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  • 7/28/2019 Sacora Petition for Rehearing

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    No. 10-35553

    UNITED STATES COURT OF APPEALS

    FOR THE NINTH CIRCUIT

    TIM RAY SACORA,

    Petitioner-Appellant,

    LARRY L. BEAMAN,

    Petitioner-Intervenor,

    TODD SONOBE,

    Petitioner-Intervenor,

    v.

    JEFF E. THOMAS, Warden,

    Federal Prison Camp, Sheridan, Oregon,

    Respondent-Appellee.

    Appeal from the United States District Court

    for the District of Oregon

    PETITION FOR PANEL REHEARING AND

    REHEARING EN BANC

    Stephen R. SadyChief Deputy Federal Public Defender

    101 SW Main Street, Suite 1700

    Portland, Oregon 97204

    (503) 326-2123

    Attorney for Petitioners

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    TABLE OF CONTENTS

    Page

    Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

    Summary Of Reasons For Rehearing En Banc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

    Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

    A. Because Congress Explicitly Directed The BOP To Address TheSufficient Duration For Community Corrections Through Notice-And-Comment Rulemaking, The BOPs Internal Memoranda Setting A SixMonth Limit On Community Corrections, Promulgated Without Notice-And-Comment, Should Receive No Deference. . . . . . . . . . . . . . . . . . . . . . . 9

    B. The Failure To Consider Extrinsic Evidence Demonstrating That TheBOPs Internal Memoranda Was Based On Factual Errors And A FailureTo Consider Relevant Factors Conflicted With The Holding OfHumaneSociety of U.S. v. Locke, 626 F.3d 1040, 1058 (9th Cir. 2010), ThatExtrinsic Evidence Should Be Considered In Evaluating Whether TheAgency Violated the Administrative Procedure Act. . . . . . . . . . . . . . . . . . 11

    C. Because No Member Of The Class Received More Than Six Months Of

    Community Corrections, The Internal Memoranda Constituted ASubstantive Rule Requiring Notice-And-Comment, Regardless OfWhether In Other Regions Federal Prisoners Received CommunityCorrections Over Six Months. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

    D. Rather Than Rely On The General Purpose Section Of The SCA, TheCourt Should Follow The Specific Federal Provisions Directing TheBOP To Increase Community Corrections Placements. . . . . . . . . . . . . . . . 16

    E. When Greater Freedom Is Implicated, The Court Should RequireScrupulous Adherence To Statutory Purposes And AdministrativeRulemaking Norms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

    Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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    Brief Format Certification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

    Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

    INDEX TO APPENDICES

    Appendix A Opinion

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    TABLE OF AUTHORITIES

    Page

    FEDERAL CASES

    Arrington v. Daniels,516 F.3d 1106 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10, 13

    Bennett v. Spear,

    520 U.S. 154 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

    Bloate v. United States,130 S. Ct. 1345 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 17

    Chrysler Corp. v. Brown,441 U.S. 281 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

    Colwell v. Department of Health & Human Sevs.,558 F.3d 1112 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

    Eisenhauer v. Mathews,535 F.2d 681 (2d Cir. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

    Foucha v. Louisiana,504 U.S. 71 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

    Gozlon-Peretz v. United States,498 U.S. 395 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

    Gunderson v. Hood,268 F.3d 1149 (9th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

    Humane Society v. Locke,626 F.3d 1040 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 11, 12, 13

    Morton v. Ruiz,

    415 U.S. 199 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

    iii

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    Our Children's Earth Foundation v. U.S. E.P.A.,527 F.3d 842 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

    Patel v. I.N.S.,

    638 F.2d 1199 (9th Cir. 1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

    Paulsen v. Daniels,

    413 F.3d 999 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

    Rodriguez v. Smith,541 F.3d 1180 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 20

    Skidmore v. Swift & Co.,323 U.S. 134 (1944). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

    Sw. Ctr. for Biological Diversity v. U.S. Forest Serv.,100 F.3d 1443 (9th Cir. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

    Wilderness Watch, Inc. v. U.S. Fish and Wildlife Service,2010 WL 5157167 (9th Cir. Dec. 21, 2010). . . . . . . . . . . . . . . . . . . . . . . . . 10

    FEDERAL STATUTES

    5 U.S.C. 706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 10

    42 U.S.C. 17501(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

    42 U.S.C. 17541(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16, 17

    18 U.S.C. 3553(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

    18 U.S.C. 3624(c)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 10, 13, 17

    155 Cong. Rec. at H13887. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

    Conf. Rep. to Consolidated Appropriations Act of 2010, 155 Cong. Rec. H13631-03 (daily ed. Dec. 8, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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    IN THE UNITED STATES COURT OF APPEALS

    FOR THE NINTH CIRCUIT

    TIM RAY SACORA, ))Petitioner-Appellant, ) CA No. 10-35553

    )LARRY L. BEAMAN, and )TODD SONOBE, )

    )Petitioner-Intervenors, )

    )v. )

    )JEFF E. THOMAS, Warden, )Federal Prison Camp, Sheridan, Oregon,)

    )Respondent-Appellee. )

    PETITION FOR PANEL REHEARING ANDREHEARING EN BANC

    The class representatives, through their counsel, Stephen R. Sady, respectfully

    request that the Court grant rehearing and rehearing en banc to review whether the

    class representatives established that the Bureau of Prisons (BOP) implementation of

    the Second Chance Act (SCA)s provisions that expanded available community

    corrections from six to twelve months violated the Administrative Procedure Act

    (APA) and the terms of the SCA itself. The Court should review this important issue,

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    which potentially effects every federal prisoner in this Circuit, because the following

    questions of administrative law were either overlooked in the panel opinion or were

    decided in conflict with Supreme Court and Ninth Circuit precedent:

    Where Congress explicitly directed the BOP to address the sufficient

    duration for community corrections through notice-and-comment rulemaking,whether the BOPs internal memoranda setting a presumptive six month limiton the statutorily available twelve months for community corrections,

    promulgated without notice-and-comment, should receive no deference?

    Where the class representatives established through extrinsic evidence that theBOPs internal memoranda limiting community corrections to six months was

    based on factual errors and failure to consider relevant factors, whether thePanels failure to consider those facts conflicted with the holding ofHumaneSoc. v. Locke, 626 F.3d 1040, 1058 (9th Cir. 2010), that evidence outside theadministrative record should be considered because the extrinsic evidenceestablished violation of 706 of the APA in the promulgation of the six-monthrule?

    Where the class representatives established thatno Sheridan prisoners receivedmore than six months of community corrections, whether the class

    representatives established that the BOP memoranda setting the six-monthstandard established a binding norm for them, which constituted a substantiverule requiring notice-and-comment, regardless of whether, in other regions,other federal prisoners received community corrections over six months?

    Where Congress explicitly directed the BOP to enhance and improve its federaloffender reentry programs, whether the Panels reliance on a general purpose

    provision relating to time that state and federal prisoners spend in transitionalfacilities conflicts with the specific directives to increase federal community

    corrections placements?

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    Summary Of Reasons For Rehearing En Banc

    The Court should grant rehearing en banc because resolution of the appeal has

    a drastic effect on the manner in which all federal sentences are served in this Circuit.

    The district court certified this case as a class action on behalf of all Sheridan federal

    prisoners subject to the BOPs implementation of the SCA. The class representatives

    are suffering limited access to community corrections based on BOP actions that

    violate central tenets of administrative law.

    First, the Panel decision does not address a central separation of powers issue:

    where Congress explicitly conditioned the agencys authority on notice-and-comment

    rulemaking, the Panels approval of informal memoranda that sharply limit the

    application of the relevant statute with no notice-and-comment violated

    Congresss directive. The relevant statute unequivocally requires the BOP to

    implement the amendments to 3624(c), including determining what is a sufficient

    duration for community corrections, by notice-and-comment rulemaking. 18 U.S.C.

    3624(c)(6)(C). The BOP did not do so. Until now, no precedent permitted the use

    ofSkidmore1 deference to circumvent a direct statutory instruction. Because such

    precedent severely compromises the separation of powers and applies to all

    1Skidmore v. Swift & Co., 323 U.S. 134 (1944).

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    administrative law cases, the Court should rehear and reverse this agency defiance of

    legislative instruction.

    Second, this Court recently held that, in order to decide questions under 706

    of the APA, extrinsic evidence should be considered: A court may consider

    extra-record documents, however, if necessary to determine whether the agency has

    considered all relevant factors and has explained its decision. Humane Soc. v.

    Locke, 626 F.3d 1040, 1058 (9th Cir. 2010) (quoting Sw. Ctr. for Biological Diversity

    v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)). The district court refused

    to consider the smoking gun proof that the BOPs six month rule was based on an

    error: the director of the BOP claimed at a public hearing that it was based on

    research and studies, yet the BOPs own research department subsequently confirmed

    in writing that the director was wrong and no such empirical studies exist. Further,

    the extrinsic evidence established that the BOP never considered expanded use of

    home detention or had any basis or experience with community corrections greater

    than six months. Both to resolve the conflict with the prior authority inHumane

    Society and to bring the opinion into line with governing Supreme Court and other

    Ninth Circuit authority under 706, the Court should consider the extrinsic evidence.

    Third, the class representatives established through discovery that the internal

    memoranda so limited the exercise of discretion that it constituted a binding norm

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    governing their cases. Under well-established Ninth Circuit law, regardless of the

    form or label, rules that establish a binding norm must be promulgated with notice-

    and-comment. The Panel adopted an unprecedented approach: because a prison in

    the North Central Region provides some of its prisoners with greater than six months

    of community corrections, the use of the informal memorandum as a binding norm

    for the only plaintiffs involved in this case the class of federal prisoners at Sheridan

    was approved. Contrary to this approach, controversies should be decided based

    on the parties involved in the case. The class established beyond any question that

    every Sheridan prisoner was subjected to a binding substantive rule, limiting

    community corrections to six month. Not one Sheridan prisoner received more than

    six months community corrections.

    Fourth, Congress, in enacting the SCA, intended that the BOP change and

    improve its federal prisoner reentry practices. Yet, the evidence presented by the

    class representatives demonstrated that the BOP has not changed, enhanced, or

    improved community corrections. Not only has the Panel overlooked this evidence,

    the Panel relied on a general purpose statement in the SCA, applicable to both state

    and federal prisoners, that sufficient transitional services [be] for as short a period

    as practicable. Slip Op. at 19430. This statement refers to medical-type facilities.

    In contrast, the SCA specifically directs that federal community corrections increase

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    from six to twelve months and that the BOP provide programming to federal

    prisoners that includes, as an incentive, the maximum allowable period in a

    community confinement facility. 42 U.S.C. 17541(a)(2)(A). The specific federal

    provision controls over the general provision applicable to both state and federal

    programs. See Bloate v. United States, 130 S. Ct. 1345, 1354 (2010) (citation

    omitted).

    These related administrative law issues implicate another consideration that

    warrants rehearing. The administrative law principles applied to this case implicate

    not regulation of businesses or government benefits: human liberty is at issue. In

    Arrington v. Daniels, 516 F.3d 1106, 1114 n.6 (9th Cir. 2008), the Court left open the

    question whether administrative rules should be applied with greater vigor where

    greater liberty is involved. Here, liberty is at issue because living in the community

    prior to release provides the opportunity to reunite with family, to begin employment

    in the community, to establish treatment programs, and to rejoin the greater society.

    In this context, the Panels deference to the agency, at the price of full adherence to

    administrative law principles, allowed greater freedom to be sacrificed to bureaucratic

    indifference and error.

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    Background

    On April 9, 2007, President George W. Bush, with strong bipartisan support,

    signed the SCA, which included a provision doubling the available time for

    community corrections at the end of a sentence from six to twelve months and

    reaffirming the BOPs authority to transfer prisoners to community corrections at any

    time. Community corrections includes both time in a halfway house and home

    detention. The SCA also included a provision requiring the BOP to promulgate

    regulations not later than 90 days after the date of enactment that would ensure that

    the placement in community corrections would be of sufficient duration to provide

    the greatest likelihood of successful reintegration into the community. 18 U.S.C.

    3624(c)(6)(C). The BOP issued an informal memorandum shortly after enactment

    of the statute continuing the former policy of limiting community corrections to six

    months, absent exceptional circumstances. The BOP failed to promulgate the

    regulation within the 90 days provided, then over 100 days too late did so without

    the required notice-and-comment. The district court found that the regulation was

    therefore invalid, a decision the BOP did not challenge on appeal.

    In the absence of a regulation addressing the sufficient duration for

    community corrections, the BOP continued to apply two internal memoranda setting

    the six-month presumptive limit on community placement. In challenging the

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    application of this six month norm, the class representatives conducted discovery and

    presented uncontroverted evidence of the following:

    No Sheridan prisoner ever received a community corrections designation

    greater than six months;

    The director of the BOP asserted that studies and research established that

    placements in community corrections longer than six months were

    counterproductive;

    The BOPs research department admitted that there was no empirical support

    for the six month limit;

    The BOP could not have any experience with community corrections greater

    than six months because of the statutory limitation under previous law to six

    months and because, prior to this Courts decision inRodriguez v. Smith, 541

    F.3d 1180, 1187 (9th Cir. 2008), the BOPs rules effectively foreclosed

    community correction placements of longer than six months; and

    The BOP never considered expanding the amount of time in home detention

    as a way of increasing community corrections without utilizing halfway house

    beds.

    The BOPs SCA regulation struck down by the district court did not address the

    duration of community corrections, but the district court deferred to the BOPs

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    decision to continue operating under the internal memoranda with their six-month

    limitation. The Panel affirmed the decision regarding the APA, leaving four areas

    that warrant further consideration or are in conflict with controlling precedent.

    A. Because Congress Explicitly Directed The BOP To Address The

    Sufficient Duration For Community Corrections Through

    Notice-And-Comment Rulemaking, The BOPs Internal

    Memoranda Setting A Six Month Limit On Community

    Corrections, Promulgated Without Notice-And-Comment, Should

    Receive No Deference.

    The Panel overlooked a critical difference between this case and most other

    cases involving agency rulemaking: Congress expressly directed the BOP to engage

    in notice-and-comment rulemaking by promulgating a regulation, and the BOP failed

    to follow that statutory directive. This is significant because the SCA rules must be

    both substantively and procedurally valid. BOP had no discretion except to engage

    in formal rulemaking, so its failure to do so renders its informal SCA rules void. The

    Panels unprecedented approval of the agency end run around an unequivocal

    congressional instruction prejudices all federal prisoners in the Circuit. Further, the

    constitutionally dubious statement of law, which would allow agencies to defy

    statutory instruction on how to promulgate rules, applies to every company,

    organization, and individual subject to agency action.

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    The SCA provides that the BOP shall implement the reforms to the

    prerelease community placement statute through the formal procedures provided

    under the APA. 18 U.S.C. 3624(c)(6) ([t]he Director of the Bureau of Prisons

    shallissue regulations regarding the sufficient duration of community corrections)

    (emphasis added). [D]iscretion as to the substance of the ultimate decision does not

    confer discretion to ignore the required procedures of decisionmaking. Our

    Childrens Earth Found. v. U.S. E.P.A., 527 F.3d 842, 847 (9th Cir. 2008) (quoting

    Bennett v. Spear, 520 U.S. 154, 172 (1997)). When Congress specifies an obligation

    and uses the word shall, this denomination usually connotes a mandatory

    command. Childrens Earth, 527 F.3d at 847 (citingAlabama v. Bozeman, 533 U.S.

    146, 153 (2001)). Because the SCA rules were promulgated not in accordance with

    law, 5 U.S.C. 706(2)(A), and without observance of procedure required by law,

    706(2)(D), they are invalid. Arrington, 516 F.3d at 1112; see also Wilderness

    Watch, Inc. v. U.S. Fish and Wildlife Service, 2010 WL 5157167, *9 (9th Cir. Dec.

    21, 2010);Paulsen v. Daniels, 413 F.3d 999, 1004-05 (9th Cir. 2005).

    The agencys power to make rules that affect substantial individual rights and

    obligations carries with it the responsibility not only to remain consistent with the

    governing legislation, but also to employ procedures that conform to the law.

    Morton v. Ruiz, 415 U.S. 199, 231-32 (1974) (emphasis added) (citations omitted).

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    [T]he promulgation of [the] regulations must conform with any procedural

    requirements imposed by Congress because agency discretion is limited not only

    by substantive, statutory grants of authority, but also by the procedural requirements

    which assure fairness and mature consideration of rules of general application.

    Chrysler Corp. v. Brown, 441 U.S. 281, 303 (1979) (citations omitted). Congresss

    intention that the BOP engage in notice-and-comment rulemaking is reinforced by

    subsequent detailed instructions regarding consultation with the public and experts.

    Conf. Rep. to Consolidated Appropriations Act of 2010, 155 CONG.REC. H13631-03

    (daily ed. Dec. 8, 2009). Rehearing is necessary because the Panel only addressed the

    substantive validity of the SCA rules, not their procedural validity, as required by

    governing Ninth Circuit and Supreme Court authority.

    B. The Failure To Consider Extrinsic Evidence Demonstrating That

    The BOPs Internal Memoranda Was Based On Factual Errors AndA Failure To Consider Relevant Factors Conflicted With The

    Holding OfHumane Society of U.S. v. Locke, 626 F.3d 1040, 1058

    (9th Cir. 2010), That Extrinsic Evidence Should Be Considered In

    Evaluating Whether The Agency Violated the Administrative

    Procedure Act.

    The Panel presumed that the BOP relied on its expertise in developing the SCA

    rules limiting community corrections placements to six months, absent extraordinary

    and compelling circumstances, based on the observation that [t]he BOP has nearly

    10 years of experience in placing inmates in RRCs, at least with respect to periods of

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    six months or less. Slip op. at 19433. Not only is this presumption not supported

    by empirical evidence, the rationale is supplied by the Panel, not the agency.

    InHumane Society, this Court held that [a] court may consider extra-record

    documents . . . if necessary to determine whether the agency has considered all

    relevant factors and has explained its decision. Humane Society, 626 F.3d at 1058

    (internal citations omitted). There, this Court noted the necessity of examining the

    apparent factual inconsistency between [the agencys] significance finding here and

    its previous fishery assessments to determine whether the agency has considered

    all relevant factors and has explained its decision. Id. (citation omitted). Here,

    there is an unexplained inconsistency demonstrating that the BOP did not consider

    all relevant factors.

    The Panel failed to consider evidence in the record directly contradicting the

    BOP assertion that it relied on its experience and expertise with placements longer

    than six months. The Director claimed that our research that weve done for many

    years reflects that many offenders who spend more than six months in a halfway

    house tend to do worse rather than better. The six months seems to be a limit for

    most of the folks, at which time if they go much beyond that, they tend to fail more

    often than offenders that serve up to six months. AOB 15. This statement was

    incorrect, as evidenced by an internal BOP email: Ive done a lot of searching of the

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    literature, but so far have not found anything to confirm that the 6-months was

    empirically based. AOB 17-18.

    Additionally, the BOP had no occasion to evaluate whether prisoners do better

    or worse in community corrections beyond six months because the statute prohibited

    any placements longer than six months. 18 U.S.C. 3624(c) (repealed 2009). The

    Panel, as did the district court, accepted without question that the BOP relied on its

    expertise, when the record demonstrates the opposite: No expertise could be

    exercised by an agency that considered itself prohibited from allowing more than six

    months of community corrections.

    The Panel also erred factually by supplying its own rationale. The

    administrative record indicates that the BOP stated that, in its experience, placements

    oflongerthan six months were contraindicated, not that six month placements or less

    were optimal, as the Panel suggests. Whether placements of six months or less were

    adequate in the BOPs experience addresses a different question, and cannot

    substitute for the agencys own rationale, especially where the rationale supplied by

    the agency was based on no empirical evidence or experience. As a general matter,

    judicial review of agency decisions is limited to the record considered by the agency

    in making its decision. Humane Society, 626 F.3d at 1058 (citing Camp v. Pitts, 411

    U.S. 138, 142 (1973));Arrington, 516 F.3d at 1113. Rehearing is necessary because

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    the Panel impermissibly supplied a rationale not proffered by the BOP in the

    administrative record.

    C. Because No Member Of The Class Received More Than Six MonthsOf Community Corrections, The Internal Memoranda Constituted

    A Substantive Rule Requiring Notice-And-Comment, Regardless Of

    Whether In Other Regions Federal Prisoners Received Community

    Corrections Over Six Months.

    The Panel improperly expanded the class of prisoners in this suit by finding

    that, because a few non-class members received extended community placements, the

    six-month limitation did not create a binding norm as to the members of the certified

    class and, therefore, was not a substantive rule subject to notice-and-comment. The

    fact that a very few non-class prisoners have been granted longer placements does not

    demonstrate that the informal memoranda are not binding rules as to the class

    members. The Panel should have limited its consideration to the members of the

    class, which would establish that the internal memoranda so limited the exercise of

    discretion as to constitute a binding rule subject to notice-and-comment: No member

    of the class has received a placement longer than six months.

    Moreover, the Panel placed far too much weight on the few placements beyond

    six months to conclude that the rules allowed the exercise of meaningful discretion.

    Only .001% of the 45,000 prisoners in the country received placements longer than

    six months, and when the transfers from North Central Region and FCI Duluth are

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    taken out of the equation, only 8 prisoners received longer placements. These

    statistics demonstrate not that the BOPs rules allows staff to make individualized

    determinations, but rather that the limitations on staff discretion are so narrow so as

    to constitute a binding rule.

    The Panel correctly cited to this Courts precedent that a rule is substantive

    when it either narrowly limits administrative discretion or establishes a binding

    norm. Slip op. 19434 (emphasis in original). However, the Panels focus on the

    binding norm standard overlooked the other manner in which a rule may be

    substantive: where it narrowly limits administrative discretion. Under this

    standard, a rule is subject to notice-and-comment not just when no discretion may be

    exercised, but when the limits on the exercise of discretion are so restrictive that

    discretion is rarely if ever exercised. That is the case here. While the six-month rule

    allows for longer placements, the restrictions on when discretion may be exercised

    are so narrow that they effectively replace agency discretion with a new binding rule

    of substantive law. Colwell, 558 F.3d at 1124.

    Because this Court applies a functional analysis to determine whether notice-

    and-comment is required, the BOPs label of the rule as a policy statement of general

    applicability does not exempt it from APA requirements. The label an agency

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    attaches to its pronouncement is clearly not dispositive. Gunderson v. Hood, 268

    F.3d 1149, 1154 n.27 (9th Cir. 2001) (citations omitted).

    D. Rather Than Rely On The General Purpose Section Of The SCA,The Court Should Follow The Specific Federal Provisions Directing

    The BOP To Increase Community Corrections Placements.

    The Panels reliance on a general purpose provision relating to time that state

    and federal prisoners spend in transitional medical-type facilities conflicts with the

    SCAs specific directives to increase federal community corrections placements,

    which include halfway houses and home detention. Congress explicitly directed the

    BOP to enhance and improve its federal offender reentry programs, including

    doubling the available time in community corrections and establishing an incentive

    to participate in reentry programming of the maximum allowable period in a

    community confinement facility. 42 U.S.C. 17541(a)(2)(A).

    As an initial matter, the general purpose statement applies to both state and

    federal provisions, not federal community corrections. Although the Panel found

    Congress intended transitional treatment for as short of a period as practicable, slip

    op. at 19430, the statement in full demonstrates that the statute is aimed at medical-

    type facilities:

    to assist offenders reentering the community from incarceration toestablish a self-sustaining and law-abiding life by providing sufficienttransitional services for as short of a period as practicable, not to exceed

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    one year, unless a longer period is specifically determined to benecessary by a medical or other appropriate treatment professional.

    42 U.S.C. 17501(a)(5) (emphasis added). Reference to a medical or other

    appropriate treatment professional clearly indicates that the transitional services

    refer to inpatient or similar treatment, not halfway house placements. Quite sensibly,

    restriction in medical-type facilities should only be as long as needed.

    Secondly, this single reference, which does not directly apply to the federal

    prisoner reentry initiative, cannot inform the scope of the sections dedicated

    specifically to federal prisoners. Specific statutory provisions trump the general.

    Bloate, 130 S. Ct. at 1354 (citing Gozlon-Peretz v. United States, 498 U.S. 395, 407

    (1991). Here, Congress provided a purposes section directed solely at federal

    prisoners not all prisoners that provides for the maximum allowable period in a

    community confinement facility as an incentive to participate in reentry

    programming. 42 U.S.C. 17541(a)(2)(A). Congress further demonstrated the need

    for increased community corrections by requiring the BOP to ensure that prisoners

    spend a sufficient time in community corrections to provide the greatest likelihood

    of successful reintegration into the community. 18 U.S.C. 3624(c)(6)(c). And

    most obviously, by doubling the time in community corrections from six to twelve

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    months, Congress intended that community corrections be utilized for a longer time

    period.

    Congresss intent that placements be longer is reinforced by the Consolidated

    Appropriations Act of 2010, which provides:

    Because BOP has indicated that approximately $75,000,000 is requiredto implement fully its Second Chance Act responsibilities, the confereesexpect the Department to propose significant additional funding for this

    purpose in the fiscal year 2011 request, including significant additionalfunding for the enhanced use of Residential Reentry Centers (RRC) as

    part of a comprehensive prisoner reentry strategy. The conferees also

    urge the BOP to make appropriate use of home confinement whenconsidering how to provide reentering offenders with up to 12 monthsin community corrections.

    155 CONG.REC. at H13887. Congress clearly expressed its intention that the BOP

    fully use its authority to place prisoners in the community for as long a period as

    possible to ensure the greatest likelihood of successful reintegration including

    greater utilization of home confinement. The Panels reliance on a general purpose

    statement, addressing state prisoners on a different question, to condone the BOPs

    failure to change its prior practice cannot stand in light of the statutory instruction to

    enhance and improve utilization of community corrections.

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    E. When Greater Freedom Is Implicated, The Court Should Require

    Scrupulous Adherence To Statutory Purposes And Administrative

    Rulemaking Norms.

    Because greater freedom is at issue, the Court should require scrupulous

    adherence to the SCAs language and purpose, as well as to the procedural

    requirements regarding promulgation. Even more than the normal administrative law

    docket of economic, environmental, and other such bureaucratic delegations, freedom

    implicates interests that require careful conformance to statutory and administrative

    rulemaking norms before greater incarceration is administratively imposed.

    In the rule of parsimony embedded in the Sentencing Reform Act, Congress

    articulated the fundamental interest in requiring no greater deprivation of human

    freedom than necessary to vindicate the purposes of federal sentencing. 18 U.S.C.

    3553(a) (The court shall impose a sentence sufficient, but not greater than necessary,

    to comply with the purposes set forth in paragraph (2) of this subsection.). This

    statutory norm reflects the Due Process Clauses specific recognition of the core

    value of individual liberty. Foucha v. Louisiana, 504 U.S. 71, 80 (1992). [W]here

    the liberty of an individual is at stake . . . [m]eticulous care must be exercised lest the

    procedure by which he is deprived of that liberty not meet the essential standards of

    fairness. Patel v. I.N.S., 638 F.2d 1199, 1205 (9th Cir. 1980) (quotingBridges v.

    Wixon, 326 U.S. 135, 154 (1945));see Eisenhauer v. Mathews, 535 F.2d 681, 686 (2d

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    Cir. 1976) (liberal interpretation appropriate for legislation with remedial and

    humanitarian aims).

    As reflected in theRodriguezholding, the standards for community corrections,

    with its greater freedom in a halfway house or home detention, provide a basis for

    relief under the habeas corpus statute. 541 F.3d at 1184-89. Where Congress

    authorized transfer to the community for twice as much time, the BOPs failure to

    provide adequate reasons to limit community placements to six months violates the

    purpose and spirit of the SCA and constitutes an especially egregious violation of the

    APA.

    Conclusion

    The Court should grant rehearing en banc to address an exceptionally important

    issue, to reconcile reasoning that is inconsistent with governing precedent, and to

    provide necessary judicial review regarding agency action that violates both the letter

    and the spirit of the APA and the SCA.

    Respectfully submitted this 20th day of January, 2011.

    /s/ Stephen R. Sady

    Stephen R. Sady

    Attorney for Petitioners

    On the brief:

    Lynn DeffebachResearch and Writing Attorney

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    IN THE UNITED STATES COURT OF APPEALS

    FOR THE NINTH CIRCUIT

    TIM RAY SACORA, ))Petitioner-Appellant, ) CA No. 10-35553

    )LARRY L. BEAMAN, and )TODD SONOBE, )

    )Petitioner-Intervenors, )

    )v. )

    )JEFF E. THOMAS, Warden, )Federal Prison Camp, Sheridan, Oregon,)

    )Respondent-Appellee. )

    BRIEF FORMAT CERTIFICATIONPURSUANT TO FRAP 32(a)(7)(C) AND

    NINTH CIRCUIT RULE 32-1

    Pursuant to FRAP 32(a)(7)(C) and Ninth Circuit Rule 32-1, I certify that the

    Petition for Rehearing and Rehearing En Banc is proportionately spaced, has a

    typeface of 14 points or more and contains 4,190 words.

    Dated this January 20, 2011.

    /s/ Stephen R. Sady

    Stephen R. SadyAttorney for Petitioners

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    CERTIFICATE OF SERVICE

    I hereby certify that on January 20, 2011, I electronically filed the foregoing

    Petition for Rehearing and Rehearing En Banc with the Clerk of the Court for the

    United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF

    system.

    I certify that all participants in the case are registered CM/ECF users and that

    service will be accomplished by the appellate CM/ECF system.

    /s/ Jill C. Dozark

    Jill C. Dozark

    22