FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER CLOSE,
Petitioner-Appellant, No. 10-35850
v. D.C. No.
JEFF E. THOMAS, Warden, 3:09-cv-01172-HA
Respondent-Appellee.
DANNY R. SASS,
Petitioner-Appellant, No. 10-35851
v. D.C. No.
JEFF THOMAS, Warden, 3:09-cv-01224-HA
Respondent-Appellee.
MICHAEL LEE STOCKTON,
Petitioner-Appellant, No. 10-35853
v. D.C. No.
JEFF E. THOMAS, 3:09-cv-01290-HA
Respondent-Appellee.
BRADLEY ALAN MOSCHETTI,
Petitioner-Appellant,
No. 10-35852
v.
D.C. No. 3:09-cv-
JEFF E. THOMAS, Warden Federal 01349-HA
Prison Camp, Sheridan, Oregon,
Respondent-Appellee.
10079
10080 CLOSE v. THOMAS
RAFI SHOTLAND,
Petitioner-Appellant, No. 10-35854
v. D.C. No.
JEFF E. THOMAS, 3:09-cv-01368-HA
Respondent-Appellee.
EDELMIRO TAMEZ, Jr.,
Petitioner-Appellant,
No. 10-35855
v.
D.C. No.
JEFF E. THOMAS, Warden Federal 3:09-cv-01347-HA
Prison Camp, Sheridan, Oregon,
Respondent-Appellee.
LARRY D. BEVERLY,
Petitioner-Appellant, No. 10-35856
v. D.C. No.
JEFF E. THOMAS, 3:09-cv-01385-HA
Respondent-Appellee.
KEVIN JEROME SNOOZY,
Petitioner-Appellant,
No. 10-35857
v.
D.C. No.
JEFF E. THOMAS, Warden, Federal 3:09-cv-01365-HA
Prison Camp, Sheridan, Oregon,
Respondent-Appellee.
CLOSE v. THOMAS 10081
EDWARD ANDERTON,
Petitioner-Appellant, No. 10-35858
v. D.C. No.
JEFF E. THOMAS, 3:10-cv-00007-HA
Respondent-Appellee.
ROBERT SCOTT MERRY,
Petitioner-Appellant, No. 10-35859
v.
D.C. No.
3:09-cv-01367-HA
JEFF E. THOMAS, Warden, Federal
Prison Camp, Sheridan, Oregon, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Submitted June 6, 2011*
Portland, Oregon
Filed August 3, 2011
Before: Raymond C. Fisher, Ronald M. Gould, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
CLOSE v. THOMAS 10083
COUNSEL
Stephen R. Sady, Chief Deputy Federal Public Defender, Dis-
trict of Oregon, Portland, Oregon, for petitioner-appellants
Christopher Close, et al.
Dwight C. Holton, United States Attorney District of Oregon,
Kelly A. Zusman, Appellate Chief United States Attorney
District of Oregon, Kevin Danielson, Assistant United States
Attorney District of Oregon, Portland, Oregon, for
respondent-appellee Jeff E. Thomas, Warden, FCI Sheridan.
OPINION
PAEZ, Circuit Judge:
Petitioner Christopher Close and nine other similarly situ-
ated prisoners (collectively “Close” or “Petitioners”) appeal
the district court’s judgment denying their 28 U.S.C. § 2241
habeas corpus petitions. These consolidated habeas petitions
require us to consider the manner in which the Bureau of Pris-
10084 CLOSE v. THOMAS
ons prioritizes a prisoner’s eligibility for entering into a Resi-
dential Drug Abuse Treatment Program. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253. Finding no error in
the Bureau of Prisons’ interpretation of the governing statute,
18 U.S.C. § 3621(e)(1), we affirm the district court’s judg-
ment.
I. Factual and Procedural Background
In 1990, Congress required that the Bureau of Prisons
(“BOP”) provide substance abuse treatment for inmates with
a treatable condition of substance addiction or abuse. 18
U.S.C. § 3621(b). As a result, BOP instituted Residential
Drug Abuse Treatment Programs (“RDAP”). Four years later,
Congress amended § 3621, providing that BOP could reward
inmates who successfully completed RDAP with early
release. 18 U.S.C. § 3621(e)(2)(B). The statute permits BOP
to consider only nonviolent offenders for this early release
incentive, and it permits early release of up to only one year.
Id. Even though violent offenders cannot benefit from the
early release provision, those with substance abuse problems
are still eligible for participation in RDAP. Congress directed
that BOP place RDAP-eligible inmates into programs “with
priority for such treatment accorded based on an eligible pris-
oner’s proximity to release date.” 18 U.S.C. § 3621(e)(1)(A).
Neither the statute nor its regulations, 28 C.F.R. §§ 550.50
— .57, indicate whether BOP should factor in the early
release incentive when it determines how close inmates are to
their release date. The issue is significant because demand for
RDAP far exceeds its availability and “proximity to release
date” dictates inmates’ priority on the long RDAP wait list.
So if a nonviolent inmate is 24 months from the end of his
term of imprisonment, should BOP rank him on the RDAP
wait list as though he were only 12 months from the end of
his term of imprisonment because he would be eligible for
§ 3621(e)’s early release upon successful RDAP completion?
BOP has answered this question both ways at different times.
CLOSE v. THOMAS 10085
For some time, BOP did factor in potential early release for
eligible inmates when ranking them on the RDAP wait list.
As a result, a nonviolent offender scheduled to be released in
24 months would be ranked on the wait list at the same level
as a violent offender with only 12 months remaining in his
term of imprisonment. Currently, however, as reflected in an
internal policy statement, BOP does not take the potential
early release into account when calculating a nonviolent
inmate’s proximity to release.1
In March 2009, an Oregon district court found that “proper
statutory construction compels the conclusion that the BOP is
required to perform wait list calculations that include the pris-
oner’s projected § 3621(e) release date.” Thurman v. Thomas,
No. 06-1400, 2009 WL 936663, at * 4 (D. Or. March 30,
2009). The district court observed that “[f]ailing to do so cur-
rently results in a significant diminution or the outright elimi-
nation of the statutorily created incentive of sentence
reductions for prisoners who seek and complete RDAP.” Id.
The district court concluded that “inmates eligible for the dis-
cretionary sentence reduction for up to one year for complet-
ing RDAP should be ranked on the wait list according to their
projected § 3621(e) release dates.” Id.
Petitioner Close is an RDAP-eligible nonviolent offender
housed in BOP’s Sheridan, Oregon facility. After learning of
the district court’s order in Thurman, Close filed a pro se 28
U.S.C. § 2241 habeas corpus petition on October 1, 2009. The
1
On March 16, 2009, BOP issued a Program Statement titled “Early
Release Procedures Under 18 U.S.C. § 3621(e).” The purpose of the docu-
ment is to “re-establish criteria and procedures when considering an
inmate for early release pursuant to 18 U.S.C. § 3621(e)(2)(B) for success-
ful completion of the Residential Drug Abuse Program.” Section 9 of the
Program Statement reads, in pertinent part: “Upon a qualified inmate’s
entry into the RDAP, the [Drug Abuse Program Coordinator], or designee,
will . . . forward a Notice of § 3621(e) Date form [ ] to the [ ] team respon-
sible for the inmate’s sentence computation requesting computation of a
§ 3621(e) conditional release method date. . . .”
10086 CLOSE v. THOMAS
only issue Close raised in this petition was whether BOP
should rank him on the RDAP wait list in conformity with the
district court’s order in Thurman—that is, taking into account
his potential eligibility for § 3621(e) early release. On January
26, 2010, the district court consolidated Close’s petition with
nine others raising the same issue and designated Close’s case
as the lead. The district court subsequently granted BOP’s
motion for summary judgment, denying all of the consoli-
dated habeas petitions. The district court found “that the con-
clusions in Thurman are neither binding nor dispositive in this
matter.” All Petitioners filed timely notices of appeal.
II. Standard of Review and Jurisdiction
We review de novo a district court’s denial of a 28 U.S.C.
§ 2241 habeas corpus petition. Mora-Meraz v. Thomas, 601
F.3d 933, 939 (9th Cir. 2010). We recently held that “federal
courts lack jurisdiction to review the BOP’s individualized
RDAP determinations made pursuant to 18 U.S.C. § 3621.”
Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011). We
clarified, however, that “[a]lthough judicial review remains
available for allegations that BOP action is contrary to estab-
lished federal law, violates the United States Constitution, or
exceeds its statutory authority, Reeb’s habeas petition alleges
only that the BOP erred in his particular case.” Id. Close and
the other petitioners in this case do not challenge individual-
ized determinations. Rather, they challenge the system that
BOP uses to rank all RDAP-eligible inmates on the RDAP
wait list. These petitions allege that the “BOP action is con-
trary to . . . its statutory authority.” Id. Therefore, the petitions
are within this court’s jurisdiction.2
2
Although Petitioners do not have Certificates of Appealability, a COA
is not required to appeal the denial of a § 2241 petition filed by a person
in federal custody. See Forde v. U.S. Parole Comm’n, 114 F.3d 878, 879
(9th Cir. 1997).
CLOSE v. THOMAS 10087
III. Discussion
Close argues that the statutory phrase “proximity to
release” in 18 U.S.C. § 3621(e) requires that BOP give nonvi-
olent offenders priority placement in RDAP to maximize the
opportunity for a one-year sentence reduction upon successful
completion of the program. BOP contends that the plain lan-
guage of the statute unambiguously allows it to calculate
“proximity to release” without incorporating the possibility of
early release.
When we “review[ ] an agency’s construction of the statute
which it administers, [we are] confronted with two questions.
First, always, is the question whether Congress has directly
spoken to the precise question at issue. If the intent of Con-
gress is clear, that is the end of the matter . . . .” Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842 (1984). If we determine that “the statute is silent or
ambiguous with respect to the specific issue, the question for
the court is whether the agency’s answer is based on a permis-
sible construction of the statute.” Id. at 843.
[1] To determine Congress’s intent, “[a]s always,” the
“starting point is the plain language of the statute.” Green-
wood v. CompuCredit Corp., 615 F.3d 1204, 1207 (9th Cir.
2010) cert. granted, 131 S. Ct. 2874 (2011). We have
explained that “[i]f the plain meaning of the statute is unam-
biguous, that meaning is controlling.” Id. The statute at issue
here reads, in pertinent part: “the Bureau of Prisons shall, sub-
ject to the availability of appropriations, provide residential
substance abuse treatment . . . for all eligible prisoners by the
end of fiscal year 1997 and thereafter, with priority for such
treatment accorded based on an eligible prisoner’s proximity
to release date.” 18 U.S.C. § 3621(e)(1)(C) (emphasis added).
Subsection (e)(2)(B) provides that “[t]he period a prisoner
convicted of a nonviolent offense remains in custody after
successfully completing a treatment program may be reduced
by the Bureau of Prisons, but such reduction may not be more
10088 CLOSE v. THOMAS
than one year from the term the prisoner must otherwise
serve.” 18 U.S.C. § 3621(e)(2)(B).
[2] Subsection (e)(5) contains definitions for certain terms
“[a]s used in this subsection.” 18 U.S.C. § 3621(e)(5). The
terms defined in (e)(5) do not include “priority,” “proximity,”
or “release date.” Although § 3621 does not define any of
these terms, § 3624(a)—which appears within the same sub-
chapter as § 3621—defines the term “date of release.” Section
3624(a) specifies that “date of release” is “the date of the
expiration of the prisoner’s term of imprisonment, less any
time credited toward the service of the prisoner’s sentence as
provided in subsection (b).” 18 U.S.C. § 3624(a). Subsection
(b) explains how good time credits are appropriated; it
includes no reference to provisions for early release by means
of any other type of sentence reduction.
[3] “Courts generally interpret similar language in different
statutes in a like manner when the two statutes address a simi-
lar subject matter.” United States v. Novak, 476 F.3d 1041,
1051 (9th Cir. 2007) (en banc). Therefore, we apply
§ 3624(a)’s definition of “date of release” to the nearly identi-
cal term “release date” in § 3621(e)(1)(C). The plain language
of the statute contains no indication that Congress intended
BOP to attribute different meanings to these terms. Indeed,
Congress provided subsection-specific definitions for certain
terms in § 3621(e)(5), but “release date” is not among them.
See 18 U.S.C. § 3621(e)(5). In addition, Congress could have,
but did not, add language after “proximity to release date”
specifying that BOP should take into account the possibility
of early release for nonviolent offenders provided in subsec-
tion (e). Nor does subsection (e) itself provide any indication
that nonviolent RDAP-eligible offenders should be subject to
a different system of priority for RDAP placement than vio-
lent RDAP-eligible offenders.
[4] Thus, we conclude that the statutory language is unam-
biguous on its face. Congress directed BOP to provide RDAP
CLOSE v. THOMAS 10089
services to eligible offenders “with priority . . . based on an
eligible prisoner’s proximity to release date,” 18 U.S.C.
§ 3621(e)(1)(C), as calculated by applying the definition of
“date of release” in § 3624(a). Our conclusion is buttressed by
the fact that the early release at issue here is discretionary:
“[t]he period a prisoner convicted of a nonviolent offense
remains in custody after successfully completing a treatment
program may be reduced by the Bureau of Prisons . . . .” 18
U.S.C. § 3621(e)(2)(B) (emphasis added). “Proximity to
release date” cannot logically be equated with “proximity to
earliest potential release date.” Accordingly, Close’s argu-
ment fails. The statute unambiguously does not require BOP
to account for subsection (e) early release when calculating
inmates’ “proximity to release date” and their resulting RDAP
wait list placement.
Since “the plain meaning of the statute is unambiguous,
that meaning is controlling and we need not examine legisla-
tive history as an aid to interpretation unless ‘the legislative
history clearly indicates that Congress meant something other
than what it said.’ ” Greenwood, 615 F.3d at 1207 (quoting
Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877
(9th Cir. 2001) (en banc)). Close argues that this court must
give effect to § 3621’s recent post-enactment legislative his-
tory and construe the statute as the district court did in Thur-
man. The House Congressional Record on the Consolidated
Appropriations Act of 2010 states: “To the greatest extent
possible, BOP shall prioritize the participation of nonviolent
offenders in the Residential Drug Abuse Treatment Program
(RDAP) in a way that maximizes the benefit of sentence
reduction opportunities for reducing the inmate population.”
155 Cong. Rec. H13631-03 at H13887 (Dec. 8, 2009). While
this statement could certainly be understood to support
Close’s argument here, it is not specific enough to “clearly
indicate[ ] that Congress meant something other than what it
said” when it enacted § 3621(e) in 1994. Greenwood, 615
10090 CLOSE v. THOMAS
F.3d at 1207. The House’s 2009 statement is not sufficiently
clear to supersede the statute’s unambiguous language.3
IV. Conclusion
We affirm the district court’s denial of Close’s and the
other habeas petitions. We note, however, that BOP’s admin-
istration of RDAP, combined with the program’s insufficient
capacity, has created a troubling situation that calls for a leg-
islative or regulatory remedy. As the district court observed
in Thurman, the current system “results in a significant dimi-
nution or the outright elimination of the statutorily created
incentive of sentence reductions for prisoners who seek and
complete RDAP.” 2009 WL 936663, at * 4. Nonetheless,
given the text of 18 U.S.C. §§ 3621(e)(1)(C) and 3624(a),
Petitioners’ challenge to the RDAP priority scheme adopted
by BOP must necessarily fail.
AFFIRMED.
3
Because the statute is unambiguous on its face, we give effect to its
plain meaning and we need not consider whether the rule of lenity applies.
See United States v. R.L.C., 503 U.S. 291, 305-06 (1992) (“ ‘[W]e have
always reserved lenity for those situations in which a reasonable doubt
persists about a statute’s intended scope even after resort to ‘the language
and structure, legislative history, and motivating policies’ of the statute.”
(quoting Moskal v. United States, 498 U.S. 103, 108 (1990)). Nor do we
need to consider whether BOP’s interpretation is entitled to deference
under Skidmore v. Swift & Co., 323 U.S. 134 (1944). See High Sierra Hik-
ers Ass’n v. Blackwell, 390 F.3d 630, 638-39 (9th Cir. 2004) (“If the stat-
ute is ambiguous, the agency’s decision is entitled to Chevron deference
if it has the force of law . . . . If the decision does not have the force of
law, it is reviewed with ‘respect’ according to the factors set out in [United
States v. Mead Corp., 533 U.S. 218 (2001)] and Skidmore . . . .”).