FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM KITTEL, No. 09-35630
Petitioner-Appellant, D.C. No.
v.
3:07-cv-00851-KI
J. E. THOMAS, ORDER AND
Respondent-Appellee. AMENDED
OPINION
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Submitted June 11, 2010*
Portland, Oregon
Filed July 2, 2010
Amended September 7, 2010
Before: David R. Thompson and M. Margaret McKeown,
Circuit Judges, and Robert J. Timlin,
Senior District Judge.**
Opinion by Judge McKeown
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
13461
KITTEL v. THOMAS 13463
COUNSEL
Stephen R. Sady and Lynn Deffebach, Office of the Federal
Public Defender, District of Oregon, Portland, Oregon, for the
petitioner-appellant.
Suzanne A. Bratis, United States Attorney’s Office, District
of Oregon, Portland, Oregon, for the respondent-appellee.
ORDER
The Opinion filed July 2, 2010, slip op. 9507, and appear-
ing at 610 F.3d 1115, is amended as follows:
At slip op. 9512, at the end of the first paragraph, after the
cite to Pacheco-Camacho v. Hood, insert the following: “See
also Reynolds v. Thomas, 603 F.3d 1144 (9th Cir. 2010) (cit-
ing Gunderson and Mujahid and considering the live, justicia-
ble question of whether the BOP erred in denying petitioner’s
request for nunc pro tunc designation of the Montana state
prison as the facility for the service of his federal sentences).”
With this amendment, the panel has voted to deny the peti-
tion for panel rehearing and the petition for rehearing en banc.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
13464 KITTEL v. THOMAS
The petition for panel rehearing and the petition for rehear-
ing en banc are denied. No future petitions for rehearing or
rehearing en banc will be entertained.
OPINION
McKEOWN, Circuit Judge:
William Kittel, a federal prisoner incarcerated in Oregon,
filed a pro se federal habeas petition under 28 U.S.C. § 2241.
He challenges a Bureau of Prisons (“BOP”) rule that categori-
cally excludes from an early release incentive program prison-
ers whose offenses of conviction involved firearms
possession. The district court dismissed his habeas petition as
moot in light of Arrington v. Daniels, 516 F.3d 1106 (9th Cir.
2008), relying in part on Burkey v. Marberry, 556 F.3d 142
(3d Cir. 2009). We affirm the district court’s dismissal of Kit-
tel’s habeas petition.
BACKGROUND
The BOP has statutory authority to grant a sentence reduc-
tion of up to a year to an inmate convicted of a nonviolent fel-
ony upon the inmate’s successful completion of the
Residential Drug Abuse Program (“RDAP”). 18 U.S.C.
§ 3621(e)(2)(B). Under a final rule promulgated in 2000, the
BOP categorically excluded from this early release initiative
inmates whose offense of conviction included weapons pos-
session or use. 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000). Kittel
was found eligible to participate and did participate in the
RDAP, but the BOP, relying on the 2000 rule, denied him the
early release benefit because his offense of conviction
included weapons possession.
Kittel filed a habeas petition on June 7, 2007, to challenge
the BOP’s denial of his eligibility for early release. The dis-
KITTEL v. THOMAS 13465
trict court dismissed his petition, but while on appeal, we
decided Arrington, which involved a procedural challenge to
the 2000 rule by a group of inmates. In these consolidated
cases, we ultimately held that the 2000 rule was procedurally
invalid under the Administrative Procedure Act (“APA”)
because the BOP did not adequately provide a rationale for
the adoption of the rule. 516 F.3d at 1114. Although Kittel’s
habeas petition was pending at the time of Arrington, his case
was not part of the consolidated Arrington cases.
Kittel completed RDAP on March 24, 2008, just over a
month after Arrington was decided. Ten days after Kittel’s
completion of RDAP, the BOP reconsidered Kittel’s case in
light of Arrington and found him eligible for early release. As
a result, Kittel was sent to a halfway house to complete
RDAP’s transitional component.
On July 22, 2008, we granted Kittel’s request to remand his
case to the district court for it to consider his petition in light
of Arrington. Kittel was then transferred to home confine-
ment, and the BOP moved to dismiss Kittel’s petition as
moot. The BOP released Kittel from its custody on October
28, 2008. On November 20, 2008, the district court granted
the BOP’s motion to dismiss the petition as moot, but upon
a motion for reconsideration, the court determined that it had
erred and reopened the case. After oral argument, the district
court again held that it was “undisputed” that Kittel had “suf-
fered an actual injury traceable to the BOP,” and he had only
received partial relief. Nonetheless, the court dismissed Kit-
tel’s habeas petition as moot, noting that the remedy he
sought “would simply reiterate a fact that is not in dispute—
that petitioner was initially wrongfully denied eligibility for
early release benefits,” and that there was no effective relief
it could grant.
ANALYSIS
The Constitution limits the jurisdiction of the federal courts
to live cases and controversies, and as such, federal courts
13466 KITTEL v. THOMAS
may not issue advisory opinions. U.S. CONST., art. III; Flast
v. Cohen, 392 U.S. 83, 96 (1968). “Failure to satisfy Article
III’s case-or-controversy requirement renders a habeas peti-
tion moot.” Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir.
2005) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)).
Kittel maintains that his action is not moot, because under
Gunderson v. Hood, 268 F.3d 1149 (9th Cir. 2001), and
Mujahid, the possibility exists that his term of supervised
release could be reduced upon a motion under 18 U.S.C.
§ 3583(e). Kittel received only a partial remedy in the form of
a reduction of seven months of his sentence, so he asserts that
he was wrongfully incarcerated for up to five extra months
based on the BOP’s initial denial of his eligibility for early
release upon completion of RDAP. He argues that a favorable
ruling from this court on the wrongfulness of the BOP’s initial
denial of eligibility for the early release benefit would “pro-
vide a predicate for a § 3583(e) motion” to reduce his term of
supervised release.
[1] Kittel correctly states that in both Gunderson and
Mujahid, we ruled that a suggestion of mootness is defeated
by the “ ‘possibility’ that [the petitioner] could receive a
reduction in his term of supervised release under 18 U.S.C.
§ 3583(e)(2).” Mujahid, 413 F.3d at 995 (quoting Gunderson,
268 F.3d at 1153). This case, however, is distinguishable,
because in both Gunderson and Mujahid, there remained a
live, justiciable question on which the parties disagreed and
on which we ruled. In Gunderson, the petitioner disputed the
legality of a BOP program statement under the APA. 268 F.3d
at 1150. We held that the program statement was a valid inter-
pretive rule. Id. at 1154. In Mujahid, the petitioner challenged
the BOP’s interpretation of the maximum good time credit a
federal prisoner could receive under 18 U.S.C. § 3624(b). 413
F.3d at 993, 996. We held that the BOP’s interpretation was
reasonable and subject to deference. Id. at 995 (citing
Pacheco-Camacho v. Hood, 272 F.3d 1266, 1270 (9th Cir.
2001). See also Reynolds v. Thomas, 603 F.3d 1144 (9th Cir.
KITTEL v. THOMAS 13467
2010) (citing Gunderson and Mujahid and considering the
live, justiciable question of whether the BOP erred in denying
petitioner’s request for nunc pro tunc designation of the Mon-
tana state prison as the facility for the service of his federal
sentences).
[2] Here, the legal dispute raised in Kittel’s petition—the
validity of the 2000 rule—was conclusively resolved by
Arrington. What Kittel seeks is a protective ruling as to the
applicability of Arrington to his case in order to support a
future § 3583(e) motion for a reduction in his term of super-
vised release. Although Kittel fears that the government may
argue before the sentencing court that Arrington is somehow
not good law, Arrington is currently binding authority in the
Ninth Circuit, and our role is not to provide a belt-and-
suspenders opinion on a downstream controversy. As the dis-
trict court noted, an order stating that Arrington applies to
Kittel “would simply reiterate a fact that is not in dispute.”
Unlike in Gunderson and Mujahid, this case involves no live
controversy, which renders Kittel’s petition moot. As the dis-
trict court stated, after Arrington, “there is nothing remaining
for this court to decide.”1
PETITION DISMISSED.
1
Although the district court correctly determined that Kittel’s petition
was moot, it was not proper to predicate that discussion on non-binding,
out-of-circuit authority, Burkey v. Marberry, 556 F.3d 142, 149-51 (3d
Cir. 2009), which explicitly rejects the reasoning of the Ninth Circuit in
Mujahid. See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)
(stating that a district court must follow case law from its own circuit).