Close v. Thomas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER CLOSE, 

Petitioner-Appellant, No. 10-35850

v.  D.C. No.

JEFF E. THOMAS, Warden, 3:09-cv-01172-HA

Respondent-Appellee.



DANNY R. SASS, 

Petitioner-Appellant, No. 10-35851

v.  D.C. No.

JEFF THOMAS, Warden, 3:09-cv-01224-HA

Respondent-Appellee.



MICHAEL LEE STOCKTON, 

Petitioner-Appellant, No. 10-35853

v.  D.C. No.

JEFF E. THOMAS, 3:09-cv-01290-HA

Respondent-Appellee.



BRADLEY ALAN MOSCHETTI, 

Petitioner-Appellant,

No. 10-35852

v.

 D.C. No. 3:09-cv-

JEFF E. THOMAS, Warden Federal 01349-HA

Prison Camp, Sheridan, Oregon,

Respondent-Appellee.



10079

10080 CLOSE v. THOMAS

RAFI SHOTLAND, 

Petitioner-Appellant, No. 10-35854

v.  D.C. No.

JEFF E. THOMAS, 3:09-cv-01368-HA

Respondent-Appellee.



EDELMIRO TAMEZ, Jr., 

Petitioner-Appellant,

No. 10-35855

v.

 D.C. No.

JEFF E. THOMAS, Warden Federal 3:09-cv-01347-HA

Prison Camp, Sheridan, Oregon,

Respondent-Appellee.



LARRY D. BEVERLY, 

Petitioner-Appellant, No. 10-35856

v.  D.C. No.

JEFF E. THOMAS, 3:09-cv-01385-HA

Respondent-Appellee.



KEVIN JEROME SNOOZY, 

Petitioner-Appellant,

No. 10-35857

v.

 D.C. No.

JEFF E. THOMAS, Warden, Federal 3:09-cv-01365-HA

Prison Camp, Sheridan, Oregon,

Respondent-Appellee.



CLOSE v. THOMAS 10081

EDWARD ANDERTON, 

Petitioner-Appellant, No. 10-35858

v.  D.C. No.

JEFF E. THOMAS, 3:10-cv-00007-HA

Respondent-Appellee.



ROBERT SCOTT MERRY, 

Petitioner-Appellant, No. 10-35859

v.

 D.C. No.

3:09-cv-01367-HA

JEFF E. THOMAS, Warden, Federal

Prison Camp, Sheridan, Oregon, OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, Senior District Judge, Presiding

Submitted June 6, 2011*

Portland, Oregon

Filed August 3, 2011

Before: Raymond C. Fisher, Ronald M. Gould, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

CLOSE v. THOMAS 10083

COUNSEL

Stephen R. Sady, Chief Deputy Federal Public Defender, Dis-

trict of Oregon, Portland, Oregon, for petitioner-appellants

Christopher Close, et al.

Dwight C. Holton, United States Attorney District of Oregon,

Kelly A. Zusman, Appellate Chief United States Attorney

District of Oregon, Kevin Danielson, Assistant United States

Attorney District of Oregon, Portland, Oregon, for

respondent-appellee Jeff E. Thomas, Warden, FCI Sheridan.

OPINION

PAEZ, Circuit Judge:

Petitioner Christopher Close and nine other similarly situ-

ated prisoners (collectively “Close” or “Petitioners”) appeal

the district court’s judgment denying their 28 U.S.C. § 2241

habeas corpus petitions. These consolidated habeas petitions

require us to consider the manner in which the Bureau of Pris-

10084 CLOSE v. THOMAS

ons prioritizes a prisoner’s eligibility for entering into a Resi-

dential Drug Abuse Treatment Program. We have jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253. Finding no error in

the Bureau of Prisons’ interpretation of the governing statute,

18 U.S.C. § 3621(e)(1), we affirm the district court’s judg-

ment.

I. Factual and Procedural Background

In 1990, Congress required that the Bureau of Prisons

(“BOP”) provide substance abuse treatment for inmates with

a treatable condition of substance addiction or abuse. 18

U.S.C. § 3621(b). As a result, BOP instituted Residential

Drug Abuse Treatment Programs (“RDAP”). Four years later,

Congress amended § 3621, providing that BOP could reward

inmates who successfully completed RDAP with early

release. 18 U.S.C. § 3621(e)(2)(B). The statute permits BOP

to consider only nonviolent offenders for this early release

incentive, and it permits early release of up to only one year.

Id. Even though violent offenders cannot benefit from the

early release provision, those with substance abuse problems

are still eligible for participation in RDAP. Congress directed

that BOP place RDAP-eligible inmates into programs “with

priority for such treatment accorded based on an eligible pris-

oner’s proximity to release date.” 18 U.S.C. § 3621(e)(1)(A).

Neither the statute nor its regulations, 28 C.F.R. §§ 550.50

— .57, indicate whether BOP should factor in the early

release incentive when it determines how close inmates are to

their release date. The issue is significant because demand for

RDAP far exceeds its availability and “proximity to release

date” dictates inmates’ priority on the long RDAP wait list.

So if a nonviolent inmate is 24 months from the end of his

term of imprisonment, should BOP rank him on the RDAP

wait list as though he were only 12 months from the end of

his term of imprisonment because he would be eligible for

§ 3621(e)’s early release upon successful RDAP completion?

BOP has answered this question both ways at different times.

CLOSE v. THOMAS 10085

For some time, BOP did factor in potential early release for

eligible inmates when ranking them on the RDAP wait list.

As a result, a nonviolent offender scheduled to be released in

24 months would be ranked on the wait list at the same level

as a violent offender with only 12 months remaining in his

term of imprisonment. Currently, however, as reflected in an

internal policy statement, BOP does not take the potential

early release into account when calculating a nonviolent

inmate’s proximity to release.1

In March 2009, an Oregon district court found that “proper

statutory construction compels the conclusion that the BOP is

required to perform wait list calculations that include the pris-

oner’s projected § 3621(e) release date.” Thurman v. Thomas,

No. 06-1400, 2009 WL 936663, at * 4 (D. Or. March 30,

2009). The district court observed that “[f]ailing to do so cur-

rently results in a significant diminution or the outright elimi-

nation of the statutorily created incentive of sentence

reductions for prisoners who seek and complete RDAP.” Id.

The district court concluded that “inmates eligible for the dis-

cretionary sentence reduction for up to one year for complet-

ing RDAP should be ranked on the wait list according to their

projected § 3621(e) release dates.” Id.

Petitioner Close is an RDAP-eligible nonviolent offender

housed in BOP’s Sheridan, Oregon facility. After learning of

the district court’s order in Thurman, Close filed a pro se 28

U.S.C. § 2241 habeas corpus petition on October 1, 2009. The

1

On March 16, 2009, BOP issued a Program Statement titled “Early

Release Procedures Under 18 U.S.C. § 3621(e).” The purpose of the docu-

ment is to “re-establish criteria and procedures when considering an

inmate for early release pursuant to 18 U.S.C. § 3621(e)(2)(B) for success-

ful completion of the Residential Drug Abuse Program.” Section 9 of the

Program Statement reads, in pertinent part: “Upon a qualified inmate’s

entry into the RDAP, the [Drug Abuse Program Coordinator], or designee,

will . . . forward a Notice of § 3621(e) Date form [ ] to the [ ] team respon-

sible for the inmate’s sentence computation requesting computation of a

§ 3621(e) conditional release method date. . . .”

10086 CLOSE v. THOMAS

only issue Close raised in this petition was whether BOP

should rank him on the RDAP wait list in conformity with the

district court’s order in Thurman—that is, taking into account

his potential eligibility for § 3621(e) early release. On January

26, 2010, the district court consolidated Close’s petition with

nine others raising the same issue and designated Close’s case

as the lead. The district court subsequently granted BOP’s

motion for summary judgment, denying all of the consoli-

dated habeas petitions. The district court found “that the con-

clusions in Thurman are neither binding nor dispositive in this

matter.” All Petitioners filed timely notices of appeal.

II. Standard of Review and Jurisdiction

We review de novo a district court’s denial of a 28 U.S.C.

§ 2241 habeas corpus petition. Mora-Meraz v. Thomas, 601

F.3d 933, 939 (9th Cir. 2010). We recently held that “federal

courts lack jurisdiction to review the BOP’s individualized

RDAP determinations made pursuant to 18 U.S.C. § 3621.”

Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011). We

clarified, however, that “[a]lthough judicial review remains

available for allegations that BOP action is contrary to estab-

lished federal law, violates the United States Constitution, or

exceeds its statutory authority, Reeb’s habeas petition alleges

only that the BOP erred in his particular case.” Id. Close and

the other petitioners in this case do not challenge individual-

ized determinations. Rather, they challenge the system that

BOP uses to rank all RDAP-eligible inmates on the RDAP

wait list. These petitions allege that the “BOP action is con-

trary to . . . its statutory authority.” Id. Therefore, the petitions

are within this court’s jurisdiction.2

2

Although Petitioners do not have Certificates of Appealability, a COA

is not required to appeal the denial of a § 2241 petition filed by a person

in federal custody. See Forde v. U.S. Parole Comm’n, 114 F.3d 878, 879

(9th Cir. 1997).

CLOSE v. THOMAS 10087

III. Discussion

Close argues that the statutory phrase “proximity to

release” in 18 U.S.C. § 3621(e) requires that BOP give nonvi-

olent offenders priority placement in RDAP to maximize the

opportunity for a one-year sentence reduction upon successful

completion of the program. BOP contends that the plain lan-

guage of the statute unambiguously allows it to calculate

“proximity to release” without incorporating the possibility of

early release.

When we “review[ ] an agency’s construction of the statute

which it administers, [we are] confronted with two questions.

First, always, is the question whether Congress has directly

spoken to the precise question at issue. If the intent of Con-

gress is clear, that is the end of the matter . . . .” Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842 (1984). If we determine that “the statute is silent or

ambiguous with respect to the specific issue, the question for

the court is whether the agency’s answer is based on a permis-

sible construction of the statute.” Id. at 843.

[1] To determine Congress’s intent, “[a]s always,” the

“starting point is the plain language of the statute.” Green-

wood v. CompuCredit Corp., 615 F.3d 1204, 1207 (9th Cir.

2010) cert. granted, 131 S. Ct. 2874 (2011). We have

explained that “[i]f the plain meaning of the statute is unam-

biguous, that meaning is controlling.” Id. The statute at issue

here reads, in pertinent part: “the Bureau of Prisons shall, sub-

ject to the availability of appropriations, provide residential

substance abuse treatment . . . for all eligible prisoners by the

end of fiscal year 1997 and thereafter, with priority for such

treatment accorded based on an eligible prisoner’s proximity

to release date.” 18 U.S.C. § 3621(e)(1)(C) (emphasis added).

Subsection (e)(2)(B) 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

10088 CLOSE v. THOMAS

than one year from the term the prisoner must otherwise

serve.” 18 U.S.C. § 3621(e)(2)(B).

[2] Subsection (e)(5) contains definitions for certain terms

“[a]s used in this subsection.” 18 U.S.C. § 3621(e)(5). The

terms defined in (e)(5) do not include “priority,” “proximity,”

or “release date.” Although § 3621 does not define any of

these terms, § 3624(a)—which appears within the same sub-

chapter as § 3621—defines the term “date of release.” Section

3624(a) specifies that “date of release” is “the date of the

expiration of the prisoner’s term of imprisonment, less any

time credited toward the service of the prisoner’s sentence as

provided in subsection (b).” 18 U.S.C. § 3624(a). Subsection

(b) explains how good time credits are appropriated; it

includes no reference to provisions for early release by means

of any other type of sentence reduction.

[3] “Courts generally interpret similar language in different

statutes in a like manner when the two statutes address a simi-

lar subject matter.” United States v. Novak, 476 F.3d 1041,

1051 (9th Cir. 2007) (en banc). Therefore, we apply

§ 3624(a)’s definition of “date of release” to the nearly identi-

cal term “release date” in § 3621(e)(1)(C). The plain language

of the statute contains no indication that Congress intended

BOP to attribute different meanings to these terms. Indeed,

Congress provided subsection-specific definitions for certain

terms in § 3621(e)(5), but “release date” is not among them.

See 18 U.S.C. § 3621(e)(5). In addition, Congress could have,

but did not, add language after “proximity to release date”

specifying that BOP should take into account the possibility

of early release for nonviolent offenders provided in subsec-

tion (e). Nor does subsection (e) itself provide any indication

that nonviolent RDAP-eligible offenders should be subject to

a different system of priority for RDAP placement than vio-

lent RDAP-eligible offenders.

[4] Thus, we conclude that the statutory language is unam-

biguous on its face. Congress directed BOP to provide RDAP

CLOSE v. THOMAS 10089

services to eligible offenders “with priority . . . based on an

eligible prisoner’s proximity to release date,” 18 U.S.C.

§ 3621(e)(1)(C), as calculated by applying the definition of

“date of release” in § 3624(a). Our conclusion is buttressed by

the fact that the early release at issue here is discretionary:

“[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 . . . .” 18

U.S.C. § 3621(e)(2)(B) (emphasis added). “Proximity to

release date” cannot logically be equated with “proximity to

earliest potential release date.” Accordingly, Close’s argu-

ment fails. The statute unambiguously does not require BOP

to account for subsection (e) early release when calculating

inmates’ “proximity to release date” and their resulting RDAP

wait list placement.

Since “the plain meaning of the statute is unambiguous,

that meaning is controlling and we need not examine legisla-

tive history as an aid to interpretation unless ‘the legislative

history clearly indicates that Congress meant something other

than what it said.’ ” Greenwood, 615 F.3d at 1207 (quoting

Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877

(9th Cir. 2001) (en banc)). Close argues that this court must

give effect to § 3621’s recent post-enactment legislative his-

tory and construe the statute as the district court did in Thur-

man. The House Congressional Record on the Consolidated

Appropriations Act of 2010 states: “To the greatest extent

possible, BOP shall prioritize the participation of nonviolent

offenders in the Residential Drug Abuse Treatment Program

(RDAP) in a way that maximizes the benefit of sentence

reduction opportunities for reducing the inmate population.”

155 Cong. Rec. H13631-03 at H13887 (Dec. 8, 2009). While

this statement could certainly be understood to support

Close’s argument here, it is not specific enough to “clearly

indicate[ ] that Congress meant something other than what it

said” when it enacted § 3621(e) in 1994. Greenwood, 615

10090 CLOSE v. THOMAS

F.3d at 1207. The House’s 2009 statement is not sufficiently

clear to supersede the statute’s unambiguous language.3

IV. Conclusion

We affirm the district court’s denial of Close’s and the

other habeas petitions. We note, however, that BOP’s admin-

istration of RDAP, combined with the program’s insufficient

capacity, has created a troubling situation that calls for a leg-

islative or regulatory remedy. As the district court observed

in Thurman, the current system “results in a significant dimi-

nution or the outright elimination of the statutorily created

incentive of sentence reductions for prisoners who seek and

complete RDAP.” 2009 WL 936663, at * 4. Nonetheless,

given the text of 18 U.S.C. §§ 3621(e)(1)(C) and 3624(a),

Petitioners’ challenge to the RDAP priority scheme adopted

by BOP must necessarily fail.

AFFIRMED.

3

Because the statute is unambiguous on its face, we give effect to its

plain meaning and we need not consider whether the rule of lenity applies.

See United States v. R.L.C., 503 U.S. 291, 305-06 (1992) (“ ‘[W]e have

always reserved lenity for those situations in which a reasonable doubt

persists about a statute’s intended scope even after resort to ‘the language

and structure, legislative history, and motivating policies’ of the statute.”

(quoting Moskal v. United States, 498 U.S. 103, 108 (1990)). Nor do we

need to consider whether BOP’s interpretation is entitled to deference

under Skidmore v. Swift & Co., 323 U.S. 134 (1944). See High Sierra Hik-

ers Ass’n v. Blackwell, 390 F.3d 630, 638-39 (9th Cir. 2004) (“If the stat-

ute is ambiguous, the agency’s decision is entitled to Chevron deference

if it has the force of law . . . . If the decision does not have the force of

law, it is reviewed with ‘respect’ according to the factors set out in [United

States v. Mead Corp., 533 U.S. 218 (2001)] and Skidmore . . . .”).