FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIM RAY SACORA,
Petitioner-Appellant,
LARRY L. BEAMAN; TODD H. No. 10-35553
SONOBE,
Petitioners-Intervenors, DC No.
3:08-cv-0578 MA
v.
OPINION
JEFF E. THOMAS, Warden, Federal
Prison Camp, Sheridan, Oregon,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Argued and Submitted
October 4, 2010—Portland, Oregon
Filed December 6, 2010
Before: A. Wallace Tashima, Richard A. Paez, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Tashima
19415
19418 SACORA v. THOMAS
COUNSEL
Stephen R. Sady, Chief Deputy Federal Public Defender,
Portland, Oregon, for the petitioner-appellant and petitioner-
intervenors.
SACORA v. THOMAS 19419
Kelly A. Zusman, Appellate Chief, Office of the United States
Attorney, Portland, Oregon, for the respondent-appellee.
OPINION
TASHIMA, Circuit Judge:
Tim Ray Sacora, Larry L. Beaman, and Todd Sonobe (col-
lectively “Petitioners”) brought this habeas corpus action pur-
suant to 28 U.S.C. § 2241 challenging the policies by which
the Bureau of Prisons (“BOP”) places inmates in community
correctional facilities, also known as residential re-entry cen-
ters (“RRCs”).1 Petitioners contend that the substance of the
BOP’s policies violates the statutory provisions that the poli-
cies purport to implement, 18 U.S.C. §§ 3621(b) and 3624(c),
and that the procedure by which the policies were adopted
violates the Administrative Procedure Act (“APA”).
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).
We conclude that the BOP’s policies violate neither the statu-
tory provisions that they implement nor the APA. We there-
fore affirm the judgment of the district court.
I. BACKGROUND
A. Statutory and Regulatory Background
Two statutory provisions govern the BOP’s authority to
place inmates in its custody in RRCs: 18 U.S.C. §§ 3621(b)
and 3624(c). Section 3621 governs the authority of the BOP
to designate a prisoner’s placement in general while he or she
is in the BOP’s custody. In the context of RRCs, this section
governs the BOP’s authority in cases where a prisoner who
has more than a year left to serve of his or her prison sentence
1
These facilities are referred to in the governing statute as community
corrections centers. See 18 U.S.C. § 3624(c).
19420 SACORA v. THOMAS
requests a transfer to such a facility.2 The policies and proce-
dures by which the BOP classifies and designates inmates is
set forth in its Program Statement 5100.08, Inmate Security
Designation and Custody Classification (2006) (“Program
Statement 5100.08”), available at http://www.bop.gov/policy/
progstat/5100_008.pdf.
Congress also charged the BOP with preparing prisoners
for reentry to the community during the final months of their
terms of imprisonment. See 18 U.S.C. § 3624(c). Pursuant to
this section, prisoners may be placed in a RRC or in home
confinement. The BOP’s policies on the use of RRCs are set
forth in the agency’s Program Statement 7310.04, Community
Corrections Center (CCC) Utilization and Transfer Proce-
dure (1998) (“Program Statement 7310.04”), available at
http://www.bop.gov/policy/progstat/7310_004.pdf.
2
That governing statute provides:
The Bureau of Prisons shall designate the place of the prisoner’s
imprisonment. The Bureau may designate any available penal or
correctional facility that meets minimum standards of health and
habitability established by the Bureau . . . that the Bureau deter-
mines 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—
(A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility
as appropriate; and
(5) any pertinent policy statement issued by the Sentencing
Commission pursuant to section 994(a)(2) of title 28.
. . . . The Bureau may at any time, having regard for the same
matters, direct the transfer of a prisoner from one penal or correc-
tional facility to another . . . .
18 U.S.C. § 3621(b).
SACORA v. THOMAS 19421
Prior to enactment of the Second Chance Act of 2007
(“SCA”), Pub. L. No. 110-199, 122 Stat. 657 (2008) (codified
at 42 U.S.C. §§ 17501-17555), § 3624(c) provided that the
BOP
shall, to the extent practicable, assure that a prisoner
serving a term of imprisonment spends a reasonable
part, not to exceed six months, of the last 10 per cen-
tum of the term to be served under conditions that
will afford the prisoner a reasonable opportunity to
adjust to and prepare for the prisoner’s re-entry into
the community.
18 U.S.C.A. § 3624(c) (West 2008). The subsection also pro-
vided that this authority extended to placing a prisoner in
home confinement. Id.
Section 3624(c) was amended on April 9, 2008, by the
SCA to provide that the BOP
shall, to the extent practicable, ensure that a prisoner
serving a term of imprisonment spends a portion of
the final months of that term (not to exceed 12
months), under conditions that will afford that pris-
oner a reasonable opportunity to adjust to and pre-
pare for the reentry of that prisoner into the
community. Such conditions may include a commu-
nity correctional facility.
Accordingly, after enactment of the SCA, § 3624 governs the
designation of prisoners to RRCs for the final months of their
sentences.3
(Text continued on page 19423)
3
As amended, the statute in its entirety now provides:
(c) Prerelease custody.—
(1) In general.—The Director of the Bureau of Prisons shall,
to the extent practicable, ensure that a prisoner serving a term of
19422 SACORA v. THOMAS
imprisonment spends a portion of the final months of that term
(not to exceed 12 months), under conditions that will afford that
prisoner a reasonable opportunity to adjust to and prepare for the
reentry of that prisoner into the community. Such conditions may
include a community correctional facility.
(2) Home confinement authority.—The authority under this
subsection may be used to place a prisoner in home confinement
for the shorter of 10 percent of the term of imprisonment of that
prisoner or 6 months.
(3) Assistance.—The United States Probation System shall, to
the extent practicable, offer assistance to a prisoner during prere-
lease custody under this subsection.
(4) No limitations.—Nothing in this subsection shall be con-
strued to limit or restrict the authority of the Director of the
Bureau of Prisons under section 3621.
(5) Reporting.—Not later than 1 year after the date of the
enactment of the Second Chance Act of 2007 (and every year
thereafter), the Director of the Bureau of Prisons shall transmit to
the Committee on the Judiciary of the Senate and the Committee
on the Judiciary of the House of Representatives a report describ-
ing the Bureau’s utilization of community corrections facilities.
Each report under this paragraph shall set forth the number and
percentage of Federal prisoners placed in community corrections
facilities during the preceding year, the average length of such
placements, trends in such utilization, the reasons some prisoners
are not placed in community corrections facilities, and any other
information that may be useful to the committees in determining
if the Bureau is utilizing community corrections facilities in an
effective manner.
(6) Issuance of regulations.—The Director of the Bureau of
Prisons shall issue regulations pursuant to this subsection not
later than 90 days after the date of the enactment of the Second
Chance Act of 2007, which shall ensure that placement in a com-
munity correctional facility by the Bureau of Prisons is—
(A) conducted in a manner consistent with section 3621(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.
SACORA v. THOMAS 19423
On April 14, 2008, five days after the SCA went into effect,
BOP officials issued a memorandum (the “April 14 Memo-
randum”) explaining the changes to the law and setting forth
guidance to BOP staff about how to administer the new law.
On October 21, 2008, well past the 90 day deadline provided
for in the SCA, the BOP issued the regulations required by the
statute. See Pre-Release Community Confinement, 73 Fed.
Reg. 62440-01 (Oct. 21, 2008) (codified at 28 C.F.R.
§§ 570.20-.22). Noting that the statutory deadline of July 8,
2008, had passed, the BOP determined that “[a]dopting these
rules through the normal notice-and-comment procedures
would not be consistent with the short statutory time-frame
provided for implementing these regulatory changes” and that
“[r]equiring formal notice-and-comment procedures would be
contrary to the public interest in this case.” Id. at 62442.
Accordingly, the BOP issued the regulations as an interim
final rule, and chose to “forgo the requirement under 5 U.S.C.
552(d) which provides for regulations to go into effect 30
days after the date of publication.” Id. Substantively, the regu-
lations: (1) define the terms “community confinement” and
“home detention”; (2) provide that inmates may be designated
to community confinement as a condition of pre-release cus-
tody for a period not to exceed 12 months and to home deten-
tion for a period not to exceed the shorter of ten percent of the
inmate’s term of imprisonment or six months;4 and (3) pro-
vide that inmates will be considered for community confine-
ment in a manner consistent with § 3621(b) on an individual
basis, with placements of sufficient duration to provide the
greatest likelihood of successful reintegration into the com-
munity.
The April 14 Memorandum details the relevant statutory
changes made by the SCA, explains how BOP staff should
18 U.S.C. § 3624(c).
4
The regulations also provide that these periods of time can be exceeded
where permitted by separate statutory authority.
19424 SACORA v. THOMAS
make placement decisions in light of the statutory changes,
and provides a redline of 18 U.S.C. §§ 3621 and 3624(c) dem-
onstrating those changes. The memorandum advises that
“[w]ith minor adjustments[,] . . . staff should make inmates’
pre-release RRC placement decisions on an individual basis
using current bureau policy, Program Statement No. 7310.04
. . . .” The memorandum goes on to note that because the SCA
has increased the maximum allowable pre-release community
corrections placement period to 12 months, BOP staff must
review inmates for pre-release community corrections place-
ments earlier than before, 17-19 months prior to their pro-
jected release dates. Further, it reminds staff that inmates
must be individually considered for pre-release placements in
community corrections facilities and that this individual con-
sideration must be based on the criteria set forth in § 3621(b).
Quoting § 3624(c)(6)(C), the April 14 Memorandum also
notes that the SCA requires staff to ensure that pre-release
placements in community corrections facilities are “of suffi-
cient duration to provide the greatest likelihood of successful
reintegration to the community,” emphasizing that “[t]his
means Bureau staff must approach every individual inmate’s
assessment with the understanding that he/she is now eligible
for a maximum of 12 months pre-release RRC placement.”
Accordingly, the memo cautions that provisions in Program
Statement 7310.04 reflecting “any other possible maximum
timeframe must be ignored.” However, the April 14 Memo-
randum also notes that
[w]hile the Act makes inmates eligible for a maxi-
mum of 12 months pre-release RRC placements,
Bureau experience reflects inmates’ pre-release RRC
needs can usually be accommodated by a placement
of six months or less. Should staff determine an
inmate’s pre-release RRC placement may require
greater than six months, the Warden must obtain the
Regional Director’s written concurrence before sub-
mitting the placement to the Community Corrections
Manager.
SACORA v. THOMAS 19425
On November 14, 2008, BOP officials issued another mem-
orandum (the “November 14 Memorandum”) which provides
guidance to BOP staff when considering inmate requests for
transfers to RRCs before the final 12 months of the inmate’s
sentence. It notes that “[i]nmates are legally eligible to be
placed in an RRC at any time during their prison sentence[s],”
and that “[s]taff cannot, therefore, automatically deny an
inmate’s request for transfer to a RRC.” Instead, “inmate
requests for RRC placement must receive individualized con-
sideration.” The memorandum further notes that “[t]elling an
inmate that he/she is ineligible for RRC placement is the same
as automatically denying the inmate from even being consid-
ered for such placement, and is not in accord with Bureau pol-
icy.” However, as in the April 14 Memorandum, the
November 14 Memorandum advises BOP staff that “a RRC
placement beyond six months should only occur when there
are unusual or extraordinary circumstances justifying such
placement, and the Regional Director concurs.”
B. Factual and Procedural Background
Petitioner Sacora, a prisoner at the Federal Correctional
Institution at Sheridan, Oregon (“FCI Sheridan”), filed, pro
se, a petition for writ of habeas corpus challenging the poli-
cies by which the BOP made its determinations regarding
community confinement. After counsel was appointed, Sacora
moved for certification of a class of “[a]ll federal prisoners
serving sentences in the District of Oregon who have been or
will be considered for community corrections placement
under 18 U.S.C. §§ 3621(b) and 3624(c).”
The district court found that Sacora met the requirements
for class certification with respect to his claims under
§ 3624(c) and the April 14 Memorandum. It also found, how-
ever, that Sacora had not alleged any injury from application
of the November 14 Memorandum or the BOP’s refusal to
exercise its discretion to place him in a RRC prior to the final
12 months of his sentence pursuant to § 3621(b). Accord-
19426 SACORA v. THOMAS
ingly, the district court certified the class of prisoners injured
by the application of § 3624(c) and the April 14 Memoran-
dum. The court also granted leave either to amend the petition
to allege injuries under § 3621(b) and the November 14 Mem-
orandum, or to identify an additional class representative who
could make such allegations. Subsequently, Petitioners Bea-
man and Sonobe, also prisoners at FCI Sheridan, sought leave
to intervene and be named as class plaintiffs, alleging injuries
pursuant to § 3621(b) and the November 14 Memorandum.
The district court granted the motion to intervene and certified
the following class:
All federal prisoners serving sentences in the District
of Oregon who have been denied or will be denied
community corrections placement in excess of six
months under 18 U.S.C. § 3624(c) and 18 U.S.C.
§ 3621(b), pursuant to [the April 14 Memorandum,
the November 14 Memorandum,] Program State-
ment 7310.04, Program Statement 5100.08[5] and 28
C.F.R. § 570.20 et seq.
After Petitioners filed a second amended petition setting
forth all claims of Sacora and the intervening Petitioners, the
district court granted the petition with respect to the BOP’s
formal regulations, 28 C.F.R §§ 570.20-.22, finding that the
BOP’s failure to use notice-and-comment provisions in pro-
mulgating those regulations violated the APA, and enjoined
the BOP from considering inmates for placement in RRCs
pursuant to those regulations. The district court denied the
petition in all other respects. Petitioners filed their notice of
appeal the same day.6
5
In its opinion and order granting in part and denying in part the petition
for habeas corpus, the district court noted that Petitioners made no specific
argument concerning Program Statement 5100.08. Accordingly, the dis-
trict court considered the point abandoned. Petitioners have not challenged
this determination on appeal.
6
The BOP did not appeal the district court’s invalidation of the SCA
regulations, 28 C.F.R. §§ 570.20-.22, for failure to comply with the notice-
and-comment provisions of the APA.
SACORA v. THOMAS 19427
II. ANALYSIS
A. Standard of Review
“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.” Mora-Meraz v. Thomas, 601 F.3d
933, 939 (9th Cir. 2010) (alteration in the original) (internal
quotation marks omitted). We also review questions of statu-
tory interpretation de novo. See, e.g., Rodriguez v. Smith, 541
F.3d 1180, 1183 (9th Cir. 2008). In addition, “[w]hether an
agency pronouncement is interpretive or substantive is a legal
question that we review de novo.” Mora-Meraz, 601 F.3d at
939 (alteration in the original) (internal quotation marks omit-
ted).
B. The Challenged Policies Are Reasonable
Constructions of 18 U.S.C. §§ 3621(b) and 3624(c)
[1] In reviewing an agency’s interpretation of a statute it
administers, a court must “always” first determine “whether
Congress has directly spoken to the precise question at issue.
If the intent of Congress is clear, that is the end of the mat-
ter[.]” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984). Petitioners contend that, under
§ 3624(c), the SCA unambiguously forecloses the BOP from
presuming that six months of RRC placement is sufficient in
the typical case, because the statute “anticipates that the start-
ing point for community corrections placements be 12 months
. . . .” We disagree.
[2] Although Petitioners are correct that the statute man-
dates that the BOP’s regulations “ensure that placement in a
community correctional facility . . . is . . . of sufficient dura-
tion to provide the greatest likelihood of successful reintegra-
tion into the community,” 18 U.S.C. § 3624(c)(6)(C), the
statute also provides that this period is “not to exceed 12
months.” 18 U.S.C. § 3624(c)(1) (emphasis added). In dele-
19428 SACORA v. THOMAS
gating the authority to the BOP to adopt regulations imple-
menting the SCA, the space between “sufficient duration” and
“12 months” was expressly left to the BOP to fill. The BOP’s
policy — that six months in a RRC constitutes a “sufficient
duration” in most cases, but that each inmate is eligible for a
12-month placement and must be considered for placement in
a RRC on an individual basis — is facially consistent with the
statute.7
[3] If the challenged policies had been adopted pursuant to
the notice-and-comment process, this would be the end of the
inquiry. See United States v. Mead Corp., 533 U.S. 218, 226-
27 (2001) (holding that “administrative implementation of a
particular statutory provision qualifies for Chevron deference
when it appears that Congress delegated authority to the
agency generally to make rules carrying the force of law, and
that the agency interpretation claiming deference was promul-
gated in the exercise of that authority”); Chevron, 467 U.S. at
843 (“[I]f the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agen-
cy’s answer is based on a permissible construction of the stat-
ute.”). However, because Program Statement 7310.04 and the
April 14 Memorandum “do[ ] not purport to carry the force of
law and [were] not adopted after notice and comment,”8 they
are not entitled to the level of deference provided for in
7
The policy is also consistent with Congress’ purpose in enacting the
SCA
to assist offenders reentering the community from incarceration
to establish a self-sustaining and law-abiding life by providing
sufficient transitional services for as short of a period as practi-
cable, not to exceed one year, unless a longer period is specifi-
cally determined to be necessary by a medical or other
appropriate treatment professional[.]
42 U.S.C. § 17501(a)(5) (emphasis added).
8
We address the question of whether these pronouncements should have
been promulgated through notice-and-comment procedures below. See
infra, Part II.C.2.
SACORA v. THOMAS 19429
Chevron. Tablada v. Thomas, 533 F.3d 800, 806 (9th Cir.
2008). Despite not being entitled to Chevron deference, how-
ever, the challenged policies are still “entitled to a measure of
deference” under Skidmore v. Swift & Co., 323 U.S. 134
(1944). Tablada, 553 F.3d at 806; see also Reno v. Koray, 515
U.S. 50, 61 (1995) (“It is true that the Bureau’s interpretation
appears only in a ‘Program Statemen[t]’ — an internal agency
guideline . . . [b]ut BOP’s internal agency guideline . . . is still
entitled to some deference.” (first alteration in the original)).
Under Skidmore, “ ‘[t]he weight [accorded to an adminis-
trative] judgment . . . will depend upon the thoroughness evi-
dent in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all
those factors which give it power to persuade, if lacking
power to control.’ ” Mead, 533 U.S. at 228 (second alteration
in the original) (quoting Skidmore, 323 U.S. at 140). “Mead
adds as other relevant factors the ‘logic[ ] and expertness’ of
an agency decision, the care used in reaching the decision, as
well as the formality of the process used.” Wilderness Soc’y
v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1068 (9th Cir.
2003) (en banc) (alteration in the original) (quoting Mead,
533 U.S. at 228, 235), amended in part by, 360 F.3d 1374 (9th
Cir. 2004).
[4] Analyzed in light of Skidmore, the BOP’s policies are
reasonable and sufficiently persuasive. The April 14 Memo-
randum provides that BOP “staff must approach every indi-
vidual inmate’s assessment with the understanding that he/she
is now eligible for a maximum of 12 months pre-release RRC
placement” and clearly states that “[p]rovisions in [Program
Statement] 7310.04 that reflect any other possible maximum
timeframe must be ignored.”
[5] The April 14 Memorandum does note that “Bureau
experience reflects inmates’ pre-release RRC needs can usu-
ally be accommodated by a placement of six months or less.”
The BOP, however, is entitled to use its experience in inter-
19430 SACORA v. THOMAS
preting and administering a statute, as Mead recognizes. See
Mead, 533 U.S. at 228 (noting that the “fair measure of defer-
ence to an agency administering its own statute has been
understood to vary with circumstances, and courts have
looked to the . . . [agency’s] relative expertness” in determin-
ing whether to grant that deference). Further, the SCA
expressly provides that “[n]othing in [§ 3624(c)] shall be con-
strued to limit or restrict the authority of the Director of the
Bureau of Prisons under section 3621.” 18 U.S.C.
§ 3624(c)(4). Thus, the ultimate point of reference for RRC
placement decisions under § 3624(c) is the set of factors set
forth in § 3621(b), including the resources of the facility con-
templated, the nature and circumstances of the offense, and
the history and characteristics of the prisoner. See 18 U.S.C.
§ 3621(b). Given the statutory mandate that the BOP consider
the resources of the facility to which it is considering desig-
nating a given prisoner when making placement decisions, it
is not unreasonable for the agency to conserve the resources
of RRCs by applying an extra check on the longest place-
ments in RRCs. In addition, the BOP’s decision to require
unusual circumstances demonstrating a need for longer place-
ments is persuasive given Congress’ expressed purpose in
enacting the SCA “to assist offenders reentering the commu-
nity from incarceration . . . by providing sufficient transitional
services for as short of a period as practicable.” 42 U.S.C.
§ 17501(a)(5).
[6] As for the regulation’s consistency with earlier pro-
nouncements, ironically, it is Petitioners who argue that the
challenged policies are too consistent with earlier pronounce-
ments, by arguing that the BOP merely continued its previous
rule without making changes Petitioners contend the SCA
requires. The BOP did make changes to the rule, however, to
accommodate the new statutory time frame: after the April 14
Memorandum each inmate’s pre-release placement review
was to take place somewhere between 17 and 19 months
before the inmate’s release, instead of the 11 to 13 months
provided for in Program Statement 7310.04. See Program
SACORA v. THOMAS 19431
Statement 7310.04, at 7. This change affords each inmate the
opportunity to be placed in a RRC for the full 12 months the
statute authorizes, should the circumstances justify it. Simi-
larly, the April 14 Memorandum specifies that BOP staff must
ignore provisions in the Program Statement reflecting any
possible maximum time frame for RRC placement other than
12 months.
For substantially the same reasons, the similar policy set
forth in the November 14 Memorandum is consistent with
§ 3621(b) and sufficient under Skidmore. Petitioners argue,
however, that the policy as set forth in the November 14
Memorandum is contrary to our decision in Rodriguez v.
Smith, 541 F.3d 1180 (9th Cir. 2008). We disagree.
[7] In Rodriguez, we held that the prior version of the reg-
ulations codified at 28 CFR §§ 520.20 and 520.21 was
invalid, because it “categorically exclude[d] inmates from
RRC eligibility without considering the mandatory factors
articulated in § 3621(b).” 541 F.3d at 1187. No such problem
exists here. Although the November 14 Memorandum does
set forth a presumption that RRC placements of longer than
six months should occur only “when there are unusual or
extraordinary circumstances justifying such placement[ ] and
the Regional Director concurs,” the Memorandum also
admonishes BOP staff that they “cannot . . . automatically
deny an inmate’s request for transfer to a RRC” because
“[i]nmates are legally eligible to be placed in an RRC at any
time during their prison sentence[s].” The memorandum also
reminds the BOP staff that they “must individually consider
the request, just as they would any other request for lower
security transfer.” Further, the memorandum reminds the staff
that when they review an inmate’s transfer request, they
should review the five factors set forth in 18 U.S.C. § 3621(b)
that, we noted in Rodriguez, are “mandatory”. Rodriguez, 541
F.3d at 1187. Accordingly, we conclude that the BOP’s policy
as set forth in the November 14 Memorandum does not vio-
late the SCA.
19432 SACORA v. THOMAS
C. The Challenged Policies Were Not Promulgated in
Violation of the APA
1. The BOP’s Determinations Were Not Arbitrary
or Capricious in Violation of 5 U.S.C. § 706
[8] Petitioners also challenge the BOP’s policies under the
APA, 5 U.S.C. § 706, arguing that the policies were promul-
gated without empirical support and without a sufficiently
articulated rationale. Under § 706, the APA requires courts to
“hold unlawful and set aside agency action, findings, and con-
clusions found to be[ ] arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A).
“Under the arbitrary and capricious standard, our review
. . . is highly deferential, presuming the agency action to be
valid and affirming the agency action if a reasonable basis
exists for its decision.” Crickon v. Thomas, 579 F.3d 978, 982
(9th Cir. 2009) (internal quotation marks omitted).
A reasonable basis exists where the agency consid-
ered the relevant factors and articulated a rational
connection between the facts found and the choices
made. Although we may uphold a decision of less
than ideal clarity if the agency’s path may reason-
ably be discerned, we may not infer an agency’s rea-
soning from mere silence.
Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008)
(citations omitted) (internal quotation marks omitted).
[9] In this case, the BOP relied on “Bureau experience” to
explain its choice to require unusual circumstances and addi-
tional checks before placing prisoners in RRCs for longer
than six months. It may have been preferable for the BOP to
support its conclusions with empirical research.9 However, it
9
We note that Congress has required the BOP to make annual reports
to the House and Senate Judiciary Committees of “any . . . information
SACORA v. THOMAS 19433
was reasonable for the BOP to rely on its experience, even
without having quantified it in the form of a study. See, e.g.,
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (“Normally, an agency rule would be
arbitrary and capricious if the agency . . . offered an explana-
tion for its decision that runs counter to the evidence before
the agency, or is so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.”
(emphasis added)). The BOP has nearly 10 years of experi-
ence in placing inmates in RRCs, at least with respect to peri-
ods of six months or less. See Program Statement 7310.04, at
8 (noting that the program went into effect on Dec. 16, 1998).
Although the BOP’s experience with RRC placements of six
months or less may not exactly parallel the issue here, its
experience does provide some basis for understanding of how
placements of varying lengths would affect most inmates.
Accordingly, we cannot say that the BOP’s determination was
arbitrary or capricious.
2. The Challenged Policies Are Not Substantive
Rules Subject to the Notice-and-Comment
Requirement of 5 U.S.C. § 553
[10] “Under the APA, a federal administrative agency is
required to follow prescribed notice-and-comment procedures
before promulgating substantive rules.” Colwell v. Dep’t of
Health & Human Servs., 558 F.3d 1112, 1124 (9th Cir. 2009);
see 5 U.S.C. § 553. “However, these notice and comment
requirements are not applicable to ‘interpretive rules, general
statements of policy, or rules of agency organization, proce-
dure, or practice.’ ” Mora-Meraz, 601 F.3d at 939 (quoting 5
U.S.C. § 553(b)(3)(A)). Of course, an agency cannot, “under
the guise of interpreting a regulation . . . create de facto a new
that may be useful to the committees in determining if the Bureau is utiliz-
ing community corrections facilities in an effective manner.” 18 U.S.C.
§ 3624(c)(5). No such reports are part of the record.
19434 SACORA v. THOMAS
regulation.” Christensen v. Harris County, 529 U.S. 576, 588
(2000).
We have previously distinguished a “general statement of
policy,” 5 U.S.C. § 553(b), from a substantive rule:
The critical factor to determine whether a directive
announcing a new policy constitutes a rule or a gen-
eral statement of policy is the extent to which the
challenged [directive] leaves the agency, or its
implementing official[,] free to exercise discretion to
follow, or not to follow, the [announced] policy in an
individual case . . . .
To the extent that the directive merely provides
guidance to agency officials in exercising their dis-
cretionary power while preserving their flexibility
and their opportunity to make individualized deter-
mination[s], it constitutes a general statement of pol-
icy . . . . In contrast, to the extent that the directive
narrowly limits administrative discretion or estab-
lishes a binding norm that so fills out the statutory
scheme that upon application one need only deter-
mine whether a given case is within the rule’s crite-
rion, it effectively replaces agency discretion with a
new binding rule of substant[ive] law.
Colwell, 558 F.3d at 1124 (quoting Mada-Luna v. Fitzpatrick,
813 F.2d 1006, 1013-14 (9th Cir. 1987)) (all alterations but
the second and the last in the original) (internal quotation
marks omitted). Similarly, we have noted the distinction
between interpretive rules and substantive rules:
“Generally, agencies issue interpretive rules to clar-
ify or explain existing law or regulations so as to
advise the public of the agency’s construction of the
rules it administers.” However, “[i]f a rule is incon-
sistent with or amends an existing legislative rule,
SACORA v. THOMAS 19435
then it cannot be interpretive.” 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.
Mora-Meraz, 601 F.3d at 940 (alteration in the original)
(internal citations omitted) (quoting Gunderson v. Hood, 268
F.3d 1149, 1154 (9th Cir. 2001)).
[11] The ultimate question is “what did the new [memo-
randa] do?” Gunderson, 268 F.3d at 1154. As discussed
above, the challenged policies are consistent with the statute.
Further, the policies in the memoranda “merely provide[ ]
guidance to agency officials in exercising their discretionary
power while preserving their flexibility and their opportunity
to make individualized determination[s].” Colwell, 558 F.3d
at 1124 (second alteration in the original) (quoting Mada-
Luna, 813 F.2d at 1013). The policies provide that in the nor-
mal case, six months is sufficient placement in a RRC, but the
policies allow BOP staff to determine what constitutes the
“unusual or extraordinary” circumstances for which six
months is not sufficient. Similarly, the requirement that the
Regional Director approve placements of more than six
months merely assigns a particular official the responsibility
of exercising the authority delegated to the BOP and its Direc-
tor by statute. Although Petitioners provided statistics sug-
gesting that this language (“unusual or extraordinary
circumstances”) has been interpreted strictly in some regions,
including the BOP’s Western Region (which encompasses
FCI Sheridan), these statistics also indicate that greater num-
bers of prisoners in other regions have been placed in RRCs
for longer than six months. These regional differences demon-
strate that the BOP’s rule allows staff to make individualized
determinations and does not create a new binding rule of sub-
stantive law. Accordingly, we conclude that the challenged
policies are not substantive rules; thus, they are not subject to
the notice-and-comment requirements of § 553 of the APA.
19436 SACORA v. THOMAS
III. CONCLUSION
The SCA does not require the BOP to make any placements
in a RRC for longer than six months; the statute affords the
BOP the option to make placements up to 12 months. Because
the agency’s construction is entitled to some deference under
Skidmore, and because the BOP used its experience in placing
prisoners in RRCs in crafting its policies, we conclude that
the policies are based on a reasonable construction of the
SCA. Similarly, although documentation and empirical evi-
dence may be desirable, the BOP permissibly relied on its
experience administering RRC placements in crafting its poli-
cies, and those policies are not arbitrary or capricious. Finally,
because the challenged policies are not binding rules, but
instead allow implementing officials to use their discretion in
individual cases, the BOP was not required to promulgate the
policies through the APA’s notice-and-comment procedures.
The judgment of the district court is AFFIRMED.