sacora 2d chance act cert petition

7/28/2019 Sacora 2d Chance Act Cert Petition

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No.

IN THE SUPREME COURTOF THE UNITED STATES

TIM RAY SACORA,Petitioner,

LARRY L. BEAMAN,Petitioner - Intervenor,

TODD H. SONOBE,Petitioner - Intervenor,

V.

JEFF E. THOMAS, Warden,Federal Prison Camp, Sheridan, Oregon,

Respondent.

MOTION FOR LEAVETO PROCEED INFORMA PAUPERIS

The petitioners, Tim Ray Sacora, Larry L. Beaman, and Todd Sonobe, class representativesof federal prisoners in Oregon who are subject to the Second Chance Act, request leave to file theattached petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuitwithout prepayment of costs and to proceed informa pauperis pursuant to Rule 39.1 of this Courtand 18 U.S.C. 3006A(d)(7). The petitioners were represented by counsel appointed under the

Criminal Justice Act in the District ofOregon and on appeal in the Ninth Circuit Court ofAppeals,and therefore no affidavit is required.

Respectfully submitted thi

R. Sady


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No.





V.


Respondent.

On Petition ForWrit Of Certiorari ToThe United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Stephen R. SadyChief Deputy Federal Public Defender101 SW Main Street, Suite 1700Portland, Oregon 97204(503) 326-2123Attorney for Petitioners


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QUESTION PRESENTEDThe Second Chance Act of 2007 increased the amount of time the Bureau of Prisons (BOP)

can place prisoners in community corrections halfway houses and home detention from six totwelve months. 18 U.S .C. 3624(c) (Supp. 1112009). The same statute required that, within 90 daysof enactment, the B OP promulgate regulations to ensure that the length of community correctionswould be of sufficient duration to provide the greatest likelihood of successful reintegration intothe community. 18 U.S.C. 3624(c)(6)(C). In this class action, federal prisoners established thatthe BOP did not promulgate the required regulation and instead adopted informal rules thatcontinued to effectively limit community corrections to six months. They also proved the B OPrelied on no empirical evidence or rationale supporting the informal rules. The question presentedis:

Whether the BOP violated the Second ChanceAct and the Administrative ProcedureAct, thereby invalidating the informal rule limiting community corrections to sixmonths absent extraordinary circumstances, where Congress specifically directed that the duration of community corrections be

determined based on a regulation promulgated with notice-and-comment; Discovery established that the BOP promulgated no valid regulation and,under its informal rule, no class member received more that six months

community corrections and no empirical evidence or rationale supported thesix-month limitation; and The six month limitation contradicted Congresss doubling of available

community corrections to twelvemonths and authorization of an incentive toparticipate in reentry programming for the maximum allowable period in acommunity confinement facility.

To this day, the B OP has not promulgated a regulation that provides guidance on the sufficientduration of community corrections that would provide the greatest likelihood of successfulreintegration in to the community.


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TABLE OF CONTENTSPage

Table of Authorities iii1. Opinions Below 22. Jurisdictional Statement 23. Constitutional, Statutory, And Regulatory Provisions 24. Statement Of The Case 65. Reasons For Granting The Writ 10A. The BOPs Violation Of Congresss Explicit Direction To Address The Sufficient

DurationFor CommunityCorrections Through Notice-And-CommentRule-MakingForecloses Deference To The BOPs Informal Rule, Promulgated Without Notice-And-Comment, Limiting Community Corrections To Six Months AbsentExtraordinary Circumstances 11

B. The Ninth Circuit Failed To Follow This Courts Administrative Law Precedent ByIgnoring The Extrinsic Evidence Demonstrating That The BOPs InternalMemoranda Was Based On Factual Errors And A Failure To Consider RelevantFactors 131. The Rationale For An Agencys Rule Must Come From The Agency Itself,

Not The Court, And Cannot Be Based On Factual Errors 142. The Agency Action Failed To Consider An Important Aspect Of The

Problem 163. The Court Erroneously Injected Statutory Error Into Its Decision 16

C. The Court Should GrantCertiorariBecauseTheExtraordinarily Important SeparationOf Powers Is sues Affect An Extraordinary Number Of Federal Prisoners 18

D. This Petition Is Time Sensitive Because The Agency Continues To Operate UnderIts Informal Rules And Still Has Not Promulgated The Regulation, With OpportunityFor Comment, Required By The Statute 21

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E. The Present Case Provides An Ideal Vehicle For Review Of The Important AndUrgent Issues Presented 22

6. Conclusion 23Certificate of Service and Mailing

INDEX TO APPENDIXDistrict Court Opinion 001Ninth Circuit Opinion 035Denial of Rehearing and Rehearing En Banc 04728 C.F.R. 570.22 048Administrative Procedure Act excerpts, 5 U.S.C. 553 and 706 049Program Statement 7310.04 at page 8 051April 14, 2008, memorandum 052November 14, 2008, memorandum 056BOP email 059

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TABLE OF AUTHORITIESPage

Alabama v. Bozeman,533 U.S. 146 (2001) 12Anderson v. Yungkau,

329 U .S . 482 (1947) 12Bennett v. Spear,

520U.S. 154 (1997) 12Bloate v. United States,

130 5. Ct. 1345 (2010) 17Burlington Truck Lines, Inc. v. United States,

371 U.S. 156 (1962) 14Christensen v. Harris County,

529 U.S. 576 (2000) 15Chrysler Corp. v. Brown,

441 U.S. 281 (1979) 12, 15Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) 20Demis v. Sniezek,

558 F.3d 508 (6th Cir. 2009) 7F. C. C. v. Fox Television Stations, Inc.,

129 5. Ct. 1800 (2009) 19Federal Power Commission v. Texaco, Inc.,417 U.S . 380 (1974) 16

Gonzales v. Oregon,546 U .S . 243 (2006) 8, 11Kelsey v. Warden, F. C.I., El Reno,

No. CV-10-1292-D, 2011 WL 873647 (W.D. Okia. Mar. 11,2011) 7

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Krueger v. Martinez,665 F. Supp. 2d 477 (M.D. Pa . 2009) 8, 13

Metcalf v. Davis, No.,CV 10-00209-REB, 2011 WL 1134931 (D. Cob. Mar. 25, 2011) 7

Miller v. Whitehead,527 F.3d 752 (8th Cir. 2008) 10

Morton v. Ruiz,415 U.S. 199 (1974) 12Motor Vehicle Mfrs. Ass ii v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) 14, 16Muniz v. Sabol,517 F.3d 29 (lstCir. 2008) 10Pierce v. Thomas,

No. CV 08-709-MA, 2009 WL 2476606 (D . O r. Aug. 10, 2009), affirmed, 400 Fed.Appx. 259 (9th Cir. 2010) 7

Raleigh & Gaston R. Co. v. Reid,80 U.S. 269 (1871) 11

Rodriguez v. Smith,541 F.3d 1180(9thCir. 2008) 10,15

Rosario v. Scism,No. CV 10-2600, 2011 WL 398200 (M.D. Pa . Jan. 20, 2011) 7

SEC v. Chenery Corp.,318 U.S. 80(1943) 14

SEC v. Chenery Corp.,332 U.S. 194 (1947) 14

Sacora v. Thomas,628F.3d 1059 (9thCir. 2010) 2

Sacora v. Thomas,CV 08-578-MA, 2009 WL 4639635 (D . Or. Dec. 3, 2009) 8

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U.S. Const. art. I, 8, ci. 18U.S. Const. art. II, 1, ci. 1.5 U.S.C. 553 (2006).U.s.c. 706 (2006)18 u.s.c. 3006A(d)(7) (2006)18 u.s.c. 3582(c) (2006)18 u.s.c. 3621 (2006)18 U.S.C. 3624(c) (Supp. III 2009)28 U.S.C. 1254(1) (2008)

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22

4,8,154,13,20

22

93,5,6,8,9,10,15

passim2

Sass v. Thomas,No. CV 08-300-MA, 2009 WL 2230759 (D . O r. July 23, 2009),affirmed,405 Fed . Appx. 202 (9th Cir. 2010) 7

Sievers v. Berkebile,No. CV-10-360, 2011 WL 1642436 (S.D. W.Va. May 2, 2011) 7Skidmore v. Swift. & Co.,

323 U.S. 134 (1944) 10, 11, 13, 23Strong v. Schultz,

599F. Supp. 2d556 (D. N.J. 2009) 8,13Tanis v. Shartle,

No. CV 10-2615, 2011 WL 1297183 (N.D. Ohio Apr. 5,2011) 7United States v. Mead Corp.,

533 U.S. 218 (2001) 11Walker v. Copenhaver,

No. C 09-04518, 2010 WL 604674 (N.D. Cal. Feb. 19, 2010)CONSTITUTION

FEDERAL STATUTES

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42 U.S.C. 17501(a)(5) (Supp. III 2009) . 1742 U.S.C. 17541(a)(2) (Supp. III 2009). 4, 12, 1728 C.F.R. 570.20 (2008) 828 c.F.R. 570.22 (2008) 4

MISCELLANEOUSConf. Rep. to consolidated Appropriations Act of 2010,

155 cong. Rec. H13631-03 13, 18BOP Program Statement 5100.08 8BOP Program Statement 7310.04 5, 8R. Stewart & C. Sunstein, Public Programs and Private Rights,

95 Harv. L. Rev. 1193, 1248 (1982) 20

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No.





V.


Respondent.

On Petition For Writ Of Certiorari ToThe United States Court Of Appeals


The petitioner, Tim Ray Sacora, and intervenors Larry L. Beaman and Todd H. Sonobe, asrepresentatives of the certified class of Oregon federal prisoners who are subject to the SecondChance Act, respectfully request that a writ of certiorari issue to review the judgment of the UnitedStates Court of Appeals for the Ninth Circuit entered on December 6, 2010, affirming the denial ofhabeas corpus relief.

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1. Opinions BelowThe District Court granted in part and denied in part habeas corpus relief in an unpublished

opinion on June 16, 2010 (Appendix 001). The Ninth Circuit affirmed the denial of habeas corpusrelief in a published opinion on December 6, 2010. Sacora v. Thomas, 628 F.3d 1059 (9th Cir.2010) (Appendix 035). The Ninth Circuit denied panel and en banc rehearing on February 15, 2011(Appendix 047).2. Jurisdictional Statement

This Courts jurisdiction is invoked under 28 U.S.C. 1254(1) (2008).3. Constitutional, Statutory, And Regulatory Provisions

The constitutional separation of powers at issue in this case derives f rom the first threeArticles of the Constitution, which divide the powers of the federal government among thelegislative, executive, and judicial branches. Congress enacted the Second Chance Act (SCA)pursuant to its authority to enact all Laws which shall be necessary and proper for carrying intoExecution the foregoing Powers, and all other Powers vestedby this Constitution in the Governmentof the United States, or in any Department or Officer thereof. U.S. Const. art. I, 8, cl. 18. Theexecutive power is vested in the President, who must who must take Care that the Laws befaithfully executed. U.S. Const. art. II, 1, ci. 1, and 3.

Prior to the SCA, the pre-release custody statute limited community corrections duringservice of the term of imprisonment to six months:

(c) Pre-release custody. Th e Bureau of Prisons shall, to the extentpracticable, assure that a prisoner serving a term of imprisonment spends areasonable part, not to exceed six months, of the last 10 per centum of the term to beserved under conditions that will afford the prisoner a reasonable opportunity toadjust to and prepare for the prisoners re-entry into the community. The authority

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provided by this subsection may be used to p lace a prisoner in home confinement.The United States Probation System shall, to the extent practicable, offer assistanceto a prisoner during such pre-release custody.18 U.S.C. 3624 (repealed 2008). The SCA doubled the period of community corrections to twelvemonths halfwayhouse placement, continuing the limitation on home detention to the last six months,or ten percent, of the sentence:

(1) In general. The Director of the Bureau of Prisons shall, to the extentpracticable, ensure that a prisoner serving a term of imprisonment spends a portionof the final months of that term (not to exceed 12 months), under conditions that willafford that prisoner a reasonable opportunity to adjust to and prepare for the reentryof that prisoner into the community. Such conditions may include a communitycorrectional facility.(2) Home confinement authority. The authority under this subsection may beused to place a prisoner in home confinement for the shorter of 10 percent of the termof imprisonment of that prisoner or 6 months.

18 U.S.C. 3624(c) (Supp. III 2009).The SCA also included the requirement that the Bureau ofPrisons (BOP) issue implementing

regulations within 90 days that would include direction regarding the sufficient duration ofcommunity corrections placements:

The Director of the Bureau of Prisons sha ll is sue regulations pursuant to thissubsection not later than 90 days after enactment of the Second ChanceAct of 2007,which shall ensure that placement in a community correctional facility by the Bureauof Prisons is (A) conducted in a manner consistent with section 362 1(b) of this title;(B) determined on an individual basis; and(C) of sufficient duration to provide the greatest likelihood of successful

reintegration into the community.

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18 U.S.C. 3624 (c)(6). The BOP issued a regulation, without notice-and-comment, that simplyrestated the statutes words. 28 c.F.R. 570.22 (Appendix 048). The relevant procedures forpromulgation of regulations, including notice-and-comment, are set out in the AdministrativeProcedure Act (APA), 5 U.S.C. 553 (b) and 706, copies of which are attached at Appendix 049.

In a separate section of the SCA, congress directed that the Attorney General and the BOP,subject to available appropriations, establish a federal prisoner reentry initiative that includedauthorization for the BOP to create incentives, including the maximum allowable period in acommunity confinement facility, 42 U.S.C. 17541(a)(2)(A) (Supp. III 2009), and to change itsformer approach by referring to the need to modify BOP procedures and policies to enhanceimplementation of reentry programs and improve transition to the community. 42 U.S.C. 17541(c).

In addition to required consideration of community corrections at the end of the sentence, theBOP has discretionary authority to designate a halfway house at any time during the sentence as apenal or correctional facility:

(b) Place of imprisonment. The Bureau of Prisons shall designate theplace of the prisoners imprisonment. The Bureau may designate any available penalor correctional facility that meets minimum standards of health and habitabilityestablished by the Bureau, whether maintained by the Federal Government orotherwise and whether within or without the judicial district in which the person wasconvicted, that the Bureau determines to be appropriate and suitable, considering

(1) the resources of the facility contemplated;(2) the nature and circumstances of the offense;(3) the history and characteristics of the prisoner;(4) any statement by the court that imposed the sentence

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(A) concerning the purposes forwhich the sentence to imprisonmentwas determined to be warranted; or

(B) recommending a type of penal or correctional facility asappropriate; and(5) any pertinent policy statement issued by the Sentencing Commission

pursuant to section 994(a)(2) of title 28.18 U.S.C. 3621 (2006). The SCA requires that pre-release placement decisions be individualized,not categorical, using the factors enumerated in 3621(b) to designate or transfer prisoners toappropriate penal or correctional facilities which include halfway houses. 18 U.S.C. 3624(c)(6)(A).

Prior to the SCA , the Bs program statements foreclosed placements in communitycorrections greater than six months absent extraordinary and compelling reasons. ProgramStatement 7310.04 at 8 (Dec. 16, 1998) (Appendix 051). Five days after the SCA s effective date,the BOP perpetuated that policy by continuing the program statements restriction through aninformal memorandum limiting pre-release placement to only six months, absent extraordinarycircumstances, with required approval from both the Warden and the Regional Director for anydeviation. Appendix 052. The April 14th Memorandum specifically incorporated, with minoradjustments, the 1998 Program Statement, only ordering staff to disregard sections of the 1998Program Statement that quoted from the repealed 3624(c), and to substitute the timeline to reviewhalfway house placement decisions to be made in advance of the final yea r of imprisonment (thefinal determination to be made no later than 17 to 19 months, instead of 11 to 13 months, prior torelease). Id. The April 14th Memorandum left unchanged the program statements language

1 The full Program Statement is available at http://www.bop.gov/policy/progstat/7310_004.pdf.

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creating a six-month norm absent extraordinary and compelling reasons, and stated that Bureauexperience reflects inmates pre-release [halfway house] needs can usually be accommodated by aplacement of six months or less. Appendix 055.

In November 2008, the BOP issued a second informal memorandum establishing criteria fortransfer to community corrections under its general designation authority under 3621(b) to transferprisoners to community corrections at any time during the term of imprisonment, again limitingcommunity placements to six months absent exceptional circumstances. Appendix 056.4. Statement Of The Case

By granting certiorari, the Court will decide an issue that affects the time spent in prison byover 150,000 federal prisoners. In doing so, the Court will bring an end to the agencys defiance ofan unequivocal congressional directive that the time in community corrections be addressedthrough notice-and-comment rule-making that continues to this moment. At the same time, theCourt will resolve important separation of powers and administrative law issues that can occur inany context: whether an agency can ignore explicit congressional directives to implement a programthrough notice-and-comment rule-making and, instead, perpetuate prior practice through informalmemoranda; and whether such informally promulgated rules are valid even where no empiricalevidence or rationale supports the informal ru le . This case likely presents the only opportunity forthis Court to determine the lawfulness of the BOPs implementation of the SCA and to bring an end

to the agencys unconstitutional refusal to adhere to the statutes plain text.With strong bipartisan support, President George W. Bush signed the SCA on April 9, 2008.

The new legislation doubled from six to twelve months the duration of time prisoners could spendin community corrections placements at the end of their terms of imprisonment, and reaffirmed B OP

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authority to transfer prisoners to community corrections at any time. 18 U.S.C. 3624(c). DespiteCongresss explicit direction that the BOP issue regulations pursuant to this subsection not laterthan 90 days after enactment . . . which shall ensure that placement in a community correctionalfacility [is] . . . of sufficient duration to provide the greatest likelthood of successful reintegrationinto the community, 18 U.S.C. 3624(c)(6)(C), no such regulations were forthcoming. Instead,as the discovery in this case proved, the BOP violated the statute on promulgating the regulationsin three ways: the BOP delayed issuance of a regulation until over 100 days after the congressionaldeadline; the regulation was invalid because the BOP violated the notice-and-comment requirementsof the APA; and the invalid regulation itself said nothing to provide guidance regarding the optimalduration of community corrections. The federal prisoners continued to be limited to the former six-months rule by informally promulgated memoranda.

With few exceptions, prisoners could not obtain review of the validity of the BOPs informalSCA rules. Nationwide, prisoners who filed for habeas corpus relief before they were consideredfor community corrections placements had their cases dismissed because they were not ripe; as soonas a community corrections placement was designated, no matter how delayed the placement, thecases were dismissed as moot. In two districts, the BOPs six-month norm was held to violate the

2 See, e.g., Sievers v. Berkebile, No. CV-10-360, 2011 WL 1642436, at *6 (5.D.W.Va. May 2,2011); Rosario v. Scism, No. CV 10-2600, 2011 WL 398200, at *4 (M.D.Pa. Jan. 20, 2011); Walkerv. Copenhaver, No. C 09-045 18, 2010 WL604674, at *1 (N.D. Cal. Feb. 19,2010); Sass v. Thomas,No. CV 08-300-MA, 2009 WL 2230759, at *46 (D. Or. July 23, 2009),affirmed, 405 Fed . Appx.202 (9 th Cir. 2010).

See, e.g., Demis v. Sniezek, 558 F.3d 508, 513 (6th Cir. 2009); Pierce v. Thomas, No. CV 08-709-MA, 2009 WL 2476606, at *2 (D . Or. Aug. 10, 2009), affirmed, 400 Fed. Appx. 259 (9 th Cir.2010) ; Tanis v. Shartle, No. CV 10-2615, 2011 WL 1297183, at *2 (N.D.Ohio, Apr. 5, 2011);Metcalfv. Davis, No. CV 10-00209-REB, 2011 WL 1134931, at *2 (D.Colo. Mar. 25,2011); Kelseyv. Warden, F. C.I., ElReno, No. CV-10-1292-D, 2011 WL 873647, at *2 (W.D.Okla. Mar. 11,2011).

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plain meaning of the SCA, but the BOP did not appeal, leaving those decisions applicable only tothe petitioners in those two cases. Krueger v. Martinez, 665 F. Supp. 2d 477, 483 (M.D. Pa . 2009);Strong v. Schultz, 599 F. Supp. 2d 556, 563 (D. N.J. 2009). Finally, Tim Sacora filed a motion toact as a class representative for prisoners at the Sheridan federal prison who were subject to theBOPs six-month rule, which along with the intervention of two o ther prisoners, resulted in thecertification of the following class to litigate in th is case:

All federal prisoners serving sentences in the District of Oregon who have been denied orwill be denied community corrections placement in excess of six months under 18 U.S.C. 3624(c) and 18 U.S.C. 362 1(b), pursuant to the Bureau of Prisons April 14, 2008,memorandum, the Bureau of Prisons November 14, 2008, memorandum, ProgramStatement 7310.04, Program Statement 5100.08 and 28 C.F.R. 570.20, et seq.

Sacora v. Thomas, 2009 WL 4639635, *12 (D. Or. Dec. 3, 2009) (granting class certification),amended, CV 08-578-MA,Order (D. Or. filed Jan. 25,2010) (adjusting class to include intervenors).

Through both public records and extensive discovery, the class representatives establishedthat the BOP never properlypromulgated a valid regulation, or any regulation, regarding the durationof community corrections, and had no basis for retaining the old six month norm . The BOP failedto promulgate its regulation within the 90 days provided, then over 100 days too late did sowithout the required notice-and-comment. The regulationmerely parroted the statute and providedno explication of sufficient duration or greatest likelihood of success. See Gonzales v. Oregon,546 U .S. 243, 257 (2006) (the near-equivalence of the statute and regulation belies agencysargument for deference). In the district court, the class representatives prevailed on their contentionthat the regulation was invalid under 553 of the APA, a decision the BOP did not appeal.Appendix 025 n.9 ([T]he October regulations failed to comport with the notice and commentprovisions of 553(b).).

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Since then, the BOP has not promulgated another regulat ion. Ins tead, the BOP issuedanother informal memoranda on June 24 , 2010, reiterating the six-month rule with modificationseliminating the requirement that the regional director approve placements longer than six months,and adding that inmates should be considered for a minimum 90-day placement. The June 2010Memorandum did not rescind the 1998 program statement, which provides that placements greaterthan 180 days is highly unusual, and only possible with extraordinaryjustification. Appendix 051(emphasis added).

Despite the BOP s acknowledged failure to comply with the congressional directive toaddress length of community corrections by notice-and-comment regulation, the district court upheldthe informal rule by deferring to the agencys informal implementation of the statute. On appeal,the class representatives contended that the informal rule violated the SCA and the APA. The SCAwas not properly implemented where not a single Sheridan inmate received more than six monthscommunity corrections despite the decision by Congress to double the available communitycorrections to twelve months, especially where the extraordinary exception was indistinguishablefrom the standard under 3621(b) for designations to a halfway house at anytime. Where Congressprescribed the manner of implementing the statute by notice-and-comment rulemaking, informalrules were unauthorized and invalid. The informal rules also violated the APA because no validempirical evidence supported the rules: the discovery established that no studies supported thecontention that greater than six month placements were counter-productive, and the BOP could no t

4urther, the extraordinary and compelling statutory standard for BOP motions for resentencingunder 18 U.S.C. 3582(c)(1)(A) (2006) appea rs indistinguishable from the informal rulesextraordinary justification standard.

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possibly have experience with greater than six month placements because, prior to the SCA, suchplacements were almost unknown under 3621(b).

The Ninth Circuit affirmed the district courts deference to the informal rules. The courtfailed to address whether the congressional instruction regarding rules made any difference, insteadconferring Skidmore deference on the BOPs informal administration of 18 U.S.C. 362 1(b) and3624(c). The court did not address the factual development in discovery that established that thesix-month rule was based on a mistaken belief regarding the social science. The court also treatedthe rule as non-substantive despite the proof tha t, by application of the informal rule, no classmember received a community corrections placement greater than six months.5. Reasons For Granting The Writ

The Court should grant certiorari to address extraordinarily important issues involving theactual time behind bars for most United Sta tes c it izen federal prisoners. With the exception offoreign nationals, almost all of the 214,721 federal prisoners are eligible for community correctionsunder the SCA (about 26% of federal prisoners are aliens with immigration holds), with about45,000 transferred to the community each year. The separation ofpowers questions are fundamental:can the Executive Branch simply ignore the statutory directive that a regulation be promulgated,covering the precise subject matter that the agency addresses in informal rules? And if the agencyfails to follow statutory instruction on promulgation of the rules, must the Judiciary consider the

factual development in the litigation or can it simply defer to invocation of agency experience

Compare Rodriguez v. Smith, 541 F.3d 1180, 1184 (9th Cir. 2008), with Muniz v. Sabol, 517F.3d 29, 35 (1st Cir. 2008), and Miller v. Whitehead, 527 F.3d 752 , 757 (8th Cir. 2008).6 Skidmore v. Swift. & Co., 323 U.S. 134 (1944).

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under Skidmore? The answers to these questions, are essential to the rights ofmany thousands offederal prisoners to receive fair consideration of the benefits of community placements under theSCA. The basic rule of law is also at issue where the Executive Branch agency refuses to executethe law as written, essentially legislating the shall of the s ta tute requiring promulgation of aregulation into a maybe.

A. The BOPs Violation Of Congresss Explicit Direction To Address TheSufficient Duration For Community Corrections ThroughNotice-And-Comment Rule-Making Forecloses Deference To The BOPsInformal Rule, Promulgated Without Notice-And-Comment, LimitingCommunity Corrections To Six Months Absent Extraordinary Circumstances.

The Ninth Circuit overlooked a critical difference between this case and most o ther casesinvolving agency rule-making: Congress expressly directed the BOP to engage innotice-and-comment rule-making by promulgating a regulation, and the BOP failed to follow thatstatutory directive. The BOP had no discretion except to engage in notice-and-comment nile-making, so its failure to do so should render its informal SCA rules void. See Gonzales, 546 U.s.at 258 (To begin with, the rule must be promulgated pursuant to authority Congress has delegatedto the official.) (citing United States v. Mead Corp., 533 U.S. 218 , 226-27 (2001)). Congress notonly d id not give the BOP discretion to adopt alternative means to implement the SCA, but suchinformal rules violate the plain meaning of the statute. Raleigh & Gaston R. Co. v. Reid 80 U.s.269, 270 (1871) (When a statute limits a thing to be done in a particularmode, it includes a negative

of any other mode.). Although the petitioners argued the point throughout the litigation, the NinthCircuit did not address the claim that Congresss directive that a regulation be promulgatedforeclosed an informal rule on precisely the same subject.

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The SCA provides that the BOP shall implement the reforms to the pre-release communityplacement statute through the formal procedures provided under the APA. 18 U.S.C. 3624(c)(6)(The Director of the Bureau of Prisons shall issue regulations regarding the sufficient durationof community corrections) (emphasis added)). [D]iscretion as to the substance of the ultimatedecision does no t confer discretion to ignore the required procedures of decisionmaking. Bennettv. Spear, 520 U.S. 154, 172 (1997). When congress specifies an obligation and uses the wordshall, this denomination usually connotes a mandatory command. Ala. v. Bozeman, 533 U.S. 146,153 (2001) (citing Anderson v. Yungkau, 329 U.5. 482,485 (1947)). The agencys power to makerules that affect substantial individual rights and obligations carries with it the responsibility no t onlyto remain consistent with the governing legislation, but also to employ procedures that conform tothe law. Morton v. Ruiz, 415 U.S. 199, 232 (1974) (emphasis added) (citations omitted). [T]hepromulgation of [the] regulations must conform with any procedural requirements imposed byCongress because agency discretion is limited not only by substantive, statutory grants ofauthority, but also by the procedural requirements which assure fairness and mature considerationof rules of general application. Chrysler Corp. v. Brown, 441 U.S. 281, 303 (1979) (citationsomitted).

The SCA explicitly refers to the need for reentry policies to be empirically based. 42 U.S.C. 1754 1(d). Congresss intention that the BOP engage in notice-and-comment rule-makingeffectuates this approach by giving the public and interested organizations the opportunity to provideinput regarding the duration of community corrections. See Chrysler Corp., 441 U.S. at 316 (Inenacting the APA, Congress made a judgment that notions of fairness and informed administrativedecisionmaking require that agency decisions be made only after affording interested persons notice

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and an opportunity to comment.); see also Conf. Rep. to ConsolidatedAppropriations Act of 2010,155 Cong. Rec. H13631-03, *H13888 (daily ed. Dec. 8, 2009) (d irec ting the BOP to consult withthe public and experts regarding reentry issues). Nevertheless, the BOP issued the in fo rma lmemoranda with no support in best practices, no social science studies, and no articulated rationalewith any support in the literature. As two district courts found, aside from procedural invalidity, thesix-month rule appears to be substantively inconsistent with the doubling of available communitycorrections placements. Krueger, 665 F. Supp. 2d at 483; Strong, 599 F. Supp. 2d at 562. Becausethe SCA rules were promulgated not in accordance with law, 5 U.S.C. 706(2)(A) (2006), andwithout observance of procedure required by law, 706(2)(D), the Ninth Circuits analysis isfatally defective in giving no effect to the BOP s violation of the explicit congressional directiveregarding the implementation of the SCA.

B. TheNinth CircuitFailed To Follow This Courts AdministrativeLaw PrecedentBy Ignoring The Extrinsic Evidence Demonstrating That The BOPs InternalMemoranda Was Based On Factual Errors And Failure To Consider RelevantFactors.

The specific statutory instruction requiring a regulation should alone foreclose Skidmoredeference for informal rules covering the identical question. In giving Skidmore deference to the sixmonth rule, the Ninth Circuit also disregarded the specific factual development during the litigationbefore the district court, instead relying on the BOPs nearly 10 years of experience in placinginmates in [halfway houses], at least with respect to periods of six months or less. Appendix 045.Not only is this reliance unsupported by empirical evidence, the rationale is supplied by the court,not the agency. The Ninth Circuits approach violates this Courts precedent in several ways.

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1. TheRationaleForAnAgencysRuleMustCome From TheAgency Itself NotThe Couri, And Cannot Be Based On Factual Errors.

When a rule is challenged under 706 of the APA, th is Court requires that only the rationalesarticulated by the agency itself be considered. SEC v. Chenery Corp., 318 U.k. 80, 87 (1943); SECv. Chenery Corp., 332 U.S. 194, 196(1947); Burlington TruckLines, Inc. v. United States, 371 U.S.156, 168 (1962). The agency is required to examine the relevant data and articulate a satisfactoryexplanation for its action including a rational connection between the facts found and the choicemade. Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto . In s. Co., 463 U.5. 29, 41(1983). Theagency must cogently explain why it has exercised its discretion in a given manner, and theagencys explanation must be sufficient to enable a reviewing court to conclude that the [agencysaction] was the product of reasoned decision making. State Farm, 463 U.s. at 48-49, 52.

In the present case, the BOP did not provide any empirical support to establish that a six-month general limit on community corrections was appropriate. In fact, the evidence presentedbefore the district court established beyond question that the six-month figure was based onerroneous assumptions. Most glaringly, the evidence disclosed that the Director of the BOPerroneously believed there were studies supporting the rule, but the BOP s own records in asmoking gun email established that no such studies exist: The Director claimed that our research that weve done for many years reflects that manyoffenders who spend more than six months in a halfway house tend to do worse rather thanbetter. Th e six months seems to be a limit for most of the folks, at which time if they go

much beyond that, they tend to fail more often than offenders that serve up to six months. The BOP s research department could not back up the Directors claim, stating I am tryingto find out if there is any data to substantiate the length of time in a halfway house

placement is optimally x number ofmonths. That is, was the 6-month period literally oneof tradition, or was there some data-driven or empirical basis for that time frame? . . . Ive

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done a lot of searching of the literature, but so far have not found anything to confirm thatthe 6-months was empirically based.The Ninth Circuits reliance on experience disregarded the actual facts of the administrativeprocess, especially where the BOP had virtually no experience of using community corrections formore than six months due to the statutory prohibition and its own practices.

The Ninth Circuit also misapplied this Courts precedent on what constitutes a substantiveor legislative rule that must be promulgated through notice and comment rule-making. ChryslerCorp., 441 U.S. at 302 n.3 1 (substantive rules have the force and effect of law, while interpretiverules and general statements of policy do not have the force and effect of law.); see alsoChristensen v. Harris County, 529 U.S. 576, 588 (2000) (To defer to the agencys position wouldbe to permit the agency, under the guise of interpreting a regulation, to create de facto a newregulation.). Because the class consisted only of prisoners at FCI Sheridan, the proof wasirrefutable that the informal rules created a binding norm with the force of law: under the SCA, no ta single Sheridan prisoner received more than six months of community confinement. Although theNinth Circuit pointed to sparse placements in other regions, the class representatives established that,at least in the prison where they served their sentences, the Courts functional analysis under theAPA would require that the rule be deemed substantive as establishing a binding norm limiting theexercise of agency discretion. Such rules are invalid unless promulgated with notice-and-commentunder 553 of the APA, independent of the SCA s requirement ofnotice-and-comment rule-making.

The ful l emai l is attached as Appendix 059.8 The BOP followed an Office of Legal Counsel memorandum that barred even discretionaryplacements under 3621(b) for much of the previous ten years referenced in the Ninth Circuitsopinion. See Rodriguez, 541 F.3d at 1181-83 (reviewing the litigation history regarding the BOPscategorical bar on 3621(b) community corrections placements of more than six months).

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2. TheAgencyActionFailed To ConsiderAn ImportantAspect OfThe Problem.In addition to the erroneous predicate and absence of articulated rationale, the BOP informal

rule is arbitrary and capricious because the agency entirely failed to consider an important aspectof the problem, State Farm, 463 U.S. at 43 . The only rationale for the six-month rule proffered bythe BOP related to the supposed optimum time in a halfway house. The class representativesconsistently asserted that, even if the BOPs erroneous belief regarding halfway house studies hadnot been debunked, the BOP sti ll failed to consider an essential point: even with a six-month limiton the duration of halfway house placements, earlier placement would allow for up to six monthsof additional time in home detention under 3624(c)(2) . The evidence included acknowledgmentby a BOP official th at th e SCA permitted such placements, which would save thousands of dollars(because supervision of home detention costs $3,621.64 pe r year, while incarcerations runs about$25,000 pe r year). More importantly for the class members, earlier community corrections wouldenable them to accelerate their reintegration into the community, through family reunification,work,treatment, and other appropriate community-based programming. The failure to consider this aspectof the SCA alone should have invalidated the informal (and irrational) six-month rule.

3. The Court Erroneously Injected Statutory Error Into Its Decision.The Ninth Circuit erroneously cited to a part of the SCA upon which the BOP placed no

reliance in the administrative record (o r in its briefing). See Fed . Power Comm n v. Texaco, Inc.,417 U.S. 380, 397 (1974) (post hoc rationalizations cannot substitute for the agencys ownarticulation of the basis for the decision in the administrative record)). In a general purposeprovision relating to time that state and federal prisoners spend in transitional medical-typefacilities, Congress very sensibly directed such transitional treatment [should be] for as short of a

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period as practicable. 42 U.S.C. 17501(a)(5) (Supp. 1112009). The statement in full demonstratesthat the statute is aimed at medical-type facilities:

(5) to assist offenders reentering the community from incarceration to establish a self-sustaining and law-abiding life by providing sufficient transitional services for asshort of a period as practicable, not to exceed one year, unless a longer period isspecifically determined to be necessary by a medical or other appropriate treatmentprofessional....

42 U.S.C. 17501(a)(5) (emphasis added). Reference to a medical or other appropriate treatmentprofessional clearly indicates tha t the transitional services refer to inpatient or similar treatment,not halfway house placements. Of course, restriction in medical-type facilities should be only aslong as needed.

The Ninth Circuit took this fragment to find that Congress intended to minimize communitycorrections. Appendix 042 n.7. Not only did the administrative record include no suchinterpretation, the structure of the statute is entirely the opposite from minimizing communitycorrections. Congress would no t double the available time at the same time as minimizing halfwayhouse time without explanation. Further, the SCA directed Congress to provide for the maximumallowable period in a community confinement facility as an incentive to participate in reentryprogramming. 42 U.S.C. 17541(a)(2)(A). Congress further demonstrated the need for increasedcommunity corrections by requiring the BOP to ensure that prisoners spend a sufficient time incommunity corrections to provide the greatest likeithood of successful reintegration into thecommunity. 18 U.S.C. 3624(c)(6)(C). Most obviously, by doubling th e time in communitycorrections from s ix to twelve months, Congress intended that community corrections be utilized fora longer time per iod. The single reference, in a section involving state prisoners and medical needs,does not inform the scope of the sections dedicated specifically to federal prisoners. See Bloate v.

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United States, 130 S. Ct. 1345, 1354(2010) (the specific controls the general) (citing Gozlon-Peretzv. United States, 498 U.S . 395, 407 (1991)).

Congresss intent that placements be longer is reinforced by the ConsolidatedAppropriationsAct of 2010, which provides:

BecauseBOP has indicated that approximately$75,000,000 is required to implementfully its Second Chance Act responsibilities, the conferees expect the Department topropose significant additional funding for this purpose in the fiscal year 2011 budgetrequest, including significant additional funding for the enhanced use ofResidentialReentry Centers (RRC) as part of a comprehensive prisoner reentry strategy. Theconferees also urge the BOP to make appropriate use of home confinement whenconsidering how to provide reentering offenders with up to 12 months in communitycorrections.

155 CoNG. REC. at 1113887. Congress clearly expressed its continued intention th at the BOP fullyuse its authority to place federal prisoners in the community for as long a period as appropriate toensure the greatest likelihood of successful reintegration including greater utilization of halfwayhouses and home confinement. Congress has indicated that funding considerations will not betolerated as an excuse for failing to implement fully BOPs responsibilities under the SCA. TheNinth Circuits reliance on a general purpose statement, addressing state prisoners on a differentquestion, to condone the BOP s failure to change its prior practice, cannot stand in light of thestatutory instruction to enhance and to improve utilization of community corrections for federalprisoners.

C. The Court Should Grant Certiorari Because The Extraordinarily ImportantSeparation Of Powers Issues Affect An Extraordinary Number Of FederalPrisoners.

The SCA is one of themost important legislative initiatives regarding criminal justice policyin recent years. For the first time in decades, Congress confronted the reality that almost all

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prisoners return to the community and that over-incarceration behind prison walls can be reducedthrough community placements. The SCAs amendment of 3624(c) rests on three assumptionsapparent from the legislation: the amount of available time in community corrections should bedoubled; the likelihood of successful reentry will be enhanced by earlier reintegration through familyreunification, employment, and treatment in the community; and the costs of incarceration can beameliorated by greater utilization of community resources for those determined not to createsubstantial risks in the community. All these legislative goals, which are aimed at the over 150,000federal prisoners who are eligible for community placements, are thwarted by the informal rule thatperpetuates the pre-SCA policy of community corrections in excess of six months only inextraordinary circumstances.

Under well-established precedent of this Court, the BOPs refusal to follow Congresssdirection implicates the most basic structural integrity of the federal system of governance. Toimplement the separation ofpowers, the fundamentalpremise of agency power lies in the authorizingstatutes:

If agencies were permitted unbridled discretion, their actions might violate importantconstitutional principles of separation of powers and checks and balances. To thatend the Constitution requires that Congress delegation of lawmaking power to anagency must be specific and detailed. . . . Congress must clearly delineat[e] thegeneral policy an agency is to achieve and must specify the boundaries of [the]delegated authority.... Congress must lay down by legislative act an intelligibleprinciple, and the agency must follow it.

F. C. C. v. Fox Television Stations, Inc., 129 S .Ct. 1800, 1823-24 (2009) (Kennedy, J., concurring)(citing Mistretta v. United States, 488 U.S . 361, 372-74 (1989)). Here, Congress provided specificand detailed instructions regarding the boundaries of the delegated authority, but the agency has notfollowed the explicit directives.

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The agency not only scoffed at the direct statutory instruction, the informally promulgatedrules violated the basic rules of the APA, which also protect againstExecutiveBranch encroachmentupon legislative prerogatives:

Congress passed the Administrative Procedure Act (APA) to ensure that agenciesfollow constraints even as they exercise their powers. One of these constraints is theduty of agencies to find and formulate policies that can be justified by neutralprinciples and a reasoned explanation. To achieve that end, Congress confinedagencies discretion and subjected their decisions to judicial review. See R. Stewart& C. Sunstein, Public Programs and Private Rights, 95 Harv . L.Rev. 1193, 1248(1982 ) (the APA was a working compromise, in which broad delegations ofdiscretion were tolerated as long as they were checked by extensive proceduralsafeguards). If an agency takes action no t based on neutral and rational principles,the APA grants federal courts power to se t aside the agencys action as arbitraryor capricious. 5 U.S.C. 706(2)(A); Citizens to Preserve Overton Park, Inc. v.Volpe, 401 U.S. 402,416,91 S.Ct. 814,28 L.Ed.2d 136 (1971). For these reasons,agencies under theAPA are subject to a searching and careful review by the courts.Ibid.

Id. at 1823-24. Because the agency entrustedwith implementation of the SCA did not lawfully carryou t its statutory responsibilities, the Court should consider the case as involving transcendinglyimportant questions regarding the Executive Branchs failure to execute the laws as Congress wrotethem.

The Court should grant certiorari in this case because, otherwise, issues of extremeimportance will not be resolved, institutionalizing violations of separations of powers andadministrative law. The effect on thousands of prisoners, and the savings of millions of dollarsthrough community placements, make this case of sufficient importance to warrant grant ofcertiorari. The prisoners whose freedom is most affected are those whose extended presence in thecommunity would be justified by excellent institutional behavior. The Court should also grantcertiorari because the principles of administrative law approved here app ly in the non-prisoner

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context. Where Congress directs notice-and-comment rule-making, the agency, unchecked byeffective judicial review, continues to be free to ignore, or to give mere lip service to, statutorydirectives, while no effective remedy exists for the lawless action that thwarts the purpose of theSCA.

D. This Petition Is Time Sensitive Because The Agency Continues To OperateUnder Its InformalRules And StillHas Not Promulgated The Regulation,WithOpportunity For Comment, Required By The Statute.

Congress directed th at th e BOP promulgate a regulation to guide agency personnel in theirdetermination of the appropriate duration of community corrections. The deadline for issuance ofthe regulation was July 8, 2008. Nearly three years later, the BOP continues to provide no directionby regula tion. In ste ad , BOP personnel follow the old informal rule of six months maximumcommunity corrections, absent extraordinary circumstances, thereby affecting the decisions on over45,000 placements every year. The continuing nature of the constitutional and statutory violationsprovides a strong reason to grant certiorari.

Governance by the rule of law becomes precarious when the beneficiaries of the statutorychange are felons who possess virtually no political power and generally receive the disapprobationof the public. The only effective check on executive lawlessness is the Great Writ, the traditionallast resort for the protection of individual freedom. Where the availability of community correctionsis at issue the chance for prisoners to serve their time close to family and community even habeascorpus provides a difficult forum to vindicate prisoner rights, given the doctrines of ripeness andmootness. As a consequence, the agency is free to continue its absolute defiance of congressionalinstruction and, on its own initiative, to decide that informal rule-making, rather than a notice-andcomment regulation, will meet the statutes purposes. Because the agencys lawless activity

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continues to this moment, and will persist in the absence of a grant of certiorari, the time sensitivenature of the claims provides strong support for this Court to grant review.

E. The Present Case Provides An IdealVehicle For Review Of The ImportantAndUrgent Issues Presented.Due to the procedural peculiarities of prison litigation and the general lack of representation

for prisoners serving time, this case provides an ideal and probably the only vehicle for reviewof the SCAs implementation. Because reentry issues arise close to the end of sentences, individuallitigants will either file too soon and be dismissed for lack of a ripe claim, or the case will becomemoot with the grant of belated community corrections. The cla ims are especially likely to evadereview because, once the c laims mature close to the prisoners projected release date, prisonersshould avail themselves of the administrative remedies system, which can take many months. Thenthe district courts and appellate courts need time to consider and to rule on the issues raised. All thisis done in a context where the federal prisoners are usually indigent and appointed counsel under 18U.S.C. 3006A(a)(2)(B) is relatively rare.

The present case provides a strong vehicle if the issues are deemed appropriate for review.The district court appointed counsel, who developed the relevant facts and raised the relevantseparation of powers and administrative law issues. The district court also certified the case as aclass action, so there is no concern with exhaustion of remedies, ripeness, or mootness. At the endof prisoners sentences, habeas corpus petitions on behalf of individuals are ordinarily disposed ofas no t ripe or moot, there is no unqualified right to habeas counsel, and prisoners do not have theresources to undertake the factual development that occurred here. The certification of a classappears to be the only effective mechanism for obtaining review. The chances of another case

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threading through the procedural obstacles to reach the merits as here are vanishingly small. Thepresent case likely provides a clear opportunity for the rule of law to be applied against the executivedecision to ignore congressional instruction on promulgation of an implementing regulation.6. Conclusion

For the foregoing reasons, the Court should issue a writ of certiorari for plenary review or,in the alternative, grant the writ, vacate the judgment, and remand for reconsideration based on theinapplicability of Skidmore deference where the authorizing statute directed notice-and-commentrule-making.

IfDated this L.o day of May, 2011.

Attorney for Petitioner

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N o.





V.


Respondent.

On Petition For Writ Of Certiorari ToThe United States Court Of Appeals


CERTIFICATE OF SERVICE AND MAIIJNG

I, Stephen R. Sady, counsel of record and a member of the Bar of this Court, certify thatpursuant to Rule 29.3, service ha s been made of the within MOTION FOR LEAVE TO PROCEEDIN FORMA PAUPERIS and PETITION FOR WRIT OF CERTIORARI on the counsel for th erespondent by depositing in the United States Post Office, in Portland, Oregon onMay 16, 2011, firstclass postage prepaid, a certified true, exact and full copy thereof addressed to:

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Kelly A. Zusman Neal K. KatyalU.S. Attorney Acting Solicitor General1000 SW Third, Suite 600 Room 5614Portland, OR 97204 Department of Justice

950 Pennsylvania Avenue, N. W.Washington, DC 20530-0001Further, the original and ten copies were mailed to the Honorable William K. Suter, Clerk

of the United States Supreme Court, by depositing them in a United States Post Office Box,addressed to 1 First Street, N.E., Washington, D.C., 20543, for filing on this 16th day of May, 2011,with first-class postage prepaid.

Dated this ((P day of May, 2011.

Stephen . SadyAttorney for Petitioner

Subscribed and sworn to before me this I (.QM day of May, 2011.

NOZOGONNoic of Oregon

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Case 3:08-cv-00578-MA Document 57 Filed 06/16/10 Page 1 of 34 Page ID#: 743

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF OREGON

PORTLAND DIVISIONTIM RAY SACORA,

Petitioner,

LARRY L. BEAMAN and CV. 08-578-MATODD SONOBE,

OPINION AND ORDERPetitioners- IN A CLASS ACTIONIntervenors,

V .

J.E. THOMAS, Warden, FCISheridan,

Respondent.STEPHEN R. SADYChief Deputy Federal Defender101 S.W. Main Street, Suite 1700Port land, OR 97204DAVID F. SUGERMAN520 S.W. Sixth Avenue, Suite 920Port land, OR 97204

Attorneys fo r Petitioner & Petitioners IntervenorsDWIGHT C. HOLTONUnited States AttorneyDistrict of OregonADRIAN L. BROWNAssistant United States AttorneyUnited States Attorneys Office1000 S.W. Third Avenue, Suite 600Port land, OR 972042902

Attorneys fo r Respondent

1 - OPINION AND ORDER

Appendix 001


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oH00C

H(DH-CD

NO

-

Coff

sacora 2d chance act cert petition

Documents