Handley v. Chapman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 29, 2009
No. 09-10061
Summary Calendar Charles R. Fulbruge III
Clerk

DEBORAH RAE HANDLEY,

Petitioner-Appellant,

versus

W. ELAINE CHAPMAN, Warden, FMC Carswell;
FEDERAL BUREAU OF PRISONS,

Respondents-Appellees.

Appeal from the United States District Court
for the Northern District of Texas

Before SMITH, DENNIS, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

Deborah Handley appeals, pro se, the dismissal, for lack of ripeness and
standing, of her petition for writ of habeas corpus brought pursuant to 28 U.S.C.
§ 2241. We vacate the dismissal and render judgment on the merits for defen-
dants.
 No. 09-10061

Handley was imprisoned for being a felon in possession of a firearm in vio-
lation of 18 U.S.C. § 922(g)(1). She applied for the residential drug abuse pro-
gram (“RDAP”) of the Federal Bureau of Prisons (“BOP”) but was denied eligibil-
ity for placement. The relevant statute, 18 U.S.C. § 3621(e)(2)(B), empowers the
BOP to grant a discretionary sentence reduction not exceeding one year to an
inmate convicted of a nonviolent felony who successfully completes the drug
abuse program.
The BOP exercised its discretion in issuing an implementing regulation
that categorically excludes early-release eligibility for those inmates whose “cur-
rent offense is a felony . . . . [t]hat involved the carrying, possession, or use of a
firearm.” 28 C.F.R. § 550.58(a)(1)(vi)(B). That regulation was held to be a rea-
sonable exercise of the BOP’s statutory authority in Lopez v. Davis, 531 U.S. 230
(2000). But in Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008), the court in-
validated the BOP’s categorical exclusion because, in the court’s view, the agency
had failed to articulate a rationale for its policy choice in the administrative rec-
ord. Citing Arrington, Handley challenges the regulation as arbitrary and capri-
cious under § 706 of the Administrative Procedure Act (“APA”).
We decline to follow Arrington, concluding instead that public safety was
the contemporaneous rationale for the BOP’s policy. We held valid a prior ver-
sion of the regulation in Venegas v. Henman, 126 F.3d 760, 765 (5th Cir. 1997),
and the BOP complied with the APA’s procedural requirements when it changed
course from that prior regulation. Alternatively, we conclude that the BOP’s
newest version of the regulation, codified at 28 C.F.R. § 550.55, applies to Hand-
ley, because its application would not have an impermissible retroactive effect.
Handley’s arbitrary-and-capricious challenge fails as to this newest rule, because
BOP’s comment to § 550.55 includes a detailed rationale for its policy choice.

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I.
Title 18 U.S.C. § 3621 governs the imprisonment of persons convicted of
federal crimes. In 1990, Congress amended the statute to provide that “[t]he
Bureau shall . . . make available appropriate substance abuse treatment for each
prisoner the Bureau determines has a treatable condition of substance abuse ad-
diction or abuse.” Pub. L. 101-647, § 2903, 104 Stat. 4913. Congress again
amended the statute in 1994 to encourage prisoner participation by providing
an early-release incentive that states, “The period a prisoner convicted of a non-
violent offense remains in custody after successfully completing a treatment pro-
gram may be reduced by the Bureau of Prisons, but such reduction may not be
more than one year from the term the prisoner must otherwise serve.” 103 Pub.
L. No. 322, § 32001, 108 Stat. 1796, 1896-97 (codified at 18 U.S.C. § 3621-
(e)(2)(B)).
In 1995, the BOP published its first rule and implementing regulation
defining early-release criteria under § 3621(e). See 60 Fed. Reg. 27692-27695;
28 C.F.R. § 550.58. Congress had explicitly limited the incentive to prisoners
convicted of “non-violent offense[s]” but had not defined that term. The BOP
filled the gap by adopting the definition of “crime of violence” contained in 18
U.S.C. § 924(c)(3). Several months later, it issued a program statement in which
it defined “crimes of violence” to include firearms convictions under 18 U.S.C.
§ 922(g) and drug-trafficking convictions under 21 U.S.C. § 841 that involved
possession of a firearm. Program Statement No. 5162.02, §§ 7, 9 (July 24, 1995).
The courts of appeals divided over the validity of both categorizations.1

1
Compare Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir. 1997) (holding that defining
§ 922(g) as a “crime of violence” conflicted with judicial precedent), with Cook v. Wiley, 208
F.3d 1314, 1322 (11th Cir. 2000) (stating that BOP could characterize a § 922(g) conviction as
a “crime of violence”); compare also Venegas v. Henman, 126 F.3d 760, 763 (5th Cir. 1997) (up-
holding BOP’s classification of drug offenses attended by firearm possession as violent crimes),
and Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir. 1999) (same), with Martin v. Gerlinski,
(continued...)

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 No. 09-10061

In response to the lack of consistency arising from the split among the cir-
cuits, the BOP in 1997 issued an interim rule that no longer tied eligibility to the
definition of “nonviolent offense” or “crime of violence.” See 62 Fed. Reg. 53690
(Oct. 15, 1997). The new rule, 28 C.F.R. § 550.58(a)(1), relied instead on the dis-
cretion vested in the agency to issue additional early-release criteria beyond
those mandated by § 3621(e)(2)(B).
The 1997 rule provided, in relevant part, as follows: “As an exercise of the
discretion vested in the Director of the Federal Bureau of Prisons, the following
categories of inmates are not eligible for early release:
. . . (vi) Inmates whose current offense is a felony:

(A) That has as an element, the actual, attempted, or threat-
ened use of physical force against the person or property of another,
or

(B) That involved the carrying, possession, or use of a firearm
or other dangerous weapon . . . .

28 C.F.R. § 550.58(a)(vi) (1998). Thus, under the 1997 rule, felon-in-possession-
of-firearm offenses and drug-trafficking offenses with a sentence enhancement
for use of a firearm were no longer “violent” offenses but were rather “nonviolent
offenses” that were ineligible for the early-release incentive because of the na-
ture of the preconviction conduct. The BOP also published a new program state-
ment that included felon-in-possession offenses under 18 U.S.C. § 922(g) and
drug-trafficking offenses with a sentence enhancement for firearm use within
the category of “Offenses That at the Director’s Discretion Shall Preclude an In-
mate’s Receiving Certain Bureau Program Benefits.” Program Statement

1
(...continued)
133 F.3d 1076, 1079 (8th Cir. 1998) (concluding that BOP could “look only to the offense of con-
viction . . . and not to sentencing factors . . . in determining whether an offender was convicted
of a nonviolent offense”).

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 No. 09-10061

5162.04, § 7 (Oct. 9, 1997).
The amended rule produced more litigation and another divide among the
circuitsSSthis time, as to whether the BOP had acted within the permissible
bounds of its discretion in narrowing the class of prisoners eligible for early re-
lease under § 3621(e). 2
In Lopez, the Court held that the BOP could, within its discretion, cate-
gorically deny early release eligibility to all inmates who possessed a firearm in
connection with their current offense. The Court then concluded that the 1997
interim rule was a reasonable exercise of that discretion:
Having decided that the Bureau may categorically exclude pri-
soners based on their preconviction conduct, we further hold that
the regulation excluding Lopez is permissible. The Bureau reason-
ably concluded that an inmate’s prior involvement with firearms, in
connection with the commission of a felony, suggests his readiness
to resort to life-endangering violence and therefore appropriately
determines the early release decision.

Lopez, 531 U.S. at 244.
Lopez, however, did not dispositively establish the validity of the categori-
cal exclusion, which is why that policy continues to be litigated. As an initial
matter, the Court expressly declined to consider whether the 1997 interim rule
complied with the APA’s notice-and-comment requirements. Id. at 245 n.6.
Moreover, the above-stated rationale for the BOP’s policySSthat prior firearm
possession in connection with a felony suggests a risk of life-endangering recidi-
vismSSwas not explicitly contained in the administrative record. Rather, the
Court, in making that statement, relied on the BOP’s brief. See Lopez, 531 U.S.
at 236. In short, the Lopez Court held that the categorical exclusion of early

2
Compare Bellis v. Davis, 186 F.3d 1092, 1095 (8th Cir. 1999) (concluding that the 1997
rule was a permissible exercise of BOP discretion), and Bowen v. Hood, 202 F.3d 1211, 1220
(9th Cir. 2000), with Ward v. Booker, 202 F.3d 1249, 1256-57 (10th Cir. 2000), and Kilpatrick
v. Houston, 197 F.3d 1134, 1135 (11th Cir. 1999) (reaching the opposite result).

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release eligibility for felons in possession of a firearm was a permissible exercise
of BOP discretion reasonably executed, but the Court did not hold that 28 C.F.R.
§ 550.58(a) satisfied the APA’s procedural requirements.
By 2000, the BOP had promulgated a final version of the 1997 interim
rule, with essentially identical language, after notice and comment. See 65 Fed.
Reg. 80745 (Dec. 22, 2000), codified at 28 C.F.R. § 550.58(a). The Ninth Circuit
in Arrington, 516 F.3d at 1114, held the BOP’s final rule invalid under § 706-
(2)(A) of the APA because BOP had “failed to set forth a rationale for its decision
to categorically exclude prisoners convicted of [firearm possession] offenses.”
The Arrington panel rejected two rationales offered by the BOP in defend-
ing the regulation. The firstSSthe public safety rationale cited with favor in
LopezSSwas “entirely absent from the administrative record” and was thus the
sort of “‘post hoc rationalization[]’ of appellate counsel that we are forbidden to
consider in conducting review under the APA.” Id. at 1113 (citing Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The secondSSthe
need for uniformity in the application of the eligibility regulationSSthough artic-
ulated in the administrative record, provided “no explanation for why the Bur-
eau exercised its discretion” by categorical exclusion rather than categorical in-
clusion. Id. at 1113-14. In other words, in the Ninth Circuit’s view, the BOP’s
uniformity rationale failed under arbitrary-and-capricious review because the
BOP could have reached that goal just as easily through categorical eligibility,
and the administrative record did not provide a rationale for the decision cate-
gorically to exclude. Id.
The two circuits that have had the opportunity to consider Arrington have
declined to follow it.3 The overwhelming majority of district courts, given the

3
See Gatewood v. Outlaw, 560 F.3d 843 (8th Cir. 2009), petition for cert. filed (June 23,
2009) (No. 09-5089); Muolo v. Quintana, No. 09-1213, 2009 U.S. App. LEXIS 21124 (3d Cir.
(continued...)

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 No. 09-10061

opportunity, have also rejected Arrington.4
In addition, the BOP has adopted a new version of the regulation at issue,
effective March 16, 2009. See 28 C.F.R. § 550.55. That version provides a much
more detailed rationale for the categorical exclusion:
Under 18 U.S.C. 3621(e), the Bureau has the discretion to de-
termine eligibility for early release consideration (See Lopez v. Da-
vis, 531 U.S. 230 (2001)). The Director of the Bureau exercises dis-
cretion to deny early release eligibility to inmates who have a felony
conviction for the offenses listed in § 550.55(b)(5)(i)-(iv) because
commission of such offenses illustrates a readiness to endanger the
public. Denial of early release to all inmates convicted of these of-
fenses rationally reflects the view that, in committing such offenses,
these inmates displayed a readiness to endanger another’s life. The
Director of the Bureau, in his discretion, chooses to preclude from
early release consideration inmates convicted of offenses involving
carrying, possession or use of a firearm and offenses that present a
serious risk of physical force against person or property, as de-
scribed in § 550.55(b)(5)(ii) and (iii). Further, in the correctional ex-
perience of the Bureau, the offense conduct of both armed offenders
and certain recidivists suggests that they pose a particular risk to
the public. There is a significant potential for violence from crimin-
als who carry, possess or use firearms. As the Supreme Court noted
in Lopez v. Davis, “denial of early release to all inmates who pos-
sessed a firearm in connection with their current offense rationally
reflects the view that such inmates displayed a readiness to endan-
ger another’s life.” Id. at 240. The Bureau adopts this reasoning.
The Bureau recognizes that there is a significant potential for vio-
lence from criminals who carry, possess or use firearms while en-
gaged in felonious activity. Thus, in the interest of public safety,
these inmates should not be released months in advance of complet-
ing their sentences.

3
(...continued)
Sept. 23, 2009) (per curiam).
4
See, e.g., Hicks v. Fed. BOP, 603 F. Supp. 2d 835 (D.S.C. 2009); Cross v. Berkebile, No.
3-08-CV-1379-M, 2009 WL 159280 (N.D.Tex. Jan. 21, 2009); Muolo v. Quintana, 593 F. Supp.
2d 776 (W.D. Pa. 2009), aff’d, No. 09-1213, 2009 U.S. App. LEXIS 21124 (3d Cir. Sept. 23,
2009) (per curiam); Minotti v. Whitehead, 584 F. Supp. 2d 750 (D. Md. 2008).

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It is important to note that these inmates are not precluded
from participating in the drug abuse treatment program. However,
these inmates are not eligible for early release consideration be-
cause the specified elements of these offenses pose a significant
threat of dangerousness or violent behavior to the public. This
threat presents a potential safety risk to the public if inmates who
have demonstrated such behavior are released to the community
prematurely. Also, early release would undermine the seriousness
of these offenses as reflected by the length of the sentence which the
court deemed appropriate to impose.

Drug Abuse Treatment Program, 74 Fed. Reg. 1892, 1895 (Jan 14, 2009).

II.
A.
The district court dismissed Handley’s claims for lack of standing and ripe-
ness, because she had not actually been denied permission to participate in the
residential drug abuse program at that time. We review the district court’s find-
ings of fact in a habeas appeal for clear error and its conclusions of law de novo.
Buntion v. Quarterman, 524 F.3d 664, 670 (5th Cir. 2008), cert. denied, 129 S.
Ct. 1306 (2009).

B.
In her pro se brief, Handley states that, since the district court dismissed
for want of standing and ripeness, she has been denied permission to participate
in the RDAP. We need not determine the accuracy of that statement, because
Handley also brings a facial challenge to BOP’s policy of categorically denying
early release eligibility to inmates convicted as felons in possession of a firearm
under 18 U.S.C. § 922(g). That policy denies her the possibility of early release
under 18 U.S.C. § 3621(e) because of her current offense. She thus has standing
to challenge the BOP’s policy, and her claims are ripe.

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C.
Handley’s equal protection and due process arguments can be disposed of
quickly. She claims that Arrington creates a basis for equal protection relief for
prisoners outside the Ninth Circuit. But she has not demonstrated a fundamen-
tal right or membership in a suspect class. Absent such a showing, strict scru-
tiny is inappropriate, and the rational-basis standard applies.5 Handley has the
burden of showing that BOP’s difference in treatment would not survive ration-
al-basis review, Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 387 (5th Cir.
2008), and she has not met that burden.
Handley’s due process claim is equally meritless. “The Due Process Clause
does not itself confer a liberty interest in a sentence reduction for completion of
an RDAP.” Richardson v. Joslin, 501 F.3d 415, 418-20 (5th Cir. 2007). In grant-
ing eligibility for early release, the BOP has broad discretion that precludes the
possibility of a liberty interest in early release under § 3621. Id. Without a lib-
erty interest, there is no procedural due process claim.6 Handley’s due process
claim fails.

D.
As for the administrative law issues, this case involves agency rulemaking
under 5 U.S.C. § 553. That section requires “notice and comment”: Subsec-
tion (b) says that “notice of proposed rule making shall be published in the Fed-
eral Register,” and subsection (c) requires that the agency solicit and consider
comments on its proposed rule before adopting a final version. Generally speak-

5
Rublee v. Fleming, 160 F.3d 213, 217 (5th Cir. 1998) (holding that there is no funda-
mental right to early release under § 3621 and that “classification of prisoners based on the
type of offense for which they were convicted [does] not implicate a suspect class”) (citing Wott-
lin v. Fleming, 136 F.3d 1032, 1036-37 (5th Cir. 1998)).
6
See Greenholtz v. Inmates of Neb. Penal Correctional Complex, 442 U.S. 1, 8-11 (1979);
see also Meachum v. Fano, 427 U.S. 215, 225 (1976).

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ing, this section establishes the maximum extent of procedural scrutiny a re-
viewing court may apply to agency rulemaking. Vermont Yankee Nuclear Power
Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524 (1978). “[C]ircum-
stances which would ever justify a court in overturning agency action because
of a failure to employ procedures beyond those required by the statute . . . are ex-
tremely rare.” Id.
We review an agency’s compliance with § 553’s notice-and-comment re-
quirements under the arbitrary-and-capricious standard set forth in § 706(2)(A)
of the APA, which provides that a “reviewing court shall hold unlawful and set
aside agency action, findings, and conclusions found to be arbitrary, capricious,
an abuse of discretion or otherwise not in accordance with law.” This is a narrow
and highly deferential standard. “[I]t is well-settled that an agency’s action
must be upheld, if at all, on the basis articulated by the agency itself.” Motor Ve-
hicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983). The agency must provide a “satisfactory explanation” for its
action, and “a court is not to substitute its judgment for that of the agency.” Id.
But courts are encouraged to “uphold a decision of less than ideal clarity if the
agency’s path may be reasonably discerned.” Bowman Transp., Inc. v. Arkansas-
Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).
Before 1997, the BOP classified felon-in-possession convictions under
§ 922(g) as violent crimes. Under the 1997 interim rule and the 2000 final ver-
sion, the BOP made a policy change. Section 922(g) violations were no longer
“violent” offenses but were rather “nonviolent offenses” that were ineligible for
the early-release incentive because of the nature of the preconviction conduct.
The question is whether BOP complied with the APA’s procedural require-
ments when it adopted that policy change. An agency action representing a poli-
cy change requires “a reasoned analysis of the change beyond that which may
be required when an agency does not act in the first instance.” Motor Vehicle,

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463 U.S. at 42. As recently clarified in FCC v. Fox Television Stations, Inc., 129
S.Ct. 1800, 1811 (2009), an agency effecting a policy change is not required to
show a more convincing rationale for the new policy than for the old. Id. An
agency’s change in policy is not subjected to a heightened standard or more sub-
stantial review than the scrutiny applicable to policy drafted on a blank slate.
Id. at 1810-11. Rather, a policy change must only meet three requirements: The
new policy must be permissible under the statute; there must be good reasons
for it; and the agency must believe that the new policy is better, “which the con-
scious change of course adequately indicates.” Id. at 1811
Applying Motor Vehicle and Fox Television, we conclude that the BOP poli-
cy survives under the arbitrary-and-capricious standard. The BOP has the stat-
utory authority to implement its policy; that was the holding in Lopez, 531 U.S.
at244. There are obvious, good reasons for denying early release to inmates
whose offense involved the use or possession of a firearm. We recognized the ob-
vious public safety rationale underlying the BOP’s policy even before the 1997
interim regulation.7 The Supreme Court confirmed that in Lopez, 531 U.S. at
244, stating that “an inmate’s prior involvement with firearms, in connection
with the commission of a felony, suggests his readiness to resort to life-endan-
gering violence and therefore appropriately determines the early release deci-
sion.” The agency has consistently articulated that public safety rationale in de-
fending its policy before numerous courts for more than a decade.
We conclude, as we did in Venegas and as the Supreme Court did in Lopez,
that public safety was the contemporaneous rationale for the BOP’s categorical
exclusion. The agency’s path may be readily discerned from its prior interim
rules, Program Statements, and consistent litigation position. These factors are

7
See Venegas, 126 F.3d at 765 (“[I]n the present context of early release from prison,
public safety is an important consideration that, when combined with conduct presenting a
risk of violence, justifies denial of release.”).

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not the sort of post hoc rationalizations of appellate counsel that Burlington
forbids us to consider. See Burlington, 371 U.S. at 168.
Finally, the BOP believed that justifying the categorical exclusions on dis-
cretionary grounds was better policy. The BOP hoped this policy change would
resolve the circuit split created by its previous reliance on “crime of violence.”
By changing course, the agency sought to apply its eligibility regulation with
uniformity. 65 Fed. Reg. at 80747. That was the motivation behind the policy
change, but the categories of exclusion always remained the same, as did the un-
derlying public safety rationale. We held in Venegas, 126 F.3d at 765, that the
BOP’s 1995 rule was substantively valid, and we have no difficulty in concluding
that the BOP satisfied the APA’s procedural requirements when it changed
course to achieve greater uniformity. We thus join the Eighth and Third Cir-
cuits in rejecting the Ninth Circuit’s decision in Arrington.

E.
As an alternative basis for dismissing Handley’s claims, we note that the
BOP’s new version of the regulation at issue, codified at 28 C.F.R. § 550.55, pro-
vides a detailed public safety rationale. Even under Arrington, the new rule un-
doubtedly passes § 706 scrutiny; the only question is whether it applies to Hand-
ley.
“New procedural rules published by an agency may be made to apply to
pending proceedings and also retroactively if injury or prejudice does not result
therefrom.” Pac. Molasses Co. v. FTC, 356 F.2d 386, 390 n. 10 (5th Cir. 1966)
(internal citations omitted). A new regulation has an impermissible retroactive
effect where its application “would impair rights a party possessed when he act-
ed, increase a party’s liability for past conduct, or impose new duties with re-
spect to transactions already completed.” Fernandez-Vargas v. Gonzales, 548
U.S. 30, 37 (2006).

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The new regulation is virtually identical to its predecessor. The only nota-
ble change is the detailed rationale for why inmates such as Handley are ineligi-
ble for early release consideration under § 3621(e). The BOP’s policies as to
Handley have not changed; she was ineligible for early release consideration un-
der 28 C.F.R. § 550.58 and remains so under § 550.55.
Application of the new regulation to this case would not deprive Handley
of any rights she previously possessed. Thus, § 550.55 applies to her. The new
rule merely clarifies the BOP’s position; its application to Handley does not cre-
ate an impermissible retroactive effect. See Hicks, 603 F. Supp. 2d at 841-42.
Under the new regulation, Handley’s challenge fails, because the agency has
stated a detailed rationale for its policy.
For the reasons we have explained, the dismissal for lack of standing is
VACATED, and judgment is RENDERED for the defendants.

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