concurring.
I concur in the judgment of the court reversing the district court and remanding. I write separately to observe a tension in circuit law which may affect petitioners’ ability to ultimately obtain habeas relief.
Petitioners seek to invalidate the 1997 interim regulation and program statements upon which the Bureau of Prisons (“Bureau”) relied to deny them eligibility for sentence reductions. Petitioners contend that the Bureau did not provide adequate notice and opportunity for public comment before promulgating the regulation and program statements, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553. The program statements, however, are not subject to the APA. Gunderson v. Hood, 268 F.3d 1149, 1155 (9th Cir.2001). Should petitioners prevail in invalidating the regulation under the APA, the question becomes whether the program statements survive and could still be relied upon independently to deny petitioners eligibility. Grassi v. Hood, 251 *441F.3d 1218 (9th Cir.2001), and Gunderson v. Hood, supra, suggest contrasting answers.
The Grassi petitioner challenged the substantive validity of the program statements. After we foreclosed this claim in Bowen v. Hood, 202 F.3d 1211, 1219 (9th Cir.2000), the petitioner sought to invalidate the interim regulation under the APA. We reasoned that the tact was futile because the Bureau could still rely on the program statements to deny eligibility. Grassi 251 F.3d at 1221. We explained:
[T]he BOP promulgated two independent documents that announced the categorical exclusion applied to Petitioner. ... Even if the 1997 interim regulation were invalid [under the APA] ..., the program statement, which predated the amended rule, would remain viable. The 1997 program statement never was rescinded, nor is it expressly superseded by the later 1997 interim regulation. Thus, a holding that the amended rule was invalid on procedural grounds would have no effect on the continuing validity of the earlier-published program statement.
Id. (paragraph break omitted).
Gunderson holds that the APA does not apply to the program statements because they are “interpretive rules” that serve as “clarification or explanation of ... the regulation.” 268 F.3d at 1154. Following Gunderson’s rule, the program statements cannot be independent of the regulation and, contrary to the suggestion in Grassi a holding invalidating the interim regulation would implicitly also invalidate the program statements. Without the interim regulation, there would be no rule which the program statements could clarify.
If the Grassi reasoning controls, petitioners would not be entitled to habeas relief even if they prevail in invalidating the interim regulation because the Bureau could still deny eligibility pursuant to the program statements.1 The opposite holds if Gunderson applies; the Bureau could not deny eligibility to petitioners if the interim regulation is invalid because the program statements would fall with the interim regulation.
A case may be made that Gunderson controls whereas the Grassi discussion of the program statements is dicta. In Grassi “the only claim that Petitioner raised in his petition for habeas corpus was the claim that ... ‘Program Statement 5162.04’s categorization ... violated the plain meaning of the statute and controlling precedent interpreting Section 3621(e).’ ” 251 F.3d at 1221. The Grassi court affirmed the district court’s dismissal of the habeas petition based on its rejection of this substantive challenge. The petitioner then raised the alternative APA argument. In declining to entertain this argument, the Grassi court “[a]ssum[ed] that the question was properly [raised],” id., before discussing the relationship between the program statements and regulation.
Neither party adequately addressed this issue I have laid out. I am content to leave it to the district court to harmonize Gunderson and Grassi as necessary on remand.
I concur in the judgment of the court.
. I observe that extending Grassi to hold that the program statements are independent of the regulation necessarily leads to the notion that the program statements are substantive rules subject to the APA, which then would contradict Gunderson's holding. See Gunderson, 268 F.3d at 1155.