FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP T. REEB,
Petitioner-Appellant, No. 09-35815
v.
D.C. No.
08-CV-01184-HA
JEFFREY THOMAS, Warden, FCI
Sheridan, AKA J.E. Thomas, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Submitted December 7, 2010*
Seattle, Washington
Filed March 3, 2011
Before: Diarmuid F. O’Scannlain and Richard C. Tallman,
Circuit Judges, and David Alan Ezra,** District Judge.
Opinion by Judge Ezra
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable David Alan Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
3087
REEB v. THOMAS 3089
COUNSEL
Marc Friedman, Esq., Eugene, Oregon, for the appellant.
Kevin Danielson, Assistant United States Attorney, Portland,
Oregon, for the appellee.
OPINION
EZRA, District Judge:
This case requires us to decide whether a district court has
subject matter jurisdiction to review the Bureau of Prisons’
(“BOP”) individualized residential drug abuse program
3090 REEB v. THOMAS
(“RDAP”) determinations, a question of first impression in
this Circuit. The existence of subject matter jurisdiction is a
question of law reviewed de novo. Puri v. Gonzales, 464 F.3d
1038, 1040 (9th Cir. 2006). Because we hold that 18 U.S.C.
§ 3625 precludes judicial review under the Administrative
Procedure Act (“APA”) of the BOP’s individualized RDAP
determinations made pursuant to 18 U.S.C. § 3621, we vacate
and remand to the district court.
I. Background
RDAP is an intensive drug treatment program for federal
inmates with documented substance abuse problems. 28
C.F.R. § 550.56.1 The program utilizes both individual and
group activities and requires at least 500 hours of treatment
over a period of 6 to 12 months. Id. Treatment is conducted
in a unit set apart from the general prison population and is
followed by institutional and/or community-based transitional
programs. Id. Successful completion of RDAP can result in
up to a one-year reduction in a prisoner’s sentence. 18 U.S.C.
§ 3621(e)(2)(B).
On April 22, 2003, Petitioner Philip T. Reeb was convicted
of possession with intent to distribute methamphetamine in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and (B), and was
sentenced to 135 months imprisonment followed by 5 years
supervised release. Reeb was found eligible for admission
into RDAP on June 30, 2006, and he began the program on
March 3, 2008 at the Federal Correctional Institution at Sheri-
dan, Oregon. After exhibiting disruptive behavior in group
counseling sessions on several occasions, Reeb was expelled
from RDAP on April 2, 2008.
1
Although the BOP subsequently repealed 28 C.F.R. § 550.56, this reg-
ulation was in effect at all times pertinent to the instant appeal. The cur-
rent, comparable regulation, effective March 16, 2009, is set forth at 28
C.F.R. § 550.53.
REEB v. THOMAS 3091
On October 6, 2008, Reeb filed a habeas petition in the
United States District Court for the District of Oregon pursu-
ant to 28 U.S.C. § 2241, challenging the BOP’s decision to
expel him from RDAP and seeking both readmission into
RDAP and a twelve-month reduction in his sentence upon
successful completion of the program. The Government
argued in its answer to Reeb’s habeas petition that the district
court lacked jurisdiction to review the BOP’s expulsion deci-
sion. Specifically, the Government argued that 18 U.S.C.
§ 3625 precludes judicial review of individualized RDAP
determinations made pursuant to 18 U.S.C. § 3621. On
August 31, 2009, the district court concluded that federal
courts have jurisdiction to determine whether the BOP exer-
cised its discretion to administer RDAP properly and found
that Reeb’s expulsion from RDAP was not an abuse of discre-
tion. Reeb timely filed an appeal on the ground that the dis-
trict court erred in its determination that a rational basis
existed for his removal from RDAP. In response to Reeb’s
appeal, the Government reasserted its challenge to the district
court’s jurisdiction.
II. Discussion
[1] The APA provides a cause of action for persons “suf-
fering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of
a relevant statute,” 5 U.S.C. § 702, but withdraws that cause
of action to the extent that the relevant statute “preclude[s]
judicial review” or the “agency action is committed to agency
discretion by law,” id. § 701(a). “ ‘Whether and to what
extent a particular statute precludes judicial review is deter-
mined not only from its express language, but also from the
structure of the statutory scheme, its objectives, its legislative
history, and the nature of the administrative action
involved.’ ” Sackett v. U.S. Envtl. Prot. Agency, 622 F.3d
1139, 1143 (9th Cir. 2010) (quoting Block v. Cmty. Nutrition
Inst., 467 U.S. 340, 345 (1984)). Agency actions can be held
unlawful when they are “arbitrary, capricious, an abuse of dis-
3092 REEB v. THOMAS
cretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A).
[2] Congress delegated to the BOP the duty to manage and
regulate all federal penal and correctional institutions. 18
U.S.C. § 4042(a)(1). Title 18 U.S.C. § 3621 governs impris-
onment of persons convicted of federal crimes, and provides
that the BOP “shall make available appropriate substance
abuse treatment for each prisoner the [BOP] determines has
a treatable condition of substance addiction or abuse.” Id.
§ 3621(b). To carry out this requirement, the BOP must make
available residential substance abuse treatment for eligible
prisoners. Id. § 3621(e)(1). As an incentive for successful
completion of RDAP, the BOP may reduce a prisoner’s sen-
tence by up to one year. Id. § 3621(e)(2)(B). Determining
which prisoners are eligible to participate in RDAP is within
the discretion of the BOP, id. § 3621(e)(5)(B), as is the deci-
sion to grant or deny eligible prisoners sentence reductions
upon successful completion of the program, id.
§ 3621(e)(2)(B).
Congress specified in 18 U.S.C. § 3625, entitled Inapplica-
bility of the Administrative Procedure Act, that “[t]he provi-
sions of sections 554 and 555 and 701 through 706 of [the
APA] do not apply to the making of any determination, deci-
sion, or order under [18 U.S.C. §§ 3621-3625].” 18 U.S.C.
§ 3625. In determining whether 18 U.S.C. § 3625 precludes
judicial review under the APA of individualized RDAP deter-
minations, we first consider the plain meaning of the statute’s
text. United States v. Nader, 542 F.3d 713, 717 (9th Cir.
2008) (citing Jonah R. v. Carmona, 446 F.3d 1000, 1005 (9th
Cir. 2006)). When the words of a statute are unambiguous
“ ‘judicial inquiry is complete.’ ” Conn. Nat’l Bank v. Ger-
main, 503 U.S. 249, 254 (1992) (quoting Rubin v. United
States, 449 U.S. 424, 430 (1981)).
[3] There is no ambiguity in the meaning of 18 U.S.C.
§ 3625. The plain language of this statute specifies that the
REEB v. THOMAS 3093
judicial review provisions of the APA, 5 U.S.C. §§ 701-706,
do not apply to “any determination, decision, or order” made
pursuant to 18 U.S.C. §§ 3621-3624. The BOP has authority
to manage inmate drug treatment programs, including RDAP,
by virtue of 18 U.S.C. § 3621. To find that prisoners can bring
habeas petitions under 28 U.S.C. § 2241 to challenge the
BOP’s discretionary determinations made pursuant to 18
U.S.C. § 3621 would be inconsistent with the language of 18
U.S.C. § 3625. Accordingly, any substantive decision by the
BOP to admit a particular prisoner into RDAP, or to grant or
deny a sentence reduction for completion of the program, is
not reviewable by the district court. The BOP’s substantive
decisions to remove particular inmates from the RDAP pro-
gram are likewise not subject to judicial review.
[4] Reeb’s claim that he was wrongfully expelled from
RDAP, as well as his request for reinstatement into RDAP
and for a twelve-month reduction in his sentence, are matters
properly left to the BOP’s discretion. See Downey v. Crab-
tree, 100 F.3d 662, 670 (9th Cir. 1996) (“[The BOP] has
broad discretion over the entire drug-treatment process within
the federal corrections system, beginning with determining
which inmates ever enter substance-abuse programs.”). The
BOP’s Administrative Remedy Program, set forth at 28
C.F.R. § 542.10-19, provides a vehicle for aggrieved inmates
to challenge such discretionary BOP determinations.
[5] Reeb contends that because the BOP did not give him
proper formal warnings prior to his expulsion, the BOP has
“failed to follow the law” such that this Court has jurisdiction
to review his habeas claim. The formal warnings that Reeb
references are those specified in Program Statement 5330.10.2
2
The BOP subsequently repealed Program Statement 5330.10, and has
now issued new policy statements governing RDAP. These new policy
statements took effect on March 16, 2009, and are not retroactive. Because
Program Statement 5330.10 was in effect when Reeb was expelled from
RDAP, it is the relevant program statement for this case.
3094 REEB v. THOMAS
A habeas claim cannot be sustained based solely upon the
BOP’s purported violation of its own program statement
because noncompliance with a BOP program statement is not
a violation of federal law. Program statements are “internal
agency guidelines [that] may be altered by the [BOP] at will”
and that are not “subject to the rigors of the Administrative
Procedure Act, including public notice and comment.” Jacks
v. Crabtree, 114 F.3d 983, 985 n.1 (9th Cir. 1997). See also
Reno v. Koray, 515 U.S. 50, 61 (1995) (characterizing BOP
program statements as simply interpretive rules); BOP Pro-
gram Statement 1221.66, Chapter 2.1 (referring to BOP pro-
gram statements as “policies,” not rules). Our decision in
Bowen v. Hood, 202 F.3d 1211, 1221-22 (9th Cir. 2000) (per
curiam) is not to the contrary. In that case, we considered
whether the BOP could retroactively apply a restriction bar-
ring armed felons from eligibility for a sentence reduction to
prisoners who had already been given a determination of their
eligibility for the decreased sentence. Bowen, 202 F.3d at
1217-18. In holding that applying this restriction retroactively
would violate the prisoners’ settled expectations, we reasoned
that the BOP could not argue that the term provisional meant
anything other than its defined meaning in the program state-
ment at issue. Id. at 1221-22. This is not comparable with the
instant situation, wherein Reeb is arguing that the BOP vio-
lated its own program statement. The BOP’s purported viola-
tion of its own program statement simply is not a violation of
federal law such that the district court would have jurisdiction
to review Reeb’s claim.3
3
Reeb also argues that Cozine v. Crabtree, 15 F. Supp. 2d 997 (D. Or.
1998), is controlling and dictates that this Court has jurisdiction to review
the merits of his habeas petition. Aside from the fact that Cozine is not
binding precedent on this Court, it nonetheless is readily distinguishable
because in that case “the challenged decision was not a discretionary deci-
sion . . . . The BOP erroneously interpreted a statute, concluding that [the
petitioner’s prison] terms ran consecutively rather than concurrently, and
fixed the duration of his imprisonment accordingly.” Cozine, 15 F. Supp.
2d at 1015 (citation omitted). Conversely, here, Reeb filed a habeas peti-
tion to challenge the BOP’s discretionary decision to expel him from the
RDAP program.
REEB v. THOMAS 3095
Facing uncertain law, and without the benefit of this
Court’s ruling, the district court concluded that jurisdiction
existed to review Reeb’s habeas petition. Specifically, the dis-
trict court found that although 18 U.S.C. § 3625 states that the
judicial review provisions of the APA do not apply to deter-
minations made pursuant to 18 U.S.C. § 3621, there was
nonetheless jurisdiction to review Reeb’s claim under the 5
U.S.C. § 706(2)(A) abuse of discretion standard. The district
court cited SEC v. Sloan, 436 U.S. 103 (1978) to support this
conclusion, but Sloan stands for the proposition that there is
judicial review for a claim that an agency exceeded its statu-
tory authority. Sloan, 436 U.S. at 118-19. Reeb’s habeas peti-
tion does not involve such a claim, but rather only challenges
the BOP’s decision to expel him from RDAP. The Supreme
Court’s ruling in Sloan simply does not apply to the facts
here.
[6] Accordingly, we hold that federal courts lack jurisdic-
tion to review the BOP’s individualized RDAP determina-
tions made pursuant to 18 U.S.C. § 3621, such as Reeb’s
claim herein. Although judicial review remains available for
allegations that BOP action is contrary to established federal
law, violates the United States Constitution,4 or exceeds its
4
To the extent that Reeb alleges equal protection and due process viola-
tions, these claims must necessarily fail. As to the equal protection viola-
tion, Reeb does not present any facts demonstrating that he was treated
differently from others who were similarly situated to him. See McLean
v. Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999) (finding that an equal
protection violation requires the petitioner to show that similarly situated
people are being treated differently). Reeb also cannot prevail on his due
process claim because inmates do not have a protected liberty interest in
either RDAP participation or in the associated discretionary early release
benefit. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442
U.S. 1, 7 (1979) (determining that a prisoner does not have a constitutional
right to be released prior to the expiration of a valid sentence); Moody v.
Daggett, 429 U.S. 78, 88 n.9 (1976) (concluding that discretionary deter-
minations regarding conditions of confinement do not create due process
rights); Jacks, 114 F.3d at 986 n.4 (finding that 18 U.S.C. § 3621(e)(2)(B)
does not create a due process liberty interest in a one-year sentence reduc-
tion).
3096 REEB v. THOMAS
statutory authority, Reeb’s habeas petition alleges only that
the BOP erred in his particular case.5 Because the district
court lacked jurisdiction to adjudicate the merits of Reeb’s
habeas petition, we vacate its judgment and remand with
instructions to dismiss for lack of jurisdiction.
VACATED and REMANDED.
5
Myriad cases examine the validity of BOP regulations and determina-
tions. See, e.g., Lopez v. Davis, 531 U.S. 230, 232-33 (2001) (holding that
the BOP had authority under 18 U.S.C. § 3621 to pass a regulation cate-
gorically denying early release to prisoners whose current offense
involved possession, carrying, or use of a firearm); Mora-Meraz v.
Thomas, 601 F.3d 933, 935 (9th Cir. 2010) (determining that the BOP’s
“unwritten requirement” that prisoners must present documented evidence
of substance abuse within twelve months of admission into RDAP was
valid under the APA); Crickon v. Thomas, 579 F.3d 978, 988-89 (9th Cir.
2009) (finding invalid under the APA the BOP’s regulation categorically
excluding prisoners with certain prior convictions from early release eligi-
bility); Arrington v. Daniels, 516 F.3d 1106, 1116 (9th Cir. 2008) (con-
cluding that the BOP’s exclusion from early release eligibility inmates
who were convicted of offenses involving possession, use, or carrying of
a firearm was invalid under the APA); McLean, 173 F.3d at 1184-86
(reviewing the petitioners’ equal protection and due process claims after
determining that the BOP regulations at issue were a valid exercise of the
BOP’s statutory authority).