dependence

diagnosis on the American Psychiatric Association’s Diag-

nostic and Statistical Manual of Mental Disorders, Fourth

Edition Text Revision (2000) (“DSM-IV”), it is important to

understand how the DSM-IV classifies substance abuse and

dependence. The DSM-IV defines dependence generally as “a

cluster of cognitive, behavioral, and psychological symptoms

indicating that the individual continues use of the substance

despite significant substance-related problems.” DSM-IV, at

192. Specifically, the DSM-IV defines dependence as “three

or more of the [following] symptoms . . . occurring at any

5598 MORA-MERAZ v. THOMAS

time in the same 12-month period”: tolerance; withdrawal;

increased amount of a substance or elevated duration of inges-

tion; unsuccessful attempts to cease use; escalated time

expenditure securing, using, and recovering from the sub-

stance; reduction in outside activities; or continued use

despite awareness of the consequences. Id. at 192-94. It

defines substance abuse similarly to substance dependence,

but substance abuse “do[es] not include tolerance, with-

drawal, or a pattern of compulsive use and instead include[s]

only the harmful consequences of repeated use.” Id. at 198.

Once dependence or substance abuse has been established,

an individual can enter one of the stages of remission if none

of the symptoms listed above are present for one month. Id.

at 195. The DSM-IV uses “specifiers” to qualify the quality

and degree of remission. The quality of remission is catego-

rized as either “Early” or “Sustained,” and the degree is either

“Partial” or “Full.”

Because the first 12 months following Dependence

is a time of particularly high risk for relapse, this

period is designated Early Remission. After 12

months of Early Remission have passed without

relapse to Dependence, the person enters into Sus-

tained Remission. For both Early Remission and

Sustained Remission, a further designation of Full is

given if no criteria for Dependence or Abuse have

been met during the period of remission; a designa-

tion of Partial is given if at least one of the criteria

for Dependence or Abuse has been met, intermit-

tently or continuously, during the period of remis-

sion.

Id. at 192. However, these remission specifiers are not appli-

cable if a person is either on a prescribed agonist medication,

such as methadone, or in a controlled environment “where

access to alcohol and controlled substances is restricted,” such

as “closely supervised and substance-free jails.” Id. at 197.

MORA-MERAZ v. THOMAS 5599

In addition to the interview with an inmate to evaluate his

subjective claims of dependency or abuse, Bureau staff are

required to review the inmate’s central file and assess whether

documented proof supports any initial diagnosis. See Program

Statement 5330.10, Ch. 5.4.1(a)(1) (stating that following an

interview where a diagnosis of dependence or substance abuse

is made, any written documentation in an inmate’s file which

indicates that he or she used the same substance for which

that diagnosis was made shall be accepted as verification of

that drug abuse problem).

Furthermore, although the regulation and program state-

ment set forth these requirements, the Bureau has also

adopted an unwritten policy which mandates that the prison-

er’s file confirm that the inmate used the same substance

within twelve months prior to incarceration. While the central

file, including the PSR, might show use of the same substance

at some point during an inmate’s past, the Bureau requires,

that to be eligible for the RDAP, the inmate must show sub-

stance dependence or abuse within his last twelve months “on

the street.”5

B

On February 4, 2002, Mora-Meraz was convicted of pos-

session with the intent to distribute 13.32 kilograms of

cocaine in the United States District Court for the Southern

District of Texas after he and his daughter were caught carry-

ing drugs across the Mexican border. He was sentenced to a

term of 120-months incarceration with the Bureau and five

additional years of supervised release. He was imprisoned at

5

It is important to note that the RDAP is not the only substance abuse

treatment program offered at the Federal Correctional Institution at Sheri-

dan. However, it is the only program offering a potential reduction in an

inmate’s prison sentence upon successful completion of the program. The

twelve-month rule appears to be applicable only to those individuals seek-

ing placement in the intensive RDAP. Mora-Meraz has participated in a

non-residential drug abuse treatment program at Sheridan.

5600 MORA-MERAZ v. THOMAS

the Federal Correctional Institution at Sheridan, Oregon, and

is now residing at a halfway house while completing the

remainder of his custodial sentence. With credit for good con-

duct time, his projected release date is November 22, 2010.

A probation officer conducted an investigation prior to

Mora-Meraz’s sentencing. The presentence investigation

report (“PSR”) presented to the district court only briefly

mentions a history of substance abuse. In its entirety, this sec-

tion of the report states:

Mora-Meraz reported that he tried marihuana [sic] at

the age of thirteen, and has never smoked marihuana

[sic] again. He also admitted to having tried cocaine

once in 1982. The defendant denied any substance

abuse issues, and did not believe he would benefit

from treatment.

Mora-Meraz claims that this statement under-represents his

actual drug abuse problems and that fear of a harsher sentence

caused him to misrepresent his actual prior drug abuse history

to both the probation officer and judge.

On January 10, 2008, Mora-Meraz was interviewed by Dr.

Neil Solomon, the Bureau’s drug abuse program coordinator

at Sheridan, to determine his eligibility for the RDAP. During

this interview, Mora-Meraz insisted that he had actually used

alcohol once per week for the past thirty-one years, and that

his heaviest use was between the ages of 25 and 40. He admit-

ted to having used cocaine more than once per week over the

past seventeen years, and that his heaviest use had occurred

since his 35th birthday. Finally, he said that he had used mari-

juana in the past twenty-six years, but not with any frequency.

He claimed that he drank alcohol and used cocaine “more

than once a week, but not daily” during the “last . . . twelve

consecutive mo[nth] period on the street.”

Though Dr. Solomon recorded that his “diagnostic impres-

sion” was negative for either substance abuse or dependence,

MORA-MERAZ v. THOMAS 5601

on September 12, 2008, another Bureau drug abuse treatment

specialist noted that, based on Mora-Meraz’s self-reporting

and a review of the DSM-IV, he would be diagnosable as suf-

fering from both alcohol and cocaine dependence. The Bureau

then developed a substance abuse treatment plan for Mora-

Meraz which identified problems, goals, and activities for

advancement. Mora-Meraz sought admission to the RDAP,

but was subsequently denied admittance because neither his

PSR nor the remainder of his central file contained documen-

tation of either alcohol or cocaine use during the twelve

months prior to incarceration.

Mora-Meraz filed a pro se petition for writ of habeas cor-

pus under 28 U.S.C. § 2241, alleging that the Bureau had

impermissibly denied him admission into the RDAP. He

claimed that the Bureau’s unwritten requirement that a pris-

oner provide documentation of substance use within the

twelve months prior to incarceration was an improper limita-

tion on admittance to a statutorily-created program. After

appointing counsel from the Federal Public Defender’s

Office, the district court denied Mora-Meraz’s petition on

March 30, 2009.

The court considered whether the so-called “twelve-month

rule” was an invalid exercise of the Bureau’s discretion under

the applicable statutes and regulations. The district court was

also asked to determine whether the twelve-month rule vio-

lated the APA. The court answered both questions in the neg-

ative, finding first that the rule was reasonable under the

applicable statutes and regulations because it relied on the

DSM-IV’s definition of substance dependence, and second

that the rule was not subject to notice and comment because

it was an interpretive rule under Reno v. Koray, 515 U.S. 50

(1995). It concluded that Mora-Meraz had failed to show that

the Bureau abused its discretion in denying him admittance to

the RDAP.

5602 MORA-MERAZ v. THOMAS

Mora-Meraz then filed this timely appeal challenging only

the district court’s determination that the twelve-month rule is

an interpretive rule and thus is not subject to the procedural

requirements of the APA.6 We are asked to decide whether

the twelve-month rule must comply with the APA’s proce-

dural requirements including (1) the need for an agency to

provide ample notice and time for comment, and (2) an agen-

cy’s explanation of its rationale for adopting a particular rule.

II

“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.” Wilson v. Belleque, 554 F.3d 816, 828

(9th Cir. 2009). Also, “[w]hether an agency pronouncement is

interpretive or substantive is a legal question that we review

de novo.” Gunderson v. Hood, 268 F.3d 1149, 1154 (9th Cir.

2001). Finally, “[i]n reviewing the Bureau’s conduct, we con-

sider whether the agency’s promulgation of the . . . rule is

‘arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.’ ” Arrington v. Daniels, 516 F.3d

1106, 1112 (9th Cir. 2008) (quoting 5 U.S.C. § 706(2)(A)).

“We must review the agency action based solely on the

administrative record ‘and determine whether the agency has

articulated a rational basis for its decision.’ ” Crickon v.

Thomas, 579 F.3d 978, 982 (9th Cir. 2009) (quoting Tablada

v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008)).

III

Mora-Meraz challenges two distinct requirements within

the APA. First, he argues that the Bureau neglected to follow

the notice and comment requirements set forth under 5 U.S.C.

§ 553(b). Second, he insists that even if the notice and com-

ment requirements were met, the Bureau failed to provide an

6

Mora-Meraz does not appeal the district court’s reasonableness deter-

mination.

MORA-MERAZ v. THOMAS 5603

adequate articulated rationale for its promulgation of the

twelve-month rule. This, he says, requires that we find the

rule “arbitrary and capricious” in violation of § 706 of the

APA. We discuss each claim in turn.

A

[1] The APA places procedural requirements on an agency

when it seeks to issue a rule. These procedures include: (1)

publication of notice of the proposed rule in the Federal Reg-

ister, 5 U.S.C. § 553(b); (2) a period for interested individuals

to comment on the proposed rule, id. § 553(c); and (3) publi-

cation of the adopted rule not less than thirty days before its

effective date, id. § 553(d). Paulsen v. Daniels, 413 F.3d 999,

1004 (9th Cir. 2005). “ ‘In enacting the APA, Congress made

a judgment that notions of fairness and informed administra-

tive decisionmaking require that agency decisions be made

only after affording interested persons notice and an opportu-

nity to comment.’ ” Id. (quoting Chrysler Corp. v. Brown, 441

U.S. 281, 316 (1979)).

[2] However, these notice and comment requirements are

not applicable to “interpretive rules, general statements of

policy, or rules of agency organization, procedure, or prac-

tice.” 5 U.S.C. § 553(b)(3)(A). We have made a distinction

between so-called “substantive rules” or “legislative rules”

and “interpretive rules.” “Generally, agencies issue interpre-

tive rules to clarify or explain existing law or regulations so

as to advise the public of the agency’s construction of the

rules it administers.” Gunderson, 268 F.3d at 1154. However,

“[i]f a rule is inconsistent with or amends an existing legisla-

tive rule, then it cannot be interpretive.” Id. This is because

a rule that is inconsistent with a rule promulgated subject to

notice and comment would impose new rights or obligations

and would require compliance with the § 553 procedures.

[3] Our first question is whether the Bureau’s twelve-month

rule is substantive—requiring notice and comment—or

5604 MORA-MERAZ v. THOMAS

interpretive—exempt from notice and comment under

§ 553(b)(3)(A). We have said that the regulation governing

the RDAP, in this case 28 C.F.R. § 550.56(a) (2008), is

clearly substantive, because it “effect[s] a change in existing

law or policy.” Gunderson, 268 F.3d at 1154 (internal quota-

tion marks omitted)). However, we have not said the same

regarding the Bureau’s Program Statement or this specific

unwritten rule. Hence, in order to determine whether the chal-

lenged rule is substantive, we must ask: “what does the

twelve-month rule do?” See id.

Mora-Meraz argues that because the twelve-month rule

requires agency staff to disqualify any prisoner whose prior

use of drugs within the twelve months preceding incarceration

is not documented, the rule is categorical and allows for no

exceptions or individualized assessment. This, he says, is the

indicative mark of a substantive eligibility rule and not of an

interpretive rule. We disagree and hold that because the

twelve-month rule is not inconsistent with the regulation and

instead only seeks to clarify language within the regulation,

it is a valid interpretive rule and need not comply with § 553’s

requirements.

[4] Title 18 U.S.C. § 3621 clearly states that the Bureau is

to determine who is eligible for the RDAP. 18 U.S.C.

§ 3621(e)(5)(B)(i) (stating that one condition of eligibility is

a finding by the Bureau that the inmate has a substance abuse

problem). To do so, the Bureau promulgated 28 C.F.R.

§ 550.56 (2008), which in part compelled the prisoner to show

a “verifiable documented drug abuse problem.” Id.

§ 550.56(a)(1). It then defined “verifiable” within its program

statement, requiring that an inmate establish documented evi-

dence of use of the same substance to corroborate a diagnosis

of abuse or dependence consistent with the DSM-IV. Program

Statement 5330.10, Chapter 5.4.1(a)(1). In turn, the DSM-IV

states that a person is in “Sustained Full Remission” if he

exhibits no criteria of abuse or dependence within a twelve-

month period, but that remission cannot occur if an individual

MORA-MERAZ v. THOMAS 5605

has been incarcerated in a “closely supervised and substance-

free jail[ ].” DSM-IV, at 195, 197. The requirement that an

inmate have documented proof that he is a drug abuser who

is not in remission at the time he enters a correctional institute

flows directly from the DSM-IV. Therefore, the twelve-month

rule challenged by Mora-Meraz does “no more than clarify or

explain existing law” regarding what it means to have a “veri-

fiable documented drug abuse problem” under 28 C.F.R.

§ 550.56(a)(1). Gunderson, 268 F.3d at 1155 (internal quota-

tion marks omitted).

[5] Because the twelve-month rule is an interpretive rule

and the Bureau need not follow notice and comment proce-

dures, it was not error for the district court to deny Mora-

Meraz’s petition on this ground.

B

[6] In addition to the notice and comment requirements, the

APA also directs that we must “hold unlawful and set aside

agency action, findings, and conclusions found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accor-

dance with law.” 5 U.S.C. § 706(2)(A). “Under the arbitrary

and capricious standard, our review of the [Bureau’s] regula-

tion is ‘highly deferential, presuming the agency action to be

valid and affirming the agency action if a reasonable basis

exists for its decision.’ ” Crickon, 579 F.3d at 982 (quoting

N.W. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475

F.3d 1136, 1140 (9th Cir. 2007)).

In Arrington, we explained that “[a] reasonable basis exists

where the agency ‘considered the relevant factors and articu-

lated a rational connection between the facts found and the

choices made.’ ” 516 F.3d at 1112 (quoting Ranchers Cattle-

men Action Legal Fund v. U.S. Dep’t of Agric., 415 F.3d

1078, 1093 (9th Cir. 2005) (internal citation omitted)). We are

not permitted to “supply a reasoned basis for the agency’s

action that the agency itself has not given.” Crickon, 579 F.3d

5606 MORA-MERAZ v. THOMAS

at 982. We also may not read into the agency’s silence and

make inferences thereupon. Id. “However, even when an

agency explains its decision with less than ideal clarity, a

reviewing court will not upset the decision on that account if

the agency’s path may reasonably be discerned.” Id. (internal

quotation marks omitted). Our job is to rely upon “the admin-

istrative record to determine whether the agency has articu-

lated a rational basis for its decision.” Arrington, 516 F.3d at

1112. If an agency fails to articulate a rationale, we must find

that its actions do not comply with the APA. Crickon, 579

F.3d at 987.

The government argues that because the twelve-month rule

is interpretive in nature, it need not comply with the

articulated-rationale requirement under § 706. On the other

hand, Mora-Meraz claims that our case law declares that all

agency rules, whether substantive or interpretive, must com-

ply with this requirement. He relies on a footnote in Crickon,

where he insists that we invalidated the requirements set forth

in a program statement because the Bureau did not provide an

articulated rationale as required under § 706. See id. at 988

n.11. Mora-Meraz’s argument is misguided. While we did

consider the impact of the Bureau’s failure to articulate a

rationale with regard to the requirement at issue there, our dis-

cussion of the program statement was in the context of Skid-

more deference and not an analysis under § 706. Id.

Therefore, that case has no bearing on whether interpretive

rules are subject to § 706’s articulated rationale requirement.

Though the parties focus on this argument, it is not one we

need to resolve here because we hold that the Bureau did, in

fact, set forth an adequate explanation for the twelve-month

limitation on RDAP eligibility. Therefore, we need not deter-

mine whether interpretive rules are always subject to the

articulated-rationale requirement.

[7] The question we evaluate is whether the Bureau “con-

sidered the relevant factors and articulated a rational connec-

MORA-MERAZ v. THOMAS 5607

tion between the facts found and the choices made.”

Arrington, 516 F.3d at 1112 (internal quotation marks omit-

ted). Mora-Meraz claims that the Bureau gave no explanation

for its decision to condition RDAP eligibility on documented

proof of substance use within the twelve months prior to

incarceration. However, we conclude that the requisite “ratio-

nal connection” was made by the agency when it incorporated

the provisions of the DSM-IV as its benchmark for determin-

ing whether an inmate suffers from diagnosable substance

abuse or dependence. Program Statement 5330.10, Chapter

5.4.1(a)(1).

Mora-Meraz does not challenge the Bureau’s decision to

reference the DSM-IV. Instead, he argues that the Bureau

failed to clearly articulate its reasons for imposing a temporal

limitation on when an individual last ingested drugs or alco-

hol. More specifically, he claims that the rule that an inmate

show documented proof of use within twelve months of incar-

ceration was implemented without the Bureau giving the req-

uisite explanation. One glance at the governing regulation, 28

C.F.R. section 550.56, illustrates why the drug abuse problem

must be documented, and a close reading of the DSM-IV

explains the rationale for imposing the twelve-month tempo-

ral limitation.

First, with regard to the documentation requirement, the

regulation in effect at the time read: “The inmate must have

a verifiable documented drug abuse problem.” 28 C.F.R.

§ 550.56(a)(1) (emphasis added). Therefore, it is no surprise

that the Bureau directs the inmate to provide evidence corrob-

orating his alleged drug abuse or dependence problem either

within the PSR or the remainder of his central file.

Second, the Bureau’s reason for selecting a twelve-month

window—and more specifically the twelve months prior to

incarceration—is apparent from the DSM-IV. The DSM-IV

explains that the “cessation of Dependence” occurs when the

individual enters “Remission.” DSM-IV, at 195. A person is

5608 MORA-MERAZ v. THOMAS

said to be in remission if “none of the criteria for Substance

Dependence or Substance Abuse have been present for at

least 1 month.” Id. However, “the first twelve months follow-

ing Dependence is a time of particularly high risk for

relapse,” and a person is not said to be in “Sustained Full

Remission” until the end of that twelve-month phase. Id. at

195-96. Once an individual passes the twelve-month mark, he

is in Full Remission, defined by the DSM-IV as occurring

when “[t]here are no longer any symptoms or signs of the dis-

order, but it is still clinically relevant to note the disorder.” Id.

at 2. While this is not the same as “recovered,” an individual

in Full Remission is not in need of medical intervention other

than continued evaluation. Id.

[8] Following the DSM-IV analysis, the Bureau’s rationale

for imposing the twelve-month rule is reasonable. Without

documented proof that an inmate has used an offending drug

within twelve months prior to incarceration, it is reasonable

to infer that the inmate is no longer dependant or an abuser.

Id. at 195. It follows that such an individual has no need for

the highly intensive residential drug treatment program,

RDAP. If the individual believes he still has a need for treat-

ment and assistance, he may enroll in a less comprehensive

program offered in the prison.

Furthermore, following the DSM-IV, the remission specifi-

ers do not apply once an individual is incarcerated. This

makes sense. A person in a substance-free prison does not

have access to his or her drug of abuse. While incarcerated,

the individual may not exhibit the symptoms of abuse or

dependence—ingesting the drug, reducing outside activities,

escalated time expended securing the drug, etc.—but there is

no way to determine whether this cessation is truly an indica-

tion of remission or simply an externally imposed conse-

quence. Thus, the relevant time period the Bureau uses to

assess whether an inmate is diagnosable as suffering from

substance abuse or dependence is the twelve months prior to

incarceration.

MORA-MERAZ v. THOMAS 5609

[9] Here there exists a reasonable basis for the Bureau’s

decision to adhere to the DSM-IV’s twelve-month rule and a

reasonable basis for the Bureau to apply that rule to require

documented use of a drug within the twelve months prior to

incarceration. Therefore, we conclude that the Bureau’s

implementation of the twelve-month rule was neither arbitrary

nor capricious under § 706.

IV

Congress realized the pressing need for extensive drug

abuse treatment programs within our federal prisons. To

ensure that inmates receive crucial treatment for their addic-

tions, Congress provided an incentive for individuals to sub-

ject themselves to the rigors of an intensive residential

treatment program. But the Bureau is properly concerned with

enrolling inmates who genuinely qualify for the therapy and

its attending incentive to successfully complete the RDAP.

Prisoners who are not currently suffering from a clinically

diagnosed drug dependency or a recognized substance abuse

problem under the DSM-IV protocols should not be permitted

to take the place of another who is in greater need of this

intensive treatment. The Bureau’s rationale for confirming a

diagnosis of drug abuse or dependence is clear. The district

court correctly denied habeas corpus relief to Mora-Meraz.

AFFIRMED.